Rajamanikkan s/o Velayudha Gurukkal v Karanki Amman Bhagwathi Temple Devaswom and Mohan and Subramanian

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 26TH DAY OF JUNE 2014/5TH ASHADHA, 1936** ## **RSA.No. 1442 of 2012 ()** **-----------------------AS 396/2008 of DISTRICT COURT, PALAKKAD IN OS 327/2005 of PRL.MUNSIFF COURT, PALAKKAD ---------** **APPELLANT/APPELLANT NO.1/DEFENDANT NO. 1:** **-----------------------------------------------------------------------** **RAJAMANIKKAN S/O.VELAYUDHA GURUKKAL, AGED 55 YEARS, 31/522, BIGBAZAR, KARNAKI AMMAN KOVIL ROAD, KOPPAM AMSOM PALAKKAD** **BY ADV. SRI.JACOB SEBASTIAN** **RESPONDENTS/RESPONDENT & APPELLANTS 2 & 3/PLAINTIFF & DEFENDANTS 2&3** - **-------------------------------------------------------------------------------------------------------------------------** **1. KARNAKI AMMAN BHAGWATHI TEMPLE DEVASWOM, REP. BY ITS EXECUTIVE OFFICER, K.CHANDRASEKHARAN AGED 62 YEARS, S/O.GOVINDAN, PIN 678001.** **2. MOHAN, S/O.VELAYUDHA GURUKKAL, AGED 49 YEARS, 31/522, BIG BAZAAR, KARNAKI AMMAN KOVIL ROAD, KOPPAM AMSOM PALAKKAD PIN 678 001.** **3. SUBRAMANIAN, S/O.VELAYUDHA GURUKKAL, AGED 51 YEARS, 31/522, BIG BAZAAR, KARNAKI AMMAN KOVIL ROAD, KOPPAM AMSOM, PALAKKAD PIN 678 001.** **R1 BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 1442 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of June, 2014 ## **J U D G M E N T** At the time of admission, the substantial question of law formulated for consideration reads as follows: “Were the courts below justified in ordering eviction without considering the application or non-application of Section 25 of the Kerala Buildings (Lease and Rent Control) Act.” 2. Claiming that the defendants in the suit are tenants of the temple building falling within the ambit of HR and CE Act, eviction was sought for and arrears of rent was also claimed. It was pointed out in paragraph 7 of the plaint that initially, a suit was filed for the very same purpose but that had to be withdrawn because it was then brought to the notice of the court that notification under Act 2 of 1965 exempting institutions under the Board has been withdrawn and therefore the Rent Control Act applied to the temple in question. Then a rent control petition was filed. It was then **-2-** ## **R.S.A. No. 1442 of 2012** revealed that even though a notification had been withdrawn that was because of the duplication of notification and there did exist a notification exempting the building under the HR and CE Board from the purview of the Act. 3. The plea for eviction was sought to be resisted mainly on the ground that the defendants are 'Kudikidappukarans' of the property. They also incidentally mentioned that the suit is not maintainable. There was no specific contention in the written statement to the plea made in paragraph 7 of the plaint regarding the exemption available to the plaintiff from provision of Act 2 of 1965. 4. On the basis of the pleadings available before the trial court, issues were raised. The evidence consists of the testimony of PW1 and documents marked as Exts. A1 series and A2 from the side of the plaintiff. The defendants from their side examined DW1 and had Exts. B1 to B9 marked. 5. On an appreciation of the evidence in the case, the trial court found that the plea of 'Kudikidappu' cannot be **-3-** ## **R.S.A. No. 1442 of 2012** sustained and that defendants are liable to be evicted and a decree was passed on the following terms: “i) The defendants are directed to vacate the premises and surrender vacant possession of the property to the plaintiff within three months from this date, failing which, the plaintiff can execute this decree. ii) The defendants are directed to pay the plaintiff a sum of Rs. 954/- (Rupees Nine Hundred and fifty four only) towards rent arrears from 01.05.1996 to 28.02.2005. iii) The defendants are directed to pay damages for use and occupation @ Rs. 9/- per mensum from 01.03.2005 till the date of surrender of possession. iv) Defendants are liable to pay the costs of the suit to the plaintiff.” 