Dismissed

Greeta Prakash v. T.K. Rahmathulla

Kerala HC27 Feb 2018RSA/134/2018

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a second appeal against a decree for mandatory injunction based on a licensee relationship. The Court upheld the rejection of a lease document due to lack of compliance with Evidence Act provisions and granted the appellant six months to vacate the premises. No substantial question of law arose.

What did the court decide?

Appellant granted six months to vacate premises on condition of filing an affidavit within three weeks; decision to execute decree to be left to court below; compensation for use and occupation must b

Greeta Prakash Vs T.K. Rahmathulla — Contract and Commercial Disputes | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

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RSA.No. 134 of 2018 (G)

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AGAINST THE JUDGMENT AND DECREE DATED 25-09-2017 IN AS 94/2016 of ADDL. DISTRICT COURT - V, KOZHIKODE.

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AGAINST THE JUDGMENT AND DECREE DATED 30-01-2016 IN OS 896/2014 of PRL. MUNSIFF'S COURT - I, KOZHIKODE.

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APPELLANT/APPELLANT/DEFENDANT :

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GREETA PRAKASH, AGED 44 YEARS, W/O.PRAKASH, MUDAPPATTU PARAMBA, 'GRACE VYNIL', KARUVISSERY AMSOM KARUVISSERY P.O., KOZHIKODE - 673 010.

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BY ADVS.SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.SHARAN SHAHIER.

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RESPONDENTS/RESPONDENTS/PLAINTIFFS :

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1. T.K. RAHMATHULLA, AGED 51 YEARS, S/O.THUNDUPARAKKAL MOHHAMED, CHANDAKUNNU AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM - 679 329.

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2. SHIHABUDHEEN T.K. AGED 44 YEARS, S/O.THUNDUPARAKKAL MOHHAMED, CHANDAKUNNU AMSOM DESOM, NILAMBUR TALUK, MALAPPRUAM - 679 329.

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BY ADV. SRI..JESWIN P.VARGHESE.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

amk

A.HARIPRASAD, J.

R.S.A No.134 of 2018

Dated this the 27th day of February, 2018

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J U D G M E N T

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Heard the learned counsel for the appellant and the

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respondents.

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Appellant is the defendant in a suit for mandatory injunction,

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seeking a direction to vacate the building, alleging that he is a licensee

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under the respondents. Admittedly, the building belonged to the

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respondents. According to the plaint averments, a room was handed over

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to the appellant for use and occupation as a licensee, stipulating a license

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fee of Rs.1,500/- per month without any security deposit. Despite

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demanding vacant possession, the appellant failed to do so and hence the

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R.S.A No.134 of 2018 2

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suit was laid.

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Appellant raised a contention that she had taken the building

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on lease from Ancy Joseph in the year 2001. Later, the appellant paid

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Rs.1,00,000/- to the subsequent owner Moosa Haji and the license arrangement was transformed into a full fledged lease. It is therefore contended that she is not liable to be evicted from the premises without taking recourse to the provisions under the Kerala Buildings and (Lease

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and Rent Control) Act, 1965.

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The trial court considered the rival contentions and found that

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the relationship between the appellant and respondents is that of a licensee

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and licensor. It is also found that the license was duly terminated and the

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plaintiff therefore is entitled to get the reliefs claimed in the plaint.

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Learned counsel for the appellant contended that the courts

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below unjustifiably refused to accept a document produced by the

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R.S.A No.134 of 2018 3

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appellant to show that the real nature of transaction was a lease and not a

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license. A photocopy of an agreement dated 12-05-2006 was sought to be

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produced before the trial court, which was rejected by the court saying that it cannot be admitted in evidence. It was found that no foundation was

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laid for adducing secondary evidence to establish the nature of relationship between the appellant and respondents. According to the learned counsel for the appellant, the document produced would go to show that original of the document was entrusted to the lessor and the appellant was authorized to keep a photocopy of the document. However,

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no step was taken to adduce secondary evidence under Section 65 of the Evidence Act and no foundation was laid for adducing secondary evidence.

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The lower appellate court also considered this issue and found that

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photocopy of the document produced by the appellant cannot be received

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in evidence as she has not complied with the conditions in Section 65 of

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R.S.A No.134 of 2018 4

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the Evidence Act.

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Learned counsel for the respondents would contend that there

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are interpolations and over-writings in the photocopy of the documents

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produced by the appellant in order to make it appear as a rental arrangement. This was one of the reasons the trial court rejected the document. Having regard to the facts and circumstances, I find no reason

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to differ from the view taken by the courts below. No substantial question

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of law arises in this appeal.

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Learned counsel submitted that the appellant is doing a petty

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trade in chappels in a small shop room and it is her livelihood. She sought

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for some reasonable time to vacate the premises.

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Having regard to the facts and circumstances, the appellant is

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granted six months time to vacate the premises on condition that she shall

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file an affidavit before the court below within a period of three weeks,

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R.S.A No.134 of 2018 5

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undertaking that she will vacate the premises within a period of six

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months without making any further claim. If affidavit is not filed as above,

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the court below is free to execute the decree. The appellant shall also pay

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the prevailing amount as compensation for use and occupation until she

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vacated the building.

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With these observations, the appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

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A. HARIPRASAD,

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JUDGE.

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amk

Greeta Prakash v. T.K. Rahmathulla

Case brief

What is this about?

What did the court decide?

Greeta Prakash v. T.K. Rahmathulla

Case brief

What is this about?

What did the court decide?

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