IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 ESA.No. 12 of 2002() -------------------- AGAINST THE ORDER DATED 31/08/2002 IN EA.242/2000 IN EP.200/2000 IN RCP.47/2000 of MUNSIFF COURT, THALASSERY AS.95/2002 of ADDL.SUB COURT, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER IN E.A.NO.242/2000: ------------------------------------------------------ CHERIYANDI REVATHI, W/O. KUMARAN, AGED 57 YEARS, TEA SHOP OWNER, SHOP NO.11/127 VADIYIL PEEDIAKA, ERANHOLI AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN SRI.K.LAKSHMINARAYANAN RESPONDENT(S): RESPONDENTS/RESPONDENTS IN E.A.NO.242/2000: ---------------------------------------------------------- 1. M. JAYANDRAN, S/O. SANKARAN, AGED 39 YEARS, MILITARY PENSIONER, RESIDING AT K.P.S. NIVAS, P.O. KAVUMBHAGAM, THALASSERY, KANNUR DISTRICT. 2. KOTTAYI KUMARAN, S/O. ACHUTHAN, 71 YEARS, NO OCCUPATION, REVATHI NIVAS, ERANHOLI AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. ADV. A.MOHAMED MUSTAQUE FOR R1(CAVEATOR) THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 6.4.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- E.S.A.No.12 of 2002 -------------------------------------- Dated this the 6th day of April, 2009. JUDGMENT This Second Appeal arises from the judgment of the first appellate court confirming the dismissal of E.A.No.242 of 2000 in E.P.No.200 of 2000 in R.C.P.No.47 of 2000. Petitioner who preferred E.A.No.242 of 2000 under Order XXI Rule 99 of the Code of Civil Procedure (for short, “the Code”) is the appellant before me. 2. Short facts necessary for consideration of this appeal are: Respondent No.1 filed R.C.P.No.47 of 2000 against respondent No.2, husband of the appellant under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2 of 1965) alleging that the shop room referred to in the petition was entrusted to respondent No.2 orally by his father K.P.Sankaran on a rent of Rs.100/- per month, the said Sankaran died in the year 1978 and thereon the shop room devolved on his legal heirs including respondent No.1. He also alleged that rent is in arrears from November, 1996 onwards and that the room is needed for his occupation. Notice was issued to respondent No.2 on 8.2.2000 by respondent No.1 and other legal heirs demanding rent arrears and vacant possession. Respondent No.2 received the notice on 10.2.2000 but did not respond. Respondent No.1 filed petition for eviction as R.C.P.No.47 of 2000. Though notice was served on respondent ESA No.12/2002 2 No.2 on that petition, he again did not respond. Acting on the evidence let in by respondent No.1, learned Rent Controller ordered eviction under Sections 11(2) (b) and 11(3) of the Act. That order was put in execution. Amin appointed by the court came to the shop room to execute the order of eviction on 18.12.2000. Following that, appellant filed E.A.No.242 of 2000 contending that she had taken the shop room orally from Soumini, mother of respondent No.1 in the year 1981, had been regularly paying rent to Soumini, appellant has taken D&O licence and other documents for running the business and is in possession and enjoyment of the shop room as a tenant. She claimed that she is not a party to the Rent Control Proceedings and learnt about it only when the Amin reached the shop room on 18.12.2000. She therefore wanted an order that she is not liable to be evicted from the shop room. Along with the D&O licence, receipts for payment of building tax and a money order receipt dated 25.3.2000 to show that she had paid rent of Rs.75/- to the mother of respondent No.1 were produced. Respondent No.1 resisted the petition contending that appellant is only the wife of the tenant (respondent No.2). He claimed that by an inadvertent mistake his mother happened to receive the money order sent by the appellant. Before the Rent Control Court neither party produced oral evidence. Appellant proved Exts.A1 to A38. Learned Rent Controller found that it is not shown that the appellant is the tenant of the shop room and dismissed the petition. First appellate court accepted that view and dismissed the appeal. Hence this Second Appeal. ESA No.12/2002 3 3. The substantial question of law raised for a decision in this appeal is whether acceptance of rent by one of the co-landlords from the occupier will be sufficient proof of tenancy in favour of such occupier? Learned counsel for appellant referred me to the definition of 'landlord' and 'tenant' in Sections 2(3) and 2(6) of Act 2 of 1965. According to learned counsel, rent has been paid on the account of appellant as proved by Ext.A4 and hence, she is a 'tenant' as defined in the Act. It is also the contention of the learned counsel that as one of the co-landlords, Soumini was competent to collect rent as she satisfied the definition of 'landlord' as per Section 2(3) of the Act. It is pointed out by learned counsel from the age of respondent No.1 stated in the petition for eviction that at the time of death of Sankaran in the year 1978, respondent No.1 should have been only 15 years and it is not possible that as a minor he would have been collecting rent from that time onwards. Counsel for respondent No.1 would contend that there is no evidence and much less reliable evidence to show that appellant is the tenant of the shop room. 4. It is true that in this proceedings respondent No.1 has not produced evidence to show that respondent No.2 had been paying rent as claimed in the petition for eviction. But an order of eviction has been passed by the court on the evidence produced before it directing respondent No.2 to vacate the premises. Question for consideration in this proceedings is whether appellant is bound by that order for which she has to show that she is the tenant of the shop room. ESA No.12/2002 4 5. So far as Ext.A4 is concerned, it is not disputed that Soumini, mother of respondent No.1 had accepted that money order as if the amount represented rent. When it was suggested that Ext.A4 does not show that the amount sent represented rent, counsel for appellant explained that the nature of the amount sent will be recorded only in the counter foil given to the payee. Assuming so, appellant has not taken steps to examine Soumini who received the amount as per Ext.A4. But non-examination of Soumini cannot be said to be fatal since it is not disputed by respondent No.1 that what was sent by Ext.A4 was rent (Rs.75/-). It is pertinent to note that appellant has no case that respondent No.2 was acting against her interest. In the petition filed by the appellant, there is no mention either that there was any collusion between respondent Nos.1 and 2 or that respondent No.2 acted against her interest. There is also no case or evidence that respondent No.2 was incapable of defending the petition for eviction. It is difficult to think that appellant was not aware of the notice and copy of eviction petition served on respondent No.2. It is not in dispute that appellant and respondent No.2 are staying together under the same roof. If that be so, for the mere fact that appellant had sent rent as per Ext.A4 after service of notice on respondent No.2 and after filing of the petition for eviction it cannot be held that she is the tenant of the shop room. It is also important to remember that though she claimed to be a tenant from 1981 onwards regularly paying rent, no scrap of paper is produced to substantiate that claim. Nowhere in the petition appellant has stated that the rent payable by her was Rs.75/- per month. It is pertinent to note that Ext.A4, ESA No.12/2002 5 money order was sent only after notice of eviction was served on her husband, respondent No.2 and the petition for eviction was filed. According to the appellant, Soumini was not in the habit of issuing rent receipts. If that be so, appellant could have let in oral evidence in that line. She did not enter the witness box. That, appellant sent Rs.75/- by way of money order cannot necessarily show that she is the tenant. She could have, as wife of the tenant sent the rent by money order. 6. It is not very much in dispute that Sankaran, original owner of the room died in the year 1978. According to respondent No.1, his father granted oral lease in favour of respondent No.2 during his life time. Appellant would say that she got oral entrustment from Soumini in the year 1981. If the entrustment was in the year 1981, Soumini being only one of the co-owners could not have granted a lease in favour of the appellant to bind other legal heirs. 7. It is true that so many documents are produced by the appellant to show either that D&O licence is issued to her or that she has been paying building tax. These documents may show either that appellant was carrying on business or that respondent No.2 was carrying on the business in her name. These documents cannot bind respondent No.1. Courts below have considered the evidence on record and came to the conclusion that the appellant has not succeeded in showing that she is the tenant of the shop room. ESA No.12/2002 6 8. So far as the substantial question of law raised by the appellant in this Second Appeal is concerned, as it is not shown that she is the tenant of the shop room, the mere fact that she paid the rent and that too, after the notice intimating rent arrears and seeking eviction under Section 11(3) of the Act as well was concededly served on respondent No.2, cannot clothe her with any right be in possession of the shop room in her capacity as a tenant. As such, the question of law framed for a decision did not actually arise on the facts and evidence of this case. 9. At this stage, learned counsel for appellant made a request to remand the case to the court below so that the appellant could adduce oral evidence. The order for eviction was obtained by respondent No.1 on 26.6.2000. I stated that preceding the petition for eviction, statutory notice was served on respondent No.2 (as per copy of the order of eviction, notice was issued on 8.2.2000 and the acknowledgment card is dated 10.2.2000). Notice of petition was also served on him. But, he did not respond to either as stated above. It is not the case of appellant that respondent Nos.1 and 2 acted collusively to defeat the interest of the appellant. It is also not the case of the appellant that respondent No.1 had any oblique motive in filing the petition for eviction with respondent No.2 on the party array and in issuing notice to him preceding the filing of the petition. In the normal course respondent No.1 would not have anticipated that respondent No.2 would keep silence on both the ESA No.12/2002 7 occasions. In these circumstances, after nine (9) years of respondent No.1 getting an order of eviction I am not inclined to think that the request for remand has to be entertained. Appeal fails. It is dismissed. No costs. C.M.P.No.2405 of 2002 will stand dismissed. THOMAS P.JOSEPH, Judge. cks ESA No.12/2002 8 Thomas P.Joseph, J. E.S.A.No.12 of 2002 JUDGMENT 6th April, 2009.