IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 OP(C).No. 201 of 2010(O) ------------------------ CMA.36/2010 of ADDL.DISTRICT COURT,ALAPPUZHA. OS.439/2008 of SUB COURT,ALAPPUZHA .................... PETITIONER: ---------------------- SANATHANA DHARMA BOARD OF TRUSTEES, ALAPPUZHA-1,REPRESENTED BY ITS PRESIDENT S.MAHADEVA IYER, S/O.S.P.SANKARA IYER,S/O.S.P.SANKARA IYER, AGED 72 YEARS,"KAILAS",PAZHAVEEDU,ALAPPUZHA. BY ADVS. SRI.K.S.HARIHARAPUTHRAN, SRI.M.D.SASIKUMAR, SRI.GEORGE MATHEW, SRI.DIPU JAMES. RESPONDENT(S): --------------------------- V.K.SASEENDRANATHA KURUP, S/O.E.N.BALAKRISHNA PILLAI,AGED 56, AJAYA NIVAS,CHATHANADU,ALAPPUZHA 688 001. BY ADV. SRI.K.N.VENUGOPALA PANICKER THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.201/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF O.S.NO.439/2008 SUB COURT, ALAPPUZHA DTD. 4/09/2008. P2: COPY OF WRITTEN STATEMENT IN O.S.439/2008 SUB COURT, ALAPPUZHA DTD.18/10/2008. P3: COPY OF MAHAZAR SUBMITTED BY COMMISSIONER IN O.S.439/08 SUB COURT, ALAPPUZHA. P3A: COPY OF REPORT SUBMITTED BY COMMISSIONER IN O.S.439/2008 OF SUB COURT, ALAPPUZHA. P4: COPY OF I.A.1632/09 DTD. 16/09/2009 FILED BY RESPONDENT BEFORE SUB COURT, ALAPPUZHA. P5: COPY OF OBJECTION FILED BY PETITIONER TO EXT.P4. P6: COPY OF ORDER OF SUB JUDGE, ALAPPUZHA DTD. 28/06/10 IN EXT.P4 APPLICATION. P7: COPY OF JUDGMENT IN CMA NO.36/2010 OF ADDL.DISTRICT COURT, ALAPPUZHA DTD. 20/09/2010. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE ORDER IN I.A.NO.2302/2008. R1(B): COPY OF THE JUDGMENT IN CMA NO.30 OF 2009. R1(C): COPY OF THE REPORT OF THE COMMISSIONER. R1(D): COPY OF THE MAHAZAR OF THE COMMISSIONER. /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.201 of 2010 -------------------------------------- Dated this the 15th day of July, 2011. JUDGMENT This Original Petition is in challenge of the order passed by the learned Sub Judge, Alappuzha on I.A.No.1632 of 2009 in O.S.No.439 of 2008 as confirmed by learned Additional District Judge, Alappuzha by Ext.P7, judgment in C.M.A.No.36 of 2010. Respondent/plaintiff claimed that the building referred to in the plaint schedule was taken on rent by his father from the petitioner and a printing press was established in the said premises. During the life time of the father, a partnership firm was formed and after the death of the father it was reconstituted. Respondent and others continued to be tenants of the schedule building under petitioner. It is alleged that while so, on 10.08.2008 first defendant in collusion with petitioner/second defendant demolished a portion of the said building. On that allegation, respondent filed the suit on 05.09.2008 praying that a decree for mandatory injunction may be issued directing petitioner and first defendant to repair the damaged portion of the building at their cost to restore it to the original position or in case they fail to do so allow the respondent to effect necessary repairs to the schedule building to restore its original position and recover the cost from petitioner and the first defendant. There is also a prayer for recovery of damages from petitioner and first defendant. The suit was resisted by petitioner contending that no tenancy existed on the date of institution of the suit. It was contended that managing partner of the firm had OP(C) No.201/2010 2 surrendered tenancy in favour of petitioner on 09.08.2008 and thereafter respondent or anybody else has no right of tenancy in the building in question. Petitioner also denied that any portion of the building was demolished. Respondent filed I.A.No.1632 of 2009 (Ext.P4) on 16.09.2009 for granting permission to him as a temporary measure to put up aluminum sheeted roof on minimum tress work with iron rods for protecting machineries kept in the southern room which had no roof as reported by the Advocate Commissioner, subject to condition that respondent shall remove the same as and when ordered by the court at the cost of the respondent himself and also to restrain petitioner and first defendant or anyone acting under them from causing any obstruction to the respondent doing the said work. That application was resisted by petitioner on various grounds. Learned Sub Judge by Ext.P6, order granted permission subject to certain conditions. That has been confirmed by the learned Additional District Judge by Ext.P7, judgment which is under challenge. 