IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 AS.No. 892 of 1998(C) --------------------- OS.445/1993 of PRL.SUB COURT,THRISSUR .................... APPELLANT/1st DEFENDANT:- -------------------------------- SUNNY, AGED 37 YEARS, S/O. NALLANKARA RAPPAI, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR TALUK. BY ADV. MR. P.K.ABOOBACKER(EDATHALA) MR. P.K.IBRAHIM RESPONDENTS/PLAINTIFFS/DEFENDANTS 2 & 3:- ------------------------------------------------------- 1. MAR ADAYI SLEEHA CHURCH, CHURCH SQUARE, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR TALUK, REPRESENTED BY VICAR REV. M.P. LAZAR. 2. P.T. PAVU, TRUSTEE, MAR ADAYI SLEEHA CHURCH, CHURCH SQUARE, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR TALUK. 3. ANTO D. OLLUKKARAN, TRUSTEE, MAR ADAYI SLEEHA CHURCH, CHURCH SQUARE, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR TALUK. 4. FRANCIS, AGED 38 YEARS, S/O. KONKOTHARA ANTHONY, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR TALUK. A.S. No. 892/1998 : 2 : 5. VIJAYAN, AGED 45 YEARS, S/O. ARAKKALAMKUDI MADHAVAN, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR TALUK. ADDL. R6 TO R8 IMPLEADED 6. MAR ADAYI SLEEHA CHURCH, CHURCH SQUARE, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR TALUK, REPRESENTED BY THE PRESENT VICAR FR. A.P. VARGHESE. 7. K.L JAMES, TRUSTEE, MAR ADAYI SLEEHA CHURCH, CHURCH SQUARE, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR TALUK. 8. C.T. BABY, TRUSTEE, MAR ADAYI SLEEHA CHURCH, CHURCH SQUARE, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR TALUK. (ADDL. RESPONDENTS 6 TO 8 ARE IMPLEADED IN THE APPEAL VIDE ORDER DATED 05.07.2002 IN C.M.P. NO. 2588/2002) ADV. MR. K.PAUL KURIAKOSE MR. N.SUBRAMANIAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20.08.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. No. 892/1998 : 3 : ORDER ON C.M.P. NO. 1395/2000 IN A.S. NO. 892/1998 DISMISSED 20.08.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. -------------------------------------------------- A.S. No. 892 of 1998 ---------------------------------------------------- Dated this the 20th day of August, 2009. JUDGMENT The 1st defendant in O.S. No. 445 of 1993 on the file of the Sub Court, Thrissur is the appellant in this appeal. The said suit instituted by a church was one for eviction with arrears of rent both past and future in respect of a shop room belonging to the church at Paravattani in Thrissur Taluk. 2. The following facts are not in dispute: Defendants 1 and 2 took on lease the plaint schedule shop room belonging to the plaintiff church namely Mar Adayi Sleeha Church, Paravattani represented by its vicar and two trustees on 8.12.1983 as per Ext.A1 lease deed executed by them in favour of the vicar and the two trustees. The period of lease was six months ending with 07.06.1984. The monthly rent stipulated was Rs.325. As per Ext.A1 lease deed, it was stipulated that one month's notice on either side shall be given for terminating the lease and that the tenants would hold the property in terms of lease deed without causing any A.S. No. 892/1998 : 2 : damage to the shop room and that on the expiry of the notice period, they shall surrender vacant possession without raising any objection or claiming any rights over the property. The tenants had also agreed not to sublet the building without the prior written permission of the church landlord. It was further recited in Ext.A1 lease deed that in case the tenants holding the property without violating the terms of the lease, they shall surrender vacant possession of the shop room on 07.06.1984 failing which they shall surrender vacant possession without any demur as demanded in the notice even before the expiry of the lease and shall also return the lease deed to the landlord. On 31.01.1993, the plaintiff issued Ext.A2 notice stating that the rent has been kept in arrears from 08.03.1988 onwards and that the plaintiff church wants the shop room for its own purpose. The tenancy was also terminated by giving 15 days' notice ending with the month of tenancy. To Ext.A2 notice, Ext. A3 reply dated 13.03.1993 was sent denying the allegation of arrears of rent and also contending that Ext.A2 notice was not valid. The suit was A.S. No. 892/1998 : 3 : thereafter filed on 02.04.1993 alleging arrears of rent from 08.03.1998 onwards and also alleging sub-letting in favour of the 3rd defendant without the knowledge or permission of the plaintiff. 3. The 3rd defendant who is the alleged sub-lessee remained ex parte. The 1st defendant resisted the suit contending inter alia as follows:- The lease has not been validly terminated. The persons who filed the suit are not competent to represent the church. This defendant had paid Rs.39,000/- as advance and he could be evicted only in the year 2003. Two rent control petitions filed earlier have been dismissed. The suit is barred by limitation. Arrears of rent claimed beyond three years cannot be granted. 4. The 2nd defendant filed a separate written statement contending inter alia as follows:- The suit is not maintainable. It is true that the plaint schedule shop room was taken on rent by defendants 1 and 2 on a monthly rent of Rs.325/- in December, 1983. On A.S. No. 892/1998 : 4 : 08.03.1988, this defendant had relinquished all his rights in the shop room and had entrusted the business with defendants 1 and 3 with the consent of the plaintiff. The rent up to 08.03.1988 had been paid. Thereafter, this defendant has no interest in the plaint schedule shop room or the business conducted therein. He has no liability to pay rent for the balance period even if there is any arrears. Defendants 1 and 3 are liable for the arrears of rent, if any. R.C (O.P) No. 20 of 1987 filed by the plaintiff was dismissed on 03.07.1990. The arrears of rent claimed is barred by limitation. The suit may be dismissed with costs. 5. The trial court framed the following issues for trial. 1. Whether the suit is maintainable? 2. Whether the suit is bad for non-joinder of necessary party? 3. Whether the suit is barred by limitation? 4. Whether the defendant is entitled to possess the plaint schedule property till 2003? 5. Whether the plaintiff is entitled for arrears of rent? 6. Reliefs and Costs? A.S. No. 892/1998 : 5 : 6. On the side of the plaintiff, one of the trustees of the church was examined as PW1 and Exts. A1 to A5 were marked. On the side of the defendants, defendants 1 and 2 were examined as Dws 1 and 2. 7. The learned Subordinate Judge, after trial, as per judgment and decree dated 30.06.1997 decreed the suit as prayed for but limited the arrears of rent to 3 years prior to the institution of the suit. Hence this appeal by the 1st defendant. 8. As mentioned earlier, the recitals in Ext.A1 are to the effect that on the expiry of the period of lease, the lessees shall surrender vacant possession without any objection or claim. It further recites that in the event of any default in the rent, they shall surrender vacant possession without any demur even prior to the date of expiry of the lease. There cannot be any doubt that those recitals indicate that the tenancy is a tenancy-at-will and would amount to contract to the contrary dispensing with notice under Section 106 of the A.S. No. 892/1998 : 6 : Transfer of Property Act, 1882. This aspect of the matter is covered by the decisions in Devaki v. Alavi - 1979 KLT 67 (FB) and Arifa Beevi & others v. Gopalan Ramesan - 1990 (2) KLT 426. Even if Ext.A1 did not amount to a contract to the contrary within the meaning of Section 106 of the Transfer of Property Act, Ext.A2 notice has validly terminated the lease ending with the month of tenancy by giving 15 days' to the tenants to vacate. It is fully in accord with the prescription under Section 106 of the Transfer of Property Act. Even otherwise, notice to quit under Section 106 of the Transfer of Property Act should not be interpreted in a technical manner and such a notice deserves liberal construction as was held in Jacob v. Saleem - 1989 (1) KLT 248. 9. As for the contention that the vicar and the two trustees were not competent to represent the plaintiff church, it does not deserve to be upheld. The defendants took the building under Ext.A1 from none other than the vicar and the two trustees representing the church. Hence, by virtue of A.S. No. 892/1998 : 7 : Section 116 of the Evidence Act, they were precluded from questioning the title of the lessors it being a principle of estoppal. In as much as the court below has limited the arrears of rent to three years prior to the institution of the suit, that part of the decree also does not call for any interference. In the result, this appeal which is devoid of any merit, is dismissed. However, in the facts and circumstances of the case, the parties shall bear their respective costs. Dated this the 20th day of August, 2009. V. RAMKUMAR, JUDGE. rv A.S. No. 892/1998 : 8 : V. RAMKUMAR, J. ------------------------------------ A.S. No. 892 of 1998 ---------------------------------------- 20th day of August, 2009. JUDGMENT A.S. No. 892/1998 : 9 :