M/S Ruby Enterprises (P) Ltd. v. Malabar Hotel Management & Catering Promotion Trust and Oriental School of Hotel Management

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN MONDAY, THE 21ST DAY OF OCTOBER 2013/29TH ASWINA, 1935 ## OP(C).No. 3135 of 2013 (O) AGAINST THE JUDGMENT IN CMA 17/2013 & 18/2013 of SUB COURT, SULTHAN BATHERY PETITIONER(S): ------------ M/S.RUBY ENTERPRISES (P) LTD. 18/12, BYE-PASS JUNCTION, ALUVA 683101 REPRESENTED BY ITS AUTHORISED REPRESENTATIVE SMT.SAFIYA USMAN AGED 48 YEARS, PEACE COTTAGE, ALUVA-2 ALUVA WEST VILLAGE BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SRI.K.P.SUDHEER RESPONDENT(S): ------------- 1. MALABAR HOTEL MANAGEMENT & CATERING PROMOTION TRUST, 29/924, ALMAZ BUILDING, KOOTTOOLI KOZHIKODE 673 106, REPRESENTED BY ITS CHAIRMAN SRI.N.K.MUHAMMED(THE RESPONDENT IS A PRIVATE TRUST REGISTERED UNDER THE INDIAN TRUST ACT) 2. THE PRINCIPAL - ORIENTAL SCHOOL OF HOTEL MANAGEMENT, LAKKIDI VYTHRIRI P.O, KUNNATHIDAVAKA VILLAGE, VYTHIRI TALUK WAYANAD DISTRICT PIN 673 576 ADV. SRI. B.G. BHASKAR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP(C).No. 3135 of 2013 (O) ----------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------- - EXHIBIT P1 : TRUE COPY OF PLAINT DATED 29-04-2013 IN O,.S NO 89/2013 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT,KALPETTA - EXHIBIT P2: TRUE COPY OF WRITTEN STATEMENT DATED 31-05-2013 FILED BY THE RESPONDENTS IN O.S NO 89/2013 BEFORE THE MUNSIFF'S COURT,KALPETTA - EXHIBIT P3 : TRUE COPY OF COMMISSION REPORT DATED 2-5-2013 IN I.A NO 137/2013 IN CMP NO 15/2013 BEFORE THE MUNSIFF'S COURT,KALPETTA - EXHIBIT P4 : TRUE COPY OF ORDER DATED 5-7-2013 IN IA NOS.497/2013 AND 566/2013 IN O.S NO 89/2013 PASSED BY MUNSIFF'S COURT KALPETTA - EXHIBIT P5 : TRUE COPY OF COMMISSION REPORT DATEDC 3-082013 IN I.A NO 997/13 IN CMA NO 17/2013 ON THE FILE OF THE SUB COURT,SULTHAN BATHERY - EXHIBIT P6 : TRUE COPY OF ORDER DATED 31-08-2013 IN CMA NOS 17/2013 AND 18/2013 PASSED BY SUB COURT SULTHAN BATHERY - EXHIBIT P7 : TRUE COPY OF ORDER DATED 31-08-2013 IN I.A NO 1134/2013 IN CMA NO 17/2013 PASSED BY SUB COURT,SULTHAN BATHERY ## **N.K. BALAKRISHNAN,J.** ........................................................................ O.P. (C ) No. 3135 of 2013 ...................................................................... Dated: 21-10-2013 ## **JUDGMENT** The plaintiff in a suit for injunction is the petitioner. Plaintiff is a private Limited Company represented by its authorised representative. In that suit she filed an application for injunction to restrain the respondents from trespassing into or otherwise interfering with the plaintiff's possession over the plaint schedule building. The buildings are constructed in a plot measuring 3 acres owned by the petitioner. One building consists of 36 rooms and the other building consists of 54 rooms. It was stated that those buildings were let out to the first respondent Trust O.P. (C ) No. 3135 of 2013 -:2:- managed by the brother of the Managing Director of the Petitioner company. Those two buildings were leased out to use the same as hostel buildings for accommodating the students studying in a hotel management institution run by the Trust. It was stated that since dispute arose, there was a mediation and thereafter the first respondent surrendered the buildings to the petitioner/plaintiff on 31-3-2003 and pursuant thereto the entire furniture in the rooms were removed and the first respondent gave vacant possession of the building to the petitioner. The suit was filed contending that there was an attempt on the part of the respondent to trespass into the building. 2. The respondents filed counter statement denying the plea of surrender put forward by the petitioner. It was contended that the lease was renewed O.P. (C ) No. 3135 of 2013 -:3:- on 20-5-2004. It was further contended that the building consisting of 54 rooms was in fact constructed by the first respondent in the land belonging to the petitioner and that there was a special arrangement between the brothers. The trespass alleged is also denied. It is further contended that the Educational Institution run by the first respondent was closed for vacation on 28-3-2013 and thus the students vacated the rooms. The furniture were entrusted for repair and periodical maintenance and it was at that time the plaintiff filed the suit and petition alleging trespass. It was contended that the are respondents conducting educational Institutions. There are about 700 students out of which 530 students required hostel accommodation and so the petition schedule building are absolutely necessary for accommodating the students and if the respondents are O.P. (C ) No. 3135 of 2013 -:4:- prevented from using the plaint schedule building, irreparable injury would be caused to the respondents. 3. The defendant filed an application for an injunction restraining the petitioner from alienating the property. An order was passed as prayed for. That order is not in challenge now. 4. The application for temporary injunction filed by the plaintiff was dismissed. That order was confirmed in appeal by the appellate court. 5. This petition has been filed by the plaintiff under Art. 227 of the Constitution of India to set aside Exts. P4 and P6 orders passed by the courts below and to allow the application for injunction as prayed for . 6. Both sides have been heard in detail. 7. The learned counsel for the petitioner would O.P. (C ) No. 3135 of 2013 -:5:- submit that the since it is an application for temporary injunction the courts below were bound to take into account only the prima facie case of possession set up by the plaintiff, the irreparable injury that would be caused if injunction is denied and also the balance of convenience. These aspects were not properly considered by the courts below and so the order passed by the learned Munsiff which was confirmed by the learned Sub Judge is liable to be set aside and an injunction should be granted, the petitioner's counsel argued. 8. Admittedly the two buildings; one consisting of 36 rooms and the other consisting of 54 rooms were in the possession of the respondent Trust which was managed by the brother of the Managing Director of the petitioner Company. The petitioner contends that due to the O.P. (C ) No. 3135 of 2013 -:6:- intervention of some mediators or intermediaries the respondent had surrendered possession of the buildings to the petitioner on 31-3-2013. The respondents resisted that submission and contended that there is absolutely no document or anything of that sort to show that there was a surrender of the two buildings. It is not a case of implied surrender, but the case put forward by the petitioner is that there was a surrender; to mean express surrender of the two buildings to the petitioner, and so, in the absence of any other document or material it cannot be found that the petitioner has showed a prima facie case of possession, the learned counsel for the respondent submits. 9. The learned counsel for the petitioner would submit that admittedly when the Advocate Commissioner inspected the two buildings, all the rooms in the two O.P. (C ) No. 3135 of 2013 -:7:- buildings were lying vacant and there was no sign of any recent usage of those two buildings, and so it should have been found by the courts below that the rooms were vacated by the respondent pursuant to the compromise entered into in the presence of the mediators. But that plea also is stoutly resisted by the respondent pointing out that the Advocate Commissioner (which was an ex parte commission) inspected the buildings without notice to the respondent and in the absence of the respondent. That apart, the inspection was had during vacation period. The petitioner is stated to be the wife of the respondent's brother. Before the dispute arose, they were on cordial terms. It is also pointed out that when the Commissioner inspected the property, the gate was lying open. The office room of that hostel was seen locked. That room was not O.P. (C ) No. 3135 of 2013 -:8:- opened as the key of that room was not with the petitioner, the respondent contends. It was not a case where the lock of the gate was opened by the petitioner. It is vehemently argued by the learned counsel for the petitioner that the observation made by the Advocate Commissioner in Ext.C1 report would make it clear that all those rooms were lying vacant. The learned counsel for the respondents would submit that during vacation, the repair and maintenance work used to be carried out and so in order to repair the furniture the entire furniture were removed by the contractor to whom the work was entrusted. But there is no specific pleading to that effect, the learned counsel for the petitioner submits. It is not necessary to delve deep into those questions of fact. 10. The two courts below have found that though at O.P. (C ) No. 3135 of 2013 -:9:- the time when the Advocate Commissioner inspected the property all those rooms were lying vacant, it is difficult to hold that the petitioner was in possession of the two buildings since there is no prima facie material to show that the plea of surrender put forward by the petitioner is true and acceptable. When the two courts have exercised their discretion to refuse the relief of temporary injunction based on the materials placed before those courts it would be unwise to interfere with the finding of fact and the discretion exercised by those courts. 11. It is also submitted by the learned counsel for the respondent that if the courts are to blindly accept the opinions expressed by the Advocate Commissioner, that too, when it was an ex parte order, the courts would be taken for a ride and justice would become a casualty. O.P. (C ) No. 3135 of 2013 -:10:- Therefore, simply because the Advocate Commissioner opined “on the facts narrated above it can be assumed that the buildings are in the possession of plaintiff ”, the courts should not be swayed by such observations or opinions expressed by the Advocate Commissioner. The Court has to discern the truth from other materials placed before Court. True, that the Commissioner's report may sometimes help the court to find whether the plea of possession set up by the petitioner is true or not. But the ultimate conclusion should not depend upon such observations or opinions expressed by the Advocate Commissioner especially when it was an ex parte commission. 12. It is submitted by the learned counsel for the respondent that if as a matter of fact, the petitioner had O.P. (C ) No. 3135 of 2013 -:11:- any apprehension that the respondent will not vacate the building or that the rent was not properly or punctually paid then, certainly in all probability some document would have been demanded by the petitioner for having obtained surrender of the building, if as a matter of fact, the respondent had surrendered the two buildings. In the absence of anything else there is only the averment in the plaint and the affidavit filed by the petitioner that the building was surrendered by the respondent. 13. It is pertinent to note that admittedly the College is being run even now. There is no case that any other hostel buildings were constructed or were in the possession of the respondent as on the date of the suit. When that College/Institution is being run and when it is not in dispute that hundreds of students coming from O.P. (C ) No. 3135 of 2013 -:12:- various places including from other States are studying there, then certainly without the hostel building it will not be possible to run that educational institution. It is true that it is the look out of the person in management of the College or Educational Institution to find out a hostel. But when the Hostel building was being occupied by the respondent on the strength of Ext. B1 lease deed unless there is any other material to hold that the building was surrendered by the respondent, it may have to be found that the respondent continued to be in possession of those two buildings. 