# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE M.R.ANITHA**
**MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944**
**RSA NO. 889 OF 2017**
**AGAINST THE DECREE AND JUDGMENT DATED 28.6.2017 IN A.S NO.100/2015 IN THE COURT OF SUB-JUDGE, PALA AGAINST THE DECREE AND JUDGMENT DATED 30.9.2015 IN O.S. NO.112/2014 IN THE COURT OF THE MUNSIFF**
**MAGISTRATE, ERATTUPETTA**
## **APPELLANT/APPELLANT/DEFENDANT:**
BABY MICHAEL S/O. MICHAEL, AGED 58 YEARS VARAVUNKAL HOUSE, ALANADU P.O, BHARANANGANAM VILLAGE, MENNACHIL TALUK. BY ADVS. SRI.M.NARENDRA KUMAR SRI.SAJU RAGHAVAN
## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:**
1 MARIYAM W/O. DEVASIA, AGED 61 YEARS CHEMBARAPPALLIL HOUSE,ALANADU P.O, BHARANANGANAM VILLAGE, MENNACHIL TALUK, PIN - 686 577. 2 DEVASIA S/O. DEVASIA, AGED 65 YEARS CHEMBARAPPALLIL HOUSE, ALANADU P.O, BHARANANGANAM VILLAGE, MENNACHIL TALUK, PIN - 686 577. BY ADVS. SRI.ABRAHAM GEORGE JACOB-R1 & R2 SRI.JIBU P THOMAS- R1 & R2
## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON**
**25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
Dated this the 25[th] day of July, 2022
This appeal has been filed against the judgment and decree in A.S. No.100/2015 on the file of Subordinate Judges Court, Pala, which arise out of judgment and decree in O.S. No.112/2014 on the file of Munsiff’s Court, Erattupetta.
2. The parties will be referred as per their status before the trial court. The plaint schedule building No.6/160B was obtained by the plaintiff as per sale deed No.1190/1984 of SRO, meenachil. The defendant is the tenant who is conducting a grocery shop in the plaint schedule building. The building was taken on rent for a period of 11 months on 20.3.2013 on a monthly rent of Rs.1,100/-. An amount of Rs.30,000/- was also entrusted as security at the time of letting out the building. But, after taking the building on rent the defendant did not pay any amount towards rent and directed the plaintiff to adjust the
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amount from the security amount. So from 20.3.2013 to 20.3.2014 a sum of Rs.13,200/- is adjusted towards rent from the security deposit. Now, an amount of Rs.16,800/is due to the defendant towards balance amount of security deposit.
3. In the year 2014, the plaintiff demanded the defendant to vacate the shop room but the defendant continued to occupy the building and carried out construction in the building. Hence, on 26.2.2014 the plaintiff issued a lawyer notice calling upon him to vacate the petition schedule building, but he did not vacate the building and the period of agreement also expired on 20.3.2014. After the institution of the suit also no rent has been paid.
4. The defendant filed written statement disputing the service of notice upon him. It is also contended that every months rent was duly paid to the plaintiff but he did not issue receipt for the same. There was no demand from the defendant to adjust the rent from the security deposit. The plaintiff did not require the schedule room for his own
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use. Hence, he seeks for dismissal of the suit.
5. PW1 examined and Ext.A1 to A10 marked from the side of the plaintiff. DW1 and DW2 examined and Ext.B1 series were marked from the side of the defendant. The learned Munsiff on evaluating the facts and circumstances and evidence adduced found that the occupation of the defendant in the petition schedule room was unauthorised and he is liable to be evicted. But finding that the plaintiff has not paid court fee for realising the rent arrears the prayer for realisation of arrears was disallowed and eviction was ordered.
6. Against which defendant filed appeal as A.S. No.100/2015 before the Sub Court, Pala. The learned Sub Judge on re-appreciation of evidence found that plaintiff has claimed only compensation for use and occupation of the schedule room from the date of suit and hence, as per Order XX Rule 12 of the Code of Civil Procedure, 1908 a court passing decree for possession can also direct payment of mean profit from the date of institution of the suit till delivery of possession and hence, the plaintiff is not liable
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to pay court fee for the same. Hence, it is found that the plaintiff is entitled to get compensation for use and occupation of the schedule room @ Rs.1,100/- from the date of suit till the date of delivery of the vacant possession of the building to the plaintiff.