2. Learned counsel for petitioner has contended that on the materials on record, apart from the fact that respondent and others had ceased to be a tenant even much before the institution of the suit, respondent is not entitled to the relief prayed for. It is submitted that though the alleged demolition of the portion of building was on 10.08.2008, the suit was filed only on 05.09.2008 and Ext.P4, I.A.No.1632 of 2009 seeking permission as above stated was filed only on 16.09.2009. It is submitted by learned counsel that even as per Ext.P4, OP(C) No.201/2010 3 request is for permission to make repairs to the allegedly demolished portion of the building to put up roof which is an 'amenity' coming within the scope of Section 13 of Act 2 of 1965 in which case, remedy of respondent is to approach the Accommodation Controller under the said provision. Learned counsel has placed reliance on the decisions in Gopalakrishnan Nair v. Joshi (1985 KLT 132) and Muhammadali v. District Collector (2002 (2) KLT 253) to contend that in the circumstances, the suit itself is barred and in such a situation, no order which has the effect of temporary, mandatory injunction could have been granted. It is further contended by learned counsel that at any rate it is not a case where according to the respondent the status quo was altered after filing of the suit; on the other hand respondent alleged demolition of that part of building on 10.08.2008, ie. much anterior to the institution of the suit in which case the interim order granted by the courts below would amount to granting of decree which is not warranted. It is contended that the orders under challenge are illegal and which are required to be corrected by this Court in exercise of the power under Article 227 of the Constitution. 3. Learned counsel for respondent contended that the delay in the institution of suit and filing of Ext.P4, application was because of the negotiation that was going on between respondent, petitioner and others. It is OP(C) No.201/2010 4 contended that the mere delay in filing the suit or Ext.P4, application cannot negative the right of respondent to have quite enjoyment of the demised premises until he is evicted in due course of law. According to the learned counsel the mere fact that a portion of the structure was demolished would not put an end to the lease arrangement. It is also contended that so far as ousting of jurisdiction of the civil court is concerned, tenancy of respondent is not admitted by petitioner and the Accommodation Controller is not expected to decide that question. Hence petitioner cannot contend that respondent should have moved the Accommodation Controller. It is submitted that destruction of a portion of the building is not cutting off 'amenity'. It is premature to say at this stage that the suit is not maintainable. Learned counsel has invited my attention to the decision in Soorajmall v. I.N.Drug Co. (AIR 1956 Cal. 187) referred to in Muhammadali v. District Collector (2002 (2) KLT 253). 4. No doubt, Section 13 of the Act 2 of 1965 deals with the power of Accommodation Controller when a tenant complains that the landlord has cut off his 'amenity'. The word “amenity” is not defined in Act 2 of 1965. This Court in Mariakutty Umma v. Moosakutty Haji (1969 KLT 990) had held that the dictionary meaning of the word has to be given. It was further observed that the expression “amenity” in relation to immovable property signifies pleasant OP(C) No.201/2010 5 circumstance or features or advantages. In Muhammadali v. District Collector (supra) it was a case where tiles were removed from the roof of the demised building. It was held that it amounted to cutting off amenity. Reference was made in paragraph 4 to the decision in Soorajmall v. I.N.Drug Co. (supra) relied on by the learned counsel for respondent. That decision held: “If the roof is leaking the landlord may be called upon to stop the leaking and that can be done either by having a special coating over the roof as is now available or feasible or by some other means. If there in any portion of the roof which is likely to collapse, that is a matter which may be reported to the Corporation