IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 RSA.No. 929 of 2008() --------------------- AS.200/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.2050/2002 of II ADDL.M.C., ERNAKULAM .................... APPELLANT IN R.S.A/ APPELLANT IN AS/DEFENDANT IN OS: ---------------------------------------------------------------------------------------------- SMT.LATHA RAJENDRA PAI, AGED 43, W/O.RAJENDRA PAI, HOUSE NO.40/7263-B3, SREE RAGHAVENDRA COMPLEX, T.D.WEST, ERNAKULAM, KOCHI-35. BY ADV. SRI.JOSEPH A.VADAKEL SRI.GEORGE KARITHANAM VARGHESE SRI.V.J.JOHN SRI.JOSE KURIAKOSE (VILANGATTIL) RESPONDENTS IN R.S.A/ RESPONDENTS IN AS/PLAINTIFFS IN OS: ----------------------------------------------------------------------------------------------------------- THE ERNAKULAM THIRUMALA DEVASWOM, T.D.ROAD, ERNAKULAM REPRESENTED BY ITS PRESENT MANAGING COMMITTEE MEMBERS: 1. S.SUDHAKARA SHENOY, S/O.SREENIVAS SHENOY AGED 74, MANAGING ADHIKARI. 2. R.VINOD KUMAR SHENOY, S/O.R.RAYA SHENOY, AGED 48, MANAGING ADHIKARI. 3. V.SIVANANDA BHAT, S/O.VENUGOPALA BHAT, AGED 61, MANAGING COMMITTEE MEMBER. 4. P.RANGADASA PRABHU, S/O.PADMANABHA PRABHU, AGED 60, MANAGING COMMITTEE MEMBER. 5. V.RAJKUMAR KAMATH, S/O.A.V.KAMATH, AGED 51, MANAGING COMMITTEE MEMBER. SMT.R.RANJINI(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/11/2008, ALONG WITH RSA NO. 973 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. ------------------------------- R.S.A Nos. 929 & 973 OF 2008 ------------------------------- Dated this the 28th November, 2008. JUDGMENT The appellants in these appeals are respectively the defendants in O.S.2050/2002 and 2049/2002 on the file of the II Additional Munsiff's Court, Ernakulam. The said suit was filed by the respondents/plaintiffs for eviction and recovery of arrears of rent and damages. 2. The case of the plaintiffs viz., The Ernakulam Thirumala Devaswom was as follows:- 3. The defendants obtained the plaint schedule flats on 15.10.1997 as per lease arrangements agreeing to pay a monthly rent of Rs.500/- till 14.10.2000 and thereafter at the rate of Rs.575/- per month. The defendants violated the terms and conditions of the agreement and defaulted payment of rent from 15.12.1998 and 15.3.1999 onwards. They also defaulted payment of service and maintenance charges at the rate of Rs.65/- per month and water charges at the rate of Rs.20/- per month. Inspite of repeated demands they did not pay the rent and other charges. R.S.A. NOS: 929 & 973/2008 2 Hence the tenancy in their favour was terminated by serving lawyer notice as per which vacant possession was demanded with arrears of rent. Even though the defendants received the lawyer notice they issued a reply notice raising untenable contentions. Hence the suits for eviction and recovery of arrears of rent and other charges. 4. The defendants resisted the suit contending inter alia as follows:- 5. They were the purchasers of the respective plaint schedule flats for a price of Rs.1,81,000/- each. The flats are in the apartment by name Sri. Raghavendra Complex constructed by the plaintffs' community who were occupying rented buildings for their residence. The defendants had paid Rs.1,81,000/- each. It was utilising the said payments that the plaintiffs constructed the apartment. Since the defendants are owners of the respective flats and the lease arrangement, if any, is perpetual they are not liable to be evicted. 6. The courts below rejected the contention of the appellants and held that they are rental occupants of the respective flats, that they had kept the rent and other charges in arrears as alleged and accordingly decreed the suit. It is the said decree which is assailed R.S.A. NOS: 929 & 973/2008 3 in these second appeals. 7. Learned counsel appearing for the appellants made the following submissions before me in support of the appeals:- 8. The appellants are actually the owners who had contributed a sum of Rs.1,81,000/- as per the scheme conceived by the plaintff-Devaswom. At the time of handing over possession of the flats the promised area of 440 sq.ft was reduced to 310 sq.ft. Even though there is no lease deed evidencing the rental arrangement since the appellants had admitted that they are paying rent to the plaintiffs, it may not be now possible for the appellants to dispute the lease. But then, the only ground on which the lease has been terminated is non-payment of rent. Section 114 of the Transfer of Property Act, 1882 will then apply to a case of the present nature. The said Section reads as follows:- “114. Relief against forfeiture for non-payment of rent--- Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture, and thereupon the lessee shall R.S.A. NOS: 929 & 973/2008 4 hold the property leased as if the forfeiture had not occurred.” The appellants had deposited the entire arrears at the time of filing the appeal and the entire amounts were withdrawn by the plaintiffs as well. If so, instead of passing a decree for ejectment treating forfeiture of the lease for non-payment of rent the court below should have relieved the appellants against the forfeiture as provided under Section 114 of the Transfer of Property Act, 1882. 9. I am afraid that I cannot agree with the above submissions. The apartment in which the plaint schedule properties are two of the several flats, stand exempted from the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965. Hence the provisions of the Transfer of Property Act, 1882 alone are applicable to the building. It may be true that the original arrangement was to allot flats in the scheme conceived by the plaintiffs as an ameliorative measure for the needy members of this community. But then, the defendants who were put in possession as lessees on specified rates of rent were committing default in the payment of rent and other charges. Accordingly their lease was terminated as provided under Section 106 of the T.P. Act. On the admission of the appellants R.S.A. NOS: 929 & 973/2008 5 themselves they did not deposit the arrears of rent until a decree for eviction was passed against them by the trial court. Learned counsel appearing for the respondents-plaintiffs disputed the alleged deposit of the entire arrears at the time of filing the appeal. Even assuming that the case of the appellants that they had discharged the entire arrears of rent at the time of filing of the appeal is true, still it does not attract Section 114 of the T.P. Act since the said Section contemplates payment of rent only at the hearing of the suit and not thereafter. The said expression cannot be stretched beyond the stage of the suit to say that the hearing of the suit will include hearing of the appeal. Hence Section 114 does not apply. 10. The courts below have concurrently held that the defendants are in possession of the flats under the lease arrangement pleaded by the plaintiffs and that they had kept the rent and other charges in arrears and their lease was terminated in accordance with Section 106 of the T.P Act. If so, the appellants cannot take exception to the decree for eviction with arrears of rent and other charges passed by the courts below concurrently. No question of law much less any substantial question of law arises in R.S.A. NOS: 929 & 973/2008 6 these second appeals. The questions of law formulated in the memoranda of second appeal also do not arise for consideration in these appeals which are accordingly dismissed in limine. 11. Learned counsel appearing for the appellants made a fervent request for time to vacate the plaint schedule premises. Learned counsel appearing for the respondents-plaintiffs fairly conceded that the appellants may be permitted to hand over vacant possession on or before 30.4.2009. Accordingly, the appellants shall surrender vacant possession of the plaint schedule flats on or before 30.4.2009 on condition that each of them files an affidavit before the executing court within two weeks from today undertaking that they will surrender vacant possession of the flats on or before 30.4.2009 and that they will not induct strangers or commit any act of waste and shall regularly pay the rent without fail until handing over of vacant possession. V. RAMKUMAR JUDGE jj