Ex.S.A.No.6 of 2022: Sabu Baby v. E. A. Sreedharan Bhattathirippad and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 EX.SA NO. 6 OF 2022 AGAINST THE JUDGMENT DATED 30.03.2022 IN AS 50/2021 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM AND THE ORDER IN EA 392/2019 IN EP 127/2019 IN RCP 24/2018 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM** ## **APPELLANT/(APPELLANT IN AS / PETITIONER IN EA):** SABU BABY AGED 47 YEARS S/O. BABY MATHEW, KAVALAMTHARA HOUSE, MATHA NAGAR CHURCH ROAD, ELAMKULAM, ERNAKULAM - 682 017. PROPRIETOR, LAVANYA TEXTILES, DOOR NO. 55/1064 (OLD NO. 28/557), SHOP NO. 32, EDATHAMARAMANA SHOPPING COMPLEX, KADAVANTHRA, ERNAKULAM - 682 020. BY ADVS. PUSHPARAJAN KODOTH K.JAYESH MOHANKUMAR VANDANA MENON VIMAL VIJAY ## **RESPONDENTS: (RESPONDENTS IN AS & LEGAL HEIR OF R1 / RESPONDENTS IN EA)** 1 E. A. SREEDHARAN BHATTATHIRIPPAD AGED 85 YEARS (DIED) S/O. LATE AARYAN BHATTATHIRIPPAD, RAJASREE, EDATHAMARAMANA, 63/477, CENTRAL SCHOOL ROAD, KADAVANTHRA P. O., ERNAKULAM - 682 020. 2 SALEENA BABY AGED 68 YEARS W/O. BABY MATHEW, KAVALAMTHARA, SARIGA BUILDING, AYSHA ROAD, VYTTILA P. O., ERNAKULAM - 682 019. 2 Ext.S.A.No.6 of 2022 **LEGAL HEIR OF R1** 3 RAJESH AGED 51 YEARS S/O. E. A. SREEDHARAN BHATTATHIRIPPAD, RAJASREE, EDATHAMARAMANA, 63/477, CENTRAL SCHOOL ROAD, KADAVANTHRA P. O., ERNAKULAM - 682 020. BY ADVS. BASIL MATHEW NINAN JOHN SANJANA SARA VARGHESE ANNIE AJAY KRISHNAN S. THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON 10.10.2022 DELIVERED THE FOLLOWING: Ext.S.A.No.6 of 2022 3 **M.R.ANITHA, J** ****************** Ex.S.A.No. 6 of 2022 ---------------------------------------------------------Dated this the 10[th] day of October 2022 ## **JUDGMENT** This Ex.S.A has been filed against the judgment in A.S.No.50/2021 on the file of Additional District Court-VI, Ernakulam, which arose out of the order in E.A.No.392/2019 in E.P.No.127/2019 in R.C.P.No.24/2018 on the file of Principal Munsiff's Court, Ernakulam. E.A.No.392/2019 has been filed under Rule 96, 97 (2) and 101 of Order XXI and Section 151 of the Code of Civil Procedure, 1908. 2. According to the appellant/petitioner in E.A.No.392/2019 (hereinafter be referred as 'petitioner') he is the tenant of the petition schedule room since 01.02.2012 and first respondent/decree holder is the landlord. He is doing business in the name and style 'Lavanya Textiles' since 4 Ext.S.A.No.6 of 2022 November, 2012. Before that, he was conducting a tailoring business in the name and style 'Top Men Tailoring' in the shop room. Lavanya Textiles actually started by his father in another shop room and it was taken over by him in 1997. 3. 2[nd] respondent is the judgment debtor, his mother. Petitioner and his mother are not in cordial terms from 2013 onwards. She had filed a petition under the 'Protection of Women from Domestic Violence Act ( PWDV Act) against him. Petitioner is paying rent of Rs.1,250/- with respect to the building to the first respondent and is receiving receipt from him. He is paying the licence fee and other charges with respect to the business conducted in the shop room. 1[st] respondent is not now receiving rent from him. Though it was sent in demand draft as well as money order both were returned unaccepted. 1[st] respondent in collusion with 2[nd] respondent filed the R.C.P suppressing the fact that the petitioner is the tenant of the building. Order of eviction passed against the 2[nd] respondent for arrears of rent is not binding on the petitioner. After the order of eviction, petitioner filed O.S.No.967/2019 before the Munsiff Court Ernakulam for Ext.S.A.No.6 of 2022 5 declaration and injunction. I.A.No.5090/2019 filed in that case was dismissed with an observation to move the execution court. Thereafter, the present petition has been filed. 4. First respondent/decree holder filed objection contending that the petition is not maintainable and the second respondent is the tenant of the petition schedule room and it was let out to her on 05.07.1988 on a monthly rent of Rs.2,514/- and she has been paying rent and it fell in arrears from January 2000 onwards. Now more than Rs.3,00,000/- is in arrears. Petitioner is claiming under the second respondent. Second respondent did not have any contention during the time of rent control proceedings or in the lawyer notice that the petitioner is conducting the business in the tenanted premises. 