C.P. Najma vs Fr. Paul Percy D Silva
2021 Latest Caselaw 19564 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 17TH DAY OF SEPTEMBER 2021/26TH BHADRA, 1943
                         RSA NO.1299 OF 2019
 Against the judgment and decree dated 12.11.2019 in A.S.No.158/2018
on the file of the first Additional District Court, Kozhikode which arose out
 of the judgment and decree dated 6.10.2018 in O.S.No.91/2016 on the
              file of the Principal Munsiff's Court-I, Kozhikode
APPELLANT/APPELLANT/DEFENDANT:

             C.P.NAJMA,
             AGED 52 YEARS,
             W/O.MUHAMMED SYED, "THASNEEM", P.O.PAYYANAKKAL,
             KOZHIKODE-673 003.
             BY ADVS.
             SRI.A.V.M.SALAHUDDEEN
             SMT.A.D.DIVYA
             SMT.JUHI.A.SALAHUDDEEN
             SMT.VIDYAJITH.M.


RESPONDENT/RESPONDENT/PLAINTIFF:

             FR.PAUL PERCY D'SILVA,
             AGED 43 YEARS,
             S/O.CYRIL D'SILVA,
             ROMAN CATHOLIC DIOCESE OF CALICUT,
             BISHOP'S HOUSE, MALAPARAMBA,KOZHIKODE-673 001.
              BY ADVS.
               SRI.JOJU KYNADY
               SRI.TOM THOMAS KAKKUZHIYIL
               SRI.A.ABDUL NABEEL


      THIS     REGULAR     SECOND    APPEAL     HAVING     COME    UP    FOR
ADMISSION      ON    15.09.2021,       THE     COURT     ON    17.09.2021
DELIVERED THE FOLLOWING:
 R.S.A.No.1299 of 2019


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                          JUDGMENT

This Regular Second Appeal is directed against the

judgment and decree dated 12.11.2019 in

A.S.No.158/2018 on the file of the first Additional District

Court, Kozhikode (hereinafter referred to as 'the first

appellate court') confirming the judgment and decree

dated 6.10.2018 in O.S.No.91/2016 on the file of the

Principal Munsiff's Court-I, Kozhikode (hereinafter referred

to as 'the trial court'). The appellant is the defendant in

the original suit and the respondent is the plaintiff therein.

For the sake of brevity, the parties are hereinafter referred

to as referred in the original suit.

2. The defendant is the tenant who was sued by

the landlord for possession and rent, which, according to

the landlord, had fallen due from 1.1.2016. There were

many contentions urged by the tenant. There was a R.S.A.No.1299 of 2019

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decree for eviction made by the trial court which was

confirmed by the first appellate court. The defendant was

also directed to pay an amount of Rs.3,450/- with interest

at the rate of 6% per month and also to pay arrears of

rent at the rate of Rs.1,150/- per month from 1.1.2016 till

she vacates the building with interest at the rate of 6%.

3. Initially the plaintiff filed R.C.P.No.114/14 before

the Additional Rent Control Court-I, Kozhikode under

Section 11(2)(b) and 11(3) of the Kerala Building (Lease

and Rent Control) Act. In the said proceedings, the

defendant admitted the rent. However, she disputed

execution of the agreement.

4. The building originally belonged to Roman

Catholic Diocese of Calicut. The building owned by the

Diocese is exempted from the provisions of the Kerala

Building (Lease and Rent Control) Act. Therefore, the RCP

was withdrawn.

R.S.A.No.1299 of 2019

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5. The plaintiff issued statutory notice on

8.12.2015 to the defendant terminating the lease granted

to her. A reply was received from the defendant. Since the

defendant did not surrender the building, the plaintiff filed

the present suit.

6. The defendant filed written statement

contending that the Roman Catholic Diocese, Calicut is

neither a legal person nor an entity capable to maintain a

suit of the present nature. There is no landlord-tenant

relationship between the plaintiff and the defendant. No

suit can be instituted based upon an unregistered lease

deed. There is no valid termination of the tenancy. The

plaintiff is not entitled to get any arrears of rent as

claimed.

7. Necessary issues were framed by the trial court.

On the side of the plaintiff, PW1 was examined and R.S.A.No.1299 of 2019

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marked Exts.A1 to A9. On the side of the defendant, DW1

was examined. No documentary evidence was adduced.

8. The trial court decreed the suit. Challenging the

judgment and decree an appeal was taken. The appeal

was dismissed. Feeling aggrieved, this second appeal has

been preferred.

9. The learned counsel for the appellant contended

that the plaintiff in his individual capacity is not entitled

for exemption from the provisions of Act 2 of 1965. It was

further contended that Section 106 of the Transfer of

Property Act (hereinafter referred to as 'the TP Act') was

not complied with before instituting the suit.

10. The building belonging to the Roman Catholic

Diocese of Calicut has been exempted from the purview of

the Act 2 of 1965. Hence it is not necessary to seek an

eviction through the Rent Control Proceedings. Although a

rent control proceeding was initiated, later it was R.S.A.No.1299 of 2019

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withdrawn.

11. The plaintiff had issued Ext.A6 notice to the

defendant on 28.1.2014. The defendant issued Ext.A7

reply. In Ext.A7 reply notice, the defendant had admitted

her status as a tenant under the plaintiff. Further, the

plaintiff issued another notice on 8.12.2015 to the

defendant. The defendant had issued Ext.A9 reply notice

on 18.12.2015 to the plaintiff. In view of the above

circumstances, both the trial court and the first appellate

court concurrently held that the suit for vacating the

premises with arrears of rent is maintainable.

