Claim petitioners, asserting the company was the real tenant, challenged dismissal of their claim petition resisting execution of an eviction decree in rent control proceedings. The High Court found no cogent evidence of their tenancy, no substantial question of law emerged, and dismissed the second appeal without admission.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
MONDAY, THE 18 DAY OF MARCH 2024 / 28TH PHALGUNA, 1945
Ex.SA NO. 3 OF 2024
AGAINST THE DECREE AND JUDGMENT DATED 28.11.2023 IN AS NO.32
OF 2023 ON THE FILES OF THE COURT OF THE ADDITIONAL DISTRICT
JUDGE, TIRUR AROSE FROM THE ORDER DATED 04.07.2023 IN EA
NO.2/2023 IN EP NO.92 OF 2022 ON THE FILES OF THE COURT OF
THE MUNSIFF MAGISTRATE, PONNANI
APPELLANTS/APPELLANTS/PETITIONERS/CLAIM PETITIONER IN EA:
1AADHIRIYAA MEDICAL SOLUTIONS PVT.LTD.
AGED 44 YEARS
SHIRFTAN TOWER, AMSAKACHERI, P.O., EDAPPAL,
PONNANITALUK, MALAPPURAM DISTRICT
REPRESENTED BY ITS DIRECTOR,
NOORUL HUCK PUZHAKKALAKATH, S/O NOOR MUHAMMAD,
PUZHAKKALAKATH HOUSE, P.O. POLPPAKKARA, POTHANNUR,
PONNANI TALUK, PIN - 679576
2NOORUL HUCK PUZHAKKALAKATH,
AGED 44 YEARS
S/O NOOR MUHAMMAD, PUZHAKKALAKATH HOUSE,
P.O. POLPPAKKARA, POTHANNUR, PONNANI TALUK,
PIN - 679576
BY ADVS.
T.SETHUMADHAVAN (SR.)
DEEPA NARAYANAN
K.SUJAI SATHIAN
PREETHI. P.V.
M.V.BALAGOPAL
MARY LIYA SABU
RESPONDENTS/RESPONDENTS/RESPONDENTS IN EA:
1 SAINUDHEEN S/O. KUNHAMMAD, KARUMANKUZHIYIL HOUSE, KADANCHERI AMSOM DESOM, PONNANITALUK,
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2
PIN - 679582
2BASHEER
S/O. MOIDUNNI,ACHARATH, SHIRFAN TOWER,
AADHIRIYAA, MEDICAL CENTRE, AMSAKACHERI,
P.O. EDAPPAL,PONNANITALUK, MALAPPURAM DISTRICT,
PIN - 679576
3BIJU NAIR,
S/O KARUNAKARAN NAIR, KARUVITTASSERI HOUSE,
SHIRFAN TOWER, AADHIRIYAA, MEDICAL CENTRE,
AMSAKACHERI, P.O., EDAPPAL,PONNANITALUK,
MALAPPURAM DISTRICT, PIN - 679576
THIS EXECUTION SECOND APPEAL HAVING COME UP FOR
JUDGMENT ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Dated this the 18 th day of March, 2024
This execution second appeal has been filed under order XXI read with Section 100 of the Code of Civil Procedure, 1908 (“CPC” hereinafter) challenging verdict in A.S. No.32 of 2023 dated 28.11.2023 on the files of the Court of the Additional District Judge, Tirur arose from the order in E.A. No.2/2023 in E.P. No.92/2022 in RCP No.8/2020 dated 04.07.2023 on the files of the Court of the Munsiff-Magistrate, Ponnani. The appellants are the claim petitioners. The 1st respondent is the petitioner in the RCP and the landlord of the building. Respondents 2 and 3 are the respondents in the RCP who are the Directors of the Company according to the claim petitioners.
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admission.