for taking necessary steps as against the defaulting party. But it is outside the scope of S.38, Rent Control Act, and beyond the competence of the Rent Controller”. It is seen from Ext.P3, report of the Advocate Commissioner that apart from the alleged demolition of the roof, a portion of the wall towards southern side of the building was also demolished. Therefore, whether these circumstances (not merely removal of tiles from the existing roof) brought the alleged act of petitioner and first defendant within the scope of expression “amenity” so that jurisdiction of the civil court is ousted is a matter which the trial court has to OP(C) No.201/2010 6 decide. I think it is premature for this Court to express any opinion on that question in an Original Petition arising from an interlocutory order. For the purpose of deciding an interlocutory application what is required is only a prima facie satisfaction regarding maintainability of the suit. I therefore, leave the question regarding maintainability of the suit in view of the contentions raised by petitioner to the trial court to decide ultimately. 5. Now, the next question is whether interference is required with respect to the interim arrangement that learned Sub Judge has made and with which learned Additional District Judge has concurred. It would appear that, in whatever capacity it be, respondent is engaged in some business in the demised premises. That is revealed from the report of the Advocate Commissioner, prima facie. Now, a portion of the building does not have its roof. No doubt, the alleged act according to the respondent was committed on 10.08.2008 while the suit was filed on 05.09.2008. It is not as if in such a situation the court is powerless to grant temporary mandatory injunction or, permission of the nature granted in the present case which apparently may appear to be granting of ultimate relief in the suit. When the nuisance caused is of a perennial nature, a temporary, mandatory injunction can be granted. Therefore, the jurisdictional competence of the learned Sub Judge to grant permission of the nature granted cannot be challenged. OP(C) No.201/2010 7 6. Then, on to the facts of the case. Learned Sub Judge has permitted respondent subject to conditions to put up aluminum sheeted roof on minimum tress work with iron rods for protecting machineries kept in the shop room which has no roof (I need not refer to the conditions specified in Ext.P6, order). At the time of argument learned counsel for petitioner contended that at any rate, it is not necessary that there must be aluminum sheeted roof and that the purpose could be served by putting up light roof or at any rate, fiber sheet. So far as light roof is concerned, learned counsel for respondent submits, and I am prima facie inclined in that favour, that light roof may not withstand heavy rain and heat of the sun. In the circumstances it is appropriate to permit petitioner to put up fiber sheet instead of aluminum sheeted roof as permitted by learned Sub Judge by Ext.P6, order and confirmed by learned Additional District Judge by Ext.P7, judgment. No other conditions are required to be incorporated since respondent in Ext.P4, application stated that the work will be done subject to any order that may be passed by the learned Sub Judge regarding its removal. Learned counsel for respondent also assured me that the work will be done in the presence of Advocate Commissioner and that the respondents will not make any claim, monitory or otherwise based on the temporary arrangement that respondent is permitted to carry out. The above submissions are recorded. OP(C) No.201/2010 8 Resultantly this Original Petition is disposed of modifying the orders under challenge to the extent that instead of aluminum sheeted roof, respondent shall put up only fiber sheets at the portion permitted by the learned Sub Judge. Other conditions imposed by the learned Sub Judge will remain in force. The undertaking made by learned counsel for respondent before me and referred to above will also remain in force and bind the respondent. The work shall be carried out in the presence of an Advocate Commissioner to be appointed at the cost of the respondent. I.A.No.6206 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks