IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 RSA.No. 414 of 2009() --------------------- AS.149/2008 of ADDL.DISTRICT COURT,KOTTAYAM OS.16/2000 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- N.K.NARAYANAN NAMBOOTHIRI, ADVOCATE,PALA, RESIDING AT NARAMANGALAM HOUSE, VALAVOOR P.O. VALLICHIRA VILLAGE, MEENACHIL TALUK, KOTTAYAM. BY ADV. SRI.S.PRASANTH RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- 1. THIRUVITHANCORE DEVASWOM BOARD, THIRUVITHANCORE DEVASWOM OFFICE, THIRUVANANTHAPURAM-REPRESENTED BY ITS SECRETARY 2. ETTUMANOOR GROUP ASSISTANT, DEVASWOM COMMISSIONER, DEVASWOM OFFICE, ETTUMANOOR MAHADEVA KSHETHRAM, ETTUMANOOR. 3. P.S.GOPINATHAN NAIR, EDATTU HOUSE, PONATTU BHAGOM, KAROOR, MEENACHIL TALUK,KOTTAYAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 932 OF 2009 IN R.S.A. NO. 414 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 26.5.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 414 of 2009 ---------------------------------------- Dated this the 26th day of May, 2009 JUDGMENT This Regular Second Appeal is directed against the judgment and decree in A.S. 149/2008 on the file of the Additional Court Kottayam on appeal from the decree and judgment in O.S. 16 of 2000 on the file of the Munsiff's Court, Ettumanoor. The 2nd defendant in the Suit is the appellant herein. The plaintiffs 1 and 2 who are respondent 1 and 2 herein filed the suit for eviction. The trial court decreed the suit. The parties herein after referred as plaintiffs and defendants as arrayed in the Suit. 2. The 1st defendant was the lessee of the plaint schedule shop room which belongs to the plaintiffs and the 2nd defendant is the sub- lessee .The 2nd defendant filed appeal before the Additional District court, Kottayam. There was a delay of 244 days in filing that appeal. The lower appellate court found that there were no sufficient reasons to condone the delay in filing the appeal. Therefore the petition for condonation of delay was dismissed and consequently the appeal also dismissed. Hence this Second Appeal. 3. I have perused the judgments passed by the trial court and the lower appellate court. As mentioned earlier the 1st defendant in the suit was the lessee of the plaint schedule shop room as per Ext. A1 lease deed dated 15.6.1983 on payment of rent of Rs. 450/- per month. It is the case of the plaintiffs that after the expiry of lease period the 1st defendant without the consent or knowledge of the plaintiff and against the condition R.S.A.No. 414 of 2009 -2- in the lease deed with a view to make unlawful gain, subleased the plaint schedule shop room to the 2nd defendant who is an advocate and the 2nd defendant is enjoying the premises as a sublessee of the 1st defendant. It is also submitted that the 1st defendant committed default in payment of rent from 16.5.1992 onwards and huge amounts are due by way of arrears with interest. 4. According to the 1st defendant he had transferred the plaint schedule shop room to the father of the 2nd defendant on 18.10.1999 with the knowledge and consent of the 2nd plaintiff and its subordinate employees and the plaint schedule shop room is in the possession of the 2nd defendant. 5. The 2nd defendant tendered oral evidence that his father had took the shop room on lease on 18.10.1991 with the knowledge and consent of the 2nd plaintiff and their employees that he is conducting advocate's office in the shop room and that his possession is not illegal. 6. The trial court elaborately considered the questions PW1 was examined on the side of the plaintiffs and Exts. A1 to A9 were marked on their side. The DW1 was examined and Exts B1 to B4 were marked for defendants. 7. Ext.A1 is the rent deed executed by the 1st defendant in favour of the plaintiffs. The recitals in Ext.A1 shows that the lessee cannot sublet without prior written permission of the landlord . The trial court rightly R.S.A.No. 414 of 2009 -3- held that the 1st defendant has not adduced any evidence oral or documentary to prove that the sublease was made with the consent of the landlord. On evidence the trial court found that there was parting of legal possession and the 2nd defendant was in exclusive possession of the premises and there has been subletting by the 1st defendant against the provisions of Ext.A1 rent deed. The plaintiffs also succeeded in proving that there was arrears of rent from 16.5.2002 onwards. The plaintiffs have claimed Rs. 22,822/- towards arrears of rent after deducting the security amount of Rs. 2,500/- and abandoning the rent arrears which were barred by limitation. In this circumstances the trial court passed a decree directing the defendants to surrender the vacant possession of the premises to the plaintiffs and also allowed the plaintiffs to realise Rs. 28,822/- from the 1st defendant and all his assets with pendente-lite interest @ 6% along with future interest @ 6% 8. The lower appellate court has not considered the matter on merits since there was a delay of 244 days in filing the appeal. The suit was decreed by the trial court in 22.9.2007. The copy application had filed only on 3.4.2008 which was after the period of limitation prescribed for preferring appeal. The lower appellate court found that there was no proper explanation for the delay in applying for the copy of the trial court's judgment. For the above said reasons the lower appellate court dismissed the delay condonation petition and consequently the appeal. 9. This Court heard the learned counsel for the appellant. The R.S.A.No. 414 of 2009 -4- matter was heard on merits. The suit is filed for eviction on the allegation that the 1st defendant illegally subleased the premises to the 2nd defendant without the consent and knowledge of the plaintiffs and defaulted rent. The trial court on evidence also found that the subletting was done without the knowledge and consent of the landlord. Going by the reasonings and findings I am of the view that the 2nd defendant/appellant has not successfully challenged the trial court findings. The scope of appeal itself is very limited. The lower appellate court considered the question of delay and found that there was no sufficient reason for condoning the delay . I agree with the reason stated by the lower appellate court for the dismissal of delay condonation petition and the appeal. No question of law much less any substantial question of law arises for consideration in this second appeal. Therefore this appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 414 of 2009 ---------------------------- JUDGMENT 26th May, 2009