Disposed

Pennakkambat Surendran v. Ennapadath Bijuna

Kerala HC8 Oct 2018RSA/240/2018

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court disposed of the appeal without altering the lower courts' decree for eviction. While upholding that no proof of prior lease was needed since the executed licence deed governed, the Court granted the appellant time to surrender vacant possession on specific conditions regarding fee payment and an undertaking.

What did the court decide?

Appellant given time till 31/03/2019 to surrender vacant possession, conditioned on filing an undertaking to vacate and payment of licence arrears.

Pennakkambat Surendran Vs Ennapadath Bijuna — Partition | Kerala HC (2018)

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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 P.B.SURESH KUMAR

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MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940

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RSA.No. 240 of 2018

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AGAINST THE JUDGMENT AND DECREE IN OS 490/2013 of PRL.MUNSIFF COURT-II, KOZHIKODE, DATED 23-03-2015

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AGAINST THE JUDGMENT AND DECREE IN AS 131/2015 of ADDL. DISTRICT COURT - V, KOZHIKODE DATED 08-12-2017

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APPELLANT/APPELLANT/DEFENDANT:

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PENNAKKAMBAT SURENDRAN

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AGED 53 YEARS, S/O.NARAYANAN, RESIDING AT VADAKKE PALLIKARA PARAMBA, MARAD,SAGARASARANI, NORTH BEYPORE, BEYPORE AMSOM & DESOM, KOZHIKODE-673028.

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BY ADVS.

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SRI.V.V.SURENDRAN SRI.P.A.HARISH

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RESPONDENT/RESPONDENT/PLAINTIFF:

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ENNAPADATH BIJUNA

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AGED 36 YEARS, D/O.PALEKKAT SREEDHARAN, RESIDING AT SOWMYA, POST GOVINDAPURAM, VALAYANAD AMSOM DESOM OF KOZHIKODE TALUK, KOZHIKODE-673016.

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BY ADVS.

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SMT.MAYA CHANDRAN SRI.M.PROMODH KUMAR

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 240 of 2018

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JUDGMENT

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The defendant in the suit is the appellant. The case of the plaintiff is that the plaint schedule shop room belongs to her; that the defendant was permitted to use the plaint schedule shop room on a licence arrangement; that on expiry of the term initially agreed upon, Ext.A1 licence deed was executed by the defendant and that the defendant refused to surrender the plaint schedule shop room on expiry of the term fixed in terms of Ext.A1. The suit was, therefore, for a decree of mandatory injunction directing the defendant to vacate the plaint schedule shop room. The suit was resisted by the defendant contending that he was a tenant in the premises and that Ext.A1 document was obtained by the plaintiff from him making him believe that it is a renewal of the lease arrangement. According to the defendant, the area where the plaint schedule shop room is situated is covered by the Kerala Buildings (Lease and Rent Control) Act ('the Act', for short) and that, therefore, he cannot be evicted otherwise than in accordance with the provisions of the said Act. The trial court found that the arrangement was a licence and that the term was over. Consequently, the suit was decreed directing the defendant to surrender the plaint schedule shop room to the plaintiff. Though

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RSA.No. 240 of 2018

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the defendant challenged the decision of the trial court in appeal, the appellate court confirmed the decision of the trial court. Hence, this second appeal by the defendant.

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Heard the learned counsel for the appellant as also the learned counsel for the respondent.

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The learned counsel for the appellant pointed out that insofar as it was contended by the defendant that he was in occupation of the plaint schedule shop room on a lease arrangement prior to Ext.A1, it was obligatory for the plaintiff to prove the arrangement prior to Ext.A1 and that the plaintiff has not given even formal evidence for the said purpose. According to the learned counsel, in so far as no oral evidence was let in by the plaintiff for the said purpose, the suit ought not have been decreed. Alternatively, it was prayed by the learned counsel that if the argument advanced on behalf of the appellant is not acceptable to the Court, the defendant may be granted some time to surrender the vacant possession of the plaint schedule shop room.

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The execution of Ext.A1 document is admitted. Ext.A1 document is a deed of licence. The defendant has no case that it amounts to a lease arrangement. In so far as the defendant admits the execution of the document and in so far as the same is a

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RSA.No. 240 of 2018

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deed of licence, the arrangement under which the defendant was occupying the plaint schedule shop room prior to the same is totally irrelevant. It was, therefore, unnecessary for the plaintiff to give evidence in the matter. The decisions of the courts below, in the circumstances, are perfectly in order.

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However, having regard to the fact that the defendant is in occupation of the plaint schedule shop room for a considerable period, I deem it appropriate in the interest of justice to grant some time to the defendant to surrender the plaint schedule shop room to the plaintiff, of course, on terms.

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In the circumstances, the second appeal is disposed of granting the defendant time to surrender vacant possession of the plaint schedule shop room till 31/03/2019 on condition that he shall file an affidavit before the court below, within two weeks from the date of receipt of a copy of this judgment, undertaking to surrender unconditionally the plaint schedule shop room to the plaintiff on or before 31/03/2019 and on further condition that he shall pay to the plaintiff the up-to-date arrears of licence fee within one month and continue to pay the licence fee payable in terms of Ext.A1 on due dates.

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RSA.No. 240 of 2018

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Sd/-

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P.B.SURESH KUMAR

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JUDGE

Pennakkambat Surendran v. Ennapadath Bijuna

Case brief

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Pennakkambat Surendran v. Ennapadath Bijuna

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