K. Jayakrishnan v Abdul Azeez (RSA Nos. 1472/2013 and 1473/2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944** ## **RSA NO. 1472 OF 2013** **JUDGMENT AND DECREE DATED 22ND JULY 2013 IN A.S.NO.82/2007 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, TIRUR. JUDGMENT AND DECREE DATED 25TH OCTOBER 2007 IN OS 236/2004 ON THE FILE OF MUNSIFF'S COURT, PARAPPANANGADI** ## **APPELLANT/APPELLANT/DEFENDANT:** K. JAYAKRISHNAN, S/O KANNAN, AGED 67 YEARS, THENGAT COMPLEX, IIT COMPUTER CENTRE, KOHINOOR, P.O, THENHIPALAM, TIRUR TALUK BY ADVS. SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN ## **RESPONDENT/RESPONDENT/PLAINTIFF:** ABDUL AZEEZ, AGED 52 YEARS S/O PARAYIL THENGAT MUHAMMED, CHERUKKAVU AMSOM, CHEVAYOOR DESOM P.O, PULIKKAL, ERNAD TALUK, MALAPPURAM DISTRICT 673637 BY ADVS. MILLU DANDAPANI SUMATHY DANDAPANI (SR.) ## **THIS REGULAR SECOND APPEAL HAVING COME UP ALREADY ADMITTED** **ON 23.02.2023, ALONG WITH RSA.1473/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.Nos.1472/2013 & 1472/2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944** **RSA NO. 1473 OF 2013** **JUDGMENT AND DECREE DATED 22ND JULY 2013 IN AS 83/2007 ON THE FILE OF SUBORDINATE JUDGE'S COURT, TIRUR** **JUDGMENT AND DECREE DATED 25TH OCTOBER 2007 IN OS 40/2005 ON THE FILE OF MUNSIFF'S COURT, PARAPPANANGADI** ## **APPELLANT/APPELLANT/DEFENDANT:** K.JAYAKRISHNAN, AGED 67 YEARS S/O.KANNAN, THENGAT COMPLEX, IIT COMPUTER CENTRE, KOHINOOR, P.O.THENHIPALAM, TIRUR TALUK. BY ADVS. SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN ## **RESPONDENT/RESPONDENT/PLAINTIFF:** ABDUL AZEEZ, S/O.PARAYIL THENGAT MUHAMMED, AGED 52 YEARS, CHERUKKAVU AMSOM, CHEVAYOOR DESOM, P.O.PULIKKAL, ERNAD TALUK, MALAPPURAM DISTRICT, PIN-673 637. BY ADVS. MILLU DANDAPANI SUMATHY DANDAPANI (SR.) SMT SUMATHI DANDAPANI SR **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2023, ALONG WITH RSA.1472/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.Nos.1472/2013 & 1472/2013 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.1472 of 2013 and R.S.A.No.1473 of 2013 ---------------------------------------------------------Dated this the 23[rd] day of February, 2023 ## **JUDGMENT** R.S.A.No.1472/2013 arise out of the judgment in A.S.No.82/2007 on the file of Subordinate Judge's Court, Tirur which arise in turn out of the judgment and decree in O.S.No.236/2004 on the file of Munsiff's Court, Parappanangadi. R.S.A.No.1473/2013 has been filed against the judgment and decree in A.S.No.83/2007 on the file of Subordinate Judge's Court, Tirur which arise in turn out of the judgment and decree in O.S.No.40/2005 on the file of Munsiff's Court, Parappanangadi. ## **R.S.A.No.1472 of 2013** 2. Appellant is the defendant in O.S.No.236/2004 which was a suit for eviction and arrears of rent filed by the respondent/plaintiff R.S.A.Nos.1472/2013 & 1472/2013 4 (Parties would hereafter be referred as per their status before the trial court). O.S.No.40/2005 was filed for a permanent injunction for restraining the defendant/tenant from making any alterations in the plaint schedule property. A portion of the building in the first floor along with quarters was taken on lease by the defendant for 11 months as per the lease agreement dated 01.01.2000 which was surrendered later and the same was taken on lease as per Ext.A1 agreement for a monthly rent of Rs.4,500/- . But the rent was kept in arrears to the tune of Rs.67,500/- for a period of 16 months. Defendant also made material alteration and a police complaint was filed. Thereafter, the matter was settled in the presence of the mediators. The amount of Rs.40,000/- spent by the defendants towards alteration is adjusted towards arrears of rent and remaining amount of Rs.27,500/- was agreed to be paid before 20.07.2004. Plaintiff and defendant also entered into Ext.A2 agreement agreeing to the above terms on 13.07.2004 and the amount of Rs.27,500/- has been paid and endorsed in Ext.A2 agreement. Thereafter also, rent was kept in arrears from 20.07.2004. Hence Ext.A3 notice was issued for which Ext.A5 reply was R.S.A.Nos.1472/2013 & 1472/2013 5 sent raising untenable contentions. Plaintiff bona fide requires the building to start a branch of Thengatt Travels. Thereafter, there was attempt on the part of the defendant to remove the doors and other materials which was prevented and there was threat again at the hands of the defendant. Hence the suit for injunction has also been filed. 