Sasikumar, S. Mallika Kumari and Suresh v Rahim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2019 / 4TH ASWINA, 1941** ## **CRP.No.381 OF 2017** **AGAINST THE JUDGMENT IN OS 378/2015 DATED 12-04-2017 OF PRINCIPAL MUNSIFF COURT, KOLLAM** ## **REVISION PETITIONERS/DEFENDANTS 1 TO 3:** **1 SASIKUMAR, AGED 48 YEARS,S/O. BHASKARAN PILLAI, POPPY DALE, P.K.NAGAR-221, VADAKEVILA CHERRY, VADAKKEVILA.P.O., KOLLAM, PIN-691 010. 2 S. MALLIKA KUMARI, AGED 35 YEARS, W/O. SASIKUMAR, POPPY DALE, P.K.NAGAR-221, VADAKEVILA CHERRY, VADAKKEVILA P.O, KOLLAM, PIN-691 010. 3 SURESH, AGED 36 YEARS, R.S.BHAVAN, CRA 158, CONTONMENT SOUTH DIPPO PURAYIDOM, KOLLAM, PIN-691 010. BY ADV. SRI.AJAYA KUMAR. G** ## **RESPONDENT/PLAINTIFF:** **RAHIM, AGED 55 YEARS, S/O. ALIYARU KUNJU, KALAVARA PADINJATTATHIL, PUNNATHALA CHERRY, KOLLAM WEST VILLAGE, NOW RESIDING AT BLUE MOON,KARASN NAGAR 117, KOTTAKKAKAM WARD, KACHERRY.P.O., KOLLAM, PIN-691 013. R1 BY ADV. SRI. SAJU J. PANICKER** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** C.R.P. No.381 of 2017 2 ## **O R D E R** This revision petition is filed under Sec.115 of the Code of Civil Procedure, seeking to set aside the judgment dated 12.04.2017 in O.S.No.378/2015 delivered by the Principal Munsiff's Court, Kollam, instituted by the respondent under Sec.6 of the Specific Relief Act, by which the revision petitioners herein was directed to put the respondent/plaintiff in possession of the plaint schedule building forthwith and decreed the suit partly with cost. Brief material facts for the disposal of the revision petition are as follows: 2. Petitioners are the defendants in the suit specified above and the respondent is the plaintiff. The suit was filed under Sec.6 of the Specific Relief Act, 1963, for possession of the plaint schedule shop room and also seeking an injunction restraining the defendants from causing any obstruction to the plaintiff to occupy the premises. In the suit, the respondent has contended that as per the rental agreement dated 25.05.2012 entered by him with the petitioners, he was running a hotel in the plaint schedule building and he had spent huge amounts for modifications to conduct the business. Petitioners C.R.P. No.381 of 2017 3 demanded unconscionable increase in rent rate to which the respondent did not accede to. 3. Thereupon, 1[st] petitioner issued notice to the plaintiff demanding its surrender, to which a reply was given. While so, during the 1[st] week of March, 2015, when the plaintiff left the plaint schedule building closed, to undergo medical treatment, petitioners trespassed into the same and locked the same forcibly. When questioned about the same, respondent was informed that the 3[rd] defendant in the suit viz., the 3[rd] revision petitioner herein is presently running the hotel on a fresh rental arrangement. Anyhow, the petitioners stoutly opposed the plaint claims, and put up a contention that building was voluntarily surrendered by the respondent, and at the time of surrender, he removed the articles belonging to him from the shop premise, and it was thereafter that the shop room was rented out to the 3[rd] petitioner and he is running a new hotel, and thereupon, sought dismissal of the suit. After appreciating the rival contentions, six issues were raised by the court below, which are as follows: _“1) Was the plaintiff in possession of the plaint schedule building?_ C.R.P. No.381 of 2017 4 _2) Was the plaintiff illegally dispossessed from the plaint schedule building?_ _3) Is the plaintiff entitled to the possession of the plaint schedule building?_ _4) Is the plaintiff entitled to the mandatory injunction, as sought for?_ _5) Is the plaintiff entitled to the perpetual injunction, as sought for?_ _6) Reliefs and costs?”._ 4. Respondent was examined as PW1 and has marked Exts.A1 to A8, and C1 and C2 series of documents. On the side of the plaintiff, two other witnesses were examined as PW2 and PW3. The 1[st] petitioner was examined as DW1 and Ext.B1 was marked. After appreciating the rival contentions and analysing the evidence adduced by the parties, the court below came to a clear conclusion that the eviction of the respondent is forcible in nature and the respondent is entitled to succeed in the suit for recovery of possession. 5. Heard respective counsel and perused the pleadings and the judgment. 