Baby Varghese Vs Omana P.K — Kerala HC (2025) — LawSathi Research

Baby Varghese Vs Omana P.K — Kerala HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Six months' time to the appellants to vacate the plaint schedule premises, subject to conditions: affidavit undertaking before the Execution Court to vacate within six months, clearance of all arrears of rent/compensation within one month, and continued payment of the compensation ordered by the Trial Court till vacating; execution kept in abeyance meanwhile, with liberty to the respondents to execute the decree forthwith on breach of any condition.

Issue for consideration

Whether the arrangement between the plaintiffs and the defendants in respect of the plaint schedule shop rooms is a lease or a license. +3 more

Court's answer

The arrangement between the plaintiffs and the defendants is a license and not a lease; having gone through the recitals of the Ext.A1 agreements, this Court finds no ground or reason to take a different view from the concurrent findings of the Trial Court and the First Appellate Court.

Ratio / Principle

The plaintiff issued a notice terminating the license, specifically stating that the arrangement is a license, and the defendants sent no reply disputing the same.

Key takeaways

No substantial question of law arises in the matter, and the Court finds no ground or reason to interfere with the judgments and decrees passed by the Trial Court as well as the First Appellate Court.ratio¶91
Even though not entertaining the Regular Second Appeal, the Court grants the appellants a period of six months to vacate the plaint schedule premises, subject to conditions, considering their plea that immediate eviction would destroy their business.ratio¶98
The appellants may continue to occupy the premises subject to filing an affidavit before the Execution Court undertaking to vacate within six months, clearing all arrears of rent/compensation within one month, and continuing to pay the compensation ordered by the Trial Court till vacating; execution proceedings are kept in abeyance meanwhile, and on violation of any condition the respondents are free to execute the decree forthwith.

Detailed headnote1 paragraphs

Common judgment of the Kerala High Court (Justice M.A.Abdul Hakhim, 03.04.2025) dismissing Regular Second Appeals Nos.211, 212 and 215 of 2025 filed by defendants Balan, Baby Varghese and Vincent M.M against the judgments and decrees dated 30.01.2025 in AS Nos.3, 4 and 2 of 2022 of the III Additional Sub Court, Kozhikode, arising out of suits by Omana P.K, Rajeev P.S and Subhash P.S for mandatory injunction to evict the defendants from plaint schedule shop rooms (recovery of possession later added by amendment). The defence that the Ext.A1 arrangement was a lease and not a license, that no proper termination notice was issued, and that the suits as framed were not maintainable did not prevail: the recitals of the agreements showed a license, the plaintiff's termination notice specifically describing the arrangement as a license drew no reply from the defendants, and no substantial question of law arose. With the decrees already confined by the First Appellate Court to mandatory injunction, the appeals were dismissed; the appellants were permitted six months to vacate subject to filing an affidavit of undertaking before the Execution Court, clearing arrears of rent/compensation within one month and continuing to pay the Trial Court-ordered compensation, with execution kept in abeyance meanwhile and revocable forthwith on breach.

2025:KER:28612

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947

RSA NO. 211 OF 2025

AGAINST THE JUDGMENT AND DECREE DATED 30.01.2025 IN AS
NO.3 OF 2022 OF III ADDITIONAL SUB COURT, KOZHIKODE ARISING
OUT OF THE JUDGMENT AND DECREE DATED 31.03.2022 IN OS NO.65
OF 2019 OF MUNSIFF-MAGISTRATE COURT, THAMARASSERY

APPELLANT(S)/APPELLANT/DEFENDANT:

BALAN

AGED 65 YEARS
S/O UNNIRAMAN, PILATHOTTATHIL HOUSE,
NELLIKKAPOYIL, KALLURUTTI P.O,
NEELESEWARAMAMSOMDESOM THAMARASSERY TALUK,
KOZHIKODE DISTRICT, PIN - 673582

BY ADVS.
P.A.MOHAMMED SHAH
RENOY VINCENT
SHAHIR SHOWKATH ALI
CHELSON CHEMBARATHY
ABEE SHEJIRIK FASLA N.K
NANDA SURENDRAN
SAHAL SHAJAHAN
AQUIN KURUVILLA TOM
M.N.MOHAMMED HUSSAIN