14. It was contended by the petitioner before the court below that the respondents have kept huge rent in arrears amounting to Rs. 81 lakhs. But it was contended by the respondents that even as per the calculation made by O.P. (C ) No. 3135 of 2013 -:13:- the plaintiff/petitioner the rent in arrears is far less than the amount shown in the plaint. Though the Trust is in fact run or managed by the brother of the petitioner's husband and though the petitioner Company is being run by the brother it is most unlikely that the two buildings having a total number of 90 rooms would be surrendered by the respondent Trust to a Company which is a totally different legal entity without any document whatsoever. The contention that though it is a Private Limited Company and a Trust both are being run by the brothers and so they did not think of getting documents executed cannot be an acceptable reason to say that the finding of fact regarding possession of the two buildings based on Ext. B1 agreement entered by the courts below is liable to be interfered with by this Court . O.P. (C ) No. 3135 of 2013 -:14:- 15. It was contended by the respondent that the second building was actually constructed by the respondent by using his funds but in the landed property of the petitioner which was done with a view to avoid payment of income tax. That case is resisted by the learned counsel for the petitioner. The plea of special arrangement put forward by the respondents does not appear to be a normal or usual act or conduct. It would be unreasonable to hold that one would construct building on another man's land, that too spending more than Rupees one or one and a half crore. But the plaintiff proceeded on the footing that the defendant was a lessee and that there was surrender of that lease hold right. There is no prima facie proof of surrender of the building, the courts below found. There is no reason to upset that finding. O.P. (C ) No. 3135 of 2013 -:15:- 16. However it is not necessary to consider all those disputed facts in this petition filed under Art. 227 of the Constitution of India. The two courts below have elaborately dealt with all the points to find whether the case of possession set up by the plaintiff is acceptable or not or whether it is the case put forward by the respondent that is more reasonable and acceptable. 17. Since the educational institution was admittedly being run by the respondent it was found that the balance of convenience is in favour of the respondent so as to refuse the injunction prayed for by the plaintiff as otherwise it would affect the running of the educational institution which would in a way affect the students studying in that institutions, if all of a sudden the hostel building is allowed to be closed. In the absence of any O.P. (C ) No. 3135 of 2013 -:16:- other material, the finding entered by the courts below that prima facie the respondent is proved to be in possession of the two buildings appears to be reasonable and it is not liable to be interfered with in a petition filed under Art. 227 of the Constitution of India. 18. Much can be said by both sides regarding the rival contentions put forward by them when the suit comes up for trial. What have been said by the trial Court and the appellate Court and now by this Court are only for the disposal of the injunction petition and any observation made in the orders impugned or in this judgment shall not influence the trial court while disposing of the suit. 19. In the absence of any other material, the contention that the lessor had taken possession of the O.P. (C ) No. 3135 of 2013 -:17:- leased premises or that there was implied surrender is found to be bereft of any merit. The decision of the Supreme Court in **Ece Industries Limited (2) vs. S.P. Real Estate Developers Private Limited and Another - (2009) 12 SCC 776** has been relied upon by the learned counsel for the respondent in support of his submission that it would not be open for the third court to interfere with the concurrent order of refusal passed by the two courts below so as to grant injunction. It was held : _“It is well settled now by a catena of decisions of this court that when two courts concurrently rejected the application for injunction, it would not be open for the third court to interfere with the said concurrent findings until and unless it is brought to the notice of the third court that such findings are perverse or arbitrary”._ Here there is no perversity or arbitrariness in the order passed by the courts below . The courts below have relied upon materials which are germane for consideration. O.P. (C ) No. 3135 of 2013 -:18:- 20. The finding entered by the courts below that the plaintiff/petitioner could not prove prima facie case of possession does not suffer from any legal infirmity or jurisdictional error. The balance of convenience is in favour of the respondent. Irreparable injury would be caused to the respondent if injunction is granted as it would affect the running of the educational institution. I find that the discretion exercised by the courts below cannot be interfered with by this Court invoking the jurisdiction under Article 227 of the Constitution of India. In the result, this O.P. is dismissed. Dated this the 21st day of October, 2013. **Sd/-N.K. BALAKRISHNAN, JUDGE.** /true copy/