IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 361 of 1999(B)
1. BI LEATHER FOOTWEAR
... Petitioner
Vs
1. P.M.ROSY
... Respondent
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.SIBY MATHEW
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :15/12/2010
O R D E R
P.S. GOPINATHAN, J.
= = = = = = = = = = =
S.A. NO. 361 OF 1999
= = = = = = = = = = = = =
DATED THIS, THE 15TH DAY OF DECEMBER, 2010.
J U D G M E N T
The appellant is the defendant in O.S. 511 of 1994 on the file of the
Subordinate Judge’s Court, Ernakulam. Respondents 1 and 2, who are the
plaintiffs, contended that building bearing No. XXXVII/386 (old) of
Corporation of Cochin belonged to their predecessor and it devolved upon
them. The appellant herein is a tenant with liability to pay monthly rent at
the rate of Rs. 370/- and that the rent up to 15.6.1991 was paid and
thereafter it was defaulted till 15.6.1994. With these pleadings, they sought
for a decree for realisation of Rs. 13,320/- with interest at the rate of 18%
per annum.
2. The appellant contended that he is not a tenant under respondents
1 and 2 and that he is a tenant under Sebi Elias who is now impleaded as
additional third respondent in the second appeal and that the rate of rent was
Rs. 550/- and as directed by the third respondent herein, he had been
depositing the rent in State Bank of India, M.G. Road Branch, the Manager
of which was examined as PW.2 and there is no landlord – tenant
S.A. 361/1999 2
relationship between the appellant and respondents 1 and 2 and that the
appellant is not liable to pay respondents 1 and 2 any amount towards rent.
3. The trial court raised necessary issues and the parties were sent
for trial. On the side of respondents 1 and 2, PWs 1 to 3 were examined
and Exts.A1 to A6 were marked. The appellant was examined as DW.1.
Ext.X1 to X4 were marked through PW.2. During the course of the
evidence, respondents 1 and 2 had developed a case that by virtue of
Ext.A1 there is an agreement to exchange the properties between
respondents 1 and 2 on one side and the third respondent on the other side
and by virtue of Ext.A1, the respondents 1 and 2 had got title over the
building which the appellant is occupying as a tenant. Ext.A1 document
was rejected by the courts below concurrently on finding that the said
document was not at all registered and hence it is not reliable to come to a
conclusion regarding the title of the respondents 1 and 2 over the building
which the appellant was occupying as tenant. However, the trial judge
found that since there is a direction to PW.2 to transfer at the rate of Rs.
370/- per month to the account of the first respondent, copy of which is
marked as Ext.X1, the respondents 1 and 2 are entitled to a decree as
claimed in the plaint. Accordingly, the suit was decreed.
4. In appeal, the learned District Judge, arrived at a finding that the
S.A. 361/1999 3
first respondent is the wife of the third respondent and the second
respondent is the son born to the first respondent in third respondent. To
conclude so, the learned District Judge had given reliance to Ext.A5 letter.
In fact, there is no pleadings to that effect. Now the learned counsel for
respondents 1 and 2 fairly conceded that there is no pleading at all that the
first respondent is the wife of the third respondent or the second respondent
is the son of the first respondent born through the third respondent. Learned
counsel submitted that the third respondent had not at all married the first
respondent and the first respondent was engaged as a maid servant to look
after the mother of the third respondent and he had gone to Australia and
to make the payment, the third respondent had made arrangements with the
Bank to transfer Rs. 370/- from Ext.X2 account maintained in the name of
the 3rd respondent to Ext.X1 account maintained in the name of the first
respondent. The evidence of PW.2, the Manager of the Bank would fully
support the defence set up by the third respondent as well as the appellant.
Though respondents 1 and 2 had got a case that the land where the building
which was let out to the appellant was situated belonging to the predecessor
of respondents 1 and 2 and it was let out to the appellant by the predecessor,
there is no supporting evidence at all. So, the very case of the respondents
1 and 2 as landlords of the building in which the appellant is occupying as a
S.A. 361/1999 4
tenant collapses. The evidence of PW.2 itself would belie the claim of
respondents 1 and 2. Respondents 1 and 2 cannot escape from the evidence
of PW.2 as he was brought at the instance of respondents 1 and 2
themselves. Even if it is assumed that the third respondent had entrusted
the Bank to transfer Rs.370/- from Ext.X2 account to Ext.X1 account
maintained by the first respondent, that would not entitle respondents 1 and
2 to claim any amount as rent from the appellant. The so called
arrangement made by the third respondent with the Bank would not create
any liability on the side of the appellant to pay the rent to respondents 1 and
2. On going by the judgments of the courts below and evidence on record
and after hearing the arguments on either side, I find that the decree and
judgment under challenge is contrary to the pleadings and evidence. In
that sense, it is perverse and not at all sustainable. Respondents 1 and 2
totally failed to establish any landlord-tenant relationship between
themselves on one side and the appellant on the other side. There is no
privity of contract at all between the appellant and respondents 1 and 2
regarding any payment. The evidence on record would show that the
appellant had succeeded to establish the right of the 3rd respondent over
the building in which the appellant is residing as a tenant. He is not liable
to pay any rent to respondents 1 and 2. The liability of the appellant is to
S.A. 361/1999 5
pay rent to the 3rd respondent to whom the building belongs or to deposit
the rent in the account of the 3rd respondent. The decree and judgment
under challenge, being contrary to the pleadings and evidence, are liable to
be set aside.
In the result, the appeal is allowed and the decree and judgment under
challenge are set aside. The parties are directed to suffer their respective
costs. The Bank guarantee furnished by the appellant shall stand
discharged.
P.S. GOPINATHAN,
(JUDGE)
Knc/-
S.A. 361/1999 6
P.S. GOPINATHAN, J.
= = = = = = = = = = =
S.A. NO. 361 OF 1999
= = = = = = = = = = = = =
DATED : 15TH DECEMBER, 2010.
J U D G M E N T