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Sebi Joseph vs The Ernakulam District Postal … on 19 October, 2007

Kerala High Court
Sebi Joseph vs The Ernakulam District Postal … on 19 October, 2007
       

  

  

 
 
  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

RSA 776/2007 2

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

RSA 776/2007 3

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

RSA 776/2007 4

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

RSA 776/2007 5

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

RSA 776/2007 6

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/-

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