Punjab National Bank v. A.V. George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941** ## **FAO (RO).No.40 OF 2019** **AGAINST THE JUDGMENT DATED 21-10-2019 IN AS 52/2016 OF ADDITIONAL DISTRICT COURT COURT -IV, THRISSUR AGAINST THE JUDGMENT DATED 30-09-2015 IN OS 613/2008 OF I ADDITIONAL MUNSIFF COURT ,THRISSUR** ## **APPELLANT/RESPONDENT/RESPONDENT:** **PUNJAB NATIONAL BANK,KURUPPAM ROAD, THRISSUR,REPRESENTED BY SENIOR MANAGER.** **BY ADVS. SRI.C.AJITH KUMAR SHRI.RAJEEVU L.G.** ## **RESPONDENT/APPELLANT/PETITIONER:** **A.V.GEORGE,AGED 58 YEARS, S/O.VARGHESE,ARANGASSERY(H), KURIACHIRA,CHIYYARAM, THRISSUR DISTRICT, PIN- 680 026.** **R1 BY ADV. SRI.M.P.RAMNATH R1 BY ADV. SRI.BEPIN PAUL R1 BY ADV. SMT.S.SANDHYA R1 BY ADV. SRI.SHALU VARGHESE R1 BY ADV. SRI.SEBASTIAN K.JOSE R1 BY ADV. SRI.P.RAJESH (KOTTAKKAL) R1 BY ADV. SEI.M.VARGHESE VARGHESE R1 BY ADV. SRI.S.DEEPAK R1 BY ADV. SRI.ANTONY THARIAN** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 27.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** FAO(RO)No.40/2019 2 ## **C.R.** ## **JUDGMENT** It is now well settled in law that Nationalised Banks are entitled to invoke the provisions of the Public Premises (Eviction of unauthorised occupants) Act, 1971, to seek eviction of its properties; and the appellant herein – The Punjab National Bank – asserts such a right against the respondent, who claims to be the tenant of one of their buildings. 2. However, what sets apart this case from the rest is the respondents' contention that he cannot be evicted through the processes under the afore mentioned Act since the building, in which he claims to be a tenant, was originally owned and tenanted to him by a private Bank – to which the Act would not apply – and, therefore, that the appellant herein – who obtained it subsequently through an amalgamation of the former Bank with it – is legally FAO(RO)No.40/2019 3 incapacitated from invoking the Act. 3. The defendant in O.S. No. 613/2008 on the files of the I Additional Munsiff's Court, Thrissur, is the appellant herein and they assail the judgment of the IV Additional District Judge, Thrissur, in A.S. No. 52/2016 – which had been filed by the plaintiff/ respondent herein consequent to the dismissal of the suit - remanding the suit for fresh trial and disposal to the Trial Court. 4. The appellant, which is concededly a Nationalised Bank, alleges that a property now belonging to them had been leased out to the respondent herein; and that, even though the period of lease has expired, he refused to give back possession of the same, thus constraining them to initiate action against him under the provisions of the Public Premises (Eviction of unauthorised occupants) Act, 1971 (hereinafter referred to as the “Public FAO(RO)No.40/2019 4 Premises Act” for ease). They say that when they initiated such action and issued notice under the provisions of the said Act, the respondent/plaintiff approached the Trial Court by filing the suit, contending that he cannot be evicted otherwise than under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Rent Control Act'); and that, therefore, the bank cannot oust him from possession in any other manner. 5. Sri.Ajith Kumar, learned counsel for the appellant, adds to the above, saying that the Trial Court framed a preliminary issue as to whether the suit is maintainable on account of the bar under Section 15 of the Public Premises Act and correctly found that the property in question is covered by the said Act and thus dismissed the suit, finding it be not maintainable, being guided by the declaration of law FAO(RO)No.40/2019 5 made by the Hon'ble Supreme Court in **Asoka Marketing Ltd. and another v. Punjab National Bank and others** (AIR 1991 SC 855). 6. The learned Counsel then submitted that this judgment and decree of the Trial Court was taken up in appeal by the respondent herein in A.S. No. 52/2016, and that, eventhough, the Lower Appellate Court confirmed the findings of the Trial Court on the issue of the Public Premises Act, it remanded the matter for fresh consideration on other issues. He asserts that this judgment and decree of the Lower Appellate Court is wholly untenable, since, once the findings as regards the Public Premises Act had been left undisturbed, then it is obvious that the suit itself is not maintainable as per Section 15 of the said Act, thus rendering the order of remand otiose. Sri.Ajith Kumar, therefore, prays that this appeal be allowed and the judgment of the Lower Appellate FAO(RO)No.40/2019 6 Court be set aside. 