IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 RSA.No. 804 of 2009() ---------------------------- AS.473/2005 of PRINCIPAL SUB COURT,PARAVUR OS.103/2003 of MUNSIFF COURT,ALUVA ....................................................................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------------ K.K.PURUSHOTHAMAN, AGED 82 YEARS, S/O. RAMAN KESAVAN, ROOM NO.309, 2ND FLOOR, HOTEL AROMA, NEAR K.S.R.T.C. BUS STAND, ALUVA. BY ADV. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SRI.C.N.GOPAKUMAR RESPONDENT(S): RESPONDENTS/PLAINTIFF -------------------------------------------------------------- 1. M.A.MOHAMMED BABU MOOPPAN, AGED 46 YRS, S/O. LATE M.K.AHAMMED KUTTY MOOPPAN, AROMA GARDENS, FLAT C2, S.R.M.ROAD, ERNAKULAM, KOCHI-18. 2. M.A.MARIYUMMA BEEVI, AGED 49 YEARS, D/O. LATE M.K.AHAMMED KUTTY MOOPPAN, AROMA GARDENS, FLAT C2, S.R.M.ROAD, ERNAKULAM, KOCHI-18. 3. M.A.MUNEERA BEEVI, AGED 48 YEARS, D/O. LATE M.K.AHAMMED KUTTY MOOPPAN, AROMA GARDENS, FLAT C2, S.R.M.ROAD, ERNAKULAM, KOCHI-18. 4. M.A.FATHIMA BEEVI, AGED 47 YEARS, D/O. LATE M.K.AHAMMED KUTTY MOOPPAN, AROMA GARDENS, FLAT C2, S.R.M.ROAD, ERNAKULAM, KOCHI-18. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. = = = = = = = = = = = = = = = = = = = R.S.A No. 804 of 2009 = = = = = = = = = = = = = = = = = = = Dated this the 10th day of September, 2009 JUDGMENT The defendant in O.S.No.103/03 on the file of the Munsiff Court, Aluva is the appellant. The appeal is directed against the judgment and decree in A.S. No.47/2005 on the file of the Principal Sub Court, North Paravur. The suit is filed for eviction, declaration and for realization of money. The suit was decreed by the trial Court directing the defendant to surrender vacant possession of the schedule building to the plaintiff within one month and also allowed the plaintiff to realise an amount of Rs.8,200/- by way of arrears of rent from 06.11.2002 till the date of termination of tenancy and Rs.70/- per day by way of compensation for use and occupation. The Court below held that the respondents are entitled to realise rent at the rate mentioned above till the defendant surrenders vacant possession. The appellate Court confirmed the decree and judgment. Hence the second appeal. R.S.A. No.804 of 2009 2 2. The plaintiff is the landlord. The plaint schedule room is in the 2nd floor of 'Hotel Aroma' which is a lodging house belonging to the plaintiff. It is the case of the plaintiff that the plaint schedule room has been let out to the defendant on daily rent. There were two previous litigations between the mother of the plaintiff and the defendant. In the first suit namely O.S. No.541/96, the defendant raised a contention that the provisions of Kerala Buildings (Lease and Rent Control) Act is applicable to the tenancy arrangement in respect of the plaint schedule room and therefore the civil suit is not maintainable. In the second suit namely O.S. No.818/97, the tenant contended that the notice issued under 106 of the T.P Act is not validly issued. In the said suit the Court held that the notice issued is not a valid notice under S.106. Therefore the plaintiff filed the present suit for eviction after issuing notice under 106 T.P Act. 3. The plaintiff complaints that the defendant is not paying any rent for the plaint schedule room from August 2002, that an amount of Rs.8,200/- is in arrears till R.S.A. No.804 of 2009 3 06.11.2002, that the plaintiff issued notice terminating the tenancy arrangement by 30.11.2002 and demanded vacant possession. It is also stated that the defendant is doing commercial activities in the plaint schedule room which is detrimental to the peaceful occupation and enjoyment of the inmates of the other rooms. 4. In the written statement filed by the appellant, it is stated that he is running a watch shop in the name and style 'Aristo Watches' in the ground floor of the 'Aroma' building, that the plaint schedule room is taken on monthly rent in the year 1966 for using it as a store room and watch repairing room from the father of the plaintiff. It is also contended that the plaint schedule room was never used as a lodging house, therefore the provision of The Lease and Rent Control Act is applicable to the tenancy arrangement. It is also contended that the suit is liable to be dismissed for want of statutory notice. 5. The plaintiff examined PW1 and PW2 and produced R.S.A. No.804 of 2009 4 Ext.A1 to A17; Exts.C1 and C1(a) are also marked. The appellant /defendant did not adduce any evidence both oral or documentary. The trial Court relying on Ext.A11, 12, 13, 15 and 16 held that the rooms allotted to the plaintiffs are lodging houses. Ext.C1 commission report is also relied on to prove that the defendant is using the room as a repairing room. The defendant did not adduce any evidence in support of his contention that the plaint schedule room is rented out for commercial purposes and therefore the provisions of the Rent Control Act is applicable. The trial Court also found that the defendant though raised many contentions did not turn up to state his case at the time of trial. The court below thus found that the plaint schedule room is a lodging house exempted for the provisions of The Kerala (Lease and Rent Control) Act. The contention of the plaintiff that he is entitled to recover the daily rent of Rs.70/- was also considered in detail by the trial Court and held that there is no basis for the contention that the plaint schedule building is part of a commercial establishment. Therefore the Court concluded that the defendant is liable to pay the rent under the tariff R.S.A. No.804 of 2009 5 claimed by the plaintiff. In the circumstances, the trial Court allowed the suit and a decree for eviction with arrears of rent and damages for future use and occupation was passed. 6. The Appellant Court examined the questions raised by the appellant. On evidence, the Appellate Court concurred with the findings of the trial Court and held that no interference is called for on facts. I have gone through the evidence tendered by the parties and examined the findings entered by the courts below on the basis of the evidence on record. I find that the trial Court as well as the Appellate Court appreciated the facts in detail and arrived at the right conclusions. The view taken by the Courts below is the only view possible in the given circumstances. I find that no grounds are urged or established by the appellant to invoke this Court's jurisdiction under S.100 C.P.C and hence the appeal stands dismissed in limine. 7. Learned counsel for the appellant submitted that the tenant is occupying the premises doing commercial activity R.S.A. No.804 of 2009 6 since 1966. The learned counsel submitted that the business carried out in the premises is the only source of livelihood of the tenant and his family members. Considering the request of the learned counsel, a period of one year is granted to the tenant to vacate the premises on condition that the appellant shall file an undertaking in the form of an affidavit to vacate the plaint schedule room within the period allowed by this Court and on further condition that he shall deposit or pay the entire arrears of rent as on today within one month and shall continue to pay the amount fixed by the trial Court for use and occupation regularly in every month without default. If the above said conditions are not complied with in time, the landlord is at liberty to evict the tenant as if no time is granted. The undertaking shall be filed within one month from today. HARUN-UL-RASHID, JUDGE ss