IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 RSA.No. 790 of 2009() --------------------- AS.235/2005 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.1553/2002 of PRL.M.C.,TRIVANDRUM .................... APPELLANTS/ADDL.APPELLANTS 2 TO 4/LEGAL HEIRS OF ORIGINAL DEFENDANT ---------------------------------------------------------------------------------------------------------------------- 1. JACOB K.PRASAD, TC 6/2531, KOMBITHARA HOUSE, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM. 2. AJITH JACOB, S/O.JACOB K.PRASAD, DO. DO. 3. ANJU ELIZABATH JACOB (MINOR REPRESENTED BY HER FATHER AND NATURAL GUARDIAN THE 1ST APPELLANT). BY ADV. SRI.G.SUDHEER RESPONDENTS: ADDL.RESPONDENTS 2 TO 4/LEGAL HEIRS OF ORIGINAL PLAINTIFF ------------------------------------------------------------------------------------------------------------------------ 1. A.J.PHILIP, S/O.K.JAMES, RESIDING AT RAJS SHILPI, RANGOM LANE, KOWDIAR, THIRUVANANTHAPURAM. 2. A.J.GEORGE, S/O.JAMES, DO. DO. 3. SARAMMA THOMAS, D/O.K.JAMES, DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------- R.S.A.No.790 of 2009 --------------------------------- Dated this the 24th day of August, 2009 JUDGMENT The legal heirs of the deceased defendant in O.S.No.1553 of 2002 on the file of the principal Munsiff’s Court, Thiruvananthapuram are the appellants. The appeal is directed against the judgment and decree in A.S.No.235 of 2005 on the file of the II Additional District Court, Thiruvananthapuram. The suit is filed for a direction to the defendant to surrender vacant possession of the plaint schedule property to the plaintiff. The suit was decreed as prayed for and confirmed in appeal. Hence, the second appeal. 2. The plaint schedule shop room was rented out by the plaintiff to the defendant on 12/6/2001 for a period of 11 months. The rent deed was executed on the same date. The plaintiff terminated a tenancy by issuing registered notice on 9/7/2002. The original defendant resisted the suit contending inter alia that Vilappil Panchayat wherein the plaint schedule building is situtated is a notified area under the Kerala Building (Lease and Rent Control) Act and therefore the suit is not maintainable. R.S.A.No.790 of 2009 2 3. The trial court on a consideration of pleadings and oral evidence of PW1, DW1 and Exts.A1 to A4 held that plaintiff is entitled to get a decree as prayed for. The question regarding the maintainability of the suit is found against finding that the Kerala Building (Lease and Rent Control) Act is not made applicable to the said panchayat. The second question raised by the defendant is that the notice of termination under The Transfer of the Property Act is not validly issued and therefore prayed for dismissal of the suit. The court rightly held that the notice is issued terminating the tenancy with a gap of 15 days. Hence there is no reason for non-suiting the plaintiff. 4. In the second appeal the learned counsel for the appellant/defendant raised the very same contentions. These contentions are considered by the trial court and lower appellate court and held that the contentions are unsustainable in law. On the facts and evidence, I am also of the view that the contentions are unsustainable in law. In the circumstances, I find that the appellant has not made any valid ground to invoke this court’s jurisdiction under section 100 C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. Hence, this appeal fails and accordingly dismissed R.S.A.No.790 of 2009 3 in limine. 5. The learned counsel for the appellants submitted that they are running a medical shop in the plaint schedule room and that this is only source of income for the family. Therefore requested this court to grand few months time for vacating the premises. I think the request of the learned counsel is reasonable. Hence, a period of 9 months is granted. In the circumstances, a period of 9 months is granted for vacating the premises on condition that the appellants shall undertake before the court below in the form of an affidavit undertaking to vacate the premises within the time fixed by this court. The appellant shall also deposit the monthly rent payable to the plaintiff on or before 5th of every month. If the conditions are not complied with, the plaintiff is entitled to evict the appellants/defendants as if there is no order granting time. The affidavit shall be filed before the trial court/execution court within the period of one month from today. HARUN-UL-RASHID, JUDGE Skj.