Partly allowed

Sulekha Nooruddin v. Krishnan

Kerala HC13 Jun 2017AS/609/2001

Case brief

AI extract

What is this about?

Appeal against a decree in a suit for recovery of rent arrears. The High Court allowed the appeal, holding it was just and proper to give the appellant a chance to prove attornment and consent for assignment of rights. The decree against the appellant was set aside and remitted for fresh disposal, while the decree against the first defendant was confirmed.

What did the court decide?

Decree against the appellant in the rent recovery suit set aside; matter remitted to the lower court for fresh disposal; decree against the first defendant confirmed; court fee refunded.

Sulekha Nooruddin Vs Krishnan — Landlord and Tenant | Kerala HC (2017)

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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 V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

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TUESDAY, THE 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939

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AS.NO. 609 OF 2001 (B) -----------------------

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AGAINST THE JUDGMENT IN O.S. NO.469 OF 1994 OF THE PRINCIPAL SUB COURT, ERNAKULAM DATED 30-11-2000

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APPELLANT(S)/2^ND DEFENDANT:

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SULEKHA NOORUDDIN, AGED 40 YEARS, W/O.NOORUDDIN, NOOR MAHAL, ERNAKULAM VILLAGE, THRIKKANARVATTOM DESOM, KANYANOOR TALUK.

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BY ADV. SRI.JIMMY JOHN VELLANIKARAN

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RESPONDENT(S)/PLAINTIFF/1^ST DEFENDANT:

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KRISHNAN, S/O.RAMAN, AGED ABOUT 70 YEARS, KANAKATHARAPARAMBIL, VEEKSHANAM ROAD, ERNAKULAM, COCHIN - 18.

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SMT.NAYANA KRISHNAKUMAR, AGED ABOUT 41 YEARS, W/O.KRISHNAKUMAR, NAYANAM, NEAR VARMA CLINIC, NADAMA VILLAGE, TRIPPUNITHURA.

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R,R2 BY SENIOR ADVOCATE SHRI K.P.DANDAPANI R1 BY ADV. SRI.T.P.SANTHOSH KUMAR

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08.06.2017, THE COURT ON 13.06.2017 DELIVERED THE FOLLOWING:

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V. CHITAMBARESH

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SATHISH NINAN, JJ .

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= = = = = = = = = = = = = = = = = = A.S. No.609 of 2001

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= = = = = = = = = = = = = = = = = = Dated this the 13^th day of June, 2017

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J U D G M E N T

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SATHISH NINAN, J .

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The 2^nd defendant in a suit for recovery of arrears of rent is the appellant.

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As per Ext.A1 agreement dated 09.03.1988, three cents of land belonging to the plaintiff was taken on lease by the defendants jointly for a monthly rent of Rs.2,500/-. The suit is filed for realisation of arrears of rent for the period from 01.12.1992 to 31.12.1994.

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Defendants filed separate written statements. The 2^nd defendant would contend that as early as in the year 1988 she had conveyed her rights over the property in favour of the 1^st defendant as per document No.3310 of 1988 of the

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A.S. NO.609 of 2001

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-: 2 :-

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Ernakulam SRO with the knowledge of the plaintiff, and therefore she does not have any liability for the plaint claim. The 1^st defendant admitted the assignment of rights of the 2^nd defendant in her favour. She would contend that rights over the entire property was transferred by her to third parties and hence she is not liable for any rent arrears.

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The court below held that there is no evidence to show attornment by the assignee of the 1^st defendant to the plaintiff regarding the lease. It was also found that there is no evidence to show that assignment of rights by the 2^nd defendant was with the consent of the plaintiff and that unless the plaintiff has agreed for the transfer, the 2^nd defendant continues to be liable under the arrangement entered into between them.

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Exhibits B1 and B2 are the judgment and decree in O.S. No.992 of 1992 of the Additional Sub

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A.S. NO.609 of 2001

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-: 3 :-

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Court, Ernakulam which was a suit filed by the present plaintiff against these defendants for recovery of arrears of rent for the period from October, 1991 till 30.11.1992. The suit was dismissed finding discharge by payment as is revealed from Ext.B1 judgment. In the said suit also, the second defendant had raised a contention that her rights over the property was conveyed by her in favour of the 1^st defendant with the knowledge of the plaintiff. Assignment of rights was under a registered document. At least by virtue of the suit in O.S. No.992 of 1992 the plaintiff had notice regarding the assignment of rights by the 2^nd defendant in favour of the 1^st defendant. What is the effect, if any, of such notice has not been considered by the court below. The court below has proceeded to grant a decree against the 2^nd defendant also holding that there is no evidence to prove the consent of the plaintiff. The court below also relying on the judgment in Vidhyadhar v. Mankikrao (1999 SC 1441) held that since the 2^nd

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A.S. NO.609 of 2001

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-: 4 :-

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defendant did not enter into the witness box, the contention is not proved.

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Learned counsel appearing for the 2^nd defendant would request that an opportunity may be afforded to the 2^nd defendant to adduce evidence by examining herself and also by producing such other documents, if any, available to show that the plaintiff was put on notice regarding the assignment and the plaintiff had accepted the same.

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In the facts and circumstances of the case, we feel that it is only just and proper that the appellant be given an opportunity to adduce evidence in support of her contention.

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In the result, the appeal is allowed. Judgment and decree in O.S. No.469 of 1994 on the file of the Principal Sub Court, Ernakulam in so far as it relates to the 2^nd defendant are set aside and the matter is remitted to that court for fresh disposal as against the 2^nd defendant. The decree as against

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A.S. NO.609 of 2001

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-: 5 :-

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the 1^st defendant will stand confirmed.

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Court fee paid on the memorandum of appeal shall be refunded to the appellant.

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The parties shall appear before the Principal Sub Court, Ernakulam on 05.07.2017.

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Sd/-

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V. CHITAMBARESH, JUDGE.

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Sd/- SATHISH NINAN, JUDGE.

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vsv

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/true copy/ P.S. to Judge

Sulekha Nooruddin v. Krishnan

Case brief

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Sulekha Nooruddin v. Krishnan

Case brief

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