Ex.S.A.No.9/2010 (Execution Second Appeal)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** ## **MONDAY, THE 9[TH] DAY OF JANUARY 2023 / 19TH POUSHA, 1944** ## **EX.SA NO. 9 OF 2010** **AGAINST THE ORDER/JUDGMENTAS 47/2008 OF SUB COURT, VADAKARA** ## **E.A.NO.140/2008 IN E.P.NO.76/2008 IN RCP 35/2007 OF MUNSIFF COURT, VATAKARA** ## **APPELLANTS/APPELLANTS/CLAIM PETITIONERS:** - **1 KALYANI AMMA 68 YEARS, W/O. KUNHIRAMAN VYDIAR, VATTAPARAMBATH, VELLUR AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA.** - **2 RAMACHANDRAN, S/O.KUNHIRAMAN VYDIAR 48 YEARS, VATTAPARAMBATH, VELLUR AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA.** - **3 PREMARAJAN, S/O.KUNHIRAMAN VYDIAR 38 YEARS, VATTAPARAMBATH, VELLUR AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA. BY ADVS. SRI.V.J.JAMES SRI.K.A.HAZAN** ## **RESPONDENTS/DECREE HOLDER/JUDGMENT DEBTOR:** - **1 ANANTHOTH KUNHIKKANNAN,(DIED) (LRS IMPLEADED) S/O.CHATHUKUTTY,79 YEARS, ADVOCATE, KUMMANKODE AMSOM,, NADAPURAM DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT, KERALA.** - **2 VENGOYIL V.M.ANIL KUMAR, S/O.RAGHAVAN 34 YEARS, BUSINESS, THONDARNAD AMSOM AND DESOM, MANANTHAVADI TALUK, WYNAD DIST. KERALA STATE.** - ***ADDL.R3 RAJEEVAN, S/O.KUNHIKANNAN,AGED ABOUT 66 YEARS,BUSINESS,ANANTHOTH HOUSE,NADAPURAM POST,KOZHIKODE DISTRICT,PIN-673 504.** - ***ADDL.R4 SAJEEV S/O.KUNHIKANNAN,AGED ABOUT 64 YEARS,ADVOCATE,ANANTHOTH HOUSE,NADAPURAM POST,KOZHIKODE DISTRICT,PIN-673 504.** - ***ADDL.R5 SANTHOSH, S/O.KUNHIKANNAN,AGED ABOUT 58 YEARS,ADVOCATE,ANANTHOTH HOUSE,NADAPURAM POST,KOZHIKODE DISTRICT,PIN-673 504.** - ***ADDL.R6 MS.SABITHA D/O.KUNHIKANNAN,AGED ABOUT 56 YEARS,HOUSE WIFE, ANANTHOTH HOUSE,NADAPURAM POST,KOZHIKODE DISTRICT,PIN-673 504. [LRS OF DECEASED R1 ARE IMPLEADED AS ADDL.RESPONDENTS 3 TO 6 AS PER ORDER DATED 21.07.2022 IN IA.3/2021 IN EX.S.A.9/2010]. BY ADVS. B.KRISHNAN R.PARTHASARATHY** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15.12.2022, THE** **COURT ON 09.01.2023 DELIVERED THE FOLLOWING:** Ex.S.A.No.9/2010 **2** ## **JUDGMENT** This Execution Second Appeal has been filed against the judgment and decree in A.S.No.47/2008 on the file of Subordinate Judge's Court, Vadakara which in turn arise out of the order passed in E.A.No.140/2008 in E.P.No.76/2008 in R.C.P.No.35/2007 on the file of Munsiff's Court, Vatakara. Appellants are the claim petitioners in E.A.No.140/2008. Appellants would hereafter be referred as the petitioners and first respondent (decree holder) and second respondent (judgment debtor) respectively as first and second respondents. 2. Pending the appeal first respondent died and his legal heirs were impleaded as additional respondents 3 to 6. 3. According to the petitioners, the petition has been filed when Amin of the court came to the petition schedule room on 26.03.2008 to effect the delivery of the schedule room of the first respondent. Then only they came to know about the eviction proceedings initiated against the 2[nd] respondent/judgment debtor. It is alleged that the first respondent/decree holder fraudulently obtained an exparte order of eviction against 2[nd] respondent/judgment debtor. The second respondent did not have any tenancy right over the schedule room. The petitioners Ex.S.A.No.9/2010 **3** are running a stationery trade and STD booth in the schedule shop room as per the licence issued by the Nadapuram Panchayat. The schedule room originally belonged to Kalyandiyil Kunhiraman Vydiar the predecessor in interest of the petitioners under a kychit dated 21.09.1956. On the death of original tenant, the second petitioner was running the business on behalf of the petitioners. First respondent instituted a rent control petition and got order of eviction in RCP No.86/1994 on the ground of cessation of occupation, arrears of rent etc. Appeal, R.C.A.No.21/1996 preferred by the claim petitioners also dismissed and ultimately the special leave petition filed before the Hon'ble Supreme Court was also dismissed. It is further alleged that thereafter as per a mediation in the presence of Puthan Koyiloth Raveendran and Kurumberi Sasi it was agreed that petitioners would surrender the petition schedule shop room for the purpose of the record to the first respondent through the court and room would be re-entrusted to the claim petitioners after carrying out certain necessary repairs. Accordingly, claim petitioners surrendered the key of the room in court. First respondent agreed to provide an additional room for claim petitioners and at the instance of the first Ex.S.A.No.9/2010 **4** respondent re-entrustment was made orally with effect from 01.01.2006, thereafter they obtained electricity connection spending their own funds. The original rent in respect of the petition schedule room was Rs.30/- per month. On reentrustment the monthly rent was enhanced to Rs.300/- and claim petitioners paid Rs.1 lakh to the first respondent as advance. A sum of Rs.30,000/- out of it was spent for maintenance and repairs and the balance Rs.70,000/- was agreed to be adjusted towards future rent. Since the Panchayat authorities requested for a written agreement and the claim petitioners requested the first respondent he issued a consent letter to the Grama Panchayat on 17.06.2006 and granted consent to issue licence in favour of the 3[rd] petitioner and accordingly they obtained licence. So, according to them, the second respondent is a total stranger and a permanent resident of Wayanad district. He never conducted any business or taken the building on rent. First respondent colluded with the second respondent and fraudulently with a view to defeat the claim of tenancy right of the petitioners styled second respondent as tenant. 4. First respondent filed counter statement contending Ex.S.A.No.9/2010 **5** that the petition schedule shop room belonged to his father Anandoth Chathukutty and let out the building to Kunjiraman Vydiar as per a registered rent agreement dated 02.11.1973. After the death of Chathukutty the petition schedule shop room devolved upon the first respondent. After the death of Kunjiraman Vydiar the tenancy right devolved upon the claim petitioners. Respondent filed R.C.P.No.46/92 before the Rent Control Court, Nadapuram which was subsequently renumbered as R.C.P.No.86/1994 and the rent control petition was allowed and appeal and revision filed by the claim petitioners were dismissed. The special leave petition filed before the Hon'ble Apex Court was also dismissed. On 11.08.2005 the petitioners surrendered the key of the shop room. After that, first respondent constructed two rooms and let out to the second respondent as per an agreement dated 01.01.2006 on a monthly rent of Rs.3,750/-. As per the sanction letter given by the respondent, 3[rd] petitioner, Premarajan obtained licence. Second respondent is conducting the business through his worker Premarajan. So Premarajan the worker of the second respondent obstructed delivery of the property. It is denied that the plaint schedule shop room was entrusted to the petitioners orally at the Ex.S.A.No.9/2010 **6** intervention of mediators. There was no such mediation talk. The allegation regarding the advance of Rs.1 lakh by the petitioners are denied. So the petitioners have no right over the petition schedule room. 5. Second respondent remained ex parte. PW1 examined and Exts. A1 to A9 series marked from the side of petitioners. Exts.B1 to B11 marked and RW1 examined from the side of the respondents. 6. On analyzing the facts, circumstances and evidence adduced, the execution court dismissed the petition. Against which, the petitioners filed appeal and by the impugned judgment the first appellate court also dismissed the appeal. Having lost before the two forums the petitioners approach this Court in second appeal. 7. Notice was issued on admission on the following substantial questions of law. 1. Whether the courts below are justified in dismissing the claim petition without adverting to any evidence at all, based on irrelevant facts? 2. Are not both the courts below went wrong in entering into a finding of tenancy against the appellants, based on a document which the Ex.S.A.No.9/2010 **7** appellants did not get an opportunity to challenge while he was in the box? 3. Is not the lower appellate court went wrong in not remanding the matter back to the trial court for fresh disposal, when the person against whom an exparte order of eviction is passed subsequently filed the application to set aside the exparte order with the contention that there is no tenancy arrangement between himself and the landlord? 8. First respondent died pending the proceedings and his legal heirs were impleaded as additional respondents 3 to 6. Heard the counsel for legal heirs of the deceased first respondent, 2[nd] respondent as well as the petitioners. Lower court records were called for and perused. 9. According to the learned counsel for the petitioners the consent letter issued by the landlord is sufficient to prove the tenancy arrangement with petitioners. There was a previous R.C.P.No.86/1994 filed by the first respondent against the claim petitioners and it was allowed and appeal filed against it was dismissed and revision filed before this Court also ended in dismissal. Thereafter the claim petitioners filed special leave Ex.S.A.No.9/2010 **8** ## petition and which also ended in dismissal. 10. The case of the petitioners is that thereafter there was a mediation talk and they were put in possession of the petition schedule building on 01.01.2006. That mediation arrangement and subsequent entrustment of the building with the claim petitioners by the first respondent has been found against by the courts below. Since the first respondent got delivery of the property through process of court after a long fight in a matter which went upto Hon'ble Apex Court, it is highly unbelievable that again the first respondent would entrust the schedule room with the claim petitioners on an oral arrangement. So also none of the alleged mediators were also seen examined to prove the oral arrangement by which the claimants were put in possession. So the contentions so advanced by the claim petitioners have been rightly rejected by the courts below. 11. The main contention of the learned counsel is that a consent letter has been given by the first respondent to issue licence to the third petitioner to the Nadapuram Panchayat and a true copy of which is produced as Ext.A1 and that according to him is sufficient to prove the oral tenancy arrangement alleged by the claim petitioners. But Ext.A1 consent letter would only go Ex.S.A.No.9/2010 **9** to show that the first respondent-the landlord had requested to issue licence with respect to building number NP.VII/396 in the name of the third petitioner. So also Ext.B9 letter proves that 2[nd] respondent requested the first respondent to issue Ext.A1 consent letter. It is the specific case of the first respondent that after getting the delivery of the property through the process of court, he let out the building to the second respondent on a monthly rent of Rs.3,750/-. Ext.B8 is the certified copy of the kychit entered into between first respondent and the second respondent on 01.01.2006 by which the second respondent took the building on a monthly rent of Rs.3,750/-. 12. The main objection of the learned counsel for the petitioners with respect to Ext.B8 rent agreement is that it has been executed only for a period of 3 months and further that the second respondent is a person from Wayanad and there is close contact between the first respondent and the second respondent in connection with his treatment at Wayanad and in collusion fraudulently the rent agreement was executed. But it is to be noted that in this proceedings the second respondent remained ex parte and did not file any objection to the claim petition either in support of the claim petitioners or objecting to the contention Ex.S.A.No.9/2010 **10** of the first respondent. 13. It has been alleged in the appeal memorandum that first appellate court acted illegally in refusing to remand the case in view of the petition filed by the second respondent to set aside the exparte order passed against him. But that has been dismissed and R.S.A.No.104/2009 has been filed against the dismissal before the appellate authoirty. But the plight of that R.S.A. has not been disclosed before this Court. So as of now 2[nd] respondent is exparte in R.C.P. 14. The learned counsel for the second respondent vehemently contended about the improbability of execution of any rental agreement between the 2[nd] respondent and first respondent especially because second respondent is from Wayanad and he never conducted any business in the petition schedule building. It is also their contention that the consent letter given by the first respondent to issue licence to the third petitioner would strongly supports the case of the petitioners that they are the tenants of the petition schedule room. But the second respondent cannot advance any such argument in this proceedings because he remained ex parte in this proceedings. So no amount of argument from the side of the second Ex.S.A.No.9/2010 **11** respondent can be accepted in this proceedings. RSA No.30/2016 filed by him against the judgment and decree passed for realisation of arrears of rent was heard simultaneously with this appeal. That stands dismissed. So the tenancy arrangement between the first respondent and the second respondent is proved by the production of Ext.B8 Rent Deed and proof of it through the first respondent. 15. Learned counsel would also contend that the terms of the rental agreement permitting the first respondent to conduct the business either by himself or through any workers also improbabilise the existence of any actual tenancy arrangement because according to him ordinarily such a stipulation will never be found in a rental agreement. But it is to be noted that second respondent the lessee in Ext.B8 is from Wayanad. So there is nothing wrong if such a stipulation to conduct the business through a worker is entered into in the lease deed. Moreover without any contest and dispute by the second respondent before the trial court he is estopped from disputing the genuineness of Ext.B8 Rent Deed in this proceedings. Second respondent remained ex parte before the first appellate court also. 16. The main contention advanced by the learned counsel Ex.S.A.No.9/2010 **12** at the time of argument is with regard to the difference in number of the petition schedule building in the RCP as well as in the assessment extract. According to him, the building number shown in RCP was NP VII/396, whereas, as per the records kept in the panchayat, the building number is 390. So, according to him, the order of eviction is with respect to a different building and not with respect to the building which is now being occupied by the petitioners. But the petitioners did not have any such allegation in the claim petition that the eviction has been sought with respect to building with different number. It is for the first time such a contention has been raised by the petitioners in this second appeal. Since it is purely a question of fact without any contention with regard to the building number or the identity of the building in which they are occupying, it is futile for the petitioners to contend about the identity of the building in this proceedings. It is true that the claim petitioners have filed I.A.No.1/2022 & I.A.No.2/2022 in this execution second appeal for receiving additional documents by producing certified extract of Building Tax Assessment Register as well as a certificate issued from Nadapuram Grama Panchayat along with D&O licence fee receipt etc. to show that the old building number is VII/390. Ex.S.A.No.9/2010 **13** Additional respondents 3 to 6 filed counter affidavit to I.A.No.2/2021 and I.A.No.1/2022 and they object in receiving additional documents at this stage. 