IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 AS.No. 590 of 1999 ----------------------- OS.191/1991 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/PLAINTIFF: ------------------------- THIRUVAMBADI DEVASWOM, ROUND WEST, THRISSUR REPRESENTED BY ITS PRESIDENT C. RAGHAVAN, CHERUVARA HOUSE, KUTTANKULANGARA DESOM, THRISSUR. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENTS/DEFENDANTS: --------------------------------- 1. THRISSUR CO-OPERATIVE MILK SUPPLY UNION LTD.NO.3280. 2. ERNAKULAM CO-OPERATIVE MILK PRODUCERS UNION LTD. ADV. SRI.B.S.KRISHNAN, SENIOR ADVOCATE FOR R2 SRI.K.ANAND (A.201) FOR R2 SMT.LATHA KRISHNAN FOR R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No. 590 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2009. Judgment Basheer, J: Appellant-Thiruvampadi Devaswom, Thrissur had instituted the suit against the defendants seeking vacant possession of the plaint schedule property and also claiming damages for use and occupation of the suit premises at the rate of Rs.1047/- per month from March 1988 till realisation, with interest thereon at the rate of 6%. The court below refused to grant a decree for recovery of possession. However, the second prayer was granted and the defendants were directed to pay a sum of Rs. 30138/- with interest at the rate of 6% per annum from March 1998 till the date of realisation. Appellant/plaintiff impugns that part of the decree and judgment by which the primary relief in the suit has been turned down by the court below. 2. The case of the appellant/plaintiff was that the plaint schedule premises comprising 3 rooms in the building owned by the Devaswom in the heart Thrissur Municipal Corporation was let out to defendant No.1 on the strength of kychits of the year 1972 and 1973 respectively. Admittedly the rent of the plaint schedule building was later enhanced to Rs.1047/- per month. Plaintiff contended that defendant No.1, which is a Co-operative Milk Supply Union, had undertaken, among other things, that the building would not be sub let to any person without the knowledge or consent of the plaintiff. But sometime towards the end of 1987, the plaintiff came to know that defendant No.1 was making attempts to sub let plaint schedule premises to defendant No.2. Therefore plaintiff had informed defendant No.1 to desist from any such illegal transfer. But later defendant No.2 sent a cheque purportedly towards rent of the building to the plaintiff. The AS.590/99 2 cheque was returned by the plaintiff along with a covering letter dated April 13, 1988 refusing to attorn to defendant No.2 as tenant. Later, the suit was instituted after issuing notice praying for the reliefs sated supra. 3. The claim was resisted by defendant No.2 (defendant No.1 remained absent and was set ex parte) contending that the notice was not proper and therefore the suit was not maintainable. It was contended that defendant No.2 had “taken over defendant No.1 Society with all its assets, liabilities, staff and management on November 1, 1987. According to defendant No.2 “the merger of the first defendant with the second defendant was done in the exigencies of the pubic interest and after wide publicity, of which the governing authorities of the plaintiff were also aware at the time.” Since it was “by a lawful takeover that the running of the first defendant's business came into the hands of the second defendant, the juristic identity of the second defendant is one in perpetuity of that of the first defendant”, the contentions went on. In short, defendant No.2 asserted that there was no act of transfer of possession or subletting as alleged by the plaintiff. The further contention was that the plaintiff had never seriously objected to the use of plaint schedule premises by defendant No.2 and that the plaintiff had in fact “acknowledged the second defendant as a lawful tenant”. Defendant No.2 concluded its written statement by saying that it has been using plaint schedule premises as its office “for the functioning of an important public utility service”. The plaintiff had no necessity of getting vacant possession of the premises and therefore on equitable considerations also, the plaintiff was not entitled to succeed. 4. The court below framed the following issues : “1) Is the suit maintainable? 2) Has this court jurisdiction to entertain the AS.590/99 3 suit? 3) What is the status of the 2nd defendant in respect of the plaint schedule items? 4) If the 2nd defendant is the monthly tenant of the scheduled apartments, whether there is proper termination of tenancy? 5) Is the plaintiff entitled to a decree as prayed for? 5) Reliefs and costs” The evidence comprised of the oral testimony of Pw.1 and documentary evidence of Exts.A1 to A7 on the side of the plaintiff and that of Dws.1 and 2 and Exts.B1 to B7 on the side of the accused. 5. The court below held that the suit was maintainable. The court below is seen to have referred to the rival contentions of the parties as regards the question of jurisdiction at length, but ultimately the court below stopped by saying that the contention raised by defendant No.2 that the Court had no jurisdiction to entertain the suit was a “substantive argument”. Curiously no finding is recorded by the court below on issue No.2 touching upon the jurisdictional question. Anyway learned counsel for the respondent has not advanced any argument on this issue before us. 6. In this context we may have to refer to the contention raised by the plaintiff that the Government of Kerala had by notification dated December 18, 1971 (Notification No.27913/B-2/71/PW) exempted Thiruvambadi Devaswom Shopping Complex from the purview of the Kerala Building (Lease & Rent Control) Act 1965. Significantly defendant No.2 had never disputed the fact that the building in question would come within the ambit of the notification or that the plaintiff had to approach the AS.590/99 4 Rent Control Court for evicting it from the premises as provided under Act 2 of 1965. But the court below proceeded to accept the contention raised by the second defendant, presumably at the Bar, that only “Pathayappura” was exempted under the notification and therefore the plaint schedule premises would not come within the ambit of the notification. But strangely the learned Judge did not enter any finding on this aspect. The learned Judge merely observed that the contention raised by the second defendant as regards jurisdiction, is a substantive argument. A perusal of the Notification will unambiguously show that the buildings belonging to plaintiff-Devaswom are exempted from the purview of Act 2 of 1965 and therefore the court below was competent to entertain the suit. 7. While considering issue No.3 viz., the status of the second defendant in respect of plaint schedule items, the court below held that the second defendant is a tenant under the plaintiff. In order to arrive at this conclusion the learned Judge proceeded to assume that the plaintiff had accepted or acknowledged the second defendant as its tenant. But it may be noticed that the specific case of the plaintiff was that defendant No.2 was never recognised or accepted as a tenant under him. In fact when defendant No.2 sent a cheque purportedly towards rent, some time in the year 1987, the cheque was returned. Thereafter in the statutory notice also a specific contention was taken by the plaintiff that defendant No.2 can never be a tenant under the plaintiff and the tenancy was only in favour of defendant No.1. It had come on record that the plaintiff never accepted rent from second defendant. 