IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 RSA.No. 651 of 2010() --------------------- AS.140/2006 of ADDL. DISTRICT COURT, THALASSERY OS.147/2005 of PRL.MUNSIFF COURT, KANNUR .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------------------------- 1. THE CANNANORE CO-OPERATIVE MILK SUPPLY SOCIETIES LTD., KANNUR REP. BY ITS SECRETARY, KANNUR-2. 2. SRI. PUSHPARAJAN, S/O. KUNHIRAMAN, AGED 57 YEARS, DOOR NO. CW 35-1452 UNITY COMPLEX BUILDING, S.N.PARK ROAD, KANNUR-1. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): RESPONDENT - PLAINTIFF: --------------------------------------------------------------------- UNITY COMPLEX MAINTENANCE COMMITTEE THROUGH ITS SECRETARY, S.N.PARK ROAD, KANNUR-1. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- R.S.A No.651 of 2010 -------------------------- Dated this the 6th July, 2010 J U D G M E N T Aggrieved by the concurrent findings against them, the defendants in O.S No.147 of 2005 before the Munsiff's Court, have come up in appeal before this Court. The facts and parties hereinafter referred to as are available before the trial court. 2. The suit was one for injunction. The plaint schedule room is a part and parcel of the building named Unity Complex belonged to the plaintiff. The building was given on lease to the first defendant on a monthly rent of Rs.250/-. The petitioner has filed a petition for eviction of the 1st defendant in the premises under Act 2 of 1965, which is pending. It was allowed by the Trial Court. First defendant had preferred an appeal as RCA 129/03 which is pending before the District Court, Thalassery. The allegation in the plaint was that in the meanwhile the first defendant has sub let the building to the 2nd defendant. First defendant has no right to do so. Thereafter, plaintiff learnt that sub lease has been conducting business and therefore a notice was issued R.S.A No.651 of 2010 2 directing the tenant to terminate the sub lease. When the tenant failed to do so, the suit was laid for mandatory injunction. 3. The defendants resisted the suit pointing out that the suit is not maintainable. Plaintiff committee is not property represented. It was admitted that the first defendant is a tenant with respect to the plaint schedule building. Plaintiff had filed RCP No.193/2000 for eviction on the ground of bona fide need which is pending before the appellate court. According to the defendants, second defendant who is the secretary of the 1st defendant Society is carrying on the business of the society in the premises on behalf of the society. Therefore there is no sub lease. On the basis of these contentions, defendants prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. 5. The evidence consists of the testimony of PW1 and Exts. A1 and A2 were marked from the side of the plaintiff. Defendants had examined and Exts. B1 to B4 were marked from the side of the defendants. Ext.C1 is the R.S.A No.651 of 2010 3 commission report. They did not adduce any oral evidence. 6. The contention that the 2nd defendant was functioning on behalf of 1st defendant was found against by trial court. The trial court also refused to accept the 2nd defendant is the Secretary of Society and that he was acting on behalf of Society. It was found that he was conducting a hotel there. 7. The suit was decreed finding that it was violating the terms of the lease deed that the sub lease had been created. 8. Aggrieved by the trial court judgment, defendants carried the matter in appeal as A.S. No.140 of 2006 before the District Court, Thalassery. The appellate court on re-evaluation of the evidence on record came to the same conclusion as that of the trial court and confirmed the decree of the trial court. 9. The judgment and decrees of the courts below are assailed in the Second Appeal. The main contention taken is that plaintiff ought to have resorted to the Rent Control Act before recourse to the matter for appropriate relief and could not. It is also contended that the 2nd R.S.A No.651 of 2010 4 defendant is none other than the Secretary of the Society. Therefore, no sub letting has been made as claimed by the plaintiff. 10. The contentions are without any basis at all. Both the courts have concurrently found that the claim of the 2nd defendant that he is the Secretary of the Society and that he is conducting the business in the premises on behalf of Society does not appear to be correct. The courts below found that 2nd defendant was conducting hotel business in the premises which had nothing to do with the activities or the business of the society. That was in violation of the terms of agreement. The plaintiff is not seeking eviction of the tenant but merely seeking termination of the illegal sub lease contending that it is contrary to the rental arrangement. If that be so, the suit is maintainable. No grounds are made out to interfere with the judgment and decree of the courts below since it is not shown that findings of the lower appellate court are either perverse or unwarranted by the evidence on record. No substantial questions of law have been raised in this R.S.A No.651 of 2010 5 Appeal. The appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma R.S.A No.651 of 2010 6