IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 RSA.No. 974 of 2009() --------------------- AS.135/2007 of PRL.SUB COURT,THRISSUR OS.1129/2004 of III ADDL. MUNSIFF COURT,THRISSUR .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------- CHANDRASEKHARAN,AGED 59 YEARS, BUSINESS,S/O.THEKKEMADATHIL MADHAVAN,KOLAZHY VILLAGE & DESOM,THRISSUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS/RESPONDENT(S): PLAINTIFFS ------------------------- MAR OUGIN THOOVANA CHURCH,REP.BY ITS PRESENT KAIKKARANS: 1. CHACKO,AGED 59 YEARS, S/O.PALLIPPURAM JACOB,SHANTHI NAGAR,AYYANTHOLE NAGAR,THRISSUR TALUK. 2. CHERIYAN FRANCIS,S/O.NALLENKARA CHERIYAN PUTHOORKKARA DESOM,AYYANTHOLE VILLAGE, THRISSUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.974 of 2009 -------------------------------------- Dated this the 14th day of September, 2009. JUDGMENT Defendant who successively lost in the courts below is before me in this Second Appeal. Respondent sued the appellant for recovery of possession of the shop room described in the plaint schedule with arrears of rent. It is not disputed that plaint schedule shop room belonged to the respondent and was entrusted to the appellant on rent of Rs.175/- per month as per Ext.A1 dated 1.8.1983. It is the further case of respondent that rent was enhanced to Rs.200/- per month from 1.6.1989 onwards but rent at that rate is in arrears from April, 1996 onwards (respondent however limited the claim of rent arrears for three years prior to the suit). According to the respondent, it wanted to construct a new building at the place of shop room in question. It has filed O.S.No.203 of 1999 for eviction. But that suit was dismissed in view of the Division Bench decision of this Court in Krishna Pillai v. Infant Jesus Church (2000 (1) KLT 197) holding that respondent is not entitled to the exemption under Section 25 of Act 2 of 1965. Later in view of the decision of the Apex Court in Christ The King Cathedral v. John Ancheril [2001 (2) KLT 946] respondent filed the present suit for recovery of possession of the shop room with rent arrears to the tune of Rs.9,792/-. Learned counsel for appellant contended that there was no enhancement of rent from Rs.175/- to Rs.200/- per month and that there was no bona fides for the need put by the respondent. It is also RSA No.974/2009 2 contended that there was no decision by the church committee to evict the appellant and that dismissal of O.S.No.203 of 1999 were for default and debarred the respondent from filing a fresh suit. Further contention is that the area where the shop room situated is covered by the notification under Act 2 of 1965. Trial courts found against the contention of appellant and taking note of the payment of Rs.4,600/- towards rent arrears during the pendency of the suit decreed the suit for eviction with rent arrears to the tune of Rs.5,192/-. The first appellate court has concurred with it. 2. The only substantial question of law urged for consideration in this Second Appeal is whether the bar under Order 9 Rule 9 of the Code of Civil Procedure (for short, “the Code”) is applicable in view of the dismissal of O.S.No.203 of 1999. Learned counsel contended that O.S.No.203 of 1999 was dismissed for default. 3. It is not disputed that O.S.No.203 of 1999 was dismissed (for default as per the contention of appellant) at a time when the Division Bench decision of this Court to the effect that exemption under Section 25 of Act 2 of 1965 was only for building or class of buildings owned by the institutions referred to and did not mean that exemption is for the institution remained in force. It is not disputed that no exemption was obtained for the shop room in question. Therefore, O.S.No.203 of 1999 was not maintainable in the civil court. The Apex RSA No.974/2009 3 Court in Christ The King Cathedral v. John Ancheril referred supra overruled that decision and held that the exemption is available for buildings owned by the institutions referred to in Section 25 of Act 2 of 1965. Hence dismissal of O.S.No.203 of 1999 at a time when that suit was not maintainable cannot affect the right of parties. That apart what is barred under Order 9 Rule 9 of the Code is a fresh suit on the same cause of action and not in respect of the same subject matter. It is settled position of law that if the right to sue continues, question of bar under Order 9 Rule 9 of the Code did not arise. In this case right to sue for eviction on the strength of title continued and that apart even subsequent to the dismissal of O.S.No.203 of 1999 the rent has fallen in arrears That gave the respondent a fresh cause of action to sue for eviction. As such the subsequent suit is perfectly maintainable and no substantial question of law is involved in the matter requiring interference in this Second Appeal. 4. Learned counsel for appellant requested that appellant may be granted four months’ time to vacate the shop room. It is stated that appellant is engaged in a small business in the said shop room and is required to arrange alternative accommodation. Considering the submission of learned counsel I am inclined to grant the appellant three months’ time from this day to vacate the shop room on condition that appellant filed affidavit in the trial court within three weeks from this day undertaking to vacate the premises on the expiry of the said period of three months from this day. RSA No.974/2009 4 Resultantly, this Second Appeal is dismissed with the observation that petitioner is granted three months' time from this day to vacate the shop room on condition that appellant filed affidavit in the trial court within three weeks from this day undertaking to vacate the premises on the expiry of the said period of three months. THOMAS P.JOSEPH, Judge. cks