2[nd] respondent admitted her tenancy arrangements with respect to the schedule room. The allegation that the petitioner is conducting the business and paying the rent is denied. All the documents produced are false and fabricated. Attempt of the petitioner is only to stall the delivery proceedings. 2[nd] respondent remained ex parte. Petitioner has no independent right over the tenanted Ext.S.A.No.6 of 2022 6 premises and he is only in permissive occupation at the most can be regarded as a sub tenant and hence prayed for dismissal of the petition. 5. PWs 1 to 4 were examined and Exts.A1 to A37 were marked from the side of petitioner. RWs 1 and 2 examined and Exts.B1 to B17 were marked from the side of first respondent. 6. Second respondent did not file any objection nor contested the matter. 7. The petitioner claiming to be the tenant with respect to petition schedule building from 01.02.2012. 2[nd] respondent is the judgment debtor who is none other than his mother against whom the R.C.P was filed by the first respondent landlord for eviction under Section 11(2)(b) of The Kerala Buildings (Lease and Rent Control) Act, 1965. 1[st] respondent decree holder has obtained an order of eviction against the 2[nd] respondent. Contention of the petitioner is that the decree holder in collusion with the judgment debtor filed the R.C.P and obtained an order of eviction. Petitioner claims that the order of eviction passed in the R.C.P is not binding on him and he could not be evicted from the Ext.S.A.No.6 of 2022 7 schedule shop room under the guise of the order of eviction. 8. 1[st] respondent, on the other hand, has got a specific contention that the petitioner in collusion with the 2[nd] respondent who is none other than his mother filed the claim petition. 2[nd] respondent kept the rent in arrears since January, 2000 and more than Rs.3,00,000/- is due when the eviction petition was filed and after passing the order of eviction, execution petition was filed for delivery and thereupon the petitioner came up with this petition. 9. The fact that the 2[nd] respondent took the building on rent from the 1[st] respondent in the year 1988 is not disputed though according to PW1, the business therein was conducted by the father of the petitioner. The claim of the petitioner is that on 01.02.2012 he took the building on rent by executing a lease deed and the alleged lease deed could not be produced by him and his claim is that copy of the lease deed is not with him and the original is with the 1[st] respondent. As has been rightly found by the lower courts, no step was taken by the petitioner directing the 1[st] respondent to produce the alleged lease deed executed Ext.S.A.No.6 of 2022 8 between him and the 1[st] respondent. Petitioner produced Exts.A3 to A8, certified copies of rent receipts for payment of rent alleged to have been made by him to the 1[st] respondent and the genuineness of the same is disputed by the 1[st] respondent and during evidence, PW1 also could not state whether the signature in Ext.A3 is that of the 1[st] respondent. Petitioner being the son of the 2[nd] respondent, the fact that even if rent was paid by him and receipt was issued by the 1[st] respondent, that by itself will not confer any tenancy right upon him. 10. Though the specific contention of the petitioner is that he took the petition schedule room on 01.02.2012 and started business since November, 2012, during cross-examination, on one occasion, he would depose that he is the tenant with respect to the schedule room from 01.02.2016. On further crossexamination, he would state again that he is the tenant of the schedule room on 01.02.2012 and on that day, as stated earlier, he signed an agreement with the 1[st] respondent but he could not produce either the copy or the original rent agreement allegedly executed on 01.02.2012. But PW3, the adjacent shop owner Ext.S.A.No.6 of 2022 9 examined from his side would depose that before one year of his examination, he had seen the rent deed and consent letter in favour of the petitioner which was shown by the petitioner himself to him. But, even the petitioner did not have any case that he has got even any copy of the alleged rent deed with him. So, the evidence of PW1 and PW3 the witness examined by him is contradictory to each other in this material aspect regarding the rent deed alleged to have been executed between the petitioner and the 1[st] respondent. 