Kerala High Court
Kanakambika vs Karnaki Amman Bhagavathi on 11 February, 2010
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 116 of 2010()
1. KANAKAMBIKA, W/O.GANESH NADAR,
... Petitioner
Vs
1. KARNAKI AMMAN BHAGAVATHI, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/02/2010
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.116 of 2010
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Dated this the 11th day of February, 2010
J U D G M E N T
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Second Appeal arises from judgment and decree of learned District Judge, Palakkad in A.S. No.243 of 2006 confirming judgment and decree of learned Munsiff, Palakkad in O.S. No.700 of 2004. Respondent, a Devaswom represented by its Executive Officer sued the appellant for her eviction with rent arrears and damages alleging that building described in the plaint schedule belonging to the respondent was let out to the appellant on 25.9.1979 for her business purposes and the prevailing rate of rent is Rs.550/- per month which appellant defaulted payment from January, 1999 (in the suit notice date of default according to respondent was wrongly stated as June, 1999). It is the further case of respondent that as per terms of entrustment appellant is liable to pay interest at the rate of 24% on the defaulted rent and accordingly Rs.31,150/- is due by way of rent and Rs.9,739/- by way of interest. Respondent issued notice to the appellant terminating tenancy with effect from 31.1.2004 and demanding vacant possession of the building with rent arrears. Appellant while admitting tenancy claimed that her R.S.A. No.116 of 2010 -: 2 :- predecessor-in-interest had taken the building on rent in the year 1974. She admitted that the prevailing rent is Rs.550/- per month but claimed that there is no provision for payment of interest at the rate of 24% per annum on the defaulted amount. Rent happened to be in arrears since respondent did not collect the same. It is also the contention of appellant that she remitted Rs.30,000/- towards rent arrears. Claim of the respondent for rent arrears beyond three years immediately preceding the institution of the suit is barred by limitation. Appellant is entitled to the benefit of Act 2 of 1965 and the civil court has no jurisdiction to order eviction. Trial court found that in view of Notification SRO No.2078 of 1993 dated 19.11.1993 buildings belonging to Hindu Religious and Charitable Endowments under the Madras Hindu Religious Charitable and Endowments Act (for short, "the Act") are exempted from the purview of Act 2 of 1965 and hence suit for eviction is maintainable.
2. So far as competency of Executive Officer to represent the Devaswom is concerned trial court found that Executive Officer is the highest executive authority in charge of administration of religious institutions and hence in the absence of any disabling provision he is entitled to institute the suit on behalf of respondent, R.S.A. No.116 of 2010 -: 3 :- the Devaswom. So far as contention that the claim of respondent beyond three years immediately preceding the institution of the suit is barred by limitation is concerned, trial court observed that during the pendency of suit appellant remitted Rs.30,000/- and even if any portion of the claim is barred by limitation that is only regarding remedy of respondent and that there is nothing wrong in appellant paying the amount to discharge the debt recovery of which is barred by limitation. Decree was granted for recovery of Rs.8.410/- with interest at the rate of 6% per annum from the date of suit till realisation. Judgment and decree were confirmed by the first appellate court in the appeal at the instance of appellant. Hence this Second Appeal. Substantial question of law urged for decision is whether Executive Officer is competent to represent the respondent, Devaswom and institute the suit.
3. It is not disputed that in view of the Notification which I have stated (supra) buildings owned by the Hindu Religious Institutions are exempted from the purview of Act 2 of 1965. Therefore courts below are legally correct in holding that civil court has jurisdiction to entertain the suit for eviction. Appellant's contention is that Executive Officer was not competent to represent R.S.A. No.116 of 2010 -: 4 :- the respondent. Learned counsel contends that as per the Scheme of the Act and Rules only the Commissioner or the Assistant Commissioner is empowered to institute the suit but learned counsel was not able to bring to my notice any provision either in the Act or Rules which states so. On the other hand it is seen from Rule 1 of Part I framed under Section 100(2)(p)(x)(ii) of the Act that Executive Officer includes any paid officer appointed under the Scheme settled or deemed to be settled under the Madras Hindu Religious and Charitable Endowments Act by whatever designation called provided he is the highest executive authority in charge of the administration of the religious institutions. It is not disputed that Executive Officer is the highest executive authority in charge of administration of the institution concerned. True the Act or Rules does not say that the Executive Officer has the power to represent the Devaswom but there is no provision disabling him from doing so. Courts below have adverted to these aspects and found that Executive Officer has the power to institute suit and recover property of the Devaswom. If that be so contention of the appellant that Executive Officer had no power to institute the suit cannot be sustained. Courts below have referred to the relevant Rules and R.S.A. No.116 of 2010 -: 5 :- came to the conclusion that the Executive Officer is competent to represent the Devaswom. I do not find any substantial question of law involved in this Second Appeal.
4. Learned counsel requested that in case respondent is again letting out the building to anybody appellant may be given preference in the matter. He also requested that appellant may be granted one year's time to vacate the premises. Counsel contends that appellant is conducting a petty business in the building and if she is evicted it will affect her family. This Court cannot issue any direction as to whether appellant is to be preferred in case respondent decided to let out the building. But certainly that is a matter within the consideration of respondent to decide whether in the absence of other disabling circumstances case of appellant should be considered in case the building is meant to be let out.
5. So far as request for time to vacate the premises is concerned having regard to the facts and circumstances stated by learned counsel, I am inclined to grant three months' time from this day to the appellant to vacate the building.
Resultantly, Second Appeal is dismissed in limine. But appellant is granted three months' time from this day to vacate the R.S.A. No.116 of 2010 -: 6 :- building subject to the following conditions:
(i) Appellant shall pay damages at the rate of Rs.550/- per month to the respondent commencing from the date till which rent arrears has been discharged and until expiry of the period of three months stated above.
(ii) Arrears of damages if any payable till 31.01.2010 shall be paid within a month from this day.
(iii) Damages payable for the month of February, 2010 shall be paid on or before 05.03.2010.
(iv) Damages payable for the subsequent months shall be paid on or before 5th of the succeeding month.
(v) Appellant shall file an affidavit in the trial court within three weeks from this day undertaking to comply with the above terms and conditions and vacate the premises on the expiry of the said period of three months without putting forth any claim R.S.A. No.116 of 2010 -: 7 :- or objection whatsoever.
Execution proceedings if any will stand in abeyance during the said period of three months provided the conditions mentioned above are complied with.
Interlocutory Application No.300 of 2010 shall stand disposed of vide judgment.
THOMAS P.JOSEPH, JUDGE.
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