Dismissed

.Gopalakrishnan Nair v. the Tvm. Dist. Co.Op.Bank. Ltd.

Kerala HC14 Nov 2016SA/524/2000

Case brief

AI extract

What is this about?

This Second Appeal challenged a decree for eviction. The High Court held that a cooperative bank is exempt from Section 11 of the B.R.C. Act via SRO No.1225/1979. It also found no res judicata/eストoppel as eviction was not an issue in prior suits. The appeal was dismissed.

What did the court decide?

The Second Appeal was dismissed accordingly. The decree for eviction was upheld.

.Gopalakrishnan Nair Vs the Tvm. Dist. Co.Op.Bank. Ltd. — Landlord and Tenant | Kerala HC (2016)

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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 K.HARILAL

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MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938

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SA.NO. 524 OF 2000 (D)

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AGAINST THE JUDGMENT AND DECREE DATED 18-06-1999 IN A.S. NO. 198/1995 OF THE DISTRICT COURT, TRIVANDRUM

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AGAINST THE JUDGMENT AND DECREE DATED 31.10.1994 IN O.S. NO. 677/1989 OF THE PRINCIPAL SUB COURT,TRIVANDRUM

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APPELLANT/APPELLANT/DEFENDANT:

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R. GOPALAKRISHNAN NAIR, AGED 77 YEARS, AYODHYA BHAVAN, TC 37/930, ROOM NO.XI, FORT, TRIVANDRUM.

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BY ADV. SRI.G.S.REGHUNATH

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RESPONDENT/RESPONDENT/PLAINTIFF:

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THE TRIVANDRUM DISTRICT CO-OPERATIVE BANK LTD.,

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REP. BY ITS DEPUTY GENERAL MANAGER-IN-CHARGE OF THE GENERAL MANAGER, TRIVANDRUM DISTRICT CO-OPERATIVE BANK LTD., FORT, TRIVANDRUM.

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BY ADV. SRI.C.K.JAYAKUMAR, SC, TVM. DIST. CO.OP.BANK LTD.

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J. = = = = = = = = = = = = = = = = = = = = = S.A. No. 524 of 2000

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 14th day of November, 2016

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J U D G M E N T

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The defendant in O.S. No.677 of 1989 on the

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files of the Sub Court, Thiruvananthapuram is the appellant herein. The plaintiff filed the suit for recovery of the plaint schedule building together with arrears of rent amounting to `13,780/- and future rent. The plaintiff alleged that the plaintiff is a Co-operative Society governed by the Kerala Co-operative Societies Act, 1969 and that they are the owners of a four storied building known as the Trivandrum District Co-operative Building situate at East Fort, Trivandrum city. Shop rooms in the ground floor of the said building are rented out to various tenants and that the shop room bearing T.C. No.37/930 in the ground floor of

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the said building is rented out to the defendant in 1976 for one year on a rent of `380/-. The rent is

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S.A. No. 524 of 2000

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-: 2 :-

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in arrear from January, 1983, that plaintiff is in

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need of the schedule building for the purpose of business of the plaintiff and that the space available with the plaintiff is not sufficient to meet the requirements. Even though, the plaintiff has sent a notice terminating tenancy, the defendant neither paid the arrears of rent nor surrendered the shop room. Hence, the suit is filed for a decree for eviction of the defendant from the plaint schedule shop room.

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The defendant in the written statement

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contended that the suit is barred under the provisions of the Kerala Building (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the B.R.C. Act'). According to the defendant, since the defendant is a tenant entitled to all the benefits

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under the B.R.C. Act, he can be evicted only in accordance with the provisions of that Act and on

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breach of any of the provisions and also on

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S.A. No. 524 of 2000

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-: 3 :-

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satisfying with the grounds justifying an order of eviction under the said Act by the landlord. The present suit is barred under the provisions of B.R.C. Act and the Court has no jurisdiction to entertain the suit. It is also contended that the present suit is barred by res judicata and estoppel, due to the judgments and the decrees passed in the earlier suits.

