Kondadan Alavi vs Eramban Kunhipathumma
2022 Latest Caselaw 7167 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MRS. JUSTICE M.R.ANITHA
  THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
                       RSA NO. 209 OF 2022
   AGAINST THE JUDGMENT AND DECREE DATED 25.11.2021 IN AS
    9/2021 OF SUB COURT, TIRUR.     AGAINST THE DECREE AND
                 JUDGEMENT DATED 27.01.2021 IN
        OS 39/2019 OF MUNSIFF COURT, PARAPPANANGADI
APPELLANT/DEFENDANT :

            KONDADAN ALAVI
            AGED 58 YEARS
            S/O. MAMMADALI, NATIONAL ELECTRICALS AND
            SANITARIES, SHOP NO. PP.12/497, 498, PARAMBIL
            PEEDIKA P.O., VIA. VELIMUKKU,, MALAPPURAM, PIN-
            676317.
            BY ADVS.
            DEEPA NARAYANAN
            K.SUJAI SATHIAN
            MARY LIYA SABU
            VISMAYA VINOD


RESPONDENT/PLAINTIFF:

            ERAMBAN KUNHIPATHUMMA
            AGED 83 YEARS
            W/O. KALATHINGAL MOHAMMED HAJI, ALUNGALTHODI
            HOUSE, KOOMANNA VALIYAPARAMBU, OLAKARA P.O.,
            TIRURANGADI, MALAPPURAM, PIN-676306, REPRESENTED
            BY PA HOLDER P.K.MOOSSAKUTTY, 64 YEARS, S/O.
            MOHAMED, MADHURANGOTT HOUSE, PUTHUKODE P.O.,
            RAMANATTUKARA, MALAPPURAM, PIN-673633.

            BY ADV T.M.ABDUL LATHEEF
     THIS    REGULAR   SECOND   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 20.06.2022, THE COURT ON 23.06.2022 DELIVERED
THE FOLLOWING:
 R.S.A.No.209/2022
                                                 2




                                   M.R.ANITHA, J
                                   ******************
                               R.S.A.No.209 of 2022
                    ---------------------------------------------------
                    Dated this the 23rd day of June, 2022




                                     JUDGMENT

Appellant is the respondent/defendant/tenant and

respondent is the petitioner/landlord. The R.S.A has been filed

against the concurrent findings of the courts below directing

eviction of the appellant from the plaint schedule building with a

direction to pay arrears of rent and damages. For convenience,

parties would be referred as per their status before the Munsiff's

Court. O.S.No.39/2019 has been filed before the Munsiff's Court,

Parappanangadi by the plaintiff for eviction, realisation of arrears

of rent as well as for damages for use and occupation of the

plaint schedule building.

R.S.A.No.209/2022

2. (Parties would be referred as per their status before

the trial court). Plaint schedule building has been let out to the

defendant on a monthly rent of Rs.1,840/- per month for

conducting business in Electronics. The rent upto February, 2018

has been remitted in the account of the plaintiff. Thereafter he

committed default in payment of rent. Son of the plaintiff who

was working abroad had come down to the native place and is

having no job or income and he intends to start business in the

plaint schedule building and hence defendant was demanded to

vacate the premises. Since he did not heed to the request,

registered notice was issued. For that reply was sent stating

untenable contentions. The defendant is not doing any business

in the premises. The tenancy have been terminated with effect

from 31.12.2018. He is still in possession of the premises and is

liable to pay damages for use and occupation and Rs.1,000/- per

day has been claimed.

3. The defendant filed written statement admitting the

tenancy arrangements and contended that the building was taken

on lease from the plaintiff before 35 years and Rs.11,500/- was R.S.A.No.209/2022

paid as advance to the plaintiff at the time of inception of

tenancy. The present rate of rent is Rs.1,840/- per month and it

is being remitted in the account maintained by the plaintiff in

Peruvalloor Service Co-operative Bank. The collection agent is not

receiving rent from the defendant. The defendant is ready to pay

the rent at the above rate. In February, 2018 there was a

demand of enhancement of rent to the tune of Rs.10,000/- and

to pay Rs.1,00,000/- more as advance by the plaintiff and his

men. Defendant is a protected tenant and he has spent

Rs.5,00,000/- for furnishing the building. He is using the plaint

schedule building for storing the articles and is conducting the

business opposite to the plaint schedule building. Plaintiff has no

right to terminate the tenancy with effect from 31.12.2018 and

he is not entitled to get any amount towards damages for use

and occupation. Hence he prays for dismissal of the petition.

4. PW1 was examined and Exts.A1 to A9 were marked

from the side of the plaintiff. DW1 and DW2 examined and

Exts.B1 to B4 were marked from the side of defendant. Exts.C1

and C2 series and Exts.X1 to X6 were also marked. R.S.A.No.209/2022

5. Learned Munsiff on evaluating the evidence and

facts and circumstances directed the plaintiff to put the

defendant in possession of the building within one month from

the date of order and further directed the defendant to pay

Rs.18,400/- with interest at 6% per annum from January, 2019

till realisation. He was also directed to pay damages for use and

occupation at the rate of Rs.1,000/- per day from January, 2019

till the date of vacating the plaint schedule building.

6. Aggrieved by the judgment and decree passed by the

Munsiff, the defendant filed A.S.No.9/2021 before the

Subordinate Judge's Court, Tirur. The appellate court on re-

appreciation of evidence and facts and circumstances partly

allowed the appeal modifying the amount of damages as

Rs.2,025/- per month instead of Rs.1,000/- per day fixed by the

Munsiff. Defendant was also given five months time to vacate

the room. In all other aspects, judgment and decree passed by

the trial court was confirmed.