17. The learned counsel for the first respondent in this context bring to my attention Sanjay Kumar Singh v. The State of Jharkhand [(2022) 7 SCC 247] wherein while dealing with Order 41 Rule 27 of the Code of Civil Procedure, 1908 (in short, Code) and admissibility of additional evidence it has been held by the Hon'ble Apex Court that admissibility of additional evidence under Order 41 Rule 27 of the Code does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. That is whether such additional evidence has direct bearing on pronouncement of the judgment. Andisamy Chettiar v. A. Subburaj Chettiar [(2015) 17 SCC 713] also quoted, wherein, the same principle has been laid down. So the question is whether the additional documents sought to be produced is necessary for pronouncing the judgment by this Court. Ex.S.A.No.9/2010 **14** 18. As I stated earlier there was no case with regard to the difference in building number or identity of the building to the claim petitioners before the two lower forums. 19. Here, in this case the additional documents sought to be produced by the claim petitioners is to substantiate the contention that the building which is occupied by them is with number VII/390 whereas the eviction ordered is with respect to VII/396. As I stated earlier, there was no such allegation in their claim petition. Moreover, if that contention is accepted, it would be in conflict with their contention with regard to the letter issued by the first respondent giving consent to issue licence with respect to N.P.VII/396 in the name of 3[rd] petitioner. So the building number which is referred in all the documents including the lease deed is bearing No.VII/396. Hence in view of the facts and circumstances the additional documents sought to be produced by the claim petitioners are not required for pronouncing the judgment in this execution second appeal. So I do not find any reason to receive the additional documents produced by the petitioners. Hence the petitions filed in this regard are only to be dismissed and are hereby dismissed. 20. The evidence adduced by the petitioners will not Ex.S.A.No.9/2010 **15** prove their case of subsequent induction to the schedule room upon an oral arrangement between them and first respondent as alleged. Though they specifically alleged about the intervention of mediators in the said oral arrangement none of them were examined. They also did not produce, as rightly found by the courts below, any rent receipts to prove the payment of rent to the first respondent. So, as has been rightly found by the courts below, Ext.B8 rent deed clearly establishes that the second respondent is the tenant of the petition schedule room and Ext.B9 letter given by the second respondent seeking to give consent letter to issue licence in the name of third petitioner and Ext.A1 consent letter given by first respondent to Nadapuram Grama Panchayat requesting to issue trade licence in the name of 3[rd] petitioner also substantiate the case of the first respondent regarding the rental arrangement. Ext.B5 is the certified copy of undertaking given by one of the claim petitioners in R.C.P.No.86/1994, by which they undertaken to vacate the building within 4 months as directed by the Apex Court. It has already been found that petitioners failed to prove any subsequent oral arrangement by which they were again inducted in the building. Ext.B10 would prove that registered lawyer Ex.S.A.No.9/2010 **16** notice with acknowledgment card was issued to the second respondent by the first respondent prior to the institution of the suit demanding arrears of rent. 21. Second defendant remained ex parte in the Rent Control proceedings, R.C.P.No.35/2007 and thereafter eviction was ordered. So the claim petitioners who are the previous tenants from whom the first respondent obtained vacant possession after a long fight which went upto the Hon'ble Supreme Court is now claiming to be in possession of the schedule room based on an oral arrangement is found against by the courts below. So actually none of the substantial questions of law emerge for consideration for entertaining this Execution Second Appeal. Hence it is found to be devoid of any merit and hence dismissed with cost of additional respondents 3 to 6. Pending Interlocutory Applications are closed. Sd/- **M.R.ANITHA** shg/ **JUDGE**