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“The petitioner says that there is a covenant for yearly enhancement of the
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rent by 5% from August 2019 onwards. The respondents have stated in their counter affidavit that the lease agreement is valid up to 30-08-2027. However, none of the parties have produce the lease deed before the court. Therefore, the court is unable to ascertain what the terms of the lease are. It is not clear if the lease deed is registered or not. The fact that the petitioner has sought an order under section 11(3) of the Act suggests that his case is that the tenants are holding over. The tenants have not admitted that there is a covenant for yearly enhancement of the rent from August 2019 onwards. The landlord has not produced any document to show that there is a covenant for yearly enhancement of the rent. In these circumstances, the petitioner's prayer for enhanced rent from August 2019 onwards cannot be granted. The petitioner has filed a calculation statement. In it, he has claimed rent at the rate of ₹1,31,250/- per month from the date of filing of the application for eviction. In the light of the discussion made above, the rent that has accrued since the date of
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the filing of the application for eviction shall be calculated at the rate of ₹1,25,000/- per month. The petitioner is also entitled to recover 6% interest per annum on the rent that has accrued after the filing of the application. In the result, the following orders are passed:
2nd respondent in the RCP before this Court, mainly raising
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contention that the rent agreed was only Rs.50,000/- per month. While appreciating the said contention in paragraph No.4 of the judgment dated 05.01.2023, the Division Bench of this Court found as under:
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EA.No.2/2023 in EP.No.92/2022 in RCP No.8/2020. While dismissing the above original petition, the Division Bench of this Court held as under:
“At the outset, nothing is produced before us to show that the company has authorised the filing of the above original petition, which is apparently done through one Rajesh Pius, claiming to be the power of attorney holder and by another person projecting himself as a Director of the 1st respondent company. There is also nothing on record to suggest that the lease was in favour of the 1st petitioner company, as there are no documents produced to substantiate the same. In the absence of the above details, we do not deem it fit to entertain this original petition. Accordingly, this original petition stands dismissed.”
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are the Directors of the said company. Further contention raised was that since the 2nd claim petitioner, who is one among the Directors of the Company and the 1st respondent in RCP No.8/2020 and another Director of the Company were not in station, the 2nd respondent was authorized to run the business. But it was noticed by the claim petitioners that, the 2nd respondent colluded with the landlord and the same resulted in passing orders against the tenants by the Rent Control Court, Appellate Court as well as this Court, on earlier occasions and the same are not binding on the claim petitioners. Therefore, the claim petitioners’ contention required to be addressed under Order XXI Rule 97 of CPC independently to retain the building as tenants. According to the claim petitioners, the company took the building on rent for a period of ten years for a monthly rent of Rs.50,000/- per month.
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and therefore the appeal is not maintainable. The claim petition is one filed in collusion with respondents 2 and 3, with intent to avoid eviction of the plaint schedule building after suffering adverse orders under Section 12 of the Act.
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from the side of the claim petitioners or from the landlord. It is argued that, Exts.X1 to X5 statements of accounts read along with the evidence of PWs 2 to 5 would establish that the rent was paid to one Aysha, who is none other than wife of the landlord and in one occasion to one Haridasan. Therefore, the claim petitioners are the real tenants of the building and the proceeding in RCP No.8/2020, without the junction of the claim petitioners is not binding on them. He also given emphasis to Ext.A17, the registration certificate issued by the District Medical Officer, Malappuram in favour of the company as on 05.09.2018 produced before the First Appellate Court in A.S.No.32/2023 to address the point that the claim petitioners are the tenants and though the respondents in RCP No.8/2020 are Directors of the company, they are not the tenants of the building.
15. As pointed out by the learned Senior Counsel, in paragraph No.16 of the appellate judgment, the 1 st claim petitioner/company though raised a contention that the claim petitioners are the tenants of the building, it was
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observed by the First Appellate Court that nobody produced the lease agreement to see the terms of the agreement. The First Appellate Court, in the absence of lease agreement, evaluated evidence available as that of PWs 2 to 5 and Ext.X1 to X5 statements of accounts as rightly done by the trial court. The Appellate Court found that, the evidence of PW2, the Manager of Indian Bank, Edappal Branch along with Ext.X1 statement of account would show payments by way of cheques to Aysha from the account of the claim petitioner/company at the rate of Rs.1,25,000/- each on 29.12.2017, 16.02.2018, 17.03.2018, 19.04.2018, 18.05.2018, 19.06.2018, 17.07.2018, 31.08.2018 and 19.09.2018 could be noticed. Similarly, the First Appellate Court observed that Ext.A2 is the account statement of the 1 st claim petitioner/company maintained with Union Bank, Edappal branch. PW3 is the Manager of that bank. Ext.X2 shows the following payments to Aysha by way of cheques viz. Rs.15,000/- on 07.03.2019, Rs.1,25,000/- on the same day, Rs.60,000/and Rs.65,000/- on 14.03.2019 and Rs.15,000/- and
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Rs.1,25,000/- on 18.03.2019. Ext.X3 is the account statement of the 1 st claim petitioner/company maintained with ICICI bank, Edappal. PW4 is the Manager of that bank. As per the above account statement Rs.15,000/- each is seen paid to Aysha on 16.11.2018 and 27.11.2018. Ext.X4 is the account statement of the 1 st claim petitioner/ company maintained with Indian Overseas bank, Edappal branch. PW5 is the manager of that bank. As per Ext.X1, Rs.1,25,000/- is seen paid to Aysha on 26.10.2017 and Rs.1,25,000/- to one Haridasan on 21.11.2017 and another ₹1,25,000/- to Aysha on 18.01.2017.
