IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 776 of 2007()
1. SEBI JOSEPH, S/O.LATE N.V.JOSEPH,
... Petitioner
Vs
1. THE ERNAKULAM DISTRICT POSTAL TELECOM
... Respondent
For Petitioner :SRI.GEORGE ZACHARIAH ERUTHICKEL
For Respondent :SRI.R.LAKSHMI NARAYAN(CAVEATOR)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/10/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 776 OF 2007
............................................
DATED THIS THE 19th DAY OF OCTOBER, 2007
JUDGMENT
Defendant in O.S.773 of 2003 before Additional Munsiff
Court, Ernakulam is the appellant. Plaintiff is the respondent.
Respondent instituted the suit seeking recovery of possession of
plaint schedule building. Building belongs to respondent Co-
operative Society which is exempted under the provisions of
Kerala Building Lease and Rent Control Act as per notification
S.R.O 1225/79, published in the gazette dated 5.10.1979. The
plaint schedule building was obtained on rent by Joseph, father
of appellant. On his death, appellant continuing possession of
the building paid rent to respondent society. Respondent sent a
notice, copy of which was produced as Ext.A4, terminating the
tenancy and demanding surrender of possession. Appellant did
not surrender. Therefore suit was instituted. Appellant resisted
the suit contending that respondent is not exempted from the
provisions of Kerala Buildings (Lease and Rent Control) Act and
he received a notice sent by respondent demanding vacant
possession and though notice was issued under the provisions of
Transfer of Property Act, a resolution was passed by respondent
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to take possession before the expiry of notice and it is illegal. It
was also contended that the notice is not in compliance with the
mandatory provisions of Section 106 of Transfer of Property Act.
It was therefore contended that respondent is not entitled to the
decree sought for.
2. Learned Munsiff, on the evidence of PWs 1 and 2, DW1
and Exts.A1 to A6, granted a decree directing appellant to
surrender vacant possession of the building within three months.
Appellant challenged the decree and judgment before District
Court, Ernakulam in A.S.348 of 2005. Learned Additional
District Judge, on reappreciation of evidence, confirmed the
findings of learned Munsiff and dismissed the appeal. It is
challenged in the second appeal.
3. Learned counsel appearing for appellant and learned
counsel appearing for respondent, who appeared by filing a
caveat were heard.
4. The argument of learned counsel appearing for
appellant is that there is no valid termination of tenancy as
provided under Section 106 of Transfer of Property Act. It was
argued that the allegation in the plaint was that a registered
notice demanding vacant possession was issued on 12.12.2002
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and it was received by appellant on 13.12.2002 and the period of
tenancy expired 27.12.2002 and Ext.A4 was produced later
which is not in confirmity with the pleadings as the said notice
demands surrender of possession within 30 days and therefore
Ext.A4 is not the notice which was sent to the appellant. It was
also argued that even though Ext.A4, copy of the notice was
subsequently produced, plaint was not amended and therefore as
per the plaint, tenancy was terminated on 27.12.2002 and
therefore Ext.A4 should not have been relied on by the courts
below. Relying on the decision of Apex Court in Ranade V.
Union of India(1964 SC 24) and High Court of Karnataka in
S.S.Yelimeli V. Chanabasappa(AIR 1979 Karnataka 52), it was
argued that when there is a contradiction between pleading and
evidence, evidence cannot be looked into and evidence contrary
to the pleading are to be eschewed and without proper
amendment of the plaint Ext.A4 is not a valid notice. Learned
counsel argued that in such circumstances, the decree granted
is unsustainable.
5. Learned counsel appearing for respondent argued that
what was pleaded in the plaint was that a notice demanding
surrender of possession was issued on 12.12.2002 and as per the
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notice, the tenancy was determined by 15 days notice and that is
why it was stated that tenancy expired on 27.12.2002 and there
is no pleading that surrender of possession was demanded on
27.12.2002 and Ext.A4 is the copy of the notice sent by
respondent and received by appellant. It was also argued that if
Ext.A4 is not the copy of the notice sent, appellant could have
produced the original notice received by him and there is no
conflict between the pleading and evidence and as tenancy was
validly terminated, decree is sustainable.
6. Ext.A4 was produced by respondent as the copy of the
notice sent to appellant as pleaded in the plaint. If that was not
the notice, appellant could have produced the original notice
admittedly received on 13.12.2002, as it should be with the
appellant. Even at the time of evidence, there was no case that
the original notice sent by respondent and received by appellant
was not available with him to be produced before the court or
that Ext.A4 is not the copy of the notice received. In such
circumstances, appellant cannot be heard to contend that Ext.A4
is not the copy of the notice sent by respondent and received by
appellant. Therefore courts below were justified in relying on
Ext.A4, as copy of the notice sent by respondent before the
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institution of the suit.
7. Then the question is whether there is a conflict in the
pleading and evidence as canvassed by learned counsel
appearing for appellant. If there is a pleading that the tenancy
was terminated and surrender of vacant possession of the
building was demanded on 27.12.2002, argument of learned
counsel could have been accepted. What was pleaded was only
that period of notice expired on 27.12.2002. Ext.A4 shows that
notice was sent on 12.12.2002 terminating the tenancy within 15
days from that date. It is in such circumstances, it was pleaded
that the period of notice ended on 27.12.2002. Therefore I do
not find any substantial question of law involved in the appeal.
Ext.A4 notice was sent on 12.12.2002. It was admittedly
received on 13.12.2002. Under Ext.A4 tenancy was terminated
with fifteen days notice and appellant was asked to hand over
possession within one month from the date of receipt of the
notice. Still suit was filed only on 11.4.2003. Hence it is a valid
notice.
8. Being a Co-operative society in view of the notification
issued under Section 25, whereunder provisions of Kerala
Buildings (Lease and Rent Control )Act is exempted, appellant is
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not entitled to claim the benefit of the said Act. I find no
substantial question of law involved in the appeal. It is
dismissed. In the circumstances of the case, appellant is granted
six months time from today to surrender vacant possession of the
building provided he pays the rent payable.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-
