IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 RSA.No. 829 of 2009() --------------------- AS.4/2007 of SUB COURT, QUILANDY OS.196/2005 of MUNSIFF COURT, QUILANDY .................... APPELLANT:APPELLANT/3rd DEFENDANT ---------------------------------------------------------- ALIYAMPURATH VIJAYAN, S/O.CHEKKUVAIDYAR, AGED 62 YEARS, BUSINESS, PANTHALAYANI AMSOM DESOM, KOILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.NIRMAL. S RESPONDENTS: RESPONDENTS/PLAINTIFF & DEFENDANTS 1, 2, 4 TO 6 ----------------------------------------------------------------------------------------------- 1. PANTHALAYANI WEAVERS CO-OPERATIVE (PRODUCTION & SALES) SOCIETY LTD, (REGD.NO.F-716), KOILANDY, KOZHIKODE REPRESENTED BY SECRETARY, P.NARAYANAN, S/O.P.M.NAMBOODIRI, AGED 46 YEARS, CHEMANCHERY AMSOM, KOLAKKAD DESOM, KOILANDY TALUK. 2. ALIYAMPURATH LAKSHMI (DEAD). 3. ALIYAMPURATH SANKARAN, S/O.CHEKKU, AGED 61 YEARS, BUSINESS, PANTHALAYANI AMSOM DESOM, KOILANDY TALUK, KOZHIKODE DISTRICT. 4. ALIYAMPURATH SANTHA, D/O.CHEKKU VAIDYAR, AGED 55 YEARS, SWASTHAM, PANTHALAYANI AMSOM DESOM, KOILANDY TALUK, KOZHIKODE DISTRICT 5. ALIYAMPURATH VASANTHA, D/O.CHEKKU VAIDYAR, AGED 52 YEARS, SWASTHAM, PANTHALAYANI AMSOM DESOM, KOILANDY TALUK, KOZHIKODE DISTRICT 6. ALIYAMPURATH VALSALA, D/O.CHEKKU VAIDYAR, AGED 50 YEARS, SWASTHAM, PANTHALAYANI AMSOM DESOM, KOILANDY TALUK, KOZHIKODE DISTRICT. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1785 OF 2009 IN R.S.A. NO. 829 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 25.8.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.829 of 2009 ---------------------------------------- Dated this the 25th day of August, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 4/2007 on the file of the Sub Court Koyilandy which arises from the judgment and decree in O.S. No. 196/2005 on the file of the Munsiff Court, Koyilandy. The suit is filed for eviction and for damages for use and occupation. The suit was decreed directing the defendants to surrender vacant possession of the plaint schedule property within a period of two months. It is further declared by the trial court that the plaintiff-society is entitled to realise an amount of Rs. 975/- per month from 21.2.2004 till actual delivery with interest at 12% interest per annum . The decree and judgment passed by the trial court was confirmed in first appeal Hence the second appeal. The parties hereinafter referred to as plaintiff-society and defendants as arrayed in the suit. 2. The plaintiff in the Suit is the Panthalayani Weavers co- operative Society Limited, Koyilandy which is a registered society as per Act 6 of 1932(Madras Co-operative Societies Act) According to the plaintiff-society, they got the property as per assignment deed No.1262/1949 and the predecessor of the defendants was a tenant under the assignor of the plaintiff as per registered Lease Deed No.2902/1946. R.S.A.No.829 of 2009 -2- The plaintiff-society filed O.S. No.327/1994 for eviction for arrears of rent and own occupation. The matter was settled and the rent was fixed at Rs.750/- per month Subsequently the rent was enhanced to Rs. 975/- per month. The plaintiff-Society is functioning in a separate rented building and is engaged in the sale of handloom products. The landlords of the said building filed R.C.P No. 47/2004. Eviction was ordered. The RCA filed by the plaintiff-society was dismissed. The RCRP filed by the plaintiff- society was also disposed of by granting one year time for the plaintiff -society to vacate. So the plaintiff -society is compelled to sue for eviction in order to run its office and godown in the rooms in the plaint schedule building where the defendants are conducting Ayurvedic Vaidyasala . The plaintiff-society also filed O.S. 25/2003 for evicting the adjoining room occupied by another tenant. Ext.A4 notice was issued terminating the tenancy and demanding surrender on 18.11.2004. Even though the defendants received the said notice proper reply was not issued by them and did not vacate the plaint schedule rooms. Therefore the plaintiff -society filed the suit. 3. A written statement was filed by defendants 2 and 3 contending that Ext.A4 notice issued by the plaintiff -society is not a valid notice under Section 106 of the Transfer of Property Act. They admitted that their predecessor as tenant. 5. The 3rd defendant filed an additional written statement contending that the the suit is not maintainable as per Section 69 of the R.S.A.No.829 of 2009 -3- Kerala Co-operative Societies Act and the Registrar alone has jurisdiction to adjudicate the dispute and the trial court has no jurisdiction to try the suit in view of the bar under Section 100 of the Co-operative Societies Act. 6. Defendants 4 to 6 filed a separate joint written statement supporting the contentions of the defendants 2 and 3 . 7. It is contended by the defendants that the 3rd defendant and his family are solely depending on the income derived from the business run in the plaint schedule rooms and no other rooms are available for the defendants to carry on the business. They also contended that the suit is not maintainable since the plaintiff-society is not an exempted society as per the provisions of the Kerala Buildings (Lease and Rent Control) Act. 8. PW1 was examined and Exts. A1 to A7 were produced on the side of the plaintiff-society and DW1 was examined and Ext. B1 was marked on the defendants' side. 9. After referring to the Apex Court's decision reported in AIR 1977 Supreme Court 1120 (Bhagabandas Aggarwalla Vs. Bhagawandas Kanu and others) the trial court held that the notice issued terminating the tenancy is a valid notice under Section 106 of the Transfer of Property Act, and held that the plaintiff-society is entitled to vacant possession of the plaint schedule rooms and entitled to get rent at the rate of 975/- per month from 21.12.2004 till actual delivery at the rate of R.S.A.No.829 of 2009 -4- 12% interest per annum 12. The appellant filed A.S. No. 4/2007 before the lower appellate court. After considering all the contentions raised by the 3rd defendant, the lower appellate court agreed with the findings of the trial court and contentions raised in appeal are found against. The lower appellate court found that the plaintiff society which was registered as per the Madras Co- operative Societies Act shall be deemed to be registered society under the Kerala Co-operative Societies Act and further held that the contention of the 3rd defendant/appellant that the plaintiff society is not a registered society as per the provisions of the Co-operative Societies Act is without any basis . The contention of the 3rd defendant that the plaintiff society is not engaged in business of letting out rooms and therefore the notification exempting the Co-operative Societies from the provisions of Kerala Buildings (Lease and Rent Control) Act is not applicable to the plaintiff- society was also negatived by the lower courts. The lower appellate court after referring to Section 69 of the Kerala Co-operative Societies Act and Section 2(1) of the same Act held that the suit for eviction with arrears of rent where the society is the plaintiff, is not a dispute touching the business of a society and the suit is maintainable. Both courts in detail examined the question of validity of Ext.A4 notice under Section 106 of the Transfer of Property Act or not , and the question was answered in favour of the plaintiff-society finding that the said notice is a valid notice 13. I have examined the contentions raised by the 3rd R.S.A.No.829 of 2009 -5- defendant/appellant in this Second Appeal I have also examined the findings entered by the courts below which are based on facts evidence and circumstances. I find that no different view is possible other than the views taken by the courts below in the given circumstances. . I find that no grounds are made out by 3rd defendant/ appellant to invoke this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine. The learned counsel for the 3rd defendant/appellant submitted that the he is occupying the plaint schedule rooms for the last more than 6 decades and he may be given sufficient time to vacate the premises The learned counsel requested this Court to grant 18 months time to vacate the plaint schedule rooms. I feel that the said request is not reasonable . At the same time in the interest of justice I a m of the view that one year period shall be granted for vacating the plaint schedule rooms on condition that the defendants shall file an undertaking in the form of an affidavit before the execution court within30 days from today unconditionally agreeing to vacate the plaint schedule rooms within the time allowed by this Court and shall not cause any damage or induct any strangers or shall not commit any waste therein and on further condition that the defendants shall pay the arrears of rent at the same rate fixed by the trial court i.e Rs.975/- per annum till date within a period of one month from today and shall continue to pay the monthly rent on or before 5th of R.S.A.No.829 of 2009 -6- every month at the same rate. If the said conditions are not complied with, the plaintiff-society is at liberty to execute the decree as if no time is granted by this Court. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No.829 of 2009 ---------------------------- JUDGMENT 25th August, 2009