IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 RCRev..No. 303 of 2004(B) ------------------------------ RCA.33/2000 of ADDL.D.C., ALAPPUZHA. RCP.50/1997 of PRL.MUNSIFF COURT, CHERTHALA .................... REVISION PETITIONER/APPELLANT/RESPONDENT 4 ---------------------------------------------------------- MEENAKSHI AMMAL,SASTHA SADANAM FROM ALUMMOODU,THURUTHIKKARA P.O,NEDIYAVILA, PONGAMVASHI,KOLLAM. BY ADV. SRI.VPK.PANICKER SRI.VPK.PANICKER SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP SRI.ABRAHAM GEORGE JACOB SRI.S.GOWTHAM RESPONDENT(S) – RESPONDENTS – PETITIONER & RESPONDENTS 1 TO 3 IN RCP: ---------------------------------------------------------------------------------- 1. JOHN,S/O. FRENCHU,VADAKKU MURI, CHERTHALA VADAKKU VILLAGE,CHERTHALA. * 2. RAJAMMA,PAZHUKADAVIL,PADITTATHIL VEEDU, EXZHAKKADAVU P.O.,CHERUKOLE,MAVELIKKARA. * 3. SAJEEV,S/O. SADANANDAN,PAZHUKADAVIL, PADITTATHIL VEEDU,EXZHAKKADAVU P.O., CHERUKOLE,MAVELIKKARA. RCR.303/04 -2- * 4. RAJANI,D/O. SADANANDAN,PAZHUKADAVIL, PADITTATHIL VEEDU,EXZHAKKADAVU P.O., CHERUKOLE,MAVELIKKARA. *[RESPONDENTS 2 TO 4 ARE REMOVED FROM THE PARTY ARRAY AS PER ORDER DATED 24/02/05 IN RCR] ADV. SRI.A.K.JOHN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/11/2010, ALONG WITH AS NO.642 OF 1999 & AS NO.714 OF 1999 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ A. S. Nos.642 & 714 of 1999 & R. C. R. No.303 of 2004 ------------------------------------------------ Dated this the 3rd day of November, 2010 COMMON JUDGMENT/ORDER Gopinathan, J The appellant in A.S.642/1999 is the plaintiff in O.S.13/96 on the file of the Sub Court, Cherthala. The defendant therein is the appellant in A.S.714/99. (Hereinafter the parties are referred to as the 'plaintiff' and the 'defendant' as arrayed in the suit before the trial court). The plaintiff instituted the above suit seeking a decree for specific performance in respect of the plaint schedule property measuring 40 sq. ms. with an allegation that the plaint schedule property belonging to the defendant was agreed to be sold to the plaintiff for a total consideration of Rs.3,10,000/- and the plaintiff agreed to purchase the same. Accordingly, Ext.A1 agreement for sale dated A.S.642/99 & con. cases -2- 01/08/95 was executed and a sum of Rs.75,000/- was paid as advance. The agreement was to execute the sale deed within three months. The plaintiff sent a draft sale deed which is marked as Ext.A8 for approval of the defendant. The defendant alleged that the draft sale deed was not in accordance with Ext.A1, especially, regarding the description of the property. Hence, he requested the plaintiff to prepare a draft sale deed in accordance with Ext.A1 for which the plaintiff was not amenable. Plaintiff caused a lawyer notice, copy of which was marked as Ext.A2 dated 19/10/95, calling upon the defendant to be present before the Sub Registrar for executing the sale deed. To Ext.A2, the defendant caused Ext.A3 reply stating that he is not amenable to execute the sale deed as described in Ext.A8 draft deed. According to the defendant, more property was included in the schedule A.S.642/99 & con. cases -3- of Ext.A8. With that allegation, it was further informed by Ext.A3 that the defendant was prepared to execute the sale deed in respect of the property as described in Ext.A1. However, the sale deed was not executed. With this pleadings, the plaintiff moved the lower court seeking a decree for specific performance in respect of the plaint schedule property measuring 40 sq. metres. He had also sought for an alternate relief for return of the advance amount with interest at the rate of 18% per annum. 2. The defendant, in his written statement, admitted the execution of Ext.A1 as well as the receipt of advance amount of Rs.75,000/-. But the contention was that the property scheduled in the plaint is not in tune with Ext.A1 and further contended that the defendant was not agreeable to execute the document as suggested by the plaintiff and that the plaintiff was A.S.642/99 & con. cases -4- not ready to purchase the property covered by Ext.A1 and that in the draft deed more property was scheduled and that the recitals in the draft deed are against the interest of the defendant over the adjacent building and that the defendant was ready to execute the sale deed in respect of Ext.A1 property on receipt of balance sale consideration. But the plaintiff was not willing to get a sale deed in respect of the property covered by the agreement. Therefore, he had no cause of action and prayed for dismissal of the suit. 3. After raising the issues, the parties were sent for trial. The plaintiff was examined as PW1. Exts.A1 to A8 were marked. The defendant was examined as DW1 and Exts.B1 to B4 were marked. At the request of the defendant, a commission inspected the property and filed a report and sketch which were marked as Exts.C1 