7. Aggrieved by the same, the appellant/defendant approaches this Court in second appeal for various grounds stated in the memorandum of appeal. Notice was issued to the respondents. Respondents appeared through counsel. Heard both sides.
8. Admittedly, the appellant is the tenant of the 1[st] respondent and the suit was one for eviction of the tenant for the own requirement of the 1[st] plaintiff for her business. Exhibit A2 is the sale deed pertaining to the plaint schedule property proving the right and title of the 1[st] plaintiff over the plaint schedule building. The 2[nd] plaintiff who is none other than the husband of the 1[st] plaintiff.
9. Exhibit A3 is the land tax receipt dated 11.2.2014 and Exhibit A4 is the building tax receipt dated 19.2.2014. Exhibit A5 is the rent agreement executed
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between the first plaintiff and the defendant. The tenancy arrangement is not in dispute between the parties also. It was for 11 months which was expired on 20.2.2014. Exhibit A6 copy of notice issued on 26.2.2014 demanding the vacant possession of the building after the stipulated period. Exhibit A7 is the postal receipt and Exhibit A8 is the postal acknowledgment card proving the receipt of Exhibit A6 notice by the defendant. So, the evidence of PW1 and Exhibit A2 to A4 prove that the right and title of the plaintiff over the plaint schedule building. Exhibit A6 to A8 would prove valid termination of tenancy as contemplated under Section 106 of the Transfer of Property Act.
10. Though, it is contended by the learned counsel about the renewal clause in Exhibit A5 rent agreement by which both parties had agreed that if the tenancy arrangement is continued even after the stipulated period on completion of every year both parties agreed to enhance the rate of rent 5% without any change to the other conditions and that the second party ie. the tenant would pay the increased rent. So, according to him there is a
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automatic renewal of the lease and hence the suit for eviction is not maintainable. But, there is specific averments in the plaint that after the inception of tenancy arrangement defendant never paid rent and he requested the plaintiff to adjust the rent from the security deposit received by him and accordingly from 20.3.2013 to 20.3.2014 a sum of Rs.13,200/- has been adjusted towards rent from the security deposit. But, in view of the constant failure of the defendant to pay the arrears of rent and the attitude of the defendant in carrying out the construction in the petition schedule building in spite of the demand to vacate the shop room, the plaintiff issued notice demanding to vacate the building since the plaintiff wanted to start a business in the petition schedule building. Though, reply notice was sent he was not prepared to vacate from the petition schedule room, hence the plaintiff was forced to file the suit.
11. Since, the tenancy has been terminated by issuing notice as provided under law the occupation of the building by the defendant is illegal and unauthorised. The
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first plaintiff also requires the building for her business. Since all the statutory formalities have been complied prior to the institution of the suit, the defendant has no right to continue the occupation of the building and is legally bound to vacate the building.
12. The defendant also contended that the Appellate Court went wrong in granting decree for future rent ie. for compensation for use and occupation @ Rs.1,100/- per month from 02.4.2014. Admittedly, the plaintiff has not claimed any arrears of rent. What has been awarded by the 1[st] Appellate Court is only compensation towards damages for use and occupation from the date of suit till the plaintiff is put in actual possession of the building. Since, no arrears of rent has been claimed as rightly found by the 1[st] Appellate Court the plaintiff has no cause of action as on the date of institution of the suit and there is no necessity to pay court fee on that account **[Krishna Pillai v. Meenakshi Ayan (AIR 1967 SC 155]** has also been quoted by the Sub Judge, Pala, to hold that for awarding future mean profits, the plaintiff need not value the claim or
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pay court fee thereon at the time of institution of the suit.
So, on an overall evaluation of facts and circumstances and evidence adduced, I am of the considered view that the 1[st] Appellate Court has appreciated the facts and law in a correct perceptive and ordered eviction of the appellant/defendant. Hence, I do not find any question of law or any substantial question of law emerging for consideration of this Court in this Regular Second Appeal.
Hence, this appeal is found to be devoid of any merit and dismissed.
**M.R.ANITHA**
**JUDGE**
## SMF
//TRUE COPY// PA TO JUDGE