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

RESPONDENT(S)/RESPONDENT/PLAINTIFF:

1 OMANA P.K
AGED 72 YEARS
W/O LATE SIVARAMAN POTTUKULATH HOUSE,
THIRUVAMBADI DESOM THAMBALAMANNA P.O,
THAMARASSERY TALUK, PIN - 673603

2 RAJEEV P.S AGED 52 YEARS S/O LATE SIVARAMAN, POTTUKULATH HOUSE, THIRUVAMBADI DESOM, THAMBALAMANNA P.O, THAMARASSERY TALUK, PIN - 673603

3 SUBHASH P.S AGED 50 YEARS S/O LATE SIVARAMAN, POTTUKULATH HOUSE, THIRUVAMBADI DESOM, THAMBALAMANNA P.O, THAMARASSERY TALUK, PIN - 673603

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
03.04.2025, ALONG WITH RSA.212/2025, 215/2025, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947

RSA NO. 212 OF 2025

AGAINST THE JUDGMENT AND DECREE DATED 30.01.2025 IN AS
NO.4 OF 2022 OF III ADDITIONAL SUB COURT, KOZHIKODE ARISING
OUT OF THE JUDGMENT AND DECREE DATED 31.03.2022 IN OS NO.337
OF 2019 OF MUNSIFF-MAGISTRATE COURT, THAMARASSERY

APPELLANT(S)/APPELLANT/DEFENDANT:

BABY VARGHESE
AGED 55 YEARS

S/O ILAVANKAL VARGHESE ILAVANKAL HOUSE,
KOODARANHIAMSOMDESOM MARANCHATTY P.O,
THAMARASSERY TALUK, KOZHIKODE DISTRICT, PIN -
673604

BY ADVS.

P.A.MOHAMMED SHAH
RENOY VINCENT
SHAHIR SHOWKATH ALI
CHELSON CHEMBARATHY
ABEE SHEJIRIK FASLA N.K
NANDA SURENDRAN

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

SAHAL SHAJAHAN
AQUIN KURUVILLA TOM
M.N.MOHAMMED HUSSAIN

RESPONDENT(S)/RESPONDENT/PLAINTIFF:

1 OMANA P.K AGED 72 YEARS W/O LATE SIVARAMAN, POTTUKULATH HOUSE, THIRUVAMBADI DESOM, THAMBALAMANNA P.O, THAMARASSERY TALUK, PIN - 673603

2 RAJEEV P.S AGED 52 YEARS S/O LATE SIVARAMAN, POTTUKULATH HOUSE, THIRUVAMBADI DESOM, THAMBALAMANNA P.O, THAMARASSERY TALUK, PIN - 673603

3 SUBHASH P.S AGED 52 YEARS S/O LATE SIVARAMAN, POTTUKULATH HOUSE, THIRUVAMBADI DESOM, THAMBALAMANNA P.O, THAMARASSERY TALUK, PIN - 673603

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 03.04.2025, ALONG WITH RSA.211/2025 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947

RSA NO. 215OF 2025

AGAINST THE JUDGMENT AND DECREE DATED 30.01.2025 IN AS
NO.2 OF 2022 OF III ADDITIONAL SUB COURT, KOZHIKODE ARISING
OUT OF THE JUDGMENT AND DECREE DATED 24.03.2022 IN OS NO.12
OF 2019 OF MUNSIFF-MAGISTRATE COURT, THAMARASSERY

APPELLANT(S)/APPELLANT/DEFENDANT:

VINCENT M.M
AGED 56 YEARS
S/O KURIAKOSE, ERATHADATHIL HOUSE THIRUVAMBADI
AMSOMDESOM, THAMBALAMANNA P.O, THAMARASSERY
TALUK, PIN - 673603

BY ADVS.
P.A.MOHAMMED SHAH
RENOY VINCENT
SHAHIR SHOWKATH ALI
CHELSON CHEMBARATHY
ABEE SHEJIRIK FASLA N.K
NANDA SURENDRAN
SAHAL SHAJAHAN

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

AQUIN KURUVILLA TOM
M.N.MOHAMMED HUSSAIN

RESPONDENT(S)/RESPONDENT/PLAINTIFF:

1 OMANA P.K AGED 72 YEARS W/O LATE SIVARAMAN, POTTUKULATH HOUSE, THIRUVAMBADI DESOM THAMBALAMANNA P.O, THAMARASSERY TALUK, PIN - 673603

2 RAJEEV P.S AGED 52 YEARS S/O LATE SIVARAMAN, POTTUKULATH HOUSE, THIRUVAMBADI DESOM THAMBALAMANNA P.O, THAMARASSERY TALUK, PIN - 673603

3 SUBHASH P.S AGED 50 YEARS S/O LATE SIVARAMAN, POTTUKULATH HOUSE, THIRUVAMBADI DESOM, THAMBALAMANNA P.O, THAMARASSERY TALUK, PIN - 673603

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 03.04.2025, ALONG WITH RSA.211/2025 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

JUDGMENT

These three appeals arise from three identical suits instituted by the same plaintiffs, these appeals are disposed of by a common judgment. Suits are filed for mandatory injunction to evict the defendant from the plaint schedule properties, which are shop rooms. Later the prayer for recovery of possession was also included by way of amendment.

The defendant in the suits is the appellant in these appeals. They have arrangements with the plaintiffs for the occupation of the plaint schedule properties. According to the plaintiffs, it is a license arrangement. They have sought a mandatory injunction to evict the defendants from the plaint schedule properties on the contention that the license

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

is terminated by issuing notice to them.

The defendant opposed the suit prayers by filing a written statement contending that the arrangement is a lease and not a license.

The Trial Court rejected the contention and decreed the suits in favour of the plaintiffs finding that the arrangement is a license. Though the defendants filed appeals before the First Appellate Court, the same were dismissed, confirming the judgment and decree passed by the Trial Court.

I heard the learned counsel for the appellants Sri.Mohmmed Shah.

The learned counsel for the appellants contended that the

recitals in Ext.A1 document would show that it is a lease

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

agreement and not a license agreement. Any kind of control over the plaint schedule property is reserved in favour of the plaintiffs. No proper notice for terminating the lease was issued to the defendants. The suits as framed

are not maintainable.

I have considered the contentions.

The Trial Court, as well as the First Appellate Court, after going through the recitals in Ext.A1 agreement in all these cases, found that the arrangement between the plaintiffs and the defendant is a license and not a lease. On going through the recitals in those documents, I also do not find any ground or reason to take a different view. The defendants have no case that they signed those documents without understanding the contents of the

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

same. The plaintiff issued a notice terminating the license

to the defendants, specifically stating that the arrangement is a license. No reply was sent by the defendants disputing the same.

The Trial Court granted a decree for mandatory injunction as well as recovery of possession against the defendants. The Appellate Court, though, dismissed the appeals, interfered with the decree, and set aside the decree for recovery of possession against the defendants. The Appellate Court set aside the decree for recovery of possession and limited it to the decree for mandatory injunction. No substantial question of law arises in the matter. I do not find any ground or reason for interfering with the judgments and decrees passed by the Trial Court

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

as well as the First Appellate Court.

The learned counsel for the appellants submitted that the appellants have been conducting business in the plaint schedule properties for a considerable length of time and an immediate eviction from the plaint schedule premises will destroy their business and they need at least one year time to relocate their business to another premises after

finding an alternate accommodation.

In view of the said contention, even though I am not entertaining the Regular Second Appeal, I am of the view that the appellants can be given a period of six months to vacate the plaint schedule premises subject to conditions.

In view of the aforesaid circumstances, I dismiss these Regular Second Appeals but at the same time permit the

2025:KER:28612

RSA Nos.211, 212 & 215 OF 2025

appellants to occupy the plaint schedule premises subject to the condition that the appellants shall file an Affidavit before the Execution Court undertaking to vacate the plaint schedule premises within a period of six months from today and subject to further conditions that the appellant shall clear all the arrears of rent/compensation till today within one month and shall also continue to pay the compensation ordered by the Trial Court till vacating the premises. Execution proceedings are kept in abeyance in the meantime. If the appellants violate any of the conditions, the respondents are free to execute the decree forthwith.

Sd/-

M.A.ABDUL HAKHIM JUDGE

sms