and C1(a). A.S.642/99 & con. cases -5- 4. The learned Subordinate Judge on appraisal of the evidence especially giving reliance to Ext.C1 report and Ext.C1(a) sketch arrived at a conclusion that there is some discrepancy in Ext.A1 to identify the property and that the property identifiable was determined as 25.08 sq. metres as per Ext.C1(a) sketch. The Subordinate Judge also found that by the recitals in Ext.A8, the plaintiff can even demolish the building which is having a common roof with the adjacent room in the possession of the defendant and in that event it would affect the utility of the room in the possession of the defendant and therefore, he was justified in declining to execute the sale deed proposed by the plaintiff. It was further found that the property covered by Ext.A1 would be only 25.08 sq. metres and it would be just and appropriate to direct the defendant to execute a sale deed in respect of that A.S.642/99 & con. cases -6- property. Accordingly, the suit was decreed in respect of 25.08 sq. metres of property mentioned as item No.4 in Ext.C1(a) sketch and the defendant was directed to execute the sale deed within one month of the date of notice of deposit of balance sale consideration in respect of item No.4 in Ext.C1(a) sketch and the plaintiff was directed to deposit the balance sale consideration of Rs.2,35,000/- within two months. 5. Assailing the decree of the lower court so far as it declined specific performance in respect of the remaining portion of the property, the plaintiff preferred A.S.642/99. Assailing the decree for specific performance, the defendant had preferred A.S.714/99. 6. The building covered by Ext.A1 is in the occupation of the mother of the plaintiff as a tenant. The defendant filed a petition as RCP.50/97 for A.S.642/99 & con. cases -7- eviction of the mother of the plaintiff on ground of arrears of rent; bona fide need; and cessation of occupation under Sections 11(2)(b), 11(3) and 11(4) (v) of the Kerala Buildings (Lease and Rent Control) Act. The Rent Controller, Cherthala after enquiry found that the defendant had succeeded to establish the bona fide need, namely for using the petition schedule building to start a workshop for the son of the defendant. Consequently, the petition was allowed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. The prayer for eviction under Section 11(2)(b) and 11(4)(v) was declined. Though the tenant preferred an appeal as RCA.33/00 before the Appellate Authority, Alappuzha she was not successful. Assailing the judgment in appeal confirming the order of eviction under Section 11(3), the mother of the plaintiff had preferred RCR.303/04. A.S.642/99 & con. cases -8- The mother of the plaintiff and the plaintiff are going together. It is also admitted that in fact, the plaintiff and her husband are doing business in the petition schedule building. 7. We heard Advocate Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing for the plaintiff and Advocate Sri.A.K.John, the learned counsel appearing for the defendant. 8. Upon perusing the evidence on record and hearing the counsel on either side, we find that the following facts are not in dispute. 9. The defendant executed Ext.A1 agreement for sale undertaking to execute the sale deed in favour of the plaintiff in respect of the shop room and appurtenant land. Though it is mentioned that the extent of the property is forty sq. metres it was specified that the extent of property is about one cent. A.S.642/99 & con. cases -9- 10. Ext.A8 draft sale deed was prepared by the plaintiff and handed over to the defendant. Extent of the property is shown as 40 sq. metres with no side measurement. There is some change in Ext.A8 regarding the description of the property. It is for that reason the defendant was not amenable to execute the sale deed. Thereupon, the plaintiff caused Ext.A2 notice calling upon the defendant to execute the sale deed. To Ext.A2 the defendant caused Ext.A3 reply notice stating that Ext.A8 draft sale deed was not in accordance with Ext.A1 agreement for sale and that the defendant was amenable to execute a document in respect of the building scheduled in Ext.A1 and the appurtenant land as agreed. The objection raised was that draft sale deed covers more property and some of the recitals in the draft deed are adverse to the interest of the defendant in respect of adjacent room. A.S.642/99 & con. cases -10- 11. Advocate Sri.George Varghese Perumpallikuttiyil submitted that the plaintiff is satisfied if a sale deed is executed in respect of 25.08 sq. metres of property as was decreed by the trial court. On the other hand, Advocate Sri.A.K.John appearing for the defendant would submit that if the plaintiff had shown the fairness now evident in the submission of the learned counsel for the plaintiff, the defendant would have executed the document. But raising unnecessary contentions, the defendant was dragged to litigation after litigation and that only a small portion of the sale consideration was paid as advance and that wisdom came to him only after fifteen years in the fag end and that the property was agreed to be sold as the defendant was badly in need of money and that because of the untenable contention raised by the plaintiff the defendant was put to irreparable hardship A.S.642/99 & con. cases -11- in addition to facing litigation and that the hands of the plaintiff were not clean to get a discretionary relief and that by the lapse of 15 years the land value had shot up very many times and that the sale consideration determined 15 years back would not represent the present market value and in the event, the defendant is compelled to execute the sale deed, the defendant would be highly prejudiced and to suffer wrongful loss. On the other hand, the plaintiff would be wrongfully benefited by the lapse of time. It was further submitted that the entire dispute arose only because of the variation made in the draft sale deed regarding the property to be sold. It was also submitted that so many averments were incorporated in the sale deed which would otherwise prejudice the defendants and granting undue advantage to the plaintiff even to interfering with the adjacent A.S.642/99 & con. cases -12- structures in the possession of the defendant in the event of the re-construction of the plaint schedule shop building. It is also submitted that the plaintiff had paid lesser than 25% of the sale consideration as advance and major sale consideration was with the plaintiff and in that circumstances, the defendant shall not be directed to execute the sale deed in pursuance of the agreement executed more than fifteen years back. On the other hand, the learned counsel for the plaintiff submitted that the advance received by the defendant was being enjoyed by him and in that circumstances it is not at all justified to decline the decree for specific performance. Counter to the said argument, it was submitted by Sri.A.K.John that the disputed building is in the possession of the plaintiff along with her mother who had been going along with the plaintiff and she even committed arrears in A.S.642/99 & con. cases -13- payment of the rent and that despite the order of eviction under Section 11(3) the disputed building could not be evicted and therefore, no undue benefit was obtained to the defendant. At any rate, according to Sri.A.K.John the plaintiff was unduly benefited. 12. Having due regard to the entire facts and circumstances, we notice that in Ext.A1 the property to be sold is not specifically mentioned. The extent was shown on an approximate basis without any side measurement of the property. In Ext.A8 draft sale deed the extent was shown as 40 sq. metre, almost equivalent to one cent. There are also stipulations in the draft sale deed authorising the plaintiff to enter the adjacent premises in the possession of the defendant in the event of re-construction of the disputed building. So it cannot be said that the plaintiff has come with clean hands. On the same A.S.642/99 & con. cases -14- time, we notice that defendant had also contributed his share to make things bad though not worst. The plaintiff had also got a duty to see that while entering into an agreement for sale the property proposed to be sold should be correctly identified and specified. But that was not done. Thus, the defendant also had contributed his share to cause dispute. However, the defendant in Ext.A3 reply had unequivocally stated that he is prepared to execute the sale deed in respect of the building and the appurtenant land. But, in the written statement he did not offer to execute the sale deed in respect of that property. In the event he refuses to or not amenable to execute the sale deed, it was for him to deposit the advance amount that he had received in pursuance of Ext.A1. But he did not care to deposit the advance amount and he had been enjoying the same. Such being the factual A.S.642/99 & con. cases -15- background, in the light of the submission made by the learned counsel for the plaintiff that the plaintiff would be satisfied with the decree as granted by the trial court, we find little reason to interfere with the decree granted as we notice that there is no room for the defendant to raise a dispute in respect of the property for which the decree for specific performance was granted. But because of the lapse of one and a half decades and the shooting up of the land value much prejudice has been caused to the defendant. It can be compensated. On the same time, we notice that defendant had been enjoying the advance amount received at the time of execution of the document and the plaintiff had been enjoying the disputed building through her mother without paying rent. On calculation, it is