7. Sri. M.P. Ramnath, learned counsel appearing on behalf of the respondent, in refutation of the afore submissions of the appellant, contended that the order of remand by the Lower Appellate Court is not per se wrong, but that the said Court had erred in confining the consideration of the Trial Court only to the other issues, but not to the applicability of the Public Premises Act. 8. Sri. M.P. Ramnath further submitted that if this Court is inclined to admit this appeal, then his client intends to file a cross appeal on this issue, because the appellant – Punjab National Bank – was not the owner of the property when his client took it on lease; and that they acquired ownership over it from the erstwhile Nedungadi Bank - which was not a Nationalised Bank – under a subsequent order of amalgamation sanctioned under the provisions of the FAO(RO)No.40/2019 7 Banking Regulation Act. He thus asserts that, resultantly, his client cannot be brought under the rigour of the Public Premises Act, since his rights under the lease agreement had been crystalised much earlier to the amalgamation. 9. Sri. M.P. Ramnath, in further substantiation of his afore contention, submitted that this is manifest from the order of amalgamation, which has been marked on record as Ext.B2, wherein it is expressly stipulated that all rights, claims, demands, interest and benefits over the assets and properties of the transferor bank (Nedunagadi Bank) would be subject to all incidents of tenure, among other things. He says that, therefore, it is irrefutable that the Trial Court ought to have more carefully considered whether the provisions of the Public Premises Act would be applicable at all in this case, adding that he has no contest against the declaration FAO(RO)No.40/2019 8 in **Asoka Marketing Ltd. (supra)** , but that the said judgment would not apply to the facts involved in this case. He, therefore, prays that either his client be allowed to file a cross appeal, if this court is inclined to admit this appeal; or to dismiss the appeal at the admission stage for the afore reasons. 10. I have closely considered the dialectical contentions impelled by the learned counsel as above and have also examined the evidence and pleadings available on record. I proceed to dispose of this appeal at the admission stage itself, as per the consent of the learned counsel for both sides. 11. The uncontested facts would make it perspicuous that the property in question had been originally taken on lease by the respondent herein from the erstwhile Nedungadi Bank, which was not a Nationalised Bank. When the Nedunagadi Bank was taken over by the appellant – Punjab National Bank, FAO(RO)No.40/2019 9 they initiated action under the Public Premises Act to evict the respondent, which was resisted by him asserting that only the provisions of the Rent control Act would apply. The respondent, therefore, filed the suit contending as afore and the Trial Court framed a sole issue, as a preliminary one, as to whether the jurisdiction of a Civil Court is ousted by virtue of Section 15 of the Public Premises Act or not; and proceeded to consider the same, after adverting to Exts. A1 and A2, marked on behalf of the plaintiffs and Exts. B1 and B2, marked on behalf of the defendants, finally concluding that the suit is barred by the said provision and consequently, dismissed the suit. 12. At this juncture, there are certain specific aspects which require to be noticed and addressed. 13. For the first, even though the pleadings of the parties, as recorded above, limpidly indicate FAO(RO)No.40/2019 10 disputes on various aspects – including as to whether the erstwhile Nedungadi Bank, not being a Nationalised Bank, is entitled to obtain the benefit of the Public Premises Act; and, if not, whether, consequent to amalgamation, the appellant-Punjab National Bank, which is admittedly a Nationalised Bank, would obtain the right to invoke the said Act - the Trial Court did not frame issues on these disputations. 14. This is crucial because, going by Order XIV Rule 2 of the CPC, even when a Court disposes of a suit on the basis of a preliminary issue, it is incumbent upon it to pronounce judgment on all other issues also. Pertinently, in this case, it is beyond doubt that the Trial Court framed no issues other than the preliminary one under Order XIV Rule 1 of the CPC; and then pronounced judgment solely on it, thus dismissing the suit as being not FAO(RO)No.40/2019 11 maintainable under the rigour of Section 15 of the Public Premises Act. 15. This, in my firm view has lead to a grave procedural and substantive error, because the Trial court assumed that since the appellant is a Nationalised Bank, it is entitled, as a matter of right, to invoke the Public Premises Act, without, in any manner, assessing the contention to the contrary by the respondent, edified on the singular facts involved. Hence even when **Asoka Marketing (supra)** is certainly binding on the Trial Court, as it is on this Court, the declaration therein – that the provisions of the Public Premises Act would override the provisions of the Rent Control Act – would apply only if it is established that the appellant is entitled to invoke the former Act, even though the erstwhile Nedungadi Bank may not have been so entitled. 16. For the second, as rightly pointed out by FAO(RO)No.40/2019 12 Sri. Ajith Kumar, learned counsel for the appellant, even though the Lower Appellate Court has apparently confirmed the finding of the Trial Court, that the building in question is covered by the Public Premises Act, it has still remanded the suit for consideration of the “other issues”. This direction cannot obtain the imprimatur of this Court because, once the findings as regards the Public Premises Act had been upheld, then the suit certainly is rendered not maintainable under the rigour of Section 15 of the said Act; and consequently, I fail to understand for what reason the remand has been ordered. 17. That having been said, it is indubitable that the Lower Appellate Court could have ordered the remand only under Order XLI Rule 23 of the CPC. Going by these provisions, when a remand is ordered, with respect to a suit disposed on a preliminary point, the Lower Appellate Court ought FAO(RO)No.40/2019 13 to have also directed what issue or issues shall have to be tried again. In the case at hand, however, this has not been done by the Lower Appellate Court; and as I have already said above, it has remanded the suit for fresh trial, but confirming the conclusions of the Trial Court as regards the Public Premises Act. 18. Obviously, therefore, this court cannot offer any favour to the course now adopted by the Lower Appellate Court and resultantly, the judgment assailed in this appeal becomes necessary to be interfered with. 19. Once my views and conclusions are so indited, the axiomatic question before me is whether the Lower Appellate Court must be directed to reconsider the appeal; or if it would be better to allow the Trial Court to consider the suit afresh on all issues, including as to the applicability of the Public Premises Act in the specific facts projected. FAO(RO)No.40/2019 14 20. When the afore query was expressed at the bar, Sri. M.P. Ramnath, learned counsel for the respondent submitted that his client also seeks that a full remand to the Trial Court be allowed; while Sri. Ajith Kumar voiced reservation, stating that the Trial Court was without error in not framing any other issue and in dismissing the suit, finding it to be not maintainable, on account of the embargo under the Public Premises Act. Since this contention of Sri. Ajith Kumar has already been answered by me against his client as above, I deem it fully appropriate and justified that the Trial Court be directed to dispose of the suit afresh, after framing all necessary issues as are relevant, based on the pleadings available. 21. In summation, I see no reason to entertain this appeal or to interfere with the order of the Lower Appellate Court in remanding the suit to the FAO(RO)No.40/2019 15 Trial Court; however, modifying the impugned judgment, thus directing the Trial Court to dispose of the suit afresh, after framing all necessary issues, including as to whether the appellant is entitled to invoke the Public Premises Act. 22. I am persuaded to the course afore, being fully aware that I am disposing of this appeal at the threshold with the consent of the parties; and because even if this appeal is formally admitted, the respondent would raise a cross appeal, in the event of which, the views as are recorded in this judgment would become inevitable, which will then only lead to further delay but without any change to the conclusions of this Court. 23. It is thus needless to say that all the earlier findings of the Trial Court and that of the Lower Appellate Court, as regards the maintainability of the suit, will stand vacated; and the former Court will FAO(RO)No.40/2019 16 dispose of the suit unbridled by them. 24. Further, since the suit is of the year 2008, I order the Trial Court to deliver fresh judgment as expeditiously as is possible, but not later than six months from the date of receipt/production of a copy of this judgment; for which purpose, I direct the parties to appear before it on 06.03.2020. Since I have disposed of this appeal at the stage of admission on the consent of the learned counsel on both sides and taking note of the peculiar circumstances involved, I deem it appropriate not to make any order as to costs and to direct the parties to suffer the respective costs. Sd/- **DEVAN RAMACHANDRAN JUDGE** ncd