IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 RSA.No. 599 of 2009() --------------------- AS.57/2005 of PRINCIPAL SUB COURT,PARAVUR OS.104/2003 of MUNSIFF COURT,ALUVA .................... APPELLANT: APPELLANT/DEFENDANT: ---------------------------------------- K.G.GOPINATHA PILLAI, S/O.NARAYANAN NAIR, PROPRIETOR, ORIENT TRAVELS, HOTEL AROMA, NEAR KSTRC BUS STAND ALUVA (MANJU NIVAS, CHERIYATHEKKANAM, PUTHENVELIKKARA VILLAGE.) BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENTS: RESPONDENTS/PLAINTIFFS -------------------------------------------------------- 1. M.A.MOHAMMED BABU MOOPPAN, S/O.LATE M.A.AHAMMEDKUTTY MOOPPAN, AROMA GARDENS, FLAT C2, SRM ROAD, ERNAKULAM, KOCHI-18 THROUGH POWER OF ATTORNEY HOLDER VENUGOPAL.C., S/O.LATE P.CHANDRASEKHARA NAIR RES.AT NEDUPUNCHAYI HOUSE, EDAVATTOM P.O., THALAYOLAPARAMBU. 2. M.A.MARIYUMMA BEEVI, D/O.LATE M.A.AHAMMEDKUTTY MOOPPAN, AROMA GARDENS FLAT C2, S.R.M.ROAD, ERNAKULAM, KOCHI-18,THROUGH POWER OF ATTORNEY HOLDER VENUGOPAL.C., S/O.LATE P.CHANDRASEKHARAN NIAR, RES.AT NEDUPUNCH- AYIL HOUSE, EDAVATTOM P.O., THALAYOLAPARAMBU. 3. M.A.MUNEERA BEEVI, D/O.LATE M.A.AHAMMEDKUTTY MOOPPAN, AROMA GARDENS, FLAT C2, SRM ROAD, ERNAKULAM, KOCHI-18 THROUGH POWER OF ATTORNEY HOLDER VENUGOPAL.C., S/O.LATE P.CHANDRASEKHARAN NAIR RESI.AT NEDUPUNCHAYIL HOUSE, EDAVATTOM P.O., THALAYOLAPARP 4. M.A.FATHIMA BEEVI, D/O.LATE M.A.AHAMMEDKUTTY MOOPPAN, AROMA GARDENS, FLAT C2, SRM ROAD, ERNAKULAM, KOCHI-18, THROUGH POWER OF ATTORNEY HOLDER VENUGOPAL C., S/O.LATE P.CHANDRASEKHARAN NAIR, RESI. AT NEDUPUNCHAYIL HOUSE, EDAVATTOM P.O.,THALAYOLAPARMB THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1330 OF 2009 IN R.S.A. NO. 599 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 30.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 599 of 2009 ---------------------------------------- Dated this the 30th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 57/2005 on the file of the Principle Sub Judge, North Paravur which arises from the judgment and decree in O.S. No. 104 of 2003. The suit filed for eviction and consequential relief, was decreed by the trial court, confirmed in appeal. The defendant in the Suit is the appellant herein. The parties hereinafter referred to as plaintiffs and defendant as arrayed in the suit. 2. It is the plaintiffs' case that the plaint schedule room is one among the room in a boarding house which have been in use for the same purpose for the past 35 years The plaint schedule room has been let out to the defendant on daily rental basis about 35 years ago. It is pertinent to note that predecessor-in-interest of the plaintiffs filed O.S. 818/1997 before the same court, for eviction of the defendant from the plaint schedule shop room. In that suit, the defendant raised a contention that the suit is not maintainable since the rental arrangement is coming under the purview of Kerala Buildings (Lease and Rent Control) Act (herein after referred to as the Act). The civil court dismissed that suit for the reason the notice under Section 106 of the T.P.Act has not been complied with. According to the plaintiffs the defendant is not paying the R.S.A. No. 599 of 2009 -2- rent from July 2000 onwards and an amount of Rs. 13,200/- is due from him by way of arrears of rent till 6.11.2002. Plaintiffs thereafter issued notice on 6.11.2002 terminating the tenancy by the end of 30.11.2002. Though the defendant received the notice, he has not vacated the premises The defendant is liable to pay daily rent at the rate of Rs. 134/- for the continuous occupation of the plaint schedule room from 1.12.2002 . The defendant had occupied the room at the rate of Rs.10/- per day and that too, he has not been paying from July 2000. The defendant has not the right to continue the occupation of plaint schedule room without paying the rent . It is also averred in the plaint that the plaintiffs are running the lodging house, that the defendant is doing commercial activities in the plaint schedule room detrimental to the peaceful occupation and enjoyment of other occupants of the main building. 3. In the written statement the defendant interalia contended that he is a tenant, and took the plaint schedule room on monthly rental basis, that he is conducting a travel agency, that the plaint schedule room is not a part of the lodging house and therefore the suit is not maintainable .He also contended that the only remedy open to the landlord is to file a petition under the Act for eviction. 4. The evidence on record reveals that the plaint schedule room is also attached with the amenities of a lodging house. The defendant has not obtained any separate electric connection nor made any arrangement with the landlord for separate consumption of electricity for R.S.A. No. 599 of 2009 -3- his business purposes. The trial court observed that if the defendant had obtained registration of his travel agency or the telephone connection with the consent of landlord, he would have been produced a copy of the written consent letter forwarded to the authorities for getting those connections .The trial court after appreciating the facts and circumstances also, held that the landlord had not rented out the plaint schedule room for any commercial purposes to the defendant and thus the defendant is not entitled for the benefit under the Act and that the tenancy arrangement is exempted under Section 2(d) of the Act. On the basis of the observation in O.S. No. 818/1997 by the same court, and of the facts and evidence adduced by both parties in the present suit, the trial court concluded that the present suit is maintainable and the defendant is not a bonafide tenant that he is liable to be evicted . 6. The other questions were examined by the trial court and held that the plaintiffs are entitled to eviction of the defendant as prayed for and a direction is issued to the defendant to Pay. Rs. 13,200/- to the plaintiffs by way of arrears of rent upto 6.11.2002 and pay the daily rent fixed from 1.12.2002. at the rate of Rs. 134/- per day for the use and occupation of the plaint schedule room. 7. The very same questions were re-agitated by the defendant before the lower appellate court and the lower appellate court after re- appreciating the facts , evidence and circumstances, held that the trial R.S.A. No. 599 of 2009 -4- court is perfectly justified in concluding so. 8. The questions now agitated by the learned counsel for the appellant are the questions decided by the trial court and confirmed in appeal by the lower appellate court on the basis of the facts and evidence adduced by the parties. I find no reasons to interfere with the concurrent findings entered by the courts below. No questions of law much less any substantial question of law arises for consideration in this appeal. There is no scope for invoking Section 100 of the C.P.C. This appeal fails and accordingly dismissed in limine (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 599 of 2009 ---------------------------- JUDGMENT 30th June, 2009