3. Defendant filed written statement contending that the tenancy has not been terminated. He is conducting an institution of Information Technology. There are 50 students and 5 teachers in the institution. He spent an amount of Rs.15,00,000/-. On 01.01.2000, when the agreement was made, quarters was not constructed. It was constructed only in 2001 and hence the original agreement was not produced. Defendant spent Rs.1,52,524/- towards alterations and facilities. He spent Rs.20,000/- for constructing bathroom but only an amount of Rs.40,000/- was repaid. There is balance of Rs.76,524/- due to him. Hence, he filed counter claim seeking the same. There was no willful default in paying the rent. He sent the rent for the month of July, August, September and October by separate DDs but it was not R.S.A.Nos.1472/2013 & 1472/2013 6 received by the plaintiffs. There was no bona fide need for the plaintiff. There are other vacant rooms in his possession. Defendant paid Rs.1,25,000/- as advance. Plaintiff is already running a business in the name and style 'Malabar Tours and Travels'. Ext.A3 notice is not sufficient to terminate the lease arrangements. There is attempt on the part of the plaintiff and his sons to manhandle the defendants and the principal of the institution. Hence, complaint was made to the police as well as District Collector. Out of enmity, the suit was filed by the plaintiffs. The agreement dated 13.07.2004 was happened to be executed under threat. Hence, it is invalid. 4. Replication was filed to the counter claim in O.S.No.236/2004 denying the averments in the written statement and the counter claim. 5. PW1 and PW2 were examined and Exts.A1 to A5 were marked from the side of the plaintiff. DW1 to DW3 examined and Exts.B1 to B19 marked from the side of the defendant. Exts.C1 series, C2, C3 and C4 were also marked. 6. Trial court decreed both suits and partly allowed the counter R.S.A.Nos.1472/2013 & 1472/2013 7 claim. Defendant was allowed to realise Rs.60,000/- as the relief in the counter claim. 7. Aggrieved by the same, defendant filed appeal and the first appellate court found that the plaintiff is in custody of Rs.1,25,000/- as advance and the claim for arrears is only Rs.72,000/- and hence advance amount can be adjusted towards arrears of rent and the decree passed for arrears of rent was set aside. The amount of Rs.60,000/- awarded in favour of the defendant in the counter claim was also set aside. Aggrieved by the modified judgment and decree passed by the first appellate court, the defendant approaches this Court in this second appeals. Cross objection No.6 is also filed by plaintiff in R.S.A.No.1472/2013. Appeal has been admitted on the substantial question of law formulated in the appeal memorandum in : each appeal “In R.S.A.No.1472 of 2013 i) Whether the courts below committed grievous error in ordering eviction of the appellant from the plaint schedule building without complying with the mandate of Sec.106 of Transfer of Property Act ? ii) Is not the Courts below grievously erred in finding that there is R.S.A.Nos.1472/2013 & 1472/2013 8 a valid notice issued by the respondent/plaintiff under Sec. 106 of Transfer of property Act ? iii) Whether the courts below committed grievous error in not considering the crucial admissions of PW1 and misconstrued the evidence on record ? iv) Having found that the appellant has not kept the rent in arrears and the plaintiff failed to prove his bonafides in seeking eviction, is not the courts below gone wrong in granting a decree in favour of the plaintiff ? v) Is not the lower appellate Court committed grievous error in reversing the decree granted by the trail court in the counter claim made by the appellant ? R.S.A.No.1473 of 2013 i) Whether the courts below committed grievous error in ordering eviction of the appellant from the plaint schedule building without complying with the mandate of Sec.106 of Transfer of Property Act ? ii) Is not the Courts below grievously erred in finding that there is a valid notice issued by the respondent/plaintiff under Sec. 106 of Transfer of property Act ? iii) Whether the courts below committed grievous error in not considering the crucial admissions of PW1 and misconstrued the evidence on record ? iv) Is not the court below committed grievous error in granting a decree of permanent prohibitory injunction ?” ## 8. Lower court records were called for. Since parties are one and R.S.A.Nos.1472/2013 & 1472/2013 9 the same, the second appeal arise out of a common judgment of the first appellate court in A.S.Nos.82/2007 and 83/2007, both R.S.As and Cross Objection No.6/2014 filed in R.S.A. No.1472/2013 by the respondent/plaintiff were heard together and a common judgment is passed. 9. A.S.No.82/2007 arose out of the judgment and decree in O.S.No.236/2004 by which an order of eviction has been passed against the appellant/defendant. The only substantial question of law argued by the learned counsel is with regard to insufficiency of notice as contemplated under Section 106 of the Transfer of Property Act (In short 'the Act'). Ext.A1 is the agreement by which the defendant took the plaint schedule property on rent. Ext.A3 is the copy of lawyer notice dated 23.09.2004 terminating the lease arrangement. The lease is for a period of 11 months from 01.07.2002. Sub-section (1) of Section 106 is relevant to be extracted, which reads thus: “106. **Duration of certain lease in absence of written contract or local usage.-** (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to R.S.A.Nos.1472/2013 & 1472/2013 10 year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable, on the part of either lessor or lessee, by fifteen days' notice.” 10. Since the lease in this case is not for agricultural or manufacturing purposes, as has been rightly found by the appellate court the lease in this particular case is to be treated as a lease for month-to-month and is to be terminable by 15 days notice. As rightly found, though no specific date is discernible from Ext.A4 acknowledgment card, to Ext.A3 notice dated 23.09.2004, Ext.A5 reply notice has been sent by the defendant dated 06.10.2004. So on or before 06.10.2004 the defendant might have received the notice and the suit filed on 25.11.2004 is within the period contemplated under Section 106 of the Act. Hence the contention of the defendant that there is no proper notice as provided under Section 106 of the Act has been rightly rejected by the courts below. 11. Appeal has also been filed against the dismissal of the counter claim put forward by the defendant. Counter claim was for R.S.A.Nos.1472/2013 & 1472/2013 11 Rs.76,524/- towards the alleged construction of bathroom and the modification of the building etc. He produced Exts.B13 to B15 receipts showing payment of money by him for repair work and maintenance. DWs 2 and 3 were also examined to prove Exts.B13 to B15 bills. Ext.B13 is a cash bill of Rs.32,524/- dated 24.12.2000. Ext.B14 is a printed receipt for Rs.1,00,000/- dated 30.12.2000 and Ext.B15 is another undated receipt for Rs.20,000/-. As has been rightly found by the 1[st] appellate court, in Ext.A2 agreement dated 13.07.2004 executed between the plaintiff and the defendant, amount of Rs.40,000/- has been credited towards the expenses of alteration made by the defendant and further it is agreed that the balance of Rs.27,500/- would be paid by the defendant to the plaintiff before 20.06.2004. Admittedly that amount has been paid also. So that would indicate that the amount spent by the defendant for carrying out the maintenance and repair have been given credit in Ext.A2 agreement. Though defendant contended that Ext.A2 is executed under threat, it was found against by both courts and it is R.S.A.Nos.1472/2013 & 1472/2013 12 found that Ext.A2 has been executed by the defendant and is acted upon by him. Ext.B14 is only a printed receipt dated 30.12.2000 and Ext.B15 receipt does not bear any date at all. So when it has come out that Ext.A2 agreement has been executed by the defendant and in which a credit of Rs.40,000/- has been given towards the repair work carried out by the defendant in the building and the two receipts produced by the defendant is of the year 2000 and Ext.A2 agreement is of the year 2004, the reasonable conclusion would only be that all the expenses met by defendant up to that date might have been taken into account while arriving Rs.40,000/- as the charges towards alteration carried out by the defendant in Ext.A2. Ext.B15 does not contain any date also. Though attempt was made by the defendant to contend that Ext.A2 agreement was executed at police station and was executed under threat and duress, he could not adduce evidence to substantiate that any satisfactory contention. On the other hand, he has admitted that Rs.40,000/- has been received by him as per Ext.A2 and he also admitted that R.S.A.Nos.1472/2013 & 1472/2013 13 Rs.27,500/- as agreed in Ext.A2 has been paid by him to the plaintiff. Hence as rightly found by the 1[st] appellate court, Ext.A2 is proved to have been acted upon. Hence the contention that Ext.A2 has been executed under threat and coercion has been rightly rejected by the 1[st] appellate court. Accordingly counter claim was rightly refused by the 1[st] appellate court and, I do not find any reason to interfere with the same in this second appeal. 12. The respondent/plaintiff also filed cross objection against the dismissal of the claim for passing a decree for arrears of rent by the first appellate court finding that plaintiff is in custody of Rs.1,25,000/- as advance and his claim is only Rs.72,000/-. It is relying on _**Modern Hotel, Gudur v. K. Radhakrishnaiah & Ors** [AIR 1989 SC 1510] and_ _**K.Narasimha Rao v. T.M. Nasimuddin Ahmed** [AIR 1996 SC 1214]. The law laid down in the above decisions is_ that when there is advance amount with the landlord, which is higher than the arrears of rent, there cannot be an order of eviction. 1[st] appellate court found that advance amount of Rs.1,25,000/- is in the custody R.S.A.Nos.1472/2013 & 1472/2013 14 of the plaintiff and claim is only Rs.72,000/- and hence, it is concluded that plaintiff could have adjusted the arrears of rent from the advance amount. 13. It is contended by the learned counsel for the plaintiff/respondent that subsequent to the filing of the suit the rent has fallen in arrears and that according to the senior counsel would come to Rs.6,93,500/- and from that they are prepared to adjust the advance amount of Rs.1,25,000/-. The learned senior counsel also contend that the adjustment of premium amount would arise only at the time of actual eviction. 14. A learned Single Judge of this Court in _**Muhammadali v. Ummaya Umma**_ [1983 KLT 536] following the principles in _**Gopalakrishna Pillai v. Meenakshi Ayal**_ [AIR 1967 SC 155] held that the court in its discretion is empowered to grant a decree for future profits even if there is no prayer in the reliefs. In that case also, appellant challenges the decree of the lower appellate court awarding future profits to the plaintiff invoking the provisions of R.S.A.Nos.1472/2013 & 1472/2013 15 Rule 12 of Order 20 of Code of Civil Procedure. It has been held that the court has jurisdiction to grant a decree for future profits in cases to which Rule 12 of Order 20 applies. That suit was also for eviction and termination of tenancy and it was held that the court in its descretion is empowered to grant a decree of future profits even if there is no specific prayer in the plaint for such relief. 