8. In this context it may be noticed that the case of defendant No.2 was that it had taken over the first defendant society with its assets, liabilities, staff, management etc. and that the merger of defendant No.1 AS.590/99 5 society with the second defendant was done “in the exigencies of public interest” as per Ext.B2, proceedings of the Joint Registrar of Co-operative Societies, (Dairy) issued on April 16, 1988. In this proceeding the Joint Registrar is seen to have recorded that consequent on the functioning of the Kerala Co-operative Milk Marketing Federation Ltd. at Thrissur and installation of the Thrissur dairy, it was thought desirable to merge the Thrissur Co-operative Milk Supply Union Limited (Defendant No.1) with the Kerala Co-operative Milk Marketing Federation to avoid unhealthy business competition. It is seen further recorded in Ext.B2 that out of 42 member Co-operative Societies of the Union (Defendant No.1), representatives of 36 Co-operative Societies attended the meeting and unanimously decided to transfer the assets and liabilities including staff to the Kerala Co-operative Milk Marketing Federation Limited. Admittedly defendant No.2 is one of the three regional co-operative milk purchasers union under the Kerala Co-operative Milk Marketing Federation Ltd. Thus evidently defendant No.1 had unanimously taken a decision to become part of the Federation. 9. As mentioned earlier, defendant No.1 remained absent and was set ex parte in the suit. There is nothing on record to indicate ( nor was such a contention taken by defendant No.2) that the plaintiff was put on notice about the so called merger or “take over”. Thus obviously defendant No.2 had taken over defendant No.1 and started occupying the plaint schedule premises on the strength of the so called take over or merger. Defendant No.2 did not also have a case that plaintiff had ever consented to accept the so called merger so as to legalise or legitimise the occupancy of the plaint schedule premises by defendant No.2. In that view of the matter, we have no hesitation to hold that defendant No.1 had sub-let the AS.590/99 6 premises to defendant No.2 without the knowledge or consent of the plaintiff. 10. Be that as it may, the question that primarily arose for consideration before the court below was whether defendant No.2 could resist the claim made by the plaintiff for vacant possession of the building on the plea that it had been accepted by the plaintiff as a tenant. Defendant No.2 had totally failed in establishing that it was recognised or accepted as a tenant, though it was vaguely contended in the written statement that monthly rent was being paid by defendant No.2 to the plaintiff. No supporting documents were produced. The court below found that there was no documentary evidence on record to substantiate such payment. 11. Learned counsel for the respondents has further contended that there was acquiescence on the part of the plaintiff, inasmuch as the suit was instituted in the year 1991, though Ext.A4 communication regarding its coming into possession of the premises was sent by the second defendant to the plaintiff on December 21, 1988. We are afraid that the above contention is totally untenable. Even assuming that there was delay in instituting the suit, there is nothing on record to show that the plaintiff had ever acquiesced or acknowledged defendant No.2 as its tenant at any point of time. There was allotment in the eye of law. 12. Defendant No.2 had raised a further contention that quit notice was not proper. While dealing with that contention, the court below proceeded to hold that the notice was bad since some manufacturing process was going on in the premises throughout . But strangely such a contention was not raised by defendant No.2 in its written statement. On the contrary, the specific case of defendant No.2 was that the plaint schedule premises were being used as its office. In that view of the matter AS.590/99 7 the finding entered by the court below in this regard is not sustainable at all. 13. Having regard to the entire facts and circumstances, we have no hesitation to hold that the court below was not justified in declining the prayer for grant of a decree to give vacant possession of the plaint schedule premises to the plaintiff. Having carefully perused the entire materials available on record , we are satisfied that the plaintiff is entitled to get a decree as prayed for. 14. At this juncture learned counsel for the respondent submits that respondent No.2/defendant No.2 is prepared to give vacant possession of the plaint schedule premises to the plaintiff without any demur or objection, if some reasonable time is granted. It is submitted by learned counsel for the plaintiff that the proceeding is almost two decades old and any further delay will cause grave prejudice and loss to the plaintiff. However having regard to the facts and circumstances of the case, we are satisfied that respondents can be granted 4 months from today to give vacant possession of the plaint schedule building to the plaintiff. We do so. In the result, the appeal is allowed. Appellant/plaintiff is granted a decree for recovery of possession in addition to the decree granted by the court below. Respondent No.2 is granted four months' time to vacate the plaint schedule building on condition that it shall file an undertaking in the form of an affidavit before the trial court agreeing to give vacant possession within 4 months from today and also on condition that it shall deposit the entire arrears of rent from March 1988 till date and costs as decreed by the court below, after adjusting the payment if any made in the meanwhile. Respondents shall also pay monthly rent as damages for use and occupation from today till the date of surrender. AS.590/99 8 Respondents shall file the undertaking before the trial court within two weeks from today. If such an undertaking is not filed as directed above, the plaintiff shall be entitled to evict the respondents from the plaint schedule building forthwith. A.K. Basheer Judge P. S. Gopinathan Judge an.