IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 784 of 1996(B)
1. OMANA AMMA JANAKI AMMA
... Petitioner
Vs
1. THE SADANADAPURAM AVADHOOTHASRAM
... Respondent
For Petitioner :SRI.C.V.VASUDEVAN
For Respondent :SRI.P.G.PARAMESWARA PANICKER (SR.)
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :13/07/2009
O R D E R
P.S.GOPINATHAN, J.
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SA.No.784 of 1996.
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Dated this the 13th day of July, 2009.
J U D G M EN T
The appellants are the legal heirs of the defendant in OS.No.213 of
1996 on the file of the Munsiff, Kottarakkara. The respondent herein
instituted the above suit against against the predecessor of the appellants
seeking a decree for eviction with arrears of rent with a pleading that the
plaint schedule property was let out to the predecessor of the appellants by
virtue of Ext.A1 rent deed dated 6.2.1951 for a monthly rent of Rs.20/- for a
period of one year and that even after the expiry of the period of the lease,
the deceased defendant was holding over as a tenant. The respondent while
so, filed a petition as RCP.No.1/1979 before the Rent Controller,
Kottarakkara seeking an order of eviction under section 11 of the Kerala
Buildings (Lease and Rent Control) Act (hereinafter referred to as the ‘Act’).
That petition was dismissed. Against that, an appeal as BRCAS.No.4/1980
was preferred. That appeal was also dismissed. Thereupon a revision
petition was filed before the District Court as RCRP.No.1/1981 which was
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also dismissed. Assailing that order CRP.No.608/1982 was filed before this
Court. While so, Ext.A9 notification was issued by the Government
whereby the building owned by the respondent was exempted from the
purview of the ‘Act’. Thereupon the respondent sought permission of this
Court to withdraw the revision petition with a plea that the revision petition
had become infructuous. Accordingly, that revision petition was disposed
off. Thereafter Ext.B1 notice dated 12.5.1986 was issued to the original
defendant terminating the tenancy and calling upon him to surrender vacant
possession of the shop room. But, the building was not surrendered.
Whereas Ext.A3 reply with untenable contentions were caused. It was also
contended by the first respondent that the rent in respect of the plaint
schedule building was kept in arrears from 1.4.1986. With these pleadings,
the suit was instituted.
2. The deceased defendant filed a written statement contending
that the notification mentioned in the plaint is as a result of a fraud and it is
void and that the transaction in between the first respondent and the first
defendant is prior to the notification and so the notification is not binding
upon the plaint schedule property and that it is incorrect to say that the civil
revision petition before this Court has become infructuous and that in view
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of the order in RCP 1/79, the suit is barred by resjudicata and that the
tenancy was not properly terminated and that the notice is not a valid one
and that the defendant was not liable to be evicted and that since the first
respondent refused to accept the rent and it has become arrears and prayed
for dismissal of the suit.
3. After raising the issues, parties were sent for trial. On the side
of the respondents, the manager of the respondent was examined as Pw1
and Exts.A1 to A9 were marked. The deceased defendant did not adduce
any oral evidence. The notice caused by the respondent was marked as
Ext.B1. The trial court on appraisal of the evidence arrived at a finding that
by virtue of Ext.A9 notification the plaint schedule property is exempted
from the purview of the ‘Act’ and that the tenancy was properly terminated
and that there is arrears of rent and that defendant is liable to be evicted.
Consequently, the suit was decreed.
4. Assailing the judgment and decree, an appeal as AS.No.20 of
1988 was preferred. The learned Subordinate Judge, Kottarakkara by
judgment and decree dated 25.11.1995 concurred with the trial court and the
appeal was dismissed. Against the concurrent findings of the courts below,
this second appeal was preferred.
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5. The following are the substantial questions of law raised in the
appeal memorandum.
A. Does Ext.A1 rent deed and its terms survive after the
shop room was taken possession by the official
receiver appointed in OS.No.62/1962 on the file of
the District Court, Kollam.
B. Can the plaintiff treat the defendant as a holding over
tenant after the official receiver from 20.10.1963 to
1.10.1970. Can the plaintiff reply on Ext.A1 after
receiver’s possession.
C. Is the suit hit by operation of S.106 of the Transfer of
Property Act.
