Dismissed

Sri.Sajeev, v. Sri.Ebraham@ Shaju

Kerala HC19 Mar 2024RSA/671/2023

Case brief

AI extract

What is this about?

This is a regular second appeal against decrees for eviction and arrears of rent in a suit by a landlord against a tenant. The High Court dismissed the appeal, upholding the termination of the lease and finding it justified in fixing ₹6,000 per month as damages for use and occupation.

What did the court decide?

The appeal is dismissed. The decree for eviction and arrears of rent is upheld. Damages for use and occupation fixed at ₹6,000 per month.

Sri.Sajeev, Vs Sri.Ebraham@ Shaju — Partition | Kerala HC (2024)

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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 SATHISH NINAN

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TUESDAY, THE 19^TH DAY OF MARCH 2024 / 29TH PHALGUNA, 1945

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RSA NO. 671 OF 2023

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AGAINST THE JUDGMENT DATED 21.11.2022 IN AS NO.16 OF 2020 OF SUB COURT AT PUNALUR

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(JUDGMENT DATED 30.01.2020 IN O.S. NO.24/2013 OF MUNSIFF'S COURT, PUNALUR)

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APPELLANT/CROSS RESPONDENT/DEFENDANT:

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SRI.SAJEEV, AGED 53 YEARS, S/O. SUKUMARAN, AMAL SADANAM, ALENCHERRY, EROOR VILLAGE, PUNALUR TALUK, PIN – 691312.

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BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH ANNA LINDA EDEN AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT HARIKRISHNAN S. S.SREEKUMAR (SR.)

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RESPONDENT/CROSS APPELLANT/PLAINTIFF:

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SRI.EBRAHAM @ SHAJU, AGED 47 YEARS S/O.B.C.KUNJUKUNJU, VADAKKEVEETTIL, ALENCHERRY KARA, EROOR VILLAGE, PUNALUR TALUK, PIN – 691312.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = R.S.A. No.671 of 2023

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= = = = = = = = = = = = = = = = = = Dated this the 19^th day of March, 2024

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J U D G M E N T

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The suit for eviction, for arrears of rent, and for

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damages for use and occupation was decreed by the trial

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court for eviction and arrears of rent. The claim for

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damages was declined. Challenging the decree for eviction, the defendant filed AS 16/2020. The plaintiff filed cross objection with regard to the claim for damages. The first appellate court dismissed the appeal and allowed the cross objection. The defendant is in second appeal.

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The plaint schedule property is two shop rooms.

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The plaintiff is the owner of the building. In the year 2008, the defendant took the rooms on lease from the plaintiff. The rent was defaulted from June, 2012 onwards. The plaintiff issued Ext.A7 notice terminating the lease. The suit is filed for eviction, for arrears

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RSA No.671 of 2023

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-: 2 :-

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of rent and for damages at ₹ 7,000/- per month.

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The defendant contended that he had been paying

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rent without fail and that due to some difference

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between the parties, the plaintiff refused to accept rent. Thereupon the defendant sent rent by Demand Draft

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and money order. The plaintiff, through his power of attorney holder, had entered into an agreement with the defendant to sell the property with shop rooms for a total consideration of ₹ 38 lakhs. An amount of ₹ 1 lakh was paid towards advance sale consideration. A suit was filed as OS 209/2012 seeking specific performance of the contract. Though the plaint was rejected, an appeal has been filed before this Court as RFA 219/2003 which is pending. Accordingly he prayed for dismissal of the suit.

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The trial court held that the lease arrangement has been validly terminated. It was also found that there is arrears of rent from July 2012 to November,

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RSA No.671 of 2023

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-: 3 :-

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The claim for damages was declined.

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The first appellate court concurred with the

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finding of the trial court that the notice terminating lease is proper. The finding regarding arrears of rent was affirmed. With regard to the claim for damages for use and occupation, the first appellate court held that though the plaintiff has claimed an amount of ₹ 7,000/per month as damages, considering the rental of

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₹ 3,000/- fixed in the year 2008, an amount of ₹ 6,000/per month from the date of suit is reasonable.

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Heard learned counsel for the appellant.

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The learned counsel urged the following

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questions of law as arising to be considered in this appeal:

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(i) When the defendant pleaded that an agreement for

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sale was entered into between the plaintiff and the defendant in

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respect of the property in question, does not the nature of possession of the defendant cease to be that of the tenant and

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RSA No.671 of 2023

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-: 4 :-

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transform into one under the agreement for sale?

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(ii) Did not the courts fail to take note of Ext.A8(a) to A8(j) money order coupons sent by the defendant and accepted

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by the plaintiff to find subsistence of tenancy by holding over?

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(iii) Is not the fixation of quantum of damages for use

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and occupation arbitrary?

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Though the learned counsel for the appellantdefendant would argue that, after the execution of the alleged agreement for sale, the possession of the rooms by the defendant is not as a tenant but under the agreement for sale, the said contention has no force for reasons more than one. Firstly, though it is contended that an agreement for sale was entered into on 24.10.2011, it is his case that he had been paying rent in spite of execution of the agreement. According to him, though the rent for the period from June, 2012 to November, 2012 was not accepted by the plaintiff, the rent for December, 2012 was accepted by the plaintiff.

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RSA No.671 of 2023

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-: 5 :-

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Again the rent from January, 2013 to March, 2013 were not accepted by the plaintiff, is his case. Therefore, even going by the contention of the defendant, the nature of his possession still continues under the lease arrangement. There is no termination of the status as lessee and change in the nature of possession to one under the alleged agreement for sale. Secondly, the suit based on the alleged, disputed agreement for sale stands dismissed though it is pending in appeal. Therefore, the first contention does not arise.

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With regard to the contention that the payment and acceptance of rent as evidenced by Exts.A8(a) to A8(j) series of money order coupons evidence continuance of the lease by holding over, it is to be noticed that those are for the period from 27.02.2019 to 28.12.2019 i.e. pending the suit. It has been found that after issuance of the notice of termination, the plaintiff had evinced his intention not to assent for continuance of

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RSA No.671 of 2023

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-: 6 :-

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lease by refusing to accept the rent. There is no plea of holding over. The payments made pending the suit can only be considered as one towards damages for use and occupation. Therefore, the said argument was rightly repelled by the trial court. It appears that the said contention was not even argued before the first appellate court.

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As regards the quantum of damages for use and occupation, though the plaintiff claimed ₹ 7,000/- per month, the appellate court has granted only ₹ 6,000/per month. The court has fixed the quantum by adopting a reasonable yearly increase of ₹ 500/- per year on the agreed rent from the date of grant of lease. It cannot be said that the quantum fixed is arbitrary.

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The findings of the appellate court are based on evidence. The conclusions are justified on the materials. No substantial question of law arises for consideration in this appeal.

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RSA No.671 of 2023

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-: 7 :-

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The appeal fails and is accordingly dismissed.

Sd/-

SATHISH NINAN

JUDGE

kns/-

//True Copy//

P.S. to Judge

Sri.Sajeev, v. Sri.Ebraham@ Shaju

Case brief

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Sri.Sajeev, v. Sri.Ebraham@ Shaju

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