Kerala High Court
C.P. Najma vs Fr. Paul Percy D Silva on 17 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 17TH DAY OF SEPTEMBER 2021/26TH BHADRA, 1943
RSA NO.1299 OF 2019
Against the judgment and decree dated 12.11.2019 in A.S.No.158/2018
on the file of the first Additional District Court, Kozhikode which arose out
of the judgment and decree dated 6.10.2018 in O.S.No.91/2016 on the
file of the Principal Munsiff's Court-I, Kozhikode
APPELLANT/APPELLANT/DEFENDANT:
C.P.NAJMA,
AGED 52 YEARS,
W/O.MUHAMMED SYED, "THASNEEM", P.O.PAYYANAKKAL,
KOZHIKODE-673 003.
BY ADVS.
SRI.A.V.M.SALAHUDDEEN
SMT.A.D.DIVYA
SMT.JUHI.A.SALAHUDDEEN
SMT.VIDYAJITH.M.
RESPONDENT/RESPONDENT/PLAINTIFF:
FR.PAUL PERCY D'SILVA,
AGED 43 YEARS,
S/O.CYRIL D'SILVA,
ROMAN CATHOLIC DIOCESE OF CALICUT,
BISHOP'S HOUSE, MALAPARAMBA,KOZHIKODE-673 001.
BY ADVS.
SRI.JOJU KYNADY
SRI.TOM THOMAS KAKKUZHIYIL
SRI.A.ABDUL NABEEL
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 15.09.2021, THE COURT ON 17.09.2021
DELIVERED THE FOLLOWING:
R.S.A.No.1299 of 2019
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JUDGMENT
This Regular Second Appeal is directed against the judgment and decree dated 12.11.2019 in A.S.No.158/2018 on the file of the first Additional District Court, Kozhikode (hereinafter referred to as 'the first appellate court') confirming the judgment and decree dated 6.10.2018 in O.S.No.91/2016 on the file of the Principal Munsiff's Court-I, Kozhikode (hereinafter referred to as 'the trial court'). The appellant is the defendant in the original suit and the respondent is the plaintiff therein. For the sake of brevity, the parties are hereinafter referred to as referred in the original suit.
2. The defendant is the tenant who was sued by the landlord for possession and rent, which, according to the landlord, had fallen due from 1.1.2016. There were many contentions urged by the tenant. There was a R.S.A.No.1299 of 2019 ..3..
decree for eviction made by the trial court which was confirmed by the first appellate court. The defendant was also directed to pay an amount of Rs.3,450/- with interest at the rate of 6% per month and also to pay arrears of rent at the rate of Rs.1,150/- per month from 1.1.2016 till she vacates the building with interest at the rate of 6%.
3. Initially the plaintiff filed R.C.P.No.114/14 before the Additional Rent Control Court-I, Kozhikode under Section 11(2)(b) and 11(3) of the Kerala Building (Lease and Rent Control) Act. In the said proceedings, the defendant admitted the rent. However, she disputed execution of the agreement.
4. The building originally belonged to Roman Catholic Diocese of Calicut. The building owned by the Diocese is exempted from the provisions of the Kerala Building (Lease and Rent Control) Act. Therefore, the RCP was withdrawn.
R.S.A.No.1299 of 2019
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5. The plaintiff issued statutory notice on 8.12.2015 to the defendant terminating the lease granted to her. A reply was received from the defendant. Since the defendant did not surrender the building, the plaintiff filed the present suit.
6. The defendant filed written statement contending that the Roman Catholic Diocese, Calicut is neither a legal person nor an entity capable to maintain a suit of the present nature. There is no landlord-tenant relationship between the plaintiff and the defendant. No suit can be instituted based upon an unregistered lease deed. There is no valid termination of the tenancy. The plaintiff is not entitled to get any arrears of rent as claimed.
7. Necessary issues were framed by the trial court. On the side of the plaintiff, PW1 was examined and R.S.A.No.1299 of 2019 ..5..
marked Exts.A1 to A9. On the side of the defendant, DW1 was examined. No documentary evidence was adduced.
8. The trial court decreed the suit. Challenging the judgment and decree an appeal was taken. The appeal was dismissed. Feeling aggrieved, this second appeal has been preferred.
9. The learned counsel for the appellant contended that the plaintiff in his individual capacity is not entitled for exemption from the provisions of Act 2 of 1965. It was further contended that Section 106 of the Transfer of Property Act (hereinafter referred to as 'the TP Act') was not complied with before instituting the suit.
10. The building belonging to the Roman Catholic Diocese of Calicut has been exempted from the purview of the Act 2 of 1965. Hence it is not necessary to seek an eviction through the Rent Control Proceedings. Although a rent control proceeding was initiated, later it was R.S.A.No.1299 of 2019 ..6..
withdrawn.
11. The plaintiff had issued Ext.A6 notice to the defendant on 28.1.2014. The defendant issued Ext.A7 reply. In Ext.A7 reply notice, the defendant had admitted her status as a tenant under the plaintiff. Further, the plaintiff issued another notice on 8.12.2015 to the defendant. The defendant had issued Ext.A9 reply notice on 18.12.2015 to the plaintiff. In view of the above circumstances, both the trial court and the first appellate court concurrently held that the suit for vacating the premises with arrears of rent is maintainable.
12. Regarding notice under Section 106 of the Transfer of Property Act, it is seen from the postal acknowledgment appended to Ext.A8 copy of notice that its original was served upon the defendant on 9.12.2015. Thereafter the suit was filed on 28.1.2016 after the expiry of 15 days as envisaged under Section 106(1) of the TP R.S.A.No.1299 of 2019 ..7..
Act. Since tenancy has been admitted it could be only from month to month. There are no materials before this Court to hold that the building was given on lease for agricultural or manufacturing purpose.
13. The cause title of the plaintiff was subsequently amended by an order in I.A.No.1918/2017. Originally, the suit was filed by the Roman Catholic Diocese, Calicut represented by its Procurator. The suit was filed in the name of the then Procurator representing the Diocese. Roman Catholic Diocese was duly registered under the Societies Registration Act. In Ext.A7 reply notice, the tenancy was admitted.
14. The Procurator of the plaintiff was examined as PW1 and the husband of the defendant was examined as DW1. When examined before court, DW1 admitted the tenancy in respect of the plaint schedule building. It was also disclosed that the plaintiff sent another notice on R.S.A.No.1299 of 2019 ..8..
8.12.2015 to the defendant for which the defendant issued Ext.A9 reply. In Ext.A9 also the defendant admitted the jural relationship between the parties as landlord and tenant.
15. According to the learned counsel for the appellant, the Diocese of Calicut is the owner of the tenant premises as admitted by the plaintiff and therefore the plaintiff cannot file the suit in his personal capacity. To put it differently, the learned counsel for the appellant contended that the institution should be a party to the suit.
16. The Diocese of Calicut is registered under the Societies Registration Act, 1860 (hereinafter referred to as 'the Societies Act'). Section 6 of the Societies Act is relevant in this context which is extracted as under:-
"6. Suits by and against societies.--Every society registered under this Act may sue or be sued in the name of the president, chairman, or R.S.A.No.1299 of 2019 ..9..
principal secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion:
Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant."
17. Relying on Illachi Devi (D) by Lrs. and others v. Jain Society, Protection of Orphans India and others [2003 KHC 1614] the learned counsel for the respondent contended that the Procurator is competent to maintain a suit for eviction for and on behalf of the Diocese. A bare perusal of Section 6 of the Societies Act would show that a society registered under the Societies Act as contra distinguished from a company registered R.S.A.No.1299 of 2019 ..10..
under the Company Act cannot sue in its own name. It is to be sued in the name of the President, Chairman or Principal Secretary or Trustees as shall be determined by the Rules and Regulations of the Society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion. It is therefore, not correct to contend that it is capable of suing or being sued in its own name. Similar is the position decided by the Apex Court in Illachi Devi's case (supra). Ext.A1 certified copy of Memorandum of Association of Roman Catholic Diocese, Calicut, Ext.A2 certified copy of Rules and Regulations of Association of Roman Catholic Diocese, Calicut and certified copy of Certificate of Registration of Association of Roman Catholic Diocese, Calicut would irresistibly lead to the inference that the plaintiff is legally competent to maintain the suit. Initially, the Ex.Procurator instituted the suit which has been R.S.A.No.1299 of 2019 ..11..
continued by the present Procurator. There is no illegality in maintaining the suit as contended by the learned counsel for the appellant.
18. Further, the contentions raised by the learned counsel for the appellant are technical in nature. The defendant was served with notice under Section 106 of the TP Act. She received the notice and admitted the tenancy. Secondly, the Procurator of the Diocese is competent to sue under Section 6 of the Societies Act. Initially, suit for eviction was filed to evict the defendant. It was withdrawn. The present suit was instituted thereafter. The contentions raised are technical in nature to non-suit the plaintiff. In a case of this kind, attempt should be made to avoid multiplicity of suits and the landlord should not be driven to file another suit with all the attendant delay, trouble and expense. What would be given to the plaintiff in this case is possession of the R.S.A.No.1299 of 2019 ..12..
property along with arrears of rent to which he may be found to be entitled. Hence, this Court is of the view that the plaintiff should not be denied relief merely because the defendant had set up untenable contentions to avoid an eviction proceeding. The defendant has not surrendered possession of the property even after an eviction proceeding under the Rent Control Act or in the suit for eviction. It is her duty to surrender the premises subsequent to the decree passed in this case. She has succeeded in prolonging the case for the last three years.
19. Sub-section (1) of Section 100 of CPC contemplates that an appeal shall lie to this Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. The formulation of substantial question of law in terms of the proviso arises only if there are some questions of law and R.S.A.No.1299 of 2019 ..13..
not in the absence of any substantial question of law. Such substantial questions of law do not arise for consideration in this appeal. The issue of notice under Section 106 of the TP Act and the competency of the plaintiff to maintain the suit are not substantial questions of law as contended by the learned counsel for the appellant. Both issues have already been decided rightly by the trial court and the first appellate court citing various precedents of this Court and the Apex Court. Hence, the appeal is liable to be dismissed in limine.
In the result, the Regular Second Appeal is dismissed. However, the appellant is given six months' time to vacate the premises if she gives an undertaking before the executing court agreeing to surrender the premises within six months without any objection whatsoever preferably within two weeks from today. In case such an undertaking by way of an affidavit by the R.S.A.No.1299 of 2019 ..14..
appellant, executing court is directed to postpone the delivery for six months from today. There will be no order as to costs. Pending applications, if any, stand closed.
Sd/-
N.ANIL KUMAR, JUDGE skj