Partly allowed

Ushakumari v. Prince K.Paul

Kerala HC6 Aug 2012RSA/395/2012

Case brief

AI extract

What is this about?

This regular second appeal challenged a first appellate decree granting eviction and rent recovery. The High Court held that proof of bona fide need is unnecessary under Section 106 of the Transfer of Property Act in the area. While dismissing the appeal, the court granted the appellant six months to vacate the property with specific conditions.

What did the court decide?

Appeal dismissed; appellant granted six months time to vacate property with conditions against subletting, requiring execution affidavit, and pending interlocutory applications dismissed.

Ushakumari Vs Prince K.Paul — Landlord and Tenant | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934

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RSA.NO. 395 OF 2012 ()

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AS.291/2008 OF ADDITIONAL DISTRICT COURT, KOTTAYAM OS.214/2007 OF MUNSIFF'S COURT, ETTUMANOOR

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APPELLANT/RESPONDENT/DEFENDANT:

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USHAKUMARI AGED 43 YEARS, W/O.SOMASUNDARAN NAIR USHAMALARI HOUSE, KUDAMALOOR KARA, KUDAMALOOR P.O. AYMANAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.

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BY ADV. SMT.A.SREEKALA

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RESPONDENT(S)/APPELLANT/PLAINTIFF:

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PRINCE K.PAUL S/O.PAUL, PAUL VILLA, ARPOOKARA KARA ARPOOKARA VILLAGE, KOTTAYAM TALUK KOTTAYAM DISTRICT, PIN-686 001.

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BY ADV. SRI.B.KRISHNAN BY ADV. SRI.R.PARTHASARATHY BY ADV. SMT.SEEMA

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.395 of 2012

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==================================== Dated this the 06^th day of August, 2012

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J U D G M E N T

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This Second Appeal arises from the judgment and decree in A.S. No.291 of 2008 of the Additional District Court, Kottayam granting a decree for eviction of the appellant as well, apart form the decree for recovery of rent arrears the trial court had granted.

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Respondent claimed that he is the owner of the room described in the plaint schedule, as per Ext.A5, assignment deed No.3779 of 2006 dated 04.10.2006 executed by its prior owner. Respondent needed the schedule room for his own purpose and filed O.S. No.214 of 2007 for eviction of the appellant after terminating the tenancy. There was also a prayer for recovery of rent arrears.

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Appellant denied title of the respondent and contended that she is a lessee of the shop room. Various other contentions were also raised including that there is no proper termination of the lease arrangement.

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The trial court passed an ex parte decree in favour of the respondent for recovery of rent arrears alone. On the premise that the alleged need pleaded by the respondent is not

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R.S.A. No.395 of 2012

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established, the trial court declined to grant decree for eviction.

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Respondent challenged that part of the decree against him in A.S. No.291 of 2008. It is admitted that appellant did not either by way of an independent appeal or by cross objection challenge that part of the decree against her for payment of rent arrears.

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The first appellate court found that respondent is entitled to get a decree for eviction as well and accordingly modified the judgment and decree of the trial court. That judgment and decree of the first appellate court are under challenge in this appeal.

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It is contended by the learned counsel for the appellant that the need pleaded alleged by the respondent for eviction is not proved. It is also contended that there is no proper termination of the lease arrangement.

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So far as the contention raised by the appellant in the trial court that respondent is not the owner of the shop room is concerned, in acceptance of Ext.A5, assignment deed, the trial court found that respondent is the owner and accordingly granted a decree for recovery of rent arrears. That part of the decree has become final and in view of that and Ext.A5, assignment deed

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R.S.A. No.395 of 2012

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appellant cannot now contend that the respondent has no title over the shop room.

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So far as the contention relating to the invalid termination of lease is concerned, Ext.A2 is the notice dated 24.08.2007 terminating the tenancy. That notice was served on the appellant. In view of the amendment to Sec.106 of the Transfer of Property Act (for short, “the Act”) even if there is some irregularity in the notice, that is not a ground to defeat the suit. Moreover, on going through the judgment of the first appellate court I do not find any reason to enter a finding that the termination of the lease is not valid.

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The other contention raised is that it is without proof of need of the respondent that the first appellate court has granted a decree for eviction. That contention also cannot be sustained since it is admitted that Act 2 of 1965 is not extended to the area where the shop room is situated. Therefore when seeking eviction after termination of the lease under Sec.106 of the Act, it is not necessary that the respondent should plead and prove that he bona fide needs the schedule room for his occupation.

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On hearing the learned counsel for the appellant, the

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R.S.A. No.395 of 2012

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learned counsel for the respondent who appeared in the application to condone the delay and on going through the judgment under challenge I do not find any substantial question of law involved in this appeal requiring a decision by this Court.

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The learned counsel for the appellant has submitted that the appellant is running a Typewriting Institute in the schedule room and it may take some time for her to get an alternative accommodation. The learned counsel has requested ten months' time to vacate the suit property.

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The learned counsel for the respondent submitted that the suit was filed in the year 2007, five years have already elapsed and by this time appellant should have found out an alternative accommodation.

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Having regard to the difficulties of the appellant stated by the learned counsel, I am inclined to grant six (6) months' time from this day to the appellant vacate the suit property subject to conditions.

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Second Appeal is dismissed with the following directions:

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(i) Appellant is granted six (6) months' time from this day to vacate the suit property as directed in the decree of the first appellate court.

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R.S.A. No.395 of 2012

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(ii) Appellant shall not in the meantime assign her interest in the suit property or induct third parties into possession of the suit property.

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(iii) Appellant shall file affidavit in the executing court within two (2) weeks from this day undertaking that she shall vacate the suit property by the expiry of the six (6) months granted hereby, without putting forth any claim or objection on any ground whatsoever.

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(iv) In case any of the above conditions is violated it will be open to the respondent to execute the decree notwithstanding the time granted hereby.

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(v) Delivery of the suit property will stand in abeyance for a period of six (6) months from this day or till default is committed as above, whichever is earlier.

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R.S.A. No.395 of 2012

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It is made clear that appellant will be liable to pay arrears of rent during the above said period of six (6) months or till she vacates the suit property whichever is earlier and as directed by the trial court.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Ushakumari v. Prince K.Paul

Case brief

What is this about?

What did the court decide?

Ushakumari v. Prince K.Paul

Case brief

What is this about?

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