11. To establish that he is a tenant of the schedule room, Ext.A12 which is a consent letter alleged to have been given by the 1[st] respondent to the Secretary of Cochi Corporation is relied on by him. On perusing Ext.A12 it could be seen that it is a copy of a letter alleged to have been issued by the owner of the building No.28/567 (there is overwriting) to Sabu Baby, the petitioner herein for conducting textile business. His full consent in issuing D&O licence to Sabu Baby is also specifically stated therein. But the learned counsel for the 1[st] respondent seriously objects Ext.A12 and according to him, it is a fabricated document Ext.S.A.No.6 of 2022 10 and it is not issued by the 1[st] respondent, the landlord. 12. It is also the contention of the learned counsel that there is no mention or discussion with regard to Ext.A12 in the judgment passed by the first appellate court. In this context, learned counsel for the petitioner would contend that in paragraph 26 of the judgment, though learned Munsiff made discussion with regard to Exts.A3 to A31, apart from a finding that all the documents Exts.A3 to A8 are subsequent to 2012 and a further statement that similar is the case concerning Exts.A9 to A31 and further that Exts.A9 to A31 will not enable the petitioner to prove the tenancy right with respect to the schedule room, there is no discussion with regard to Ext.A12. It is true that there is no discussion as such specifically with regard to Ext.A12 either in the order passed by the learned Munsiff or that of the first appellate court. So, the question is whether Ext.A12 has been proved by the petitioner as a document issued by the 1[st] respondent. Ext.A12 is a document issued by the Superintendent, Public Information Officer, Health Wing of Cochin Corporation. 1[st] respondent stoutly denies of issuing any such consent letter to Ext.S.A.No.6 of 2022 11 the Secretary of the Corporation of Cochin. 13. During cross-examination, PW1 was strenously crossexamined with respect to Ext.A12 and he would say that the original of the same is in Corporation of Kochi. He would also admit that he had not seen the preparation of the consent letter and it was prepared by 1[st] respondent and handed over to him. It was further questioned that building number referred in Ext.A12 is not that of the petition schedule building and further he was questioned about the correctness and fillings in Ext.A12 and according to him, it was not done by him but was by the 1[st] respondent. As stated earlier, 1[st] respondent denied of issuing any such consent letter. So, the question is whether the marking of Ext.A12 will prove the contents. The Secretary of Kochi Corporation to whom it has been addressed is not examined to prove the contents. 14. In this context, it is relevant to quote **Bhima Jewellery and Diamonds (P) Ltd v. Sandeep Kumar : 2020 (5) KLT 40 : 2020 KHC 550** wherein a learned Single while dealing with admissibility of docments, held that mere marking of 12 Ext.S.A.No.6 of 2022 a document as an exhibit be that by use of alphabets or numbers, is only for the purpose of its idenitification and has no relation with its proof. In **Mini.P v. Rajendran (O.P.(C) No.3149 of 2015 in I.A.No.1686 of 2015 in O.S.No.45 of 2012,** a learned Single Judge of this Court, while dealing with admissibility of documents obtained under Right to Information Act, held that the documents so obtained under the Right to Information Act is not admissible. So, the fact that Ext.A12 has been marked from the side of the petitioner will not amount to proof of its contents especially when first respondent stoutly denies of the execution of the same. The petitioner also did not take any steps for calling the original of Ext.A12 from the Corporation of Kochi. No attempt was made by the petitioner to examine the Secretary or any of the witnesses cited therein to prove the contents. Above all, Ext.A12 is a letter issued under the Right to Information Act. As per the dictum in **Mini.P v. Rajendran** referred above it is not admissible in evidence also. So, the reliance placed on Ext.A12 to prove the tenancy arrangement of the 1[st] respondent with the petitioner cannot be Ext.S.A.No.6 of 2022 13 accepted as valid proof of the tenancy right of the petitioner over the petition schedule property. 