Thomas @ Shaji v. Chacko Abraham

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 14TH DAY OF DECEMBER 2016/23RD AGRAHAYANA, 1938 RSA.No. 1236 of 2016 (E) ------------------------ AGAINST THE JUDGMENT & DECREE DATED 06-10-2016 IN AS 213/2015 of ADDL.DISTRICT COURT-I, MAVELIKKARA AGAINST THE JUDGMENT & DECREE IN OS 244/2013 of MUNSIFF COURT, MAVELIKKARA APPELLANT(S)/APPELLANT/DEFENDANT: -------------------------------- THOMAS @ SHAJI AGED 52 YEARS, S/O. DANIEL, PALLIMEENATHETHIL, PALLICKAL EAST MURI, THEKKEKKARA VILLAGE. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------- CHACKO ABRAHAM AGED 79 YEARS, S/O. LATE MATHEN CHACKO, KANJIKKAL PADEETTATHIL, PALLICKAL EAST MURI, THEKKEKKARA VILLAGE. BY ADV. SRI.A.SHAFEEK (KAYAMKULAM) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OKB ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## R.S.A. No.1236 of 2016 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 14[th] day of December, 2016 JUDGMENT ~ ~ ~ ~ ~ The appellant is the defendant in O.S.No.244/2013 on the files of the Munsiff's Court, Mavelikara and the appellant in A.S. No.213/2015 on the files of the I Additional District Court, Mavelikara. The aforesaid suit was instituted alleging that the shop room situated in plaint schedule property belongs to the plaintiff and he let out the shop room to the defendant as per Ext.A1 rent agreement executed by the defendant for a period of 11 months for a monthly rent of Rs.1860/-. The lease period expired on 08.5.2013. Though vacant possession of the shop room was requested for the bona fide occupation of the plaintiff and his son for starting a business, the said demand was not acceded to. Therefore the tenancy was terminated by Ext.A2 lawyer's notice. So the lease is deemed to have been terminated on 7.6.2013, 15 days after the receipt of Ext.A2 notice and thereafter the defendant RSA.1236/16-E **:2:** had been in authorised occupation, for which he was liable to pay charges at the rate of Rs.150/- per day as damages for lease and occupation. Hence the suit was filed praying for a decree granting vacant possession of the shop room to the plaintiff and damages. In the written statement, the defendant contended that the bona fide need projected is a ruse for eviction and he had not received Ext.A2 notice. Therefore tenancy shall not be deemed to be terminated in accordance with Section 106 of the Transfer of Property Act. It is also contended that at the time of executing the sale deed there was an oral agreement that the shop room will be given to the defendant for a period of 5 years. 2. On the aforesaid pleadings both parties adduced evidence and the trial court decreed the suit as prayed for and in appeal the appellate court confirmed the findings of the trial court and dismissed the appeal. Thus, the concurrent findings are challenged in this Regular Second Appeal. 3. Heard Shri George Varghese Perumpallikuttiyil, the learned counsel for the appellant and Shri Shefeek, the RSA.1236/16-E **:3:** ## learned counsel for the respondent. 4. The ownership of the plaintiff over the plaint schedule shop room and the rental arrangement between the plaintiff and the defendant are not disputed. According to the defendant, the alleged bona fide need is only a ruse for eviction. It is also contended that the tenancy was terminated as provided under Section 106 of the Transfer of Property Act. After evaluating the oral testimony of P.W.1, the courts below concurrently found that the plaintiff has succeeded in proving his need for eviction and the same is a bona fide one. It appears that nothing brought out in evidence to discredit the evidence of the plaintiff. 5. Being a Regular Second Appeal, this Court is not inclined to reappreciate the evidence on record and the scope and extent of consideration is confined to substantial questions of law, if any, only. I do not find any perversity in the appreciation of evidence. As rightly held by the appellate court, in view of the decisions in Santhi Devi v. Amal Kumar Banerjee [AIR 1981 1550] and Devaki v. Alavi [1979 KLT 67], the lessee shall surrender RSA.1236/16-E **:4:** possession on demand and the lease is determinable at the will of the lessor on termination of his period and statutory notice was not required to terminate the tenancy. Thus, the courts below are justified in finding that the plaintiff is entitled to get a decree for eviction. 6. Coming to the direction of the court to pay Rs.150/- per day as damages for use and occupation, it is seen that in the plaint no data is given to arrive at such an amount. Similarly, in the impugned judgments passed by the courts below also, there is no reasoning on which the courts below fixed Rs.150/- per day as damages. In N.M. Narayanan and Others v. Naduvil Madom, Thrissur and Others [2011 KHC 2389], this Court held that where there is no data assisting the court to fix such sum, on surmises and conjectures alone, it is improper and inappropriate to fix exorbitant amount, much more than the agreed rent prevailing over the tenanted premise, until the tenancy was terminated. In view of the above decision, I find that the trial court fixed Rs.150/- per day as damages without any basis. It follows that this Court is inclined to interfere with the said finding. Consequently, the RSA.1236/16-E **:5:** direction to pay Rs.150/- per day as damages for use and occupation alone will stand set aside. 7. The learned counsel for the appellant submits that the appellant is ready and willing to surrender the plaint schedule property provided that one year time is given for the same. Per contra, the learned counsel for the respondent contended that at the most three months time alone can be given. 8. Having regard to the entire facts and circumstances, the appellant is given eight months' time from today to vacate the premises provided that he shall file an affidavit before the trial court, expressing an undertaking that he will surrender the shop room within eight months from today, within one month from the date of receipt of a copy of this judgment. That apart, he has to deposit entire arrears within a period of three weeks from the date of receipt of a copy of the judgment, and he shall continue to pay the said monthly rent without any default. In the event of default, the time granted to vacate the shop room will stand automatically cancelled and the respondent is at liberty to proceed with RSA.1236/16-E **:6:** execution. Appellant shall pay the balance court fee within one week from the date of receipt of a copy of this judgment, if not paid. No other question of law arises for consideration. This Regular Second Appeal will stand allowed in part. All pending interlocutory applications will stand closed. Sd/- K.HARILAL, Judge. okb // True copy // P.A. to Judge continued at page No.7 RSA.1236/16-E **:7:** The time granted to the appellant for payment of the entire arrears of rent as directed in the judgment dated 14/12/2016 in R.S.A.No.1236/2016 is revived and extended by one week from 07/04/2017 as per order dated 07/04/2017 in I.A.No.650/2017 in R.S.A.No.1236/2016. Sd/Registrar (Judicial) okb