15. So the rejection of claim for arrears of rent by the 1[st] appellate court, finding that claim is only for Rs.72,000/- and Rs.1,25,000/- is in the custody of the plaintiff as advance, is against the well settled principles of law especially when there is huge rent in arrears and the defendant is occupying the building without paying any rent. So also it will lead the plaintiff to another litigation for rent arrears. So the rejection of the claim for arrears of rent by the 1[st] appellate court is liable to set aside and cross objection filed by the respondent/plaintiff is only to be allowed. 16. In the result, R.S.A is dismissed and cross objection by the respondent/plaintiff is allowed and the defendant is directed to pay R.S.A.Nos.1472/2013 & 1472/2013 16 arrears of rent at the rate of Rs.4,500/- per month as agreed till actual date of surrender of the building to the plaintiff with interest at 6% from the date of suit till realisation. The advance amount paid and the arrears of rent paid pending the proceedings shall also be given credit to. ## **R.S.A.No.1473 of 2013** 17. This appeal arise out of the judgment and decree in O.S.No.40/2005. In this suit, it is alleged that on 09.02.2005 the defendant and his men attempted to make further alterations in the quarters and when the plaintiff made inquiries about the same the defendant threatened to do whatever he likes ignoring the lease agreement and thereupon the suit was filed seeking for permanent prohibitory injunction for restraining the defendant and his men from causing any kind of alteration in the plaint schedule property. 18. The defendant filed written statement denying the allegation that he made alterations in the building without the consent of the plaintiff and he also got a contention that as per the R.S.A.Nos.1472/2013 & 1472/2013 17 lease deed of 01.01.2000 only a hall in Thengattu complex was leased out to him. The defendant also claim a total amount of Rs.1,52,524/as the amount due from the plaintiff towards the alterations and maintenance carried out by him. He also denied the execution of agreement dated 13.07.2004 in between him and the plaintiff. 19. Both courts concurrently found that the plaintiff is entitled for the relief of injunction as sought for. It has come out in evidence that there is serious dispute between the parties with regard to the alterations made by the defendant in the plaint schedule building and an agreement Ext.A2 was also executed in between the parties. In Ext.A2 agreement, it has been agreed by the defendant that if he is vacating the premises after the tenancy period he will not take anything back and cause any alteration to the structures made therein. Accordingly, the judgment and decree passed by the Trial court in O.S.No.40/2005 dismissing the suit was upheld by the 1[st] appellate court. On perusing Ext.A1 agreement executed between the parties, it could be seen that there is no clause in Ext.A1 R.S.A.Nos.1472/2013 & 1472/2013 18 enabling the defendant to carry out any alterations to the building. It is also specifically agreed that the room has to be used exclusively for computer business purposes and for residence. It is also agreed that no articles can be kept causing nuisance to others or exhibit any name board in the building. Being a tenant without any specific clause in the agreement enabling him to carry out alterations, the defendant cannot make any alteration to the building. In this case, it has come out in evidence that alterations has been made by the defendant in the plaint schedule room and an amount of Rs.40,000/was also obtained as per Ext.A2 from the plaintiff in that regard. Hence, it has come out that defendant has caused alteration in the building let out by the plaintiff for which he has no authority as per Ext.A1. So, I do not find any reason to interfere with the decree of injunction granted in favour of the plaintiff concurrently by the courts below. In the result, R.S.A.No.1472 of 2013 and R.S.A.No.1473 of 2013 are found to be devoid of any merit and dismissed and cross R.S.A.Nos.1472/2013 & 1472/2013 19 objection in R.S.A.No.1472 of 2013 stands allowed. Sd/- rps/ **M.R.ANITHA, JUDGE**