IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 SA.No. 447 of 1997(C) ------------------------------- AS.3/1993 of SUB COURT, KASARAGOD OS.232/1990 of MUNSIFF COURT, HOSDRUG .................... APPELLANT(S): IN SA/RESPONDENT NO.1 IN THE LOWER APPELLANT COURT ------------------------- DEFENDANT NO.1 IN SUIT. B.KARTHAMBU MAISTRY, S/O. CHOICHI, BUILDING CONTRACTOR AND LORRY, OPERATOR, RESIDING AT KOTTACHERY, BALLA VILLAGE, HOSDRUG TALUK, P.O., KANHANGAD, KASARAGOD DISTRICT. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADV. SMT.SUSEELA R.BHATT RESPONDENT(S): 1 & 2 IN SA. APPELLANTS IN THE LOWER APPELLATE COURT ------------------------ PLAINTIFFS IN SUIT. 1. THE KASARAGOD DISTRICT JANATHA DAL COMMITTEE REPRESENTED BY ITS PRESIDENT K.BALAKRISHNAN, S/O. KAVUNGAL KUNHAPPU, POLITICAL WORKER, RESIDING AT UDMA, P.O. UDMA, KASARAGOD DISTRICT. 2. P.KORAN MASTER, S/O. RAMAN, POLITICAL WORKER, NOW DISTRICT SECRETARY, JANATHA DAL KASARAGOD DISTRICT, RESIDING AT TRIKARPUR , P.O. TRIKARPUR, KASARAGOD DISTRICT. 3. C.KUNHAMMAD, S/O. PALAKKI ABDUL RAHIMAN, BUSINESSMAN, RESIDING AT AJANOOR VILLAGE, HOSDRUG TALUK, P.O.AJANOOR, KASARAGOD DISTRICT. BY ADVS. SRI.L.GOPALAKRISHNAN POTTI SRI.A.DINESH RAO THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2011 , THE COURT ON 06/06/2011 DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1170/1997 IN S.A. NO.447/1997 DISMISSED 06/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 447 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of June, 2011. JUDGMENT The first defendant in O.S.232 of 1990, who along with the second defendant suffered a decree at the hands of the lower appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The core issue that arises for consideration is whether the lease is in favour of the first defendant in his individual capacity or whether he had taken the premises on lease for and on behalf of the first plaintiff in the suit. The trial court accepted the contention of the first defendant and held in his favour taking the view that there was no evidence to show that the lease was in favour of the first plaintiff. In appeal by the plaintiffs, the decree of the trial court was reversed. S.A.447/1997. 2 3. The short facts necessary for the purpose of this appeal are as follows: It is the admitted fact that the premises belonged to Mrs. W.P. Kaunds. It is alleged in the plaint that in 1963 the premises was taken on rent from her for housing the office of Indian National Congress. Thereafter there was split in the party and successor parties occupied the building. It is averred in the plaint that one K.V.L. Shenoy, a member of the Congress Block Committee was in possession of the room for and on behalf of the Block Committee. Later on the said party, along with another party formed Janatha party. K.V.L. Shenoy continued to be in occupation of the room and he joined Janatha party and was a member of the said party. K.V.L. Shenoy was paying rent for the room. In 1981 the first defendant became the President of the Hodrug Mandalam Committee of the Janatha party and he was paying rent to the landlord. As per Ext.A5 dated 18.9.1981 Mrs. W.P. Kaunds sold her rights to the second defendant and the first defendant continued to pay rent on S.A.447/1997. 3 behalf of the party. The first defendant had also executed a rent deed in favour of the second defendant after he became the owner of the premises and the deed was executed by the first defendant for and on behalf of the party. Later the first defendant was removed from the party for undesirable activities and the second plaintiff was made the Joint Convenor. Pursuant to this, on 2.3.1988 the first plaintiff took possession of the plaint schedule room and its office was functioning in the premises. Since the first defendant raised disputes regarding the premises, proceedings under Section 145 of the Criminal Procedure Code were initiated. The proceedings reached this Court and this court disposed of the matter directing the parties to establish their rights in a civil court. The short claim put forward by the plaintiffs was that the premises was taken on rent by the respective persons for and on behalf of the political party of which they were either members or office bearers and the premises was never taken on rent in their individual capacities. Since the first defendant had S.A.447/1997. 4 obtained possession of the premises, it has become necessary to lay the suit seeking surrender of possession. 4. The first defendant resisted the suit by pointing out that the allegations are untrue and he had not taken the premises on rent for and on behalf of any political party. In fact he had taken the premises on lease in the personal capacity and had allowed the party office to function in the premises as he was a member of the party. He had paid rent in his individual capacity and the party had never paid rent for the premises. In the criminal proceedings initiated under the Criminal Procedure Code, possession was directed to be given to the first defendant since he was found to be in possession of the property. Sri. K.V.L. Shenoy, who was the tenant prior to the first defendant, surrendered the room to the landlord in 1981 and thereafter the first defendant obtained the room from the owner as per lease deed of the year 1981. The said lease was in the personal capacity of the first defendant. The party had never paid rent for the premises and rent had been paid by him. According to this S.A.447/1997. 5 defendant the suit is a collusive affair between the plaintiffs and the second defendant to defeat the rights of the first defendant. On the basis of these contentions he prayed for a dismissal of the suit. 5. The second defendant also resisted the suit. Admittedly he was the owner of the premises at the relevant time. He also contended that the plaint schedule property was never leased out to any political party and it was always in the possession of either K.V.L. Shenoy or the first defendant in their individual capacity. The lease deed was executed in favour of the first defendant in his personal capacity and even if the first defendant had permitted the party office to function in the premises, the lease could not be treated as one in favour of the party. On the basis of these contentions he too prayed for a dismissal of the suit. 6. On the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A35 from S.A.447/1997. 6 the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B3(e) marked. 7. The trial court on a consideration of the materials came to the conclusion that the plaintiffs had miserably failed to establish that the lease was for and on behalf of the party and accordingly dismissed the suit. In appeal, the lower appellate court chose to take the view that the trial court was not justified in placing reliance on the oral evidence of the parties. There was documentary evidence to show that the lease was in favour of the party and reversed the judgment and decree of the trial court. 8. Notice is seen issued on the following questions of law: “(i) Whether an unregistered society can sue in its name: and whether its President and Secretary can file a suit in a representative capacity? (ii) Is not non-compliance with Order XXIX Rule 1 of the Code of Civil Procedure result in rejection of the plaint as defective? (iii) Is the plaintiff entitled to a decree when the court fee paid is insufficient? S.A.447/1997. 7 (iv) Has not the lower appellate court acted illegally in ignoring the admissions of the plaintiffs, as regards execution of rent deeds and payment of rent in respect of the plaint schedule building by the appellant and the previous occupant in their individual capacity, and has not this vitiated its judgment? (v) Is not admission the best evidence a party can rely on and is not the decision of the trial court valid and proper? (vi) Has not the lower appellate court acted illegally and with material irregularity in ignoring the admissions of P.W.1 and P.W.2 made in cross- examination by characterising such admissing as “contradictions”? (vii) Whether on the facts and in the circumstances of the case, the plaintiffs have proved that the lease of the suit building was obtained and continued in the name of the named political parties? (viii) Has not the appellant proved that the lease was obtained in his individual name?” S.A.447/1997. 8 9. Learned counsel appearing for the appellants pointed out that reliance placed by the lower appellate court on Ext.A5 and Exts.A7 to A10 in order to hold in favour of the plaintiffs was uncalled for. It was contended that the first defendant is not a party to Ext.A5, which is a sale deed in favour of the second defendant by Mrs. W.P. Kaunds and therefore the recital therein could not bind him. The entries in the registers of the local authority cannot be relied on to come to the conclusion that the lease was in favour of the party. Emphasize was laid on the fact that even though P.W.1, who spoke on behalf of the party was definite that there were documents to show the payment of rent by the party, no such documents were produced and that is sufficient to show that the lease was not for and on behalf of the party but by K.V.L. Shenoy and later by the first defendant in their individual capacity. Learned counsel went on to point out that the trial court has considered the matter in considerable detail and has come to the right conclusion and there was no justification for the lower S.A.447/1997. 9 appellate court to reverse the judgment and decree of the trial court. 10. Learned counsel appearing for the respondents on the other hand pointed out that the lower appellate court has approached the issue in the proper perspective and has come to the right conclusion. Ext.A5 dated 18.9.1981, which was executed at a point of time when there was no dispute regarding the premises clearly showed that the first defendant had taken the premises on rent in his capacity as the President of the District Committee of the party and that recital is binding on him. The recitals in Ext.A5 get strength from Exts.A7 to A10 which are entries in the register of local authority which would show that the premises was occupied by the respective parties from time to time. There was absolutely no need for Smt. W.P. Kaunds to include a false recital in Ext.A5 and it is clear from the documentary evidence that premises was taken on rent by Sri. K.V.L. Shenoy or by the first defendant for and on behalf of the S.A.447/1997. 10 party. Learned counsel went on to point out that the findings are essentially based on the evidence on record and are findings of fact and no substantial question of law arises for consideration. 11. There is much to be said on either side. Ext.A5 document executed by the owner of the property in favour of the second defendant, which is a sale deed in favour of the second defendant, recites that the premises is in the occupation of Janatha Party. It further recites that the premises was taken on rent by the first defendant in his capacity as the President of the party at the relevant time. The entries in Exts.A7 to A10 show that at various points of time, various parties are shown as occupants of the premises. The plaintiffs have also produced several documents to show that the premises has been used as party office by the party. 12. The issue that arises for consideration is whether Ext.A5 and Exts.A7 to A10 are sufficient to show S.A.447/1997. 11 that the premises was taken on rent either by K.V.L.Shenoy or by the first defendant for and on behalf of the party. 13. True, Ext.A5 is at an undisputed point of time and it says that the premises had been taken on rent by the first defendant in his capacity as the President of the Party and the lease deed executed by him has been handed over to the second defendant. 14. It is interesting to note that the lease deed said to have been executed by the first defendant which is referred to in Ext.A5 and which is stated to have been treated as having handed over to the second defendant had not been produced. There was no attempt from the side of the plaintiffs to call for the said document. The first defendant had specifically contended that the lease deed executed by him was in his individual capacity and not in his capacity as the office bearer of the party. 15. The first defendant had also produced Ext.B3 series of documents by which rent has been received from the first defendant. The plaintiffs in the suit would say that S.A.447/1997. 12 in 1981 when the first defendant took the premises on rent, he was the office bearer of the party and the premises was taken on rent in that capacity. It is significant to notice that the plaintiffs did not infact admit surrender of the premises by K.V.L.Shenoy in the plaint. But at the time of evidence, P.W.1 had to concede that property was surrendered by K.V.L. Shenoy and the lease of the premises was taken by the first defendant. P.W.1 also conceded that K.V.L. Shenoy has taken the premises on lease in his individual capacity. P.W.2, who was the son of Mrs.W.P.Kaunds would say that the property was taken on rent for and on behalf of the party. He would accept that Ext.A6 was issued to K.V.L.Shenoy. Ext.A6 is the rent receipt issued to K.V.L.Shenoy for having received rent till 1981. That does not indicate that rent was paid on behalf of the party. 16. Even though the plaintiffs did not admit in the plaint that the premises was ever surrendered to the landlord and a fresh lease was taken, in the light of the evidence furnished by P.W.1 it has to be noticed that there S.A.447/1997. 13 was a surrender by K.V.L.Shenoy and a fresh lease by the first defendant. 17. The question is whether the first defendant had taken the premises on lease in 1981 in his individual capacity or as a representative of the party for and on behalf of the party. It is not in dispute that at the time of execution of the lease deed the first defendant was the President of the Mandalam Committee. According to the first defendant he has taken the premises in his individual capacity and allowed the party to use the premises for party purposes. One may recollect here that in Ext.A5 the landlord namely, W.P.Kaunds while assigning the property to the second defendant has mentioned that the first defendant, who was the President of the party has taken the premises on rent for and on behalf of the party and that the said lease deed was being handed over to the assignee. 18. Admittedly the first defendant is not a party to Ext.A5. So legally it cannot bind him. But of course it is at a point of time when there was no dispute regarding the S.A.447/1997. 14 premises. Evidence shows that later on the first defendant was thrown out of the party and the first defendant began to assert rights for himself over the suit property. 19. One cannot omit to note that in the proceedings initiated under the Code of Criminal Procedure by the SDO, possession was taken from the first defendant and as per the orders of this court possession was returned to the first defendant. Even though K.V.L. Shenoy had initially in chief examination stated that he had taken the premises for and on behalf of the party, in cross examination he had stated that he had taken the premises in his personal capacity. There is nothing to show that at the time when the premises was taken on rent, he was the office bearer of any political party. Even going by the averments in the plaint, premises was let out to Indian National Congress. There were several splits in the party and ultimately the Janatha Party came to occupy the premises. It is not possible to understand how automatically a split up party became the lessee of the premises. Even as claimed in the plaint, initial S.A.447/1997. 15 lease was to Indian National Congress. Here one may recollect that the plaint did not concede any surrender of possession and a fresh lease. 20. However, even though the plaintiffs did not admit surrender, the evidence is clear to the effect that K.V.L. Shenoy surrendered the premises in 1981 and it was subsequently taken on lease by the first defendant. It is here that one has to refer to the evidence of P.W.1 again. P.W.1 is definite that there are documents in the party office to show that the premises was taken on rent by the party through its President in 1981 and the party had effected payment of rent to the landlord. If that be so, nothing prevented the first plaintiff from producing those documents. For reasons best known to them, they chose not to produce them. Ext.B2 dated 17.9.1985 is the rent deed executed by the first defendant in favour of the second defendant. In the light of the fact that P.W.1 has specifically stated that there are documents to show that the party was the real tenant and in the absence of those documents S.A.447/1997. 16 which would have been the best evidence, it may not be proper to place reliance on Ext.A5 and Exts.A7 to A10 to come to the conclusion that Janatha Party was the actual lessee of the suit premises and that the first defendant had taken the premises on lease for and on behalf of the party. It is here one has to notice that there was no attempt from the side of the plaintiffs to produce copy of the the documents executed by the first defendant in favour of W.P.Kaunds. The documents produced by the defendants show that the lease deed namely Ext.B2 is in his individual capacity and he has also produced documents to show that he has paid rent for the premises. Even after the first defendant had produced documents to show that he had paid rent for the premises, the plaintiffs thought it unnecessary to produce documents to show that they had paid rent for the premises even though they have claimed that they have documents to show the same. 21. Merely because there is a recital in Ext.A5 and there are entries in the register of the local authority to the S.A.447/1997. 17 effect that the political party is in occupation does not lead to the conclusion that the lease was for and on behalf of the appellant. One may here again remember that the case of the plaintiffs is that the premises was let out to Indian National Congress. How that lease terminated and how the lease in favour of Janatha Party came into existence are matters about which there is no evidence, of course except for the recital in Ext.A5. 22. In the light of what has been stated above, the finding of the lower appellate court based on Ext.A5 and Exts.A7 to A10 cannot be sustained. One may again remember that the definite case of P.W.1 was that there are documents available in the office of the party to show that the lease was in favour of the party and they have been paying rent. The view of the lower appellate court was that in the light of Ext.A5 and Exts.A7 to A10, no importance need be given to the oral evidence cannot be accepted. 23. The first defendant had a definite contention that he had not taken the premises on rent for and on behalf S.A.447/1997. 18 of the appellant and he had taken the premises on rent in his personal capacity. That being the contention, the plaintiffs were put on guard regarding the claim of the first defendant and inspite of that the plaintiffs did not chose to produce the documents available with them which would show party is the real tenant of the premises. When best evidence is withheld, an adverse inference has to be drawn. K.V.L. Shenoy was examined as P.W.3. There is absolutely no evidence to show that he had taken the premises on rent for and on behalf of Indian National Congress and thereafter on behalf of Janatha Party. It is here that one has to remember the admission by P.W.1 that the premises was taken on rent in his individual capacity. One may also recollect that there is no averment in the plaint that K.V.L.Shenoy had surrendered the premises. These are vital aspects which have a bearing on the issue and the lower appellate court was not justified in discarding these materials. S.A.447/1997. 19 24. At any rate, it could not be said that the view taken by the trial court was perverse or unwarranted by the evidence on record. Even assuming that a different view is possible, the lower appellate court was not justified in interfering with the decree passed by the trial court. 25. The questions of law numbered as 4, 5 and 6 are answered in favour of the appellant. In the result this appeal is allowed, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.