Held that Section 114 of the Transfer of Property Act does not apply to appeals. The lease was validly terminated under Section 106 for non-payment of rent. Orders for vacation of premises issued with specific dates and conditions.
Surrender vacant possession of the flats on or before 30.04.2009 upon filing an undertaking affidavit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.RAMKUMAR
FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930
RSA.No. 929 of 2008()
--------------------AS.200/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.2050/2002 of II ADDL.M.C., ERNAKULAM
APPELLANT IN R.S.A/ APPELLANT IN AS/DEFENDANT IN OS:
SMT.LATHA RAJENDRA PAI, AGED 43, W/O.RAJENDRA PAI, HOUSE NO.40/7263-B3, SREE RAGHAVENDRA COMPLEX, T.D.WEST, ERNAKULAM, KOCHI-35.
BY ADV. SRI.JOSEPH A.VADAKEL SRI.GEORGE KARITHANAM VARGHESE SRI.V.J.JOHN SRI.JOSE KURIAKOSE (VILANGATTIL)
RESPONDENTS IN R.S.A/ RESPONDENTS IN AS/PLAINTIFFS IN OS:
THE ERNAKULAM THIRUMALA DEVASWOM, T.D.ROAD, ERNAKULAM REPRESENTED BY ITS PRESENT MANAGING COMMITTEE MEMBERS:
SMT.R.RANJINI(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/11/2008, ALONG WITH RSA NO. 973 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V. RAMKUMAR, J.
R.S.A Nos. 929 & 973 OF 2008
Dated this the 28th November, 2008.
JUDGMENT
The appellants in these appeals are respectively the defendants in O.S.2050/2002 and 2049/2002 on the file of the II Additional Munsiff's Court, Ernakulam. The said suit was filed by the respondents/plaintiffs for eviction and recovery of arrears of rent and damages.
R.S.A. NOS: 929 & 973/2008 2
Hence the tenancy in their favour was terminated by serving lawyer notice as per which vacant possession was demanded with arrears of rent. Even though the defendants received the lawyer notice they issued a reply notice raising untenable contentions. Hence the suits for eviction and recovery of arrears of rent and other charges.
R.S.A. NOS: 929 & 973/2008
3
in these second appeals.
Even though there is no lease deed evidencing the rental arrangement since the appellants had admitted that they are paying rent to the plaintiffs, it may not be now possible for the appellants to dispute the lease. But then, the only ground on which the lease has been terminated is non-payment of rent. Section 114 of the Transfer of Property Act, 1882 will then apply to a case of the present nature. The said Section reads as follows:-
“114. Relief against forfeiture for non-payment of rent--- Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture, and thereupon the lessee shall
R.S.A. NOS: 929 & 973/2008 4
hold the property leased as if the forfeiture had not occurred.”
The appellants had deposited the entire arrears at the time of filing the appeal and the entire amounts were withdrawn by the plaintiffs as well. If so, instead of passing a decree for ejectment treating forfeiture of the lease for non-payment of rent the court below should have relieved the appellants against the forfeiture as provided under Section 114 of the Transfer of Property Act, 1882.
R.S.A. NOS: 929 & 973/2008 5
themselves they did not deposit the arrears of rent until a decree for eviction was passed against them by the trial court. Learned counsel appearing for the respondents-plaintiffs disputed the alleged deposit of the entire arrears at the time of filing the appeal. Even assuming that the case of the appellants that they had discharged the entire arrears of rent at the time of filing of the appeal is true, still it does not attract Section 114 of the T.P. Act since the said Section contemplates payment of rent only at the hearing of the suit and not thereafter. The said expression cannot be stretched beyond the stage of the suit to say that the hearing of the suit will include hearing of the appeal. Hence Section 114 does not apply.
R.S.A. NOS: 929 & 973/2008 6
these second appeals. The questions of law formulated in the memoranda of second appeal also do not arise for consideration in these appeals which are accordingly dismissed in limine.
V. RAMKUMAR JUDGE
jj
3 issues framed by the court
Whether Section 114 of the Transfer of Property Act applies to an appeal for relief against forfeiture due to non-payment of rent.
Whether the lease arrangements in the aerial apartment are governed by the Kerala Buildings (Lease and Rent Control) Act, 1965 or the Transfer of Property Act, 1882.
Whether the trial court correctly terminated the lease and decreed eviction for non-payment of rent.
2 provisions across 1 enactments
Smt. Latha Rajendra Pai
The Ernakulam Thirumala Devaswom
V. Ramkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