7. Aggrieved by the judgment and decree passed by

the appellate court, appellant/defendant approaches this Court in R.S.A.No.209/2022

this Regular Second Appeal.

8. Respondent/plaintiff appear through Adv.Abdul

Latheef. Heard both sides.

9. When the matter came up for admission, an interim

order was passed in I.A.No.01/2022 on 04.04.2022 with direction

to keep in abeyance the execution proceedings and subsequently

the interim order has been extended.

10. Substantial questions of law raised by the appellant

in the memorandum of appeal is as follows:

a) Whether the Courts below erred in not determining the

issue of the applicability of Kerala Buildings (Lease and Rent

Control) Act, 1965 in the area in plaint schedule room is situated

in the light of Exhibits B1 to B4 series?

b) Whether the Courts below erred in not dismissing the

Original suit as the plaintiff ought to have instituted a Rent

Control Petition?

c) Has the Courts below erred in proper appreciation of

the evidence available as to the maintainability of the case and

as to whether the tenancy is legally terminated?" R.S.A.No.209/2022

11. Admittedly, the defendant is a tenant of the plaintiff

and Ext.A1 is the certified copy of jenm assignment deed proving

the title of the plaintiff. Ext.A2 is the registered lawyer notice;

Ext.A2(a) is the postal receipt; Ext.A2(b) is the postal

acknowledgment card; Ext.A3 is the reply notice with

acknowledgment card and postal receipt. It has been

concurrently found by the trial court as well as the first appellate

court that no contention as to the legality of the notice was put

forth by the defendant. As per Section 106(1) the lease

arrangement between the plaintiff and defendant being a lease

from month to month, it is terminable on the part of either lesser

or lessee by giving 15 days notice. So, on determination of the

lease the lessee is bound to put the lessor in possession of the

building.

12. The only argument advanced by the learned counsel

for the appellant is that the Kerala Building (Lease and Rent

Control) Act, 1965 (for short 'the Act') is applicable to the area

and hence the original suit filed by the plaintiff is not

maintainable in law. He would rely on Exts.B1 to B4 i.e. certified R.S.A.No.209/2022

copy of Rent Control Petition and the execution petition filed by

the plaintiff against other tenants in nearby buildings. According

to him, Rent Control Act is in force in the Panchayat and hence

the original suit filed is not maintainable. In view of the specific

contention raised by the appellant in this regard

appellant/defendant was directed to produce the gazette

notification to show that the Act has been made applicable in the

Grama Panchayat where the plaint schedule building situates.

But, he could not produce any material to substantiate that

Panchayat where the plaint schedule building is situated has been

notified under the Act. It is true that the learned counsel for the

respondent produced copy of letter and reply received under the

Right to Information Act to show that Peruvalluvar Grama

Panchayat is not notified making the Act applicable. However,

the information received under the R.I.Act cannot be admitted in

evidence without proper proof. Anyway, the defendant also could

not produce any notification to prove the application of the Act in

the area where the building situates. Burden is upon the

defendant under Section 101 illustration(b) of the Indian R.S.A.No.209/2022

Evidence Act, 1872. On failure to discharge the burden an

adverse inference can be drawn to the effect that the Panchayat

where the building situates is not a notified area.

13. The Appellate Court in the judgment has also been

categorically found that in the written statement the defendant

has not raised such a contention. No notification could be

produced before the first appellate court also. So, as has been

rightly found by the first appellate court, Ext.B1 to B4 will not in

any way aid the defendant to contend that the Civil court has no

jurisdiction to entertain the suit unless and until he could

establish by producing convincing materials to prove that the

building is situated in a notified area by the Government making

the Act applicable. So, the contention of the defendant/appellant

that the suit is not maintainable since the area is notified by the

Government making the Act applicable is not at all sustainable in

law.

14. Power of attorney holder of plaintiff was

examined as PW1 and deposed about the plan of the son of

plaintiff to start business in the building. It has been found R.S.A.No.209/2022

concurrently that rent of the building is in arrears from March

2018 till the termination of tenancy at the rate of Rs.1,840/- per

month and plaintiff is entitled to realise Rs.18,400/- with 6%

interest per annum from January 2019 till realisation. It has also

been found by the two fact finding bodies that tenancy has been

validly terminated and defendant is liable to put the landlord in

possession of the building. I find no reason to interfere with the

above findings. Trial court fixed damages towards use and

occupation as Rs.1,000/- per day, the first appellate court has

reduced the amount to Rs.2,025/- per month. That seems to be

quite reasonable and no interference is called for in that regard

also.

15. So, the appeal is found to be devoid of any merit

and there is no question of law much less any substantial

question of law so as to entertain the second appeal. However,

the appellant is given one month's time to vacate the plaint

schedule building on condition that the appellant/defendant would

file an undertaking affidavit within ten days before the trial court

agreeing to surrender the vacant possession of the plain t schedule R.S.A.No.209/2022

building within one month starting from this date and till the date of

actual surrender he will pay Rs.2,025/- (Rupees two thousand

and twenty five only) per month towards damages for use and

occupation.

In the result, appeal dismissed. No cost.

(sd/-) M.R.ANITHA, JUDGE

jsr/23/6/2022

True copy P.S to Judge