Siby Thomas v. St. John Baptist Church, Nedumkunnam, Changanacherry

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 RSA NO. 495 OF 2022** **AGATINST THE JUDGMENT AND DECREE DATED 19.10.2020 IN A.S. NO.239/2018 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT JUDGE-I,** ## **KOTTAYAM** **AGAINST THE JUDGMENT AND DECREE DATED 28.9.2018 IN O.S. NO.235/2016 ON THE FILE OF THE COURT OF MUNSIFF, CHANGANACHERRY APPELLANT/DEFENDANT:** SIBY THOMAS, S/O THOMAS JOSEPH AGED 45 YEARS, RESIDING AT ELAVUMKAL HOUSE NEDUMKUNNAM P.O., NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM., PIN - 686542 BY ADVS. M.JAYAKRISHNAN SHAJI MATHEW N.M. ## **RESPONDENT/PLAINTIFF:** ST. JOHN BAPTIST CHURCH, NEDUMKUNNAM, CHANGANACHERRY, DULY REPRESENTED BY ITS TRUSTEE ABRAHAM JOSE, S/O JOSEPH ITTAVIRAH, AGED 74 YEARS, RESIDING AT MANAMEL HOUSE, NEDUMKUNNAM KARA, NEDUMKUNNAM P.O., NEDUMKUNNAM VILLAGE, CHANGANACHERRY THALUK, KOTTAYAM, PIN – 686542 BY ADV MATHEW SEBASTIAN **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA No.495 of 2022 2 ## **JUDGMENT** Dated this the 22[nd] day of August, 2022 This appeal has been directed against the judgment and decree in A.S. No.239/2018 on the file of Additional District Court-I, Kottayam, which arose out of the judgment and decree in O.S. No.235/2016 on the file of Munsiff’s Court, Changanassery. 2. The defendant is the appellant. The suit is one for realization of arrears of rent, eviction and perpetual injunction (parties would hereinafter be referred as per the status before the Trial Court). 3. The plaintiff is Roman Catholic Church under the Archdiocese of Changanassery. The plaint schedule shop room belongs to the church and the church entered into lease agreement with defendant and let out the shop room on 12.12.2012 for 11 months on a monthly rent of Rs.900/-. Even RSA No.495 of 2022 3 after the lease period the defendant is continuing to occupy the shop room. But the rent of the building is in arrears from 11.12.2014 and respondents seeks to realize the same @ Rs.945/- per month. A notice was issued terminating the tenancy arrangements on 10.2.2016 and also demanding the arrears of rent with interest at 6%. 4. The defendant filed written statement contending that the shop room is not exempted from the purview of Kerala Building (Lease and Rent Control Act). The shop room was initially taken on rent in the year 1990 on a monthly rent of Rs.250/- which was periodically revised and current rate of rent is Rs.945/- per month. Rs.20,000/- was deposited as security deposit, later shutter was installed utilizing the security deposit. Rent up to November 2015 has been paid. The defendant is ready to pay the subsequent rent as well. 5. On 28.8.2015 respondent issued notice demanding rent @ Rs.27/- per square feet. Subsequently, the suit notice was served. The plaintiff has no right to terminate the tenancy, the defendant is depending on the income derived from the RSA No.495 of 2022 4 business conducted in the shop room for his livelihood. There are no suitable room available in the locality and no interest is liable to be paid. 6. PW1 and PW2 examined. Exts.A1 to A8 marked from the side of the plaintiff’s side. Exts.B1 to B3 marked and defendant was himself examined as DW1. The learned Munsiff on evaluating the facts and circumstances and evidence adduced found that the plaintiff is competent to file the suit and tenancy has been validly terminated and an amount of Rs.15,904/- is due from the defendant. Since, the defendant volunteered and filed I.A. No.1717/2018 depositing Rs.20,000/- towards relief of relisation of arrears of rent was disallowed. Since, the learned Munsiff has also was not sure as to whether the entire arrears has been paid, it was also made clear that the plaintiff is entitled to realize arrears of rent from 01.12.2014 till vacant possession is given together with interest @ of Rs.6% after deducting Rs.20,000/- offered to be paid. 7. Aggrieved by the judgment and decree passed by RSA No.495 of 2022 5 the learned Munsiff, the defendant filed A.S. No.239/2018 before the Additional District Court-I, Kottayam. The learned Additional District Judge on re-appreciating the facts and circumstances and evidence found that the trustee of the plaintiff/church was duly authorized to file the suit as found by the learned Munsiff and there is valid termination of tenancy and further that the plaintiff is entitled to recover Rs.15,904/with 6% interest from the appellant. Ultimately, the learned Additional District Judge granted six months time to vacate the premises with certain conditions. 8. Dissatisfied with the judgment and decree passed by the 1[st] Appellate Court the appellant approaches this Court in second appeal. Notice was issued to the respondent/church. Both sides were heard. 9. It has been contended by the learned counsel for the appellant/defendant that the courts below went wrong in finding the lessee in a lease deed under Section 105 of the Transfer of Property Act, 1982, have no right to claim bonafide needs solely on the reason that he does not come under the RSA No.495 of 2022 6 purview of Section 2(6) of Kerala Buildings (Lease and Rent Control) Act, 1965. The termination of tenancy in compliance of valid notice as contemplated under Section 106 of the Transfer of Property Act is also disputed. It is also contended that the bonafied need of the plaintiff in occupying the building ought to have been proved before ordering eviction. 10. The learned counsel for the respondent/plaintiff on the other hand would contend that a well considered judgment and decree has been passed by the courts below. There is no reason whatsoever to interfere with the concurrent findings entered into by the courts below and there is no substantial question of law for enabling this Court to make any interference. 