15. Moreover, during cross-examination, the petitioner would admit that he came to know about the rent control petition filed by the first respondent when the mother received the notice from the Rent Control Court. Thereafter, he issued Ext.A32 notice to respondents 1 and 2. So, that would indicate that he was quite aware of the rent control proceedings initiated against the mother by the 1[st] respondent but no attempt was made by him to get impleaded and contest the matter. 16. Though the petitioner has got a contention that there was collusion between the first and the second respondents in filing R.C.P by projecting the filing of the petition under the provisions of PWDV Act by the mother, during examination, he admitted that he is residing along with 2[nd] respondent the mother, father as well as his sister. With regard to the proceedings under the provisions of the PWDV Act, Ext.A1 copy of the order passed by the Judicial First Class Magistrate Court, Ernakulam has been produced and the 1[st] respondent has got a Ext.S.A.No.6 of 2022 14 specific contention that it is a collusive proceedings between the petitioner and his mother and the allegation in Ext.A1 is that she has been conducting tailoring shop in the name and style 'Top Men Tailoring' in the petition schedule shop room and the respondents therein are not allowing her to enter into the shop room. There is also an allegation regarding commission of domestic violence. It is true that no order with respect to the tenanted premises has been granted in favour of the 2[nd] respondent taking into account the fact that the petitioner herein is conducting the business. That order is of the year 2014 and the first respondent did not dispute the fact that after the second respondent undergone a surgery in 2010, the petitioner is conducting the business in schedule room under the 2[nd] respondent who is none other than his mother. So, Ext.A1 order passed by the Magistrate under the PWDV Act has no consequence as far as the tenancy right of the second respondent in the petition schedule building is concerned. So, there is nothing to infer any collusion between the 1[st] respondent landlord and the second respondent tenant, who is the mother of Ext.S.A.No.6 of 2022 15 the petitioner. 17. 1[st] respondent also examined RW2 who is conducting business in the nearby shop No.31. He supports the case of the 1[st] respondent that the second respondent is the tenant of the shop room and petitioner started business in the schedule room after the second respondent undergone a heart surgery. It is also stated by him that earlier the petitioner was conducting business in Room No.26 and subsequently it was shifted to Room No.32 and just before one year the petitioner had been living with the mother, the 2[nd] respondent. 18. As has been rightly found by the first appellate court, an obstruction petition under Order 21 Rule 97 can be maintained only if the petitioner could establish a right independent of that of the judgment debtor and after the amendment of the Code in the year 1976, mere possession of the claimant would not be sufficient to establish the right and he has to establish the right of possession independent of the judgment debtor. In the present case, it has come out that the mother, second respondent who is the judgment debtor had taken the building originally from the 1[st] Ext.S.A.No.6 of 2022 16 respondent in the year 1988 and thereafter she had been continuing the business and in 2010 after she undergone a surgery, petitioner who is her son is continuing the business under his mother. So, it will not confer any independent right or possession to the petitioner so as to entertain a petition under Order 21 Rule 97. 19. On a meticulous evaluation of the concurrent findings entered into by the two courts, I am of the view that both courts below have appreciated the facts, circumstances and evidence in correct perspective and no substantial question of law arise for consideration for entertaining this second appeal. In the result, the Execution Second Appeal is found to be devoid of any merit and hence stands dismissed. (sd/-) **M.R.ANITHA, JUDGE** jsr True copy P.S to Judge