KunhipyloTh S/O Ouseph v. Chellakkottukara Mar Marisleeha Church

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 SA.No. 307 of 2000(C) --------------------AS.20/1999 of PRL.SUB COURT,THRISSUR OS.457/1993 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT/DEFENDANT/APPELLANT: -------------------------------------------------------- KUNHIPYLOTH, S/O.OUSEPH, KUTTIKKAT HOUSE CHIYYARAM VILLAGE AND DESOM CHIYYARAM PO, TRICHUR – 26, TRICHUR TALUK AND DISTRICT. BY ADV. SRI.N.SUBRAMANIAM RESPONDENT(S): --------------- RESPONDENTS/PLAINTIFFS/RESPONDENTS : 1. CHELAKKOTTUKARA MAR MARISLEEHA CHURCH REPRESENTED BY VICAR – REV.FR.ANTHONY S/O.KANGAPPADAN PYLOTH, PO KURIACHIRA, TRICHUR TALUK & DISTRICT KAIKKARS : 2.PAILAPPAN, S/O.KONIKKARA ANTHAPPAN, KURIACHIRA DESOM, PO KORUACHIRA, OLLUR VILLAGE, TRICHUR TALUK AND DISTRICT 3. JOY, S/O.CHITTILAPPILLY RAPPAI, KURIACHIRA DESOM PO KURIACHIRA, OLLUR VILLAGE, TRICHUR TALUK AND DISTRICT 4. T.K.THIMOTHEUS, S/O.KUNJUVAREED THAZHATH HOUSE, NEAR MAR MARISLEEHA CHURCH, PO KURIACHIRA TRICHUR 680006 5. INASU KALLIATH, S/O.LONA KALLIATH HOUSE, HOSHTAI KUNNU PO KURIACHIRA, TRICHUR 680 006 (R4 & R5 MENTIONED ABOVE ARE SUBSTITUTED IN PLACE OF ORIGINAL R4 & R5 VIDE ORDER DATED 19.10.2000 ON CMP No.2023/2000) ADV. SRI.K.PAUL KURIAKOSE FOR R1- R5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA 307/00 -2- CMP NO.813 OF 2000 IN SA NO.307 OF 2000 ## DISMISSED 30.06.2011 SD/-P.BHAVADASAN, JUDGE TRUE COPY PA TO JUDGE ## **P.BHAVADASAN, J.** ------------------------------------SA No.307 of 2000 ------------------------------------Dated this the 1[st] day of July 2011 ## Judgment The defendant in OS No.457/93, who suffered an order of eviction both at the hands of the trial court and the lower appellate court, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. It is not in dispute that the defendant was inducted into possession as a tenant of the building owned by the plaintiffs, on a monthly rent of Rs.80/-. It appears that Ext.A2 rent deed dated 31.10.1975 was executed by the defendant in favour of the landlord. Later, the rent was enhanced to Rs.90/-. Pointing out that the rent has been kept in arrears and the church requires the building for its use, the suit for eviction was laid against the defendant. 3. The defendant contended that he can be evicted only in accordance with the provisions of the Rent Control Act, namely Act 2 of 1965 and that the notice of SA 307/00 2 eviction is defective. On the above contentions, he prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A5 (a) from the side of the plaintiffs. No oral/documentary evidence was adduced from the side of the defendant. 5. The trial court, on an evaluation of the evidence, found that the building owned by the plaintiffs is exempted under Section 25 of the Rent Control Act and therefore, Act 2 of 1965 can have no application to the facts of the case. Finding that the notice of eviction is proper, a decree was granted to the plaintiffs. 6. The aggrieved defendant carried the matter in appeal as AS No.20/99 before the Sub Court, Thrissur. The lower appellate court was unable to find any infirmity in the judgment and decree of the trial court and confirmed the same. Hence the second appeal. SA 307/00 3 7. Notice is seen issued on the following questions of law formulated in the second appeal : - 1.Whether the judgments and decrees of courts below ordering eviction of plaint schedule shop room, one the ground that the plaint schedule shop room belonging to the plaintiff church has been exempted by the Government under SRO 435/92, are sustainable now, in view of the fact that the exemption granted under the said notification has been found to be unconstitutional and invalid as per decision rendered by Division Bench in 2000(1) KLJ 366 ( **VJ Job and others v. State of Kerala and others** ) ? - 2.Whether the lower appellate court is justified in passing the judgment without giving opportunity to the appellant to produce the SA 307/00 4 certified copy of judgment reported in 2000(1) KLJ 366 ? - 3.When the constitutionality of a Subordinate Legislation is taken in the written statement and in the appeal memorandum, are the courts below justified in not referring the question involved to the High Court under the proviso to Section 113 of CPC. - 4.When a church after constructing a building and then leases it out for doing business by a lessee, can the exemption granted by Government to such building from the purview of Rent Control Act, be termed as exemption given for public purpose ? - 5.In the facts and circumstances of the case, are the courts justified in decreeing the suit and dismissing the appeal filed by the defendant ? SA 307/00 5 8. Reliance is placed on the decision reported in **K.K.Krishna Pillai v. Infant Jesus Church, Ernakulam** (2000(1) KLT 197) by the learned counsel for the appellant, pointing out that the notification which exempted the building of the plaintiffs from the purview of Act 2 of 1965, has been found to be invalid and the provisions of the Rent Control Act are applicable to the case on hand. 9. If the position is as contended by the learned counsel for the appellant, what he says is absolutely correct. Unfortunately, the decision relied on by the learned counsel for the appellant has been overruled by the Apex Court by the decision in **Christ The King Cathedral v. John Ancheril** (2001(2) KLT 946), wherein it was held that the impugned notification does not suffer from any legal infirmities. If that be so, the finding of the courts below that Act 2 of 1965 can have no application is only to be upheld. 10. Coming to the second contention regarding notice, both the courts below have found that the suit was SA 307/00 6 instituted only after the statutory period of issuing the notice and that it is a valid quit notice terminating tenancy. Being findings of facts, no interference is called for with the judgments and decrees of the courts below. The result is that no substantial questions of law arise for consideration in the second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. However, there will be no order as to costs. ## **P.Bhavadasan, Judge** sta # SA 307/00 7