6. The question emerges for consideration is, whether any manner of interference is warranted to the judgment of the court below. The court below has found that the possession of the plaint schedule building is C.R.P. No.381 of 2017 5 admitted at least till 18.02.2015, and the contention of the respondent that he continued to be in possession and was using the plaint schedule building even thereafter was taken into confidence by analysing the oral and documentary evidences. It was also a point considered by the court below, raised by the petitioners herein, that the respondent has closed down the business and he was not occupying the same. 7. In my considered opinion, the said point raised by the petitioners have no legal basis at all, since once the rental arrangement executed by and between the parties is admitted by the landlord, then, even if the agreement period has expired, the tenant is entitled to continue in the building as a statutory tenant as per the provisions of the Kerala Buildings (Lease & Rent Control) Act, 1965. It was also held that on a conspectus of the admitted possession of the respondent, and his specific denial of non-surrender, with the background circumstances, the respondent has discharged his initial burden to substantiate his claim as per the provisions of Sec.101 of the Evidence Act. Therefore, when the possession of the respondent was admitted and the initial burden was discharged by the respondent, the burden of proving the facts raised by 6 C.R.P. No.381 of 2017 the petitioners who have substantially asserted the affirmative issues, was on the petitioners, and accordingly to prove the case otherwise. It is also found that the elementary rule contained under Sec.101 of Evidence Act is inflexible. However, in terms of Sec.102 of the Act, the initial onus is always on the plaintiff and once he discharges that onus and makes out a case which entitles him a relief, the onus clearly shifts to the defendants to prove those circumstances, if any, which would dis-entitle the plaintiff to the same. 8. The court below has also relied upon the principles of law laid down by the apex court in ' _**A. Raghavamma v. A. Chenchamma**_ ' [AIR 1964 SC 136] in support of the law relied upon by the court below. It is also important to note that the court below has answered all the issues raised in the suit and has arrived at definite conclusions on the basis of evidence on record adduced by the parties, and it was finally on the basis of convincing and promising evidence before it only, it has decreed the suit partly. 9. Even though learned counsel for the petitioners have a case that the court below did not C.R.P. No.381 of 2017 7 have any evidence at all before it to prove that the respondent was evicted forcibly from the premises, I am of the considered opinion that, a court considering evidence adduced by the parties in a civil proceeding need to arrive at a conclusion by applying the principles of preponderance of probabilities only. Therefore, the court below instilled substantial confidence in the evidence tendered by the respondent and has disbelieved the case put forth by the petitioners, and it was accordingly the suit was partly decreed, directing the petitioners to put the respondent in possession of the plaint schedule premises, but declined the relief sought for injunction, since the same was not found to be permissible as per the provisions of Sec.6 of the Specific Relief Act. 10. Even though the temporary injunction sought for by the respondent was declined by the court below, respondent has preferred C.M.A. No.40/2015 before the District Court, Kollam and has secured a judgment dated 18.06.2016, in his favour. A certified copy of the same is provided to me at the time of hearing, from where, I am satisfied that the C.M.A was allowed and the petitioners 1 and 2 herein are restrained from C.R.P. No.381 of 2017 8 handing over possession of the schedule shop room to any other persons till the disposal of the suit. Therefore, there is no much force in the contention that 3[rd] petitioner was put in possession of the schedule premises. Moreover, once it was found that there is forcible eviction, the induction of a third person into the premises is inconsequential to grant a decree in favour of the respondent. The said view of the court below has considerable force, since it is quite reflected, due to the fact also that this revision petition is filed together. Above all these aspects, petitioners have not established any case before this Court, justifying interference exercising the power of revision conferred under Sec.115 of the CPC, since there is no jurisdictional error or other legal infirmities in the judgment of the court below. Resultantly, the revision petition fails, accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** St/28.09.2019 ## **JUDGE**