Kerala High Court
Glenwill Antony Ceaser vs Neelam Bashir (Died) on 3 October, 2024
RSA NO. 462 OF 2024 1 2024:KER:73762
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
RSA NO. 462 OF 2024
JUDGMENT DATED 25.03.2024 IN AS NO.40 OF 2019 OF SUB
COURT,KOCHI ARISING OUT OF THE JUDGMENT DATED 27.06.2019
IN OS NO.279 OF 2017 OF PRINCIPAL MUNSIFF COURT, KOCHI
APPELLANT/APPELLANT/PLAINTIFF:
GLENWILL ANTONY CEASER, AGED 73 YEARS, 1/1308,
PATTALAM MARKET ROAD, FORT KOCHI, PIN - 682001
BY ADVS.
N.RATHEESH
SUMA RATHEESH
SHANKAR RETHEESH
RESPONDENTS/RESPONDENTS/DEFENDANT:
1 NEELAM BASHIR (DIED), VIII/2058, JAWAHAR ROAD,
KAPPALANDIMUKKU, KOCHI, PIN - 682002
2 SOHAIL BASHIR, VIII/2058, JAWAHAR ROAD,
KAPPALANDIMUKKU, KOCHI, PIN - 682002
3 SANGEETA, VIII/2058, JAWAHAR ROAD,
KAPPALANDIMUKKU, KOCHI, PIN - 682002
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 03.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA NO. 462 OF 2024 2 2024:KER:73762
JUDGMENT
1. The plaintiff in a suit for realisation of money is the appellant. The plaintiff filed the suit for the realisation of an amount of Rs.1,14,000/- with interest at the rate of 12% per annum from the defendants on the allegation that with respect to the lease of the plaint schedule building taken by the plaintiff from the defendant, the plaintiff had paid an advance amount of Rs.1,00,000/- to the defendant and that the plaintiff is entitled to get back the said amount as the lease is terminated by surrender/forcible eviction. The case of the plaintiff is that on 14.03.2016, the plaint schedule building leased to the plaintiff caught fire, and the entire stock in the building was destroyed. The incident was reported to the defendant. On 05.06.2016, the defendant asked the plaintiff through phone to open the gate. However, the defendant broke open the gate without waiting for the plaintiff. She locked the gate after the inspection of RSA NO. 462 OF 2024 3 2024:KER:73762 the plaint schedule property and kept the key in her custody. The plaint schedule property was impliedly surrendered/ forcibly taken by the defendant. Since the lease is terminated, the plaintiff is entitled to get the advance amount paid by him to the defendant.
2. The defendant filed a Written Statement resisting the suit prayers, contending, inter alia, that after the fire, the defendant opened the gate, inspected the plaint schedule property, and did not break open the lock as alleged in the plaint. She does not have the key in her custody. The allegation of implied surrender and forcible eviction is specifically denied. The agreement continued and the plaint schedule property was in the possession of the plaintiff. The plaintiff is liable to pay rent till the surrender of the building.
3. The Trial Court dismissed the suit, holding that there is no evidence for the forcible eviction and implied surrender as claimed by the plaintiff, that the surrender was on 22/02/2019 after filing the B1 Statement before the Rent RSA NO. 462 OF 2024 4 2024:KER:73762 Control Appellate Authority, and that the plaintiff is not entitled to claim advance amount before termination of lease. The judgment and decree of the Trial Court is confirmed by the First Appellate Court.
4. I heard the learned counsel for the appellant Sri. N. Ratheesh.
5. The counsel for the appellant submitted that in view of Section 108(e) of the Transfer of Property Act, when the subject matter of the lease is destroyed and is permanently unfit for the purpose for which it was let, the lease shall at the option of the lessee, be void. Here, admittedly, the plaint schedule building caught fire, and hence, it was not fit for occupation, and hence the lease is void in view of Section 108(e). The learned counsel also submitted that the decision relied on by the First Appellate Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee [(2001) 1 SCC 564] is clearly distinguishable since in that case, the lease was for land as well as building and even after the RSA NO. 462 OF 2024 5 2024:KER:73762 destruction of the building the lease with respect to the land continued. Here, the lease was only with respect to the building, and once the building is destroyed, the lease could not be continued.
6. On going through the Plaint, I find that there is no case for the plaintiff that the plaint schedule building is completely destroyed and it is not fit for occupation. What is alleged in the plaint is that the plaint schedule property was completely surrendered/forcibly taken by the defendant on 05.06.2016. The case advanced by the plaintiff before the Trial Court as well as the First Appellate Court is that there is an implied surrender since the plaintiff's schedule property caught fire. It is on record that the defendant filed R.C.P. No.24/2016 under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act and got an order of eviction as per the order dated 12.01.2018. If there was an implied surrender or forcible eviction in the year 2016, there was no need for the defendant/landlord to file a Rent Control Petition. That RSA NO. 462 OF 2024 6 2024:KER:73762 apart, the plaintiff filed RCA No.13/2018 against the Order in RCP No.24/2016 and during the pendency of the RCA, Ext.B1 Statement dated 22.02.2019 was filed that the plaint schedule property was surrendered to the defendant and the Rent Control Appellate Authority passed Ext.A2 Order. If there was a forcible eviction or implied surrender, there was no need for the plaintiff to file RCA against the eviction order. In view of the Ext.B1 Statement, the plaintiff could not contend that the building was already surrendered in 2016. The Trial Court rightly dismissed the suit holding that the lease was not surrendered. There is nothing to interfere with the judgments and decrees passed by the Trial Court as well as the First Appellate Court.
7. Accordingly, the Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM JUDGE ncd