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First Appellate Court that no authorization was also given by the landlord to deposit the rent in the names of Aysha and Haridasan. Accordingly, while confirming the finding of the trial court, to the effect that the claim petitioners are not the tenants of the building, for want of evidence, the Appellate Court held that the claim petitioners failed to establish that the claim petitioners are the tenants of the building. Accordingly, the Appellate Court dismissed the claim petition.
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emphatically clear that, if the claim petitioners want to succeed after contesting the case at the instance of the respondents 2 and 3 herein, who admittedly took the building for rent in the proceedings in RCP No.8/2020, there should be cogent and convincing evidence to hold that the claim petitioners are the tenants of the building. Apart from the bank statements showing payment of rent in the names of Aysha and Haridasan, no materials available to hold that there is rental agreement in between the claim petitioners and the landlord, in any manner. The crucial witnesses to be examined in this regard are Aysha and Haridasan, but they were spared without being examined and the claim petitioners relied on the hearsay evidence of the power of attorney holder, who was examined as PW1 to establish the tenancy in between the claim petitioners and the landlord. Even no materials available to see that Aysha is the wife of the landlord.
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of this Court also negatived the said contention as already extracted. In view of the above discussion, no substantial question of law emerges in this matter to be formulated to maintain and admit this execution second appeal. Order XLII Rule 2 of CPC provides thus:
“2. Power of Court to direct that the appeal be heard on the question formulated by it. -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”
20. Section 100 of CPC provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisf i ed that the case involves a substantial question of law. (2) An Appeal may lie under this section from an
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appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisf i ed that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso stipulates that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisf i ed that the case involves such question.
21. In the decision reported in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir Mohamed v. J. Kamala and Others , the Apex Court held that:
The condition precedent for entertaining and deciding a second appeal being the
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existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].
22. In a latest decision of the Apex Court in Government of Kerala v. Joseph , reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], it was held, after referring Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench), as under:
For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court.
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point that in order to admit and maintain a second appeal under Section 100 of CPC, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suf fi xing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of CPC must be complied to admit and maintain a second appeal.
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Faced, with the negative verdict, the learned senior counsel for the claim petitioners sought four months time to vacate the building. Since, no tenancy or occupation found by this Court repeatedly at the instance of the claim petitioners, such a prayer cannot be considered. Hence, the said prayer also rejected, with direction to the Execution Court to expedite eviction of the tenants from the building, within two weeks from the date of receipt of copy of this judgment, without fail, since the
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arrears of rent is more than Rs.60 Lakh as submitted by
the learned counsel for the 1 st respondent/the landlord.
Sd/-
A. BADHARUDEEN JUDGE
SK
2 issues framed by the court
Whether the claim petitioners established tenancy in themselves so as to resist eviction under Order XXI Rule 97 CPC.
Whether a substantial question of law arose to admit and maintain the execution second appeal under Section 100 CPC.
Colour shows how this judgement treated each authority
Nazir Mohamed v. J. Kamala and OthersRelied on¶21
[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] · Who else cites this
Kondiba Dagadu Kadam v. Savitribai Sopan GujarRelied on¶21
[(1999) 3 SCC 722] · Who else cites this
Government of Kerala v. JosephRelied on¶22
[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]
Santosh Hazari v. Purushottam TiwariReferred¶22
[2001 (3) SCC 179] · Who else cites this
4 provisions across 2 enactments
Aadhiriyaa Medical Solutions Pvt. Ltd.
Noorul Huck Puzhakkalakath
Sainudheen
Basheer
Biju Nair
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court