IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 SA.No. 588 of 2000(C) -------------------------- AS.101/1992 of SUB COURT,ATTINGAL OS.480/1990 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S): APPELLANTS/DEFENDANTS 1 AND 2: -------------------------------------------------------------- 1. SIVATHANU PILLAI RAMESH, OWNER OF SIVARAMA ELECTRICALS VENJARAMOODU NELLANADU VILLAGE FROM MEDAYIL VEEDU, ATTOOR DESOM AND -DO- VILLAGE. 2. M.SIVATHANU PILLAI, DISTRICT PRISON SUPERINTENDENT KOZHIKODU FROM -DO- -DO- BY ADVS. SRI.SIBY MATHEW SRI.WILSON URMESE RESPONDENT(S):RESPONDENTS/PLAINTIFF AND ADDL. 2ND RESPONDENT: ----------------------------------------------------------------------- 1. P.DAMODHARAN PILLAI ANANDA BHAVAN, VENJARAMOODU MANICKAL MURI, NELLANADU VILLAGE. 2. S.M.SAJAD, S/O. SAINALUBDEEN, SHEEJA MANZIL, VENJARAMOODU, MUDAKKAL MURI, NELLANADU VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SAINULABDEEN, S/O.ABDUL KHADER OF -DO- -DO- R2 BY ADVS. SRI.M.BALAGOVINDAN SRI.S.SUBRAMANIA SARMA SRI.VINOD J.DEV SRI.P.C.HARIDAS SRI.S.B.JAYACHANDRAN SRI.P.M.JOSEPH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE DAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------- S.A.No. 588 of 2000 --------------------------------- Dated this the 13th day of July, 2011 JUDGMENT Faced with the concurrent decrees against them the defendants in O.S.No.480/1990 before the Munsiff's Court, Nedumangad have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for eviction. According to the plaintiff, tenants were inducted into possession by virtue of Ext.A3 dated 06.10.1988 on a monthly rent of Rs.500/-. The period mentioned in the rent deed expired on 06.10.1989 and the plaintiff needs the premises for his own occupation for conducting business. It is alleged that the tenants had kept the rent in arrears also. After issuing notice, the suit was laid. 3. The defendants resisted the suit by pointing out that the plaintiff had filed this suit without any bonafides and with the intention to lease out the schedule shop rooms to some other persons for a higher rent. Objection was taken to the notice issued to the defendants. It was also contended that subsequent to the notice the landlord accepted the rent from the tenant and S.A.No. 588 of 2000 2 therefore fresh notice is necessary. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based on the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had DWs 1 and 2 examined and had Exts.B1 to B3 marked. On an evaluation of the evidence, the trial court found that none of the contention taken by the defendants is tenable and therefore, decreed the suit for eviction with arrears of rent. 5. The defendants carried the matter in appeal as A.S.No.101/1992 before the Sub Court, Attingal. The lower appellate Court after re-evaluating the evidence on record concurred with the trial court and dismissed the appeal. 6. Notice is seen issued on the following substantial questions of law: 1. Whether the tenancy arrangement in respect of the plaint schedule building was duly terminated. 2. Having found that the appellants/defendants were tenants holding-over the notice dated 10.02.1990 S.A.No. 588 of 2000 3 was capable to terminate the tenancy in respect of the plaint schedule building and the decree allowing eviction without a valid termination of the tenancy arrangement. 3. Were the courts below right in holding that the tenancy started on 06.10.1988 and not 20.08.1983 without considering the effects of B1 and B2. 4. Were not the courts below bound to hold that the tenancy arrangement in respect of the plaint schedule building was on the strength of a rent deed dated 20.08.1983 and the document dated 06.10.1988 was executed only in connection with the enhancement of Rs.500/- per month and the notice dated 10.02.1990 was incapable to terminate the tenancy arrangement started on 20.08.1983. 5. During the pendency of the appeal, plaintiff having sold the property to the additional second respondent, was the suit filed for eviction on the ground of own occupation is maintainable and could the lower appellate court have confirmed the judgment and decree of the trial court. 7. The learned counsel appearing for the appellants pointed out that the notice was defective and it should prove fatal to the case. It is also contended that the intention of the landlord is to evict the tenants and let out the premise for a higher rent. 8. None of the contentions are tenable. Ext.A4 is the notice issued to the tenant and in view of the Section 106 of S.A.No. 588 of 2000 4 the Transfer of Property Act any defect if at all any in the notice is insignificant. 9. As regards the intention of the landlord, that is also irrelevant. Both the courts below have considered all the contentions raised by the defendants in the suit and found them to be untenable. It is also significant to notice that the landlord has not accepted any rent after issuing the notice. There is clear intention terminated the tenancy. No substantial question of law arises for consideration in the second appeal. 10. Faced with situation, the learned counsel appearing for the appellants prayed some time to vacate the premises. In the facts and circumstances of the case, the request is seems to be just and reasonable. Hence, the Second Appeal is dismissed and confirming the judgments and decrees of the courts below but subject to the following conditions:- 1. The defendants are given six months time from 01.08.2011 to unconditionally vacate the premises on condition that they shall file an affidavit within three weeks from the date of S.A.No. 588 of 2000 5 this judgment before the trial court undertaking to unconditionally vacate and surrender his premises on or before the expiry of six months from 01.08.2011. 2. Arrears of rent if any due from the defendants shall be deposited within one month from today. 3. They shall continue to pay the occupational charges at the same rate of rent until they have vacate the premises. P.BHAVADASAN, JUDGE. ln