IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 RSA.No. 553 of 2011() --------------------- AS.22/2008 of SUB COURT, THIRUVALLA OS.196/2004 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT/APPELLANT/DEFENDANT: -------------------- PUSHPANGADHAN @ MANI, S/P.SANKARAN KESAVAN, MADAPATTIL HOUSE, KOTTOOR MURI, KAVIYOOR P.O. DO. VILLAGE, THIRUVALLA TALUK BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:- --------------- 1. C.BHASKARAN PILLAI PUTHIYAVEETTIL ANAVATTATHU VEETTIL PERUMPETTY P.O. DO. VLLAGE, MALLAPPALLY TALUK. 2. B.AJITH S/O. OF DO. OF DO. PIN 689 592. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA NO.553 OF 2011 ............................................ DATED THIS THE 15th DAY OF JUNE, 2011 JUDGMENT Defendant in O.S.196 of 2004 on the file of Munsiff Court, Tiruvalla is the appellant. Plaintiffs are the respondents. Respondents instituted the suit seeking eviction of appellant from the plaint schedule building with arrears of rent. Appellant was admittedly the tenant of the plaint schedule building with liability to pay a monthly rent of Rs.75/-. Tenancy is not protected by Kerala Building (Lease and Rent Control) Act, as it is admittedly not a notified area under the Act. Respondents sought eviction after sending Ext.A6 notice, served on appellant on 30.9.2003, terminating the tenancy with effect from 31.10.2003 and demanding possession of the building with arrears of rent of Rs.12769/-. Respondents contended that appellant is liable to vacate the building and also to pay the arrears of rent. Appellant resisted the suit admitting the tenancy as well as receipt of Ext.A6 notice but contending that subsequent to the receipt of notice on 30.9.2003, respondents received rent on 9.1.2004, 16.3.2004 and 22.4.2004 evidenced by Exts.B7 to B9 money RSA 553/2011 2 order receipts and therefore there is abandonment of the termination notice and by acquiescence tenancy continued and therefore respondents are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A9 and B1 to B9 granted a decree for eviction with arrears of rent of Rs.12375/- and future mesne profits at the same rate till the date of taking possession. Appellant challenged the judgment before Sub Court, Tiruvalla in A.S.22 of 2008. Learned Sub Judge, on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant heard. 4. As the tenancy is admitted and the tenancy is not protected by Act 2 of 1965 and termination of the tenancy by Ext.A6 notice is not disputed, the only question is whether there is acquiescence of the tenancy as claimed by the appellant. Admittedly, Ext.A6 notice was served on the appellant on 30.9.2003. Respondents are admitting receipt of the rent sent by appellant under Exts.B7 to B9 money order receipts. The case of the appellant is that by receipt of such rent, Ext.A6 termination of tenancy was abandoned and thereby the tenancy continued. RSA 553/2011 3 Evidently, the claim is based on principles of acquiescence as provided under Section 113 of Transfer of Property Act. The question is whether the receipt of rent sent by Exts.B7 to B9 money orders would operate as acquiescence. 5. If Exts.B7 to B9 money orders were sent for a particular month, subsequent to termination of the tenancy and the said rent was accepted, it could have been contended that there was acquiescence. Exts.B7 to B9 will not show that rent was sent for any particular month. Ext.A6 notice shows that while terminating the tenancy and demanding vacant possession of the tenanted building, respondents have demanded arrears of rent of more than Rs.12000/-. The monthly rent payable is only Rs.75/-. In such circumstances, when the tenant has sent rent by money order, its acceptance by the landlord will not amount to acquiescence of tenancy, as even as per Ext.A6 more than Rs.12000/- was due towards arrears of rent. The landlord can adjust the rent towards arrears of rent, even if it is taken that appellant had sent rent for any particular month subsequent to termination of the tenancy. The argument of learned counsel is that after sending of Ext.A6 notice, Rs.300/- was sent on 9.1.2004 and it covers the rent for four months and the rent RSA 553/2011 4 payable subsequent to the termination of tenancy till the sending of Ext.B8 money order would be four months and by Ext.B8 money order, Rs.75/- was sent which could only be for the next month and by Ext.B9, two months rent was sent and it could only be towards the remaining two months upto April and therefore the receipt of the money orders evidenced by Exts.B7 to B9 could only be for the subsequent period after termination of the tenancy. Though the argument is attractive, based on the said receipt of money, it cannot be said that the tenancy has been revived by acquiescence as claimed by appellant, as there is no evidence to prove that rent was received by the appellant towards the rent due after 31.10.2003 or not towards the arrears of rent due or with an intention to renew the lease or to create a fresh lease, by abandoning the termination of tenancy under Ext.A6 notice. In such circumstances, I find no substantial question of law involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk