IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 EX.SA.NO. 14 OF 2009() ----------------------------------- AS.323/2008 OF II ADDL.DISTRICT COURT,ERNAKULAM EA.NO.361 OF 2008 IN E.P. NO.30 OF 2008 IN RCP NO.94 OF 2004, PRINCIPAL MUNSIFF COURT, ERNAKULAM .................... APPELLANT – APPELLANT – PETITIONER: ----------------------------------------------------------- JESINDA GEORGE, D/O.VARKEY, AGED 48, PROPRIETRIX, NEW JAINA AUTOMOBILES, PALARIVATTOM, ERNAKULAM DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): RESPONDENTS – DECREE HOLDER JUDGMENT DEBTOR: ------------------------------------------------------------------------- 1. A.V.RAJAMMA, 32/2610, NATIONAL HIGHWAY, PALARIVATTOM, KOCHI-25. 2. K.MADHUSOODANAN, MANAGING PARTNER, M/S.JAINA AUTOMOBILES, 48/1783, NATIONAL HIGHWAY, PALARIVATTOM, KOCHI-25. ADV. SRI.DEVAN RAMACHANDRAN (CAVEATOR) SRI.K.M.ANEESH FOR CAVEATOR THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 1.12.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = EX.S.A. NO.14 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of December, 2009 J U D G M E N T ---------------------- Heard both sides. 2. It is not disputed that the building which is the subject matter of this Execution Second Appeal belonged to respondent No.1 where respondent No.2 was running M/s.Jaina Automobiles as per a rental arrangement with respondent No.1. While so, respondent No.1 filed R.C.P. No.94 of 2004 claiming eviction of respondent No.2 on various grounds. The dispute was settled between respondent Nos.1 and 2 as per a compromise petition dated 24.9.2004 filed in the Rent Control Court on 30.10.2004. Based on that compromise learned Rent Controller disposed of R.C.P. No.94 of 2004 as per order dated 12.11.2004 whereby subject to the terms and conditions stated therein respondent No.2 was granted time till 31.12.2007 to vacate the building. Respondent No.2 did not vacate the building as agreed upon and hence respondent No.1 filed execution petition to evict respondent No.2 as per order dated 12.11.2004. While so appellant came into the arena with E.A. No.361 of 2008 claiming that there was a direct lease in her favour on 13.11.2004 as per which she is running EX.S.A. NO.14 OF 2009 -: 2 :- M/s.New Jaina Automobiles in the said building, she is not a party to the eviction proceeding and that under cover of the order based on compromise between respondent Nos.1 and 2 she is not liable to be evicted. That petition was opposed by respondent No.1 claiming that appellant was put up by respondent No.2. Learned Rent Controller enquired into E.A. No.361 of 2008 and found that obstruction made by the appellant is not sustainable and dismissed E.A. No.361 of 2008. That order was confirmed by the first appellate court in A.S. No.323 of 2008 and hence this Execution Second Appeal urging the question whether courts below committed a mistake in not adverting to the different circumstances to uphold the contention of the appellant regarding tenancy in her favour and whether the courts below ought to have found that appellant is conducting business in the building? It is contended by learned counsel for appellant that Exts.A1 to A8 marked on the side of the appellant would show that respondent No.1 had been receiving monthly rent from the appellant by way of cheque. It is also contended by learned counsel that in spite of such documents, respondent No.1 has not even gone into the box to explain the circumstances if any under which she was receiving rent from the appellant. Learned counsel for respondent No.1 would contend that circumstances proved in the case would show the deception played by EX.S.A. NO.14 OF 2009 -: 3 :- appellant and respondent No.2 to defeat the compromise order for eviction on the expiry of the time provided in the compromise order. It is also submitted by learned counsel that no substantial question of law as urged in the Second Appeal is involved. 3. It is not very much in dispute by the appellant also that in the building in question respondent No.2 was doing business under the name and style M/s.Jaina Automobiles at least until 12.11.2004 (I say so because according to the appellant she got a lease of the building from respondent No.1 on 13.11.2004). It is not disputed that the compromise petition which resulted in the order of eviction against respondent No.2 was prepared on 24.9.2004 but filed in the Rent Control Court only on 30.10.2004 and based on that, order was passed on 12.11.2004 as per which respondent No.2 was permitted to occupy the premises until 31.12.2007 subject to conditions. Learned counsel for respondent No.1 says that as per the terms and conditions of the compromise respondent No.2 was to pay rent for the building at the rate of Rs.5,000/- per month from 1.10.2004 to 31.12.2004, Rs.6,000/- per month from 1.1.2005 to 31.12.2005 and Rs.7,000/- per month from 1.1.2006 to 31.12.2006. It is also the submission of learned counsel that an interest free deposit of Rs.4,950/- given by respondent No.2 was with respondent No.1 and hence it was agreed EX.S.A. NO.14 OF 2009 -: 4 :- upon between respondent Nos.1 and 2 that as security for respondent No.2 continuing in the business based on the compromise order respondent No.2 was to pay another sum of Rs.45,050/- by way of interest free deposit so that total amount in deposit with respondent No.1 would be Rs.50,000/-. Learned counsel says that the said sum of Rs.45,050/- was paid by respondent No.2 as per two cheques, dated 19.10.2004 for Rs.20,000/- and dated 1.11.2004 for Rs.25,050/-. 4. According to the appellant, Exts.A5 to A8 would show that rent was being paid to respondent No.1 after 13.11.2004 from the account of M/s.New Jaina Automobiles (allegedly owned by the appellant). But it is interesting to note that though according to the appellant lease in her favour was from 13.11.2004 even certain payments before 13.11.2004 to respondent No.1 came not from the account of M/s.Jaina Automobiles of respondent No.2 but from the account of M/s.New Jaina Automobiles allegedly owned by the appellant. According to the learned counsel for respondent No.1 rent of Rs.5,000/- was paid to respondent No.1 as per cheque dated 19.10.2004 drawn on the account of M/s. New Jaina Automobiles though, even the compromise petition was prepared on 24.9.2004 and filed in the Rent Control Court on 30.10.2004. Learned counsel also contended that though it is the case of the appellant that she got a EX.S.A. NO.14 OF 2009 -: 5 :- direct lease from respondent No.1 on 13.11.2004 payment of interest free deposit of Rs.45,050/- as per the two cheques referred to above was prior to the appellant allegedly getting lease of the building from respondent No.1 on 13.11.2004. This according to learned counsel for respondent No.1 would show the deception played by respondent No.2 in collusion with the appellant. 5. Thought it is contended by the appellant that she got lease of the building from 13.11.2004 there is no document to evidence such a lease. It is difficult to believe her version about getting lease from 13.11.2004 since it is not disputed that it was on 12.11.2004 that learned Rent Controller passed order for eviction of respondent No.2 giving him time to vacate the building till 31.12.2007. It is difficult to believe that respondent No.1 would have entered into such a compromise, obtained an order based on that compromise and granted a new lease in favour of the appellant on 13.11.2004. There is also no evidence to show that before 13.11.2004 respondent No.2 vacated the building so that appellant could get a new lease on 13.11.2004. In the circumstances stated above, mere fact that certain payments were made from the account of M/s. New Jaina Automobiles as seen from Exts.A5 to A8 is not sufficient to hold in favour of lease in favour of the appellant on 13.11.2004. Courts EX.S.A. NO.14 OF 2009 -: 6 :- below have referred to these circumstances and held that the lease set up by the appellant is not true. On going through the judgment under challenge and hearing counsel I do not find any substantial question of law involved in the Second Appeal. Findings are made on the basis of evidence on record and the same cannot be be said to be perverse. Execution Second Appeal is dismissed in limine. Interlocutory Application No.2828 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv EX.S.A. NO.14 OF 2009 -: 7 :- THOMAS P.JOSEPH, J. =================== EX.S.A. NO.14 OF 2009 =================== J U D G M E N T 1ST DECEMBER, 2009