11. One of the contention raised by the defendant is with regard to the authority of the plaintiff to file the suit on behalf of the church as a trustee of the church. The trustee was examined as PW1 and deposed in tune with plaint as per Clause 46 of Ext.B3 by law of the church. The defendant relies on Clause 46 of Ext.B3 by law of the church as per which a RSA No.495 of 2022 7 trustee can be appointed to initiated legal proceedings for and on behalf of by the church by Vikar with the prior permission of the Chairman of the Diocese and that procedure was not complied. But, it has been found by the courts below that Ext.A4 a copy of minutes of parish counsel proves that the parish counsel held on 05.7.2015 authorised plaintiff PW1 to take necessary steps to evict the tenants who are in arrears of rent. It is also stated that the suitable rooms to be identified and made available for conducting vocational training classes. 12. Ext.A7 is the letter issued by the Vice Chancellor of the Diocese stating that all the Diocese have accepted the decisions made by the parish counsel on 05.7.2015 and the authorization of PW1 was accepted by the office of the Arch Diocese. Ext.A8 authorisation letter issued by the then Vikar of the church to prove that PW1 was authorized by the then Vikar to initiate legal proceedings against the defendants has also been produced. PW2 the then Vikar of the church also examined and he deposed that Ext.A4 is the true copy of the minutes of the parish counsel. Ext.A7 is the true copy of the RSA No.495 of 2022 8 letter of authorization issued from the office of Arch Diocese. So, evidence of PW1 and PW2 and documents produced from the side of the plaintiff proves that PW1 was duly authoried to institute the suit on behalf of the church. 13. The learned counsel for the defendant would contend that even in a suit for eviction filed by the church, it is obligatory on the part of the plaintiff to prove the bonafieds of the need to evict a tenant. But the requirement to prove any of the grounds under Section 11 on the part of the land lord would arise only in cases of filing suit under Section 11(1) of the Kerala Building (Lease and Rent Control) Act, 1965 for eviction. (See **Radhakrishna v Ananthakrishnan [2007 (3) KLT 1009]; Ibrayan v Balan [1985 KLT 896].** 14. In this case, plaintiff is a church and which has let out the shop room on lease to the defendant for a period of 11 months. The plaint schedule shop room is exempted from the operation of the Kerala Building (Lease and Rent Control) Act by virtue of Section 25 of the said Act, though Karukachal Panchayath wherein the building situated is a notified area RSA No.495 of 2022 9 under the provisions of Act. 15. The judgment passed by the Trial Court would go to show that GOMS:36/1992/HSG dated 7.3.1992 has been drawn to the attention of the court by which buildings of all churches and Mosques of all minority religion are exempted from the operation of Section 4, 5, 7, 8, 11 and 13 of the Act. So, the suit filed by the plaintiff can only be taken as a regular suit filed for eviction for which a statutory notice as contemplated under Section 106 of the Transfer of Property Act alone is the prior mandate. Ext.A5 true copy of the notice dated 10.2.2016 and Ext.A6 reply notice has been produced from the side of the plaintiff to prove the due compliance of statutory notice as contemplated under Section 106 of the Transfer of Property Act. 16. Next is with regard to the arrears of rent due to the plaintiff from the defendant. Plaintiff claims arrears of rent from 11.12.2014. PWs1 and 2 gave evidence with regard to the same. Though appellant contended that rent upto November, 2015 has been paid, he could not prove the same RSA No.495 of 2022 10 by adducing any evidence. 17. So, on an evaluation of the facts and circumstances and evidence adduced, I am of the considered view that the courts below have examined the facts and circumstances in a correct perspective and decreed the suit as prayed for. I do not find any substantial question of law emerging for consideration for interference of this Court in the Regular Second Appeal. In the result, appeal is found to be devoid of any merit and dismissed confirming the judgment and decree passed by the courts below that respondent/plaintiff is entitled to realise Rs.15,904/- with 6% from the appellant/tenant. 18. While dismissing the appeal, the first appellate court granted six months time to vacate the premises to the appellant/defendant on a condition to file an affidavit before the trial court expressing his willingness to vacate the premises within six months along with arrears of rent till date, from December, 2014 at the rate of Rs.945/- per month with 6% interest and also a consolidated sum of Rs.5,670/- towards occupation of the building for the six months time granted by RSA No.495 of 2022 11 the appellate court. 19. It is submitted by the learned counsel for the respondent/plaintiff that the said condition was not complied with by the defendant and no affidavit as directed has been filed and rent arrears as directed was also not paid. 20. The learned counsel for the appellant/defendant is not in a position to state whether the submission so made by the learned counsel for the plaintiff/respondent is correct or not. 21. The learned counsel for the appellant/defendant seeks for a reasonable time to vacate the building since according to him income from the shop room is the only source of livelihood of the defendant and he has to be given a breathing time to find out an alternate accommodation. 22. The learned counsel for the plaintiff/respondent fairly concedes to the request of the defendant to grant five moths' time to vacate the premises. Hence, five months' time is granted to vacate the plaint schedule building to the appellant/defendant on condition that RSA No.495 of 2022 12 the appellant/defendant would file an undertaking affidavit within one month before the trial court agreeing to vacate the premises within five months starting from 22.08.2022 and further to pay the entire arrears of rent till date of filing suit from December, 2014 at the rate of Rs.945/- per month with 6% and thereafter to pay Rs.945/- per month towards damages for use and occupation till the date of the respondent/plaintiff put in actual possession of the shop room. If the appellant/defendant fails to comply with the above directions, the respondent/plaintiff is entitled to execute the decree. **Sd/-** **M.R.ANITHA** **JUDGE** SMF