6. The matter was carried in appeal as. A.S.No. 396 of 2008 wherein the very same contentions, as were urged before the trial court, were reiterated. The lower appellate court found no substance in the contentions and confirmed the judgment and decree of the trial court. **-4-** ## **R.S.A. No. 1442 of 2012** 7. The learned counsel appearing for the appellant contended that the courts below have erred in law in not considering the question as to whether the plaintiff was exempted from the purview of Act 2 of 1965. Even assuming that there were no specific contentions in the written statement, the plaintiff who pleads an exemption, is bound in law to establish the exemption so claimed. It is for him to produce the materials and adduce evidence in the regard. There has been no such attempt in the case on hand. It is further contended that even assuming that there is an exemption as per the notification produced now, it is with reference to the buildings which are owned by the temple and which is used for temple purposes and not for commercial building of the nature involved in the present proceedings. For the proposition that the notification relied on is strictly construed, the learned counsel relied on the decision reported in **John** v. **Kunhibi Wakaf** [1997 KHC 397]. It was therefore contended that the eviction order **-5-** ## **R.S.A. No. 1442 of 2012** now passed without having proved that there is exemption and also without considering that issue, cannot be sustained. 8. The learned counsel appearing for the respondents on the other hand pointed out that the issue now agitated before this Court was never in the contemplation of the parties before the courts below. There was no plea that the exemption made mention of in paragraph 7 of the plaint was not correct and that Act 2 of 1965 applied to the facts of the case and eviction could be sought for only under the provisions of the said Act. Consequently, no issue was also raised by the trial court. The parties went to trial fully aware of the fact that there was no such issue to be gone into and that the eviction was not sought under the said Act. This is further strengthened, according to the learned counsel, by going through the appeal memorandum before the lower court where also no such contention is taken. The defendants were therefore fully aware of the fact that the **-6-** ## **R.S.A. No. 1442 of 2012** exemption applied and that they could not resist the eviction suit on the ground that Act 2 of 1965 applied. 9. The learned counsel then brought to the notice of this Court the notification published in the Kerala Gazette vide G.O.(Ms) No. 15/97/Hsg. Dated 6[th] March 1997 which reads as follows: “ **S.R.O. No.251/97** .--- In exercise of the powers conferred by sub-section (1) of Section 25 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) the Government of Kerala hereby exempt in public interest all the temples and buildings under the Control of Hindu Religion, institutions from the provisions of Sections 4, 5, 7, 8, 11 and 13 of the said Act.” It was also contended that by virtue of the above notification, the plaintiff in this case stands exempted from the purview of the Act. The suit has been instituted by the Executive officer of the temple Devaswam and there can be **-7-** ## **R.S.A. No. 1442 of 2012** no dispute regarding the fact that the Act namely HR and CE Act applies to the temple. It is precisely with the view to exempt buildings belonging to such institutions from the purview of the Act that the G.O. has been issued. Accordingly it is contended that there is no merit in the contention and the appeal is only to be dismissed. 10. There can be no quarrel about the proposition that a person who seeks exemption will have to establish the same. He will have to plead and prove the exemption. In paragraph 7 of the plaint, the history of the litigation is succinctly narrated. Though the notification as such has not been referred to, it has been specifically stated in paragraph 7 of the plaint that the building of the temple in question is exempted from the purview of the Act. This specific allegation in the plaint is not seen controverted in the written statement except for a vague and general statement that the suit is not maintainable. The focus of the defendants seems to have been on the plea of 'Kudikidappu' **-8-** ## **R.S.A. No. 1442 of 2012** and not about the applicability of Act 2 of 1965. Consequently, no issue was also raised as to whether provisions of Act 2 of 1965 applies to the case on hand. 11. As rightly pointed out by the learned counsel for the respondents that the plea regarding the applicability of Act 2 of 1965 to the case on hand was never in the contemplation of the parties would be evident from the fact that in the lower appellate court also, no such ground was agitated. The appeal memorandum of the lower appellate court is also silent in this regard. It also shows that defendants were fully aware of the fact that the plaintiff was exempted from the provisions of the Act and that is precisely the reason why the issue was not raised or agitated. 