submitted from the Bar that the arrears of rent as on date would come to Rs.29,900/-. A.S.642/99 & con. cases -16- It is also revealed out that the plaintiff had been doing business in gold. The value of the gold has also shoot up. We mention the same only to point out that by the passage of time, money value had come down and the value of the land is shooting up. If the land is now sold the plaintiff would have to pay much more value and the defendant would have got much more value. Taking into account of the entire facts and circumstances including the shooting up of the land value and the reduction in money value, we find that the prejudice caused to the defendant can be compensated by directing the plaintiff to pay a sum of Rs.3 lakh as compensation and costs in addition to the arrears of rent with interest and cost in the Rent Control Proceedings which we determine at Rs.33,000/-. 13. As regards the Rent Control Revision A.S.642/99 & con. cases -17- Petition, we find that in the light of our decision in the appeal suits we need not go into the merits of the revision petition. However, since it is a separate proceedings, we have gone through the judgment of the Appellate Authority. We find that the defendant sought the order of eviction for bona fide need of the son of the defendant to start a workshop for Air Conditioning and Refrigeration. The authorities below had correctly appraised the evidence and rightly found the bona fide need in favour of the defendant. The fact finding authorities below are concurrent regarding the bona fide need. The learned counsel appearing for the revision petitioner could not point out any illegality, irregularity or impropriety committed by the authorities below in appreciating the evidence and arriving at a conclusion regarding the bona fides. We also record the submission of the learned counsel for A.S.642/99 & con. cases -18- the revision petitioner that his prayer for allowing the revision is only in the event the decree for specific performance is declined. Going by the judgment of the Appellate Authority as well as the order of the Rent Controller, we find that there is no evidence on record to show that the landlord has got any other vacant building in his possession to meet the need urged and that the revision petitioner had not at all adduced any evidence either to show that her main source of livelihood is the income from the business run in the petition schedule building or that no suitable building is available in the locality to meet the requirement of the revision petitioner. Hence, the provisos to Section 11(3) would not interdict the eviction sought for. We find no scope for interference in the order of eviction in exercise of the revisional powers vested under Section 20 of the Kerala Buildings (Lease and Rent A.S.642/99 & con. cases -19- Control) Act. 14. In the result, we dispose the appeals as well as the revision petition as follows:- 1) The defendant shall execute the sale deed in favour of the plaintiff in respect of 25.08 sq. metres of land shown as item No.4 in Ext.C1.(a) sketch as decreed by the trial court on condition that the plaintiff shall pay the balance consideration of Rs.2,35,000/- along with a sum of Rupees three lakhs towards compensation payable to the defendant in lieu of the prejudice caused to him and towards costs along with Rs.33,000/- towards the arrears of rent and costs in the Rent Control Proceedings within three months from today. In the event the plaintiff had deposited the balance sale consideration before the Trial Court, the defendant is at liberty to withdraw the same on execution of the sale deed and the plaintiff A.S.642/99 & con. cases -20- need pay only Rs.3,33,000/- (Three lakh thirty three thousand only) (Rs.3,00,000 + 33,000). In the event of payment/deposit of the above sums, the defendant shall execute the sale deed within one month thereafter failing which the plaintiff is entitled to get the document executed through court. 2) In the event the plaintiff fails to deposit the balance sale consideration along with Rs.3,33,000/- (Rupees three lakh thirty three thousand) within the time stipulated the decree directing the defendant to execute the sale deed would stand vacated and alternatively, there will be a decree directing the defendant to pay the advance sum of Rs.75,000/- with interest at the rate of 12% per annum from the date of Ext.A1 charged upon the property shown in Ext.C1(a). In the event of the plaintiff complying the above terms and the defendant A.S.642/99 & con. cases -21- executing the sale deed the order of eviction impugned in RCR.303/04 would stand set aside. On the other hand, if the plaintiff fails to deposit the amount and get the sale deed executed, the order of eviction impugned in RCR.303/04 would stand confirmed with costs throughout. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-