D. Is the tenancy validly terminated.
E. Is Ext.B1 notice legal and valid.
F. Has not the plaintiff made the defendant a defaulter in
payment of rent by refusing to accept the rent sent by
money order. On whom the burden lies.
G. Are the decisions rendered by the rent control court
made mention in the judgment operate as resjudicata
for a relief of recovery of possession of the shop room.
H. Is Ext.A9 notification bonafide or in public interest or
passed to get over the adverse decisions rendered by the
rent control court.
I. Did not the courts below err in not considering the case
of the defendant in a true perspective.
6. Having gone through the pleadings, evidence and hearing the
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learned counsel on either side, I find that the deceased defendant, the
predecessor of the appellants was a tenant under the respondent by virtue of
Ext.A1 lease deed. Though the plaint schedule property was taken
possession by the official receiver in OS.No.61/1962, the nature of the
transaction between the respondent and the deceased defendant was not
disturbed. More than that, the official receiver surrendered the plaint
schedule property back to the respondent. There is nothing to show that
taking up of possession by the official receiver any way infringed with any
of the rights of the respondent or that it had enured to any additional right
to the tenant. So irrespective of taking up of possession of the plaint
schedule property by the receiver, the deceased defendant continued to hold
on as a tenant under Ext.A1 lease deed. Grounds No.A and B are relating to
the taking up of possession by the receiver. So, no question of law is
involved as regards the taking up possession of the plaint schedule property
by the receiver so as to be adjudicated in this second appeal.
7. Grounds No.C, D and E are relate to the question of termination
of tenancy. Going through Ext.B1 it is seen that the intention of the
respondents is specific and expressed in black and white and there is
demand to surrender possession of the plaint schedule property. Due time
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was given for surrender. The defendant did not care to adduce any evidence
to show that the tenancy was not properly terminated. Ext.B1 notice is
dated 12.5.1986. The suit was filed on 30.6.1986. The courts below had
gone through the notice and arrived a conclusion that Ext.B1 is a valid
notice terminating the tenancy. In the appeal memorandum, though it is
vaguely stated that Ext.B1 is invalid as it didn’t satisfy the conditions in
Section 106 of the Transfer of Property Act, there is no whisper as to which
condition was violated or for what reason it is invalid. So the said plea is a
hollow one and deserves no consideration. The learned counsel for the
appellant could not point out any reason to conclude that the tenancy was
not properly terminated or that there is any defect in Ext.B1. The finding of
the courts below regarding the termination of tenancy is a question of fact
and no question of law is involved especially in the absence of any material
to conclude that Ext.B1 notice in any way defective. Hence these grounds
are found against the appellants.
8. Ground No.F is relating to the arrears of rent. It is submitted by
the learned counsel for the appellant that the rent happened to be in arrears
because of the refusal by the respondent and now that was cleared.
9. Ground No.G urged is that the order in RCP.1/79 would
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operate as resjudicata. It is admitted that while Ext.A9 notification was
issued, the rent control proceedings were not finalised. Pending civil
revision petition before this Court, Ext.A9 notification exempting the plaint
schedule property from the purview of the Kerala Buildings (Lease and
Rent Control) Act was issued. It is thereupon the respondents preferred the
above suit before the lower court. So the rent control proceedings had not
come to a finality so as to enable the appellant to contend that the suit was
in any way barred by resjudicata. Adding to that, the main object of the
‘Act’ is to regulate the leasing of buildings and to control the rent of such
buildings. It also provides procedures for eviction of the buildings that
comes within its purview. Any order passed under that ‘Act’ would ceased
to operate, for any purpose other than to show that there was such
proceedings, once the building is exempted from its purview by notification
issued in exercise of the powers conferred under Sec.1(3) of that ‘Act’. An
order dismissing petition for eviction under Sec.11 of the ‘Act’ would not
operate as resjudicata, in a suit for eviction instituted after exempting the
building from the purview of the ‘Act’.
10. Though it is alleged that Ext.A9 was issued as a result of fraud
and hence void, no evidence was adduced to show that there was any fraud
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in issuing Ext.A9 or any way void. All the questions of law urged by the
appellant lack substance. The appeal is devoid of merit. Accordingly it is
dismissed. No costs.
P.S.GOPINATHAN, JUDGE.
Kvs/-
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P.S.GOPINATHAN, J.
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SA.No.784 of 1996.
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JUDGMENT
13th July, 2009.