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On the aforesaid rival pleadings, both

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parties adduced evidence and after appreciating the evidence on record, the trial court found that the suit is not barred by the provisions of the B.R.C. Act, as the plaintiff being a bank registered under the Co-operative Societies Act is exempted from the operation of the provisions of Section 11 of the B.R.C. Act as per SRO No.1225/1979, which was published in the Official Gazette dated 06.11.1979. So also, it is contended that the present suit is

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not barred by res judicata or estoppel by the

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S.A. No. 524 of 2000

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-: 4 :-

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judgments and decrees passed earlier in different

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suits between the plaintiff and the defendant.

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Heard the learned counsel for the

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appellant.

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The short question that arises for consideration in this Second Appeal is, whether

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the lower appellate court is justified in holding that the suit is not barred as the building of the plaintiff is exempted from the B.R.C. Act and the earlier judgments and decrees will not operate as

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res judicata or estoppel in the present suit. In the plaint it is stated that the plaintiff is a Cooperative Society deemed to have been registered under the Kerala Co-operative Societies Act, 1969

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and the said contention is not challenged by the defendant in the written statement. Admittedly, the plaint schedule building belongs to the plaintiff and the same is rented out to the defendant. As per SRO No.1225/1979 which was published on 06.11.1979

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S.A. No. 524 of 2000

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-: 5 :-

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the buildings owned by the Co-operative societies

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in the State are exempted from the operation of the provisions of Section 11 of the B.R.C. Act with effect from the date of publication of the notification in the gazette in exercise of the powers conferred on the Government by Sub Section (1) of Section 25 of the B.R.C. Act. Section 11 of the B.R.C. Act deals with the grounds under which tenant can be evicted from rented premises and operation of that Section is exempted in respect of buildings owned by the Co-operative Societies. It is pertinent to note that the defendnat has no challenge against the legality or sustainability of SRO No.1225/1979 dated 06.11.1979.

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It is true that the plaint schedule building is situated in Trivandrum city, wherein the B.R.C. Act is made applicable. But, being a building owned by a bank registered under the Kerala Co-operative Societies Act, 1969, it stands

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S.A. No. 524 of 2000

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-: 6 :-

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exempted from the provisions of Section 11 of the

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B.R.C. Act, by the aforesaid SRO No.1225/1979 dated 06.11.1979. So long as the notification stands unchallenged, the plaintiff is entitled to get exemption under the said notification. Therefore, the courts below are justified in finding that the suit is not barred under the provisions of the the B.R.C. Act.

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Coming to the question of res judicate or estoppel , it is seen that the courts below

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meticulously analysed the judgments and orders passed earlier by the courts and Tribunals in various suits and arrived at a finding that those judgments and orders will not operate as res judicate or estoppel in the present suit. The decree passed in O.S. No.702 of 1983 was a decree, restraining the landlord i.e., the plaintiff bank herein, from forcibly evicting the defendant from the plaint schedule building. After that decree,

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S.A. No. 524 of 2000

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-: 7 :-

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O.S. No.1157 of 1983 was filed by the defendant on

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the allegation that the landlord-bank cut water supply. Another suit was one filed by the plaintiff before the arbitrator under the Kerala Co-operative Societies Act, 1969 as No.13 of 1982 against the defendant. Thereafter, the defendant filed O.S. No.298 of 1984 against the plaintiff bank for the recovery of illegally collected compensation for malicious attachment and for other reliefs and that

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suit was also decreed. The tenant also filed R.C.P. No.24 of 1983 fixation of fair rent, which was allowed by the trial court as well as the appellate court. It is pertinent to note that in none of the decrees or judgments the question, whether the plaintiff is entitled to get evicted the defendants from the plaint schedule shop room, was not considered as an issue. Thus, the matter in issue involved in the present suit has not been directly or substantially in issue in the previously

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S.A. No. 524 of 2000

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-: 8 :-

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instituted suits. In the above analysis, the courts below are justified in finding that the present suit is not barred by res judicata or estoppel.

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Thus, the courts below rightly considered

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all the matters in issue in its correct perspective and decreed the suit as prayed for. I do not find

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any illegality or impropriety in any of the findings whereby the courts below decreed the suit. No substantial question of law arises for consideration in this appeal.

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This Second Appeal is dismissed accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

.Gopalakrishnan Nair v. the Tvm. Dist. Co.Op.Bank. Ltd.

Case brief

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What did the court decide?

.Gopalakrishnan Nair v. the Tvm. Dist. Co.Op.Bank. Ltd.

Case brief

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