12. Regarding notice under Section 106 of the

Transfer of Property Act, it is seen from the postal

acknowledgment appended to Ext.A8 copy of notice that

its original was served upon the defendant on 9.12.2015.

Thereafter the suit was filed on 28.1.2016 after the expiry

of 15 days as envisaged under Section 106(1) of the TP R.S.A.No.1299 of 2019

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Act. Since tenancy has been admitted it could be only

from month to month. There are no materials before this

Court to hold that the building was given on lease for

agricultural or manufacturing purpose.

13. The cause title of the plaintiff was subsequently

amended by an order in I.A.No.1918/2017. Originally, the

suit was filed by the Roman Catholic Diocese, Calicut

represented by its Procurator. The suit was filed in the

name of the then Procurator representing the Diocese.

Roman Catholic Diocese was duly registered under the

Societies Registration Act. In Ext.A7 reply notice, the

tenancy was admitted.

14. The Procurator of the plaintiff was examined as

PW1 and the husband of the defendant was examined as

DW1. When examined before court, DW1 admitted the

tenancy in respect of the plaint schedule building. It was

also disclosed that the plaintiff sent another notice on R.S.A.No.1299 of 2019

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8.12.2015 to the defendant for which the defendant

issued Ext.A9 reply. In Ext.A9 also the defendant admitted

the jural relationship between the parties as landlord and

tenant.

15. According to the learned counsel for the

appellant, the Diocese of Calicut is the owner of the

tenant premises as admitted by the plaintiff and therefore

the plaintiff cannot file the suit in his personal capacity. To

put it differently, the learned counsel for the appellant

contended that the institution should be a party to the

suit.

16. The Diocese of Calicut is registered under the

Societies Registration Act, 1860 (hereinafter referred to as

'the Societies Act'). Section 6 of the Societies Act is

relevant in this context which is extracted as under:-

"6. Suits by and against societies.--Every society registered under this Act may sue or be sued in the name of the president, chairman, or R.S.A.No.1299 of 2019

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principal secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion:

Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant."

17. Relying on Illachi Devi (D) by Lrs. and

others v. Jain Society, Protection of Orphans India

and others [2003 KHC 1614] the learned counsel for the

respondent contended that the Procurator is competent to

maintain a suit for eviction for and on behalf of the

Diocese. A bare perusal of Section 6 of the Societies Act

would show that a society registered under the Societies

Act as contra distinguished from a company registered R.S.A.No.1299 of 2019

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under the Company Act cannot sue in its own name. It is

to be sued in the name of the President, Chairman or

Principal Secretary or Trustees as shall be determined by

the Rules and Regulations of the Society and, in default of

such determination, in the name of such person as shall

be appointed by the governing body for the occasion. It is

therefore, not correct to contend that it is capable of suing

or being sued in its own name. Similar is the position

decided by the Apex Court in Illachi Devi's case (supra).

Ext.A1 certified copy of Memorandum of Association of

Roman Catholic Diocese, Calicut, Ext.A2 certified copy of

Rules and Regulations of Association of Roman Catholic

Diocese, Calicut and certified copy of Certificate of

Registration of Association of Roman Catholic Diocese,

Calicut would irresistibly lead to the inference that the

plaintiff is legally competent to maintain the suit. Initially,

the Ex.Procurator instituted the suit which has been R.S.A.No.1299 of 2019

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continued by the present Procurator. There is no illegality

in maintaining the suit as contended by the learned

counsel for the appellant.

18. Further, the contentions raised by the learned

counsel for the appellant are technical in nature. The

defendant was served with notice under Section 106 of

the TP Act. She received the notice and admitted the

tenancy. Secondly, the Procurator of the Diocese is

competent to sue under Section 6 of the Societies Act.

Initially, suit for eviction was filed to evict the defendant.

It was withdrawn. The present suit was instituted

thereafter. The contentions raised are technical in nature

to non-suit the plaintiff. In a case of this kind, attempt

should be made to avoid multiplicity of suits and the

landlord should not be driven to file another suit with all

the attendant delay, trouble and expense. What would be

given to the plaintiff in this case is possession of the R.S.A.No.1299 of 2019

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property along with arrears of rent to which he may be

found to be entitled. Hence, this Court is of the view that

the plaintiff should not be denied relief merely because

the defendant had set up untenable contentions to avoid

an eviction proceeding. The defendant has not

surrendered possession of the property even after an

eviction proceeding under the Rent Control Act or in the

suit for eviction. It is her duty to surrender the premises

subsequent to the decree passed in this case. She has

succeeded in prolonging the case for the last three years.

19. Sub-section (1) of Section 100 of CPC

contemplates that an appeal shall lie to this Court if it is

satisfied that the case involves a substantial question of

law. The substantial question of law is required to be

precisely stated in the memorandum of appeal. The

formulation of substantial question of law in terms of the

proviso arises only if there are some questions of law and R.S.A.No.1299 of 2019

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not in the absence of any substantial question of law.

Such substantial questions of law do not arise for

consideration in this appeal. The issue of notice under

Section 106 of the TP Act and the competency of the

plaintiff to maintain the suit are not substantial questions

of law as contended by the learned counsel for the

appellant. Both issues have already been decided rightly

by the trial court and the first appellate court citing

various precedents of this Court and the Apex Court.

Hence, the appeal is liable to be dismissed in limine.

In the result, the Regular Second Appeal is

dismissed. However, the appellant is given six months'

time to vacate the premises if she gives an undertaking

before the executing court agreeing to surrender the

premises within six months without any objection

whatsoever preferably within two weeks from today. In

case such an undertaking by way of an affidavit by the R.S.A.No.1299 of 2019

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appellant, executing court is directed to postpone the

delivery for six months from today. There will be no order

as to costs. Pending applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE skj