12. It is true that the notification as such was not produced before the trial court nor before the lower appellate court. That is mainly due to the fact that there were no dispute regarding that aspect. However, before this **-9-** ## **R.S.A. No. 1442 of 2012** Court, the notification has been produced and it has already been extracted. 13. It is not in dispute that at the relevant time, the temple in question was being governed by the HR and CE Act of 1965. The words 'religious institutions, temple' etc are defined under the Act. The word used in the notification is temple. As already noticed, the notification covers institutions under the HR and CE Act. It is also significant to notice that the proceedings have been instituted by the Executive Officer of the concerned Devaswam. It is not in dispute that the building is owned by the temple and belongs to the temple. On going through the notification, it is crystal clear that in such cases, whether the premises is used for temple purpose or not is not the criterion to determine whether the exemption applies. It only says that the buildings owned by the temple. Whatever may be the purpose for which it may be used, the building is exempted from the provisions of the Act. **-10-** ## **R.S.A. No. 1442 of 2012** 14. There is a distinction drawn between an exemption notification and the need for building to be used for the purpose of temple. That can be seen from a reading of Section 11(7) which reads as follows: “Where the landlord of a building is a religious, charitable, educational or other public institution, it may, if the building is needed for the purposes of the institution, apply to the Rent Control Court, for an order directing the tenant to put the institution in possession of the building.” There, it is specifically mentioned that the eviction can be sought for under Section 11(7) only for the purpose of the institutions which includes the temple also. Probably, when one applies for eviction under Section 11(7), the restriction now sought to be imported by the learned counsel for the appellant may apply. But once the exemption under Section 25 is granted to the buildings of a temple, it is irrelevant as to whether the eviction is sought for, for the purpose of temple or for other purposes. **-11-** ## **R.S.A. No. 1442 of 2012** 15. Section 25 is intended to serve a definite purpose. It seeks to encourage construction of building and also to augment the income for the institutions for which exemption is granted, for they are engaged in the social and beneficial activities. Exemption cannot be granted for a mere asking. But the various notifications issued under the said provision clearly show that the religious charitable endowments which undertakes such social activities, the exemption is normally granted. 16. The contention raised by the learned counsel for the appellant that since there is no specific notification as far as Devaswam is concerned, does not require serious consideration. Going by the notification, it is clear that all those temples or institutions which are governed by the HR and CE and controlled by the same and which are administered by the same, are entitled to the benefit of the exemption as mentioned above. **-12-** ## **R.S.A. No. 1442 of 2012** 17. For the above reasons, there is no merit in this appeal and it is only to be dismissed. I do so, confirming the judgments and decrees of the courts below. 18. The learned counsel for the appellant then pointed out that defendants have been in the premises for more than 60 years and they earn their livelihood by making papads. They may find it difficult to find an alternate place immediately and some time may be granted for them to vacate. 19. Their request seems to be just, reasonable and proper. Considering the long tenure for which they have been occupying the premises, considering their profession, their means of livelihood, it is felt that they can be granted 12 months time i.e. till 25.06.2015 to vacate. The appellants are given 12 months time from today i.e. till 25.06.2015 to vacate the premises on condition that they file an affidavit before the trial court undertaking to unconditionally vacate the premises on or before 25.06.2015 **-13-** ## **R.S.A. No. 1442 of 2012** and also continue to pay the rent that is periodically due. The affidavit shall be filed within one month from the date of this judgment. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge