IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 RSA.No. 901 of 2008() --------------------- AS.32/2007 of SUB COURT,KOCHI ` OS.55/2006 of PRINCIPAL .MUNSIFF'S COURT, KOCHI .................... APELLANT/RESPONDENT/DEFENDANT ------------------------------------------------- K.S.FATHIMA, AGED 72 YEARS, W/O. ADV.K.Z.A.MOOSA, HOUSE, NO.13/48, PANAYAPALLI, MATTANCHERRY VILLAGE, KOCHI TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT/APPELLANTS/PLAINTIFFS ------------------------------------ 1. E.A.JAMEELA AZEES, W/O. P.K. ABDUL AZEEZ PROPRIETRIX, ANAS FISHERIES, BUILDING NO 13/651,(OLD NO.19/23)KOCHI CORPORATION KOCHANGADI ROAD, KOCHI-682005,PERMANENTLY RESIDING AT SOUDATH MANZIL, CHATHANADU, SOUTH -ARYADU, ALLEPPEY. 2. HASEENA P.A. D/O. LATE P.K.ABDUL AZEEZ AND W/O. C.E.NAJEEB, ANAS FISHARIES, BUILDING NO.13/651,(OLD NO.19/23),KOCHI CORPORATION, KOCHANGADI ROAD, KOCHI -682005, RESIDING AT SHANAZ MANZIL, SASTHA JUNCTION, PALLURUTHY, KOCHI-6. 3. ANEEMA P.A.D/O. LATE P.K. ABDUL AZEEZ AND W/O.HASSAN, ANAS FISHERIES, BUILDING NO.13/651 (OLD NO.19/23) KOCHI CORPORATION, KOCHANGADI ROAD, KOCHI-682005, PERMANENTLY RESIDING AT SOUDATH MANZIL, CHATHANADU, SOUTH-ARYADU, ALLEPPEY. 4. AFSAL P.A. S/O. LATE P.K.ABDUL AZEEZ, ANAS FISHERIES, BUILDING NO.13/651,(OLD NO.19/23) KOCHI CORPORATION, KOCHANGADI ROAD, KOCHI-682005 PERMENENTLY RESIDING AT SOUDATH MANZIL, CHATHANADU, SOUTH-ARYADU, ALLEPPEY. -2- R.S.A.NO.901/2008 5. AMEENA P.A. LATE D/O.P.K.ABDUL AZEEZ, ANAS FISHERIES, BUILDING NO.13/651,(OLD NO.19/23) KOCHI CORPORATION, KOCHANGADI ROAD, KOCHI-682005 PERMANENTLY RESIDING AT SOUDATH MANZIL, CHATHANANDU, SOUTH-ARYADU, ALLEPPEY. ADV. SRI.M.P.RAMNATH FOR R1 TO 5 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON 16/09/2009 DELIVERED THE FOLLOWING: ORDER ON I.A.NO.2104/2008 IN R.S.A.NO.901/2008 ----------------------- Dismissed 16/09/2008 Sd/- Harun-Ul-Rashid, Judge. HARUN-UL-RASHID,J. -------------------------- R.S.A.NO.901 OF 2008 --------------------------- DATED THIS THE 16TH DAY OF SEPTEMBER, 2009 JUDGMENT Defendant in O.S.No.55l/2006 on the file of the Principal Munsiff's Court, Kochi is the appellant. The appeal is directed against the judgment and decree in A.S.No.32/2007 on the file of the Sub Court, Kochi. 2. The suit was filed by the respondents herein as plaintiffs for a declaration that the plaintiffs are tenants of the plaint schedule building, that they are entitled to all the benefits of the Kerala Buildings (Lease and Rent Control) Act, 1965 and for restraining the respondent, her men or agents or anybody claiming under her by a decree of permanent prohibitory injunction from evicting the appellants from the plaint schedule property other than through the due process of law. The trial court held that the plaintiffs are not the tenants of the plaint schedule building, that they are strangers to the plaint schedule 2 R.S.A.No.901/2008 building and that they have no right to enter the plaint schedule premises. Resultantly, the suit was dismissed with costs. In the appeal as A.S.No.32/2997 filed by the plaintiffs the decree and judgment passed by the trial court are set aside and the suit was decreed as prayed for with costs. Aggrieved by the same, the defendants filed this second appeal. 3. Plaintiffs are widow and children of late P.K.Abdul Azeez, who was the original tenant of the plaint schedule building. In addition to the plaintiffs Sri P.A. Mohammed Anaz, another son of the deceased Abdul Azeez is not made a party to the suit. The subject matter of the suit is a building located in the property having an extent of 8.5 cents in Sy.No.904/2 of Thoppumpady Village, Kochi. The present building number is 13/651 of Kochi Corporation. It is the plaintiff's case that the defendant is the owner of the two storied building and that late P.K. Abdul Azeez took the said two storied building from the defendant on lease during the end of the year 1967. Late Abdul 3 R.S.A.No.901/2008 Azeez was engaged in the business in processing and export of frog legs, shrimps and other sea foods in the name and style “Blue Horizons”. According to the plaintiffs, late Abdul Azeez constructed two separate permanent structures at his own expense in the vacant land lying on the west and north of the two storied building taken on lease and that the said structures were constructed during the year 1969-70 by late Abdul Azeez with his own funds with the permission of the defendant. It is also pleaded that all the three buildings were given a single building number and the present number is C.C.13/651 of Kochi Corporation. The rent was enhanced from Rs.650/- to Rs.750/- per month and the present monthly rent of the plaint schedule building is Rs.750/- per month. 4. P.K.Abdul Azeez, the predecessor-in-interest of the plaintiffs died on 22/7/1979. According to the plaintiffs, on his death the tenancy right devolved upon the plaintiffs as legal heirs and after his death the plaintiffs are the tenants in 4 R.S.A.No.901/2008 occupation and possession of the plaint schedule building. It is further averred in the plaint that the lst plaintiff, who is the wife of the original tenant, permitted one B.A. Rasheed, who is the lst plaintiff's maternal uncle's son and Proprietor of “Costa Foods”, to use the plaint schedule building as an interim arrangement, that the plaint schedule property with all structures and equipments therein were being used by B.A. Rasheed and on permission Sri B.A. Rasheed is conducting the business in sea foods in the name and style of “Costa Foods” and that the rent for the plaint schedule building was paid to the defendant by him for and on behalf of the plaintiffs. It is also stated that the interim arrangement of use of the plaint schedule building continued till the beginning of the year 2002 and that ever since 2002 the plaintiffs are in absolute possession of the plaint schedule property and are paying the rent to the defendant. 5. It is further pleaded that the monthly rent fell in arrears since June, 2002. Hence, the lst plaintiff sent an amount 5 R.S.A.No.901/2008 of Rs.30,000/- by pay order dated 7/9/2005 drawn on Corporation Bank, Thoppumpady along with a letter dated 7/9/2005 by registered post acknowledgement due. The same was received by the defendant but the amount was returned along with a reply stating that the plaintiffs are not the tenants of the plaint schedule building and that the defendant has already initiated legal proceedings against the tenant for eviction. 6. The sole defendant in the suit, who is the owner of the building, strongly resisted the suit inter alia contending that the suit is frivolous and vexatious, intended to harass the defendant and to protract the eviction proceedings pending between the defendant and the tenant. It is admitted that Abdul Azeez was the original tenant. While he was doing the sea food export business, he sustained heavy loss and expressed his desire to vacate the premises and as a result in the year 1977 he closed the business and on termination of the tenancy the building was handed over to B.A. Rasheed as the tenant, who started business 6 R.S.A.No.901/2008 under the name “M/s.Costa Food Sea Food Exporters”. From 1977 onwards Sri B.A Rasheed, who is none other than the brother-in-law of late Abdul Azeez, occupied the building as a tenant. The defendant denied the averments in the plaint that late Abdul Azeez had constructed structures in the plaint schedule building with the permission of the landlord. It was pleaded that Abdul Azeez neither constructed any structure nor took electric connection as alleged. The written statement in detail narrated the litigation between the tenant-B.A. Rasheed and the defendant, which ultimately led to the passing of the present decree in R.C.P.No.30/2005. The averments in the plaint that B.A. Rasheed, Proprietor of “M/s. Costa Sea Food Exporters” was put in possession of the plaint schedule building as an interim arrangement and that he continued under the plaintiffs till the year 2002 are denied. It is also averred that the tenancy arrangement with the deceased Abdul Azeez was terminated during his life time and in the year 1977 B.A. Rasheed, who is 7 R.S.A.No.901/2008 the Proprietor of M/s.Costa Foods Sea Food Exporters, started his own business and is occupying the premises till date and that the averment regarding the interim arrangement is only a concocted story. 7. It was further averred in the written statement that the defendant let out the building to M/s.Costa Foods Sea Food Exporters and she was receiving rent from the tenant-B.A. Rasheed, who is the Proprietor of Costa Foods Sea Food Exporters', that in September, 2005 the lst plaintiff with ulterior motive sent Rs.30,000/- by pay order requesting the defendant to receive the arrears of rent from June, 2002 to September, 2005 and that the so-called arrears of rent was sent when proceedings for eviction of B.A. Rasheed is pending before the Rent Control Court. It is also pleaded that the plaintiffs have no right over the plaint schedule building as a tenant, that there was no landlord- tenant relationship between the plaintiffs and the defendant and that the suit was instituted at the instigation, support and co- 8 R.S.A.No.901/2008 operation of the tenant so as to defeat and stall the proceedings for eviction in RCP.No.30/2005 initiated against him. It was also averred that in the earlier rent control proceedings as O.S.No.1099/87, RCP.No.2/88 and RCP.No.42/98 the defendant has categorically stated that the tenant is B.A. Rasheed and not the plaintiffs. It was further averred that the cause of action for the above suit arose in 1988 itself and hence the suit is barred by limitation and that the intention of the plaintiffs is only to protract the proceedings for eviction. 8. On 22/10/2008 this second appeal was admitted on the following substantial questions of law:- “(i) When the case of the appellant/defendant that P.K.Abdul Azeez the original tenant of the building in question had entrusted the building to one Rasheed, the Proprietor of Costa Sea Food Exporters in the year 1977 and thereafter it was the said Rahseed who was the tenant, is probabilised by the Rent Control proceedings filed by the 9 R.S.A.No.901/2008 landlady against Rasheed as R.C.P.No.42/98 in which Mohammed Anaz who was one of the sons of Abdul Azeez was examined as a witness for the tenant and the said Mohammed Anaz had admitted the said entrustment in favour of Rasheed and this Court as per Ext.B2 order in C.R.P.No.3331/2001 arising out of R.C.P.42/98 had held that it was Rasheed who was the tenant of the building and not the legal representatives of Abdul Azeez, was the Lower Appellate Court justified in reversing the finding of the trial court to hold that the tenancy in favour of the plaintiffs, who are the legal heirs of Abdul Azeez is still subsisting? (ii) Is the Lower Appellate Court right in reversing the finding of the trial court that the suit is barred by limitation? 9. This litigation has a chequered career. The following facts are not in dispute: The father of the plaintiffs, namely, Abdul Azeez was 10 R.S.A.No.901/2008 the original tenant of the plaint schedule building. In the plaint it is pleaded that the plaint schedule building was leased out to the deceased Abdul Azeez in the year 1967, that Abdul Azeez conducted business in processing and exporting of sea foods in the name and style “Blue Horizons”, that the building situated in 8 ½ cents scheduled in the plaint is given a single building number namely, C.C.13/651 of Kochi Corporation, that the business of processing and export of sea foods run by late Abdul Azeez sustained by heavy loss during 1997 and therefore he was unable to continue the business and that the plaint schedule building was in the possession and enjoyment of one B.A Rasheed, who is the Proprietor of “M/s,Costa Food Sea Food Exporters”. The commencement of possession, enjoyment and the date of running of business by B.A. Rasheed is not stated in the plaint. It is stated that B.A, Rasheed, continuously occupied the plaint schedule building till 2002. It is also not in dispute that in September, 2005 the lst plaintiff sent a pay order for 11 R.S.A.No.901/2008 Rs.30,000/- towards arrears of rent for the period from June, 2002 to September, 2005 to the defendant, which was returned stating that the plaintiffs are not the tenants of the plaint schedule building and that the legal proceedings against the real tenant for eviction is pending. B.A. Rasheed is the sole Proprietor of Costa Sea Food Exporters and is the brother-in-law of late Adul Azeez. One Husbulla was the Manager of late Abdul Azeez and he continued as the Manager of B.A. Rasheed as well. The elder son of late Abdul Azeez, namely Mohammed Anaz was examined as CPW-2 in R.C.P.No.42/1998, which was filed by the defendant for eviction against B.A. Rasheed. He was not made a party either as plaintiff or respondent in this suit. The present suit was filed by the legal heirs of late Abdul Azeez after 29 years of the alleged termination of tenancy in the year 1977. 10. The important issues raised in the suit are as to whether the plaintiffs as tenants are entitled to the benefits of the Kerala Buildings (Lease and Rent Control) Act, 1965 and for the 12 R.S.A.No.901/2008 reliefs of declaration and injunction as prayed for. Further connected questions, which are also raised for consideration, are as to in what capacity B.A. Rasheed possessed and enjoyed the plaint schedule building, whether the tenancy was terminated in the year 1977 as contended by the defendant and if the tenancy right of Abdul Azeez was terminated in the year 1977 while he was alive, are the plaintiffs entitled to the relief of declaration and injunction as prayed for in the suit. 11. The learned counsel on both sides argued the case elaborately relying on the respective documents produced on their side. I shall refer to some of the important documents produced in this case, which will definitely throw light for an effective adjudication of the questions involved. Exts.A29 and A30 are certified copies of the plaint and written statement in O.S.No.1099/87 on the file of the Munsiff's Court, Kochi. Ext.A32 dated 15/12/1989 is the certified copy of the judgment in the said suit. In November 1987, O.S.No.1099/87 was filed by 13 R.S.A.No.901/2008 the landlady as plaintiff against “Costa Foods. Admittedly, Costa Foods is the proprietory concern of B.A. Rasheed. It is averred in Ext.A29 that the original tenant was Abdul Azeez Proprietor of Anaz Fisheries, Cochin-5, that the plaint schedule building is occupied by the defendant, namely, Costa Foods as tenant of the plaintiff, that the monthly rent is Rs.650/-, that the plaintiff has received rent upto October, 1987, that during November, 1987 the plaintiff came to know that for the purpose of installing heavy machineries such as deep freezers and air conditioners the defendant has altered and demolished the major portion of the plaint schedule building, that the defendant has no manner of right to demolish the plaint schedule building, that the said acts are done without the knowledge and consent of the plaintiff, that the building will not withstand the constant vibration of the heavy machineries proposed to be installed in the building and that the defendant/tenant is making hasty attempts to alter the building to install the heavy machineries in the plaint schedule 14 R.S.A.No.901/2008 building. The suit was filed for a declaration that the acts done by the defendant to alter the plaint schedule building, to install heavy machineries such as deep freezers and air conditioners are illegal and to restrain the defendant from altering the building and from installing any machinery without prior written approval of the plaintiff. Ext.A30 is the written statement filed by B.A. Rasheed, Proprietor of Costa Foods and the sole defendant. He admitted the tenancy arrangement between the landlady and late Abdul Azeez and further contended that there was vacant land behind the building, that the plaintiff gave permission to late Abdul Azeez to put up structures in the vacant land for the purpose of his business, that in pursuance of the licence granted, late Abdul Azeez put up pucca buildings in the vacant land for the purpose of his business, that late Abdul Azeez erected machineries in the additional structures constructed and that late Abdul Azeez changed the name of the business as 'Anaz Fisheries'. It is further averred that late Azeez was unable to pay 15 R.S.A.No.901/2008 the monthly rent in respect of the building to the landlady, that in the circumstances, P.K.Abdul Azeez closed the business and after his death, his wife and children continued the business. Subsequently, the building and machineries were handed over to the defendant on 23/9/1977 by the legal heirs of late Abdul Azeez, that since then the defendant is doing business in the plaint schedule building in the name and style “Costa Foods”, and that thereafter the defendant has been paying rent to the plaintiff. It is averred that the building was given possession to the defendant with the knowledge and consent of the landlady. It is also stated in the written statement that the defendant is engaged in processing and exporting of shrimps and other sea foods. The act alleged namely, alteration and demolition of the major portions of the building and installation of heavy machineries is denied. Ext.A30 written statement was filed by B.A Rasheed on 6th March, 1988. O.S.No.1099/87 was disposed by Ext.A32 judgment dated 15th December, 1989. During the 16 R.S.A.No.901/2008 pendency of the said suit the landlady filed R.C.P.No.2/88 for eviction of B.A. Rasheed on the ground of arrears of rent. During the pendency of R.C.P.No.2/88 arrears of rent were cleared by the tenant and the monthly rent in respect of the building was enhanced from Rs.650/- to Rs.750/-. Payment of arrears of rent and revision of rent lead to an amicable settlement of RCP.No.2/88 and O.S.No.1099/87. Ext.A32 judgment evidences the said facts. 12. The 3rd litigation was initiated in 1998 by the landlady as RCP.No.42/98 on the file of the Additional Munsiff's Court, Kochi. The petition for eviction was filed under Section 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. It is alleged that from January, 1997 the respondent committed default in payment of rent. A lawyer notice dated 3/12/1997 was issued demanding the arrears of rent at the rate of Rs.750/- for 11 months, i.e. Rs.8,250/-. The petition for eviction was filed on the grounds of bona fide need for 17 R.S.A.No.901/2008 occupation of her dependent daughters under Sections 11(3) for the reason that the respondent has acquired possession of the building near to the plaint schedule building reasonably sufficient for his requirement under Section 11(4)(iii) of the Act. The lawyer notice issued to B.A. Rasheed was returned unserved with the endorsement 'closed and left'. It is averred in R.C.P.No.42/98 that the tenant fraudulently refused the lawyer notice and returned it stating 'closed and left', but still carries on his business exhibiting the name board “Costa Foods”. Ext.B1 is the order passed on 31/8/2000 in RCP.No.42/98. The contentions of the landlord and the tenant are extracted in Ext.B1 order. B.A. Rasheed entered appearance and filed objection. In paragraph 3 of Ext.B1 final order the contentions raised by B.A.Rasheed in the objection are extracted. In the objection it is stated that Costa Foods Sea Food Exporters is a proprietory concern owned by B.A.Rasheed, that the notice issued by the Rent Control Court in the name of Costa Foods was received by P.A. Mohammed 18 R.S.A.No.901/2008 Anaz, son of late Abdul Azeez, who was present in the proprietory concern, that P.A. Mohammed Anaz is a nephew of the proprietor as well as the son of the original tenant Abdul Azeez, that the original tenant P.K. Abdul Azeez is the brother- in-law of B.A. Rasheed the sole proprietor of the Costa Foods, that the RCP.No.2/88 was closed, since the rent upto August, 1988 was fully discharged, that the suit O.S.No.1099/1987 was compromised and consequently dismissed and that after RCP.No.2/88, the rent was enhanced to Rs.750/- per month and the rent is paid regularly. B.A. Rasheed on 14/10/1988 deposited Rs.16,616/- being the arrears of rent from 1/1/1997 to 30/9/1998 with interest at 6% per annum. A statement was also filed to that effect. It was contended in RCP.No.42/1998 that he has paid the entire arrears and is regularly paying the monthly rent and therefore, no order of eviction can be passed on the ground of arrears of rent. In the said case B.A. Rasheed was examined as CPW-1, P.A. Mohammed Anaz, son of late Abdul 19 R.S.A.No.901/2008 Azeez was examined as CPW-2 and Husbulla, who is the Manager of Costa Foods, was examined as CPW-3. The Rent Control Court in paragraph 7 of Ext.B1 final order noticed the fact that B.A. Rasheed deposited the arrears of rent and also paid the monthly rent subsequently due. Therefore, the Rent Control Court held that there is no need for determination of the question regarding eviction on the ground of arrears of rent. While discussing the grounds under Sections 11(3) and 11(4)(iii) in paragraph 8 onwards the Rent Control Court noted that nowhere in objection B.A.Rasheed has denied the fact that he is the tenant of the petition schedule building. The learned Munsiff also stated that in the objection it is stated that the sole proprietor of Costa Foods is B.A.Rasheed, that Husbulla is the Manager of Costa Foods and that he had done everything on behalf of Costa Foods. The learned Munsiff further held that CPW-3 had denied that he is not the tenant and that he has no commitment for payment of rent arrears. The learned Munsiff concluded that 20 R.S.A.No.901/2008 the rental arrangement with Costa Foods had taken place in 1977, Husbulla had taken active participation in the matter of compromise of earlier cases and made arrangements during the lifetime of late Abdul Azeez for the transfer of tenancy in favour of B.A. Rasheed. The learned Munsiff noted that the landlady being a Pardanashin lady, who was examined as PW-1 and B.A.Rasheed, who was examined as CPW1, have stated that the business done by Abdul Azeez went in loss and alternative arrangement made in the year 1977 itself while he was alive. The learned Munsiff also noted that the plaint schedule building was taken possession by the Costa Foods and B.A.Rasheed started business on 23/9/1977. CPW-3 Husbulla was the Manager of late Abdul Azeez and subsequently he continued as the Manager of B.A. Rasheed, who is the Proprietor of Costa Foods. The learned Munsiff further found that Husbulla has no case that he got lease of the premises from the landlady. The court below in paragraph 8 extracted certain portions of testimony of CPW-1, 21 R.S.A.No.901/2008 who is the tenant. In the extracted portion CPW-1 stated that in 1977 Abdul Azeez became ill and he died in the year 1979 and that he started sea food export business in the name and style “Costa Foods” in 1977. He also testified that the business run by late Abdul Azeez is under the name and style “Blue Horizon Fisheries” and “Anaz Fisheries” and he started business and he is the sole Proprietor of the said business. After appreciating the evidence, the Rent Control Court concluded that late Abdul Azeez has put an end to the business “Anaz Fisheries” “Blue Horizon” business etc., that he had functioned prior to 1977, that on stoppage , B.A. Rasheed has taken possession of the building and started business as “Costa Foods” as his sole proprietory concern. The learned Munsiff further observed that it is quite natural that the Manager of the concern, who is known to the landlady, approached the landlady and made a new lease arrangement in favour of the brother-in-law of the original tenant late Abdul Azeez and that if B.A.Rasheed is not the tenant, he 22 R.S.A.No.901/2008 has no liability to remit the arrears and that is why he has stated in the objection as well as deposed as CPW-1 that the rent arrears was paid and at present there is no rent arrears. The Rent Control Court examined the entire evidence adduced by CPWs. 1 to 3 and negatived the contention of the tenant that the wife and children of late Abdul Azeez are necessary parties and observed that if B.A.Rasheed is occupying the premises from 1977 onwards before the death of the original tenant Abdul Azeez, there is no