IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE5H DAY OF DECEMBER201314TH AGRAHAYANA, 1935 RSA.No. 797 of 2012 () ----------------------- AGAINST THE JUDGMENT
IN AS142011 of SUB COURT, QUILANDY C.S. 25 OF2003OF THE MUNSIFF COURT, KOYILANDY APPELLANT(S)/APPELLANTS12,4,5 & 6 /DEFENDANTS12,4,5 & 6 -------------------------------------------------------- 1. CHANDRASEKHARAN AGED67YEARS, PENSIONER, S/O.MADAVA MENON MUTHIRAPARMBATH HOUSE, PANTHALAYANI AMSOM AND DESOM KOYILANDI TALUK.
2. KARUNAKARAN AGED65YEARS, SWASTHAM, S/O.MADAVA MENON MUTHIRAPARAMBATH HOUSE, PANTHALAYANI AMSOM AND DESOM KOYILANDI TALUK.
3. SWAMINATHAN AGED56YEARS, OWN AFFAIRS, S/O.MADAVA MENON MUTHIRAPARAMBATH HOUSE, PANTHALAYANI AMSOM AND DESOM KOYILANDI TALUK.
4. AMRUTHA KUMAR AGED53YEARS, BUSINESS, S/O.MADAVA MENON MUTHIRAPARAMBATH HOUSE, PANTHALAYANI AMSOM AND DESOM KOYILANDI TALUK.
5. PATHMAKUMARI AGED50YEARS, SWASTHAM, D/O.MADAVA MENON WITH PERMANENT ADDRESS MUTHIRAPARAMBATH HOUSE PANTHALAYANI AMSOM AND DESOM, KOYILANDI TALUK BY ADVS.SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN RSA.No. 797 of 2012 () RESPONDENT(S)/PLAINTIFFS AND3D DEFENDANT: ------------------------------------------- 1.AND PANTHALAYANI WEAVERS PRODUCTION SALES CO-OP.SOCIETY, REGISTERED NO.716 P.O.KOYILANDY, BY ITS SECRETARY, P.NARAYANAN S/O.P.M.NAMBOOTHIRI, AGED52YEARS, PLUTHUSSERY ILLAM CHEMANCHERI AMSOM, KOLAKKAD DESOM, KOYILANDI TALUK PIN-673 305. 2.AGED BALARAMAN58YEARS, GULF, S/O.MADAVA MENON WITH PERMANENT ADDRESS, MUTHIRAPARAMBATH HOUSE PANTHALAYANI AMSOM, AND DESOM, KOYILANDI TALUK PIN-673305. R1 BY ADV. SRI.NIRMAL. S R2 BY ADV. SRI.M.R.MOUNEESH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON0512-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: N.K.BALAKRISHNAN, J.
............................................ R.S.A. No. 797 of 2012 ............................................ Dated:
05. 12-2013 JUDGMENT
Defendants 1, 2,4,5 and 6 in a suit for eviction are the appellants. The first respondent/plaintiff is a Co-operative Society. The plaint schedule building belongs to the plaintiff Society. One Madhava Menon was the original tenant of the building. The rent then payable was Rs. 300/- per month. Since there was arrears of rent, a suit for eviction as O.S. 328/1994 was filed against Madhava Menon. A compromise decree was passed in that suit on 19-9-1996. The rent was then enhanced to Rs. 375/- per month. From 2000 onwards Madhava Menon committed default in payment of rent. After his death, the defendants- his legal representatives are in possession of the suit building as tenants.
2. Notice was sent to defendants on 20-5-2002 R.S.A. No. 797 of 2012 2 terminating the tenancy. As the building was not vacated, the suit was filed for eviction and also for arrears of rent. Appellants resisted the suit contending that the suit is not maintainable as eviction has to be sought only under the provisions of Kerala Buildings (Lease & Rent control) Act, 1965 ("BRC Act" for short). The contention that the rent was kept in arrears was also denied. It was stated that the notice sent to the defendants terminating the tenancy is not valid.
3. Before the trial court, the Secretary of the Co- operative Society was examined as P.W.1 and Exts. A1 to A16 were marked. The 5th defendant was examined as DW1 and Exts. B1 and B2 were marked.
4. The trial Court found that the suit is maintainable. It was held that proper notice was sent under Sec. 106 of the T.P. Act terminating the tenancy and as such the suit was decreed for eviction and arrears of rent. The appeal filed by the appellants herein was dismissed confirming the R.S.A. No. 797 of 2012 3 decree and judgment of the trial Court.
5. The learned counsel for the appellants has vehemently argued that the plaintiff/Society is not a Society registered under the Kerala Co-operative Societies Act. Even according to the plaintiff, the Society was registered under the Madras Co-operative Societies Act, 1932 but the lease was of the year 1925 and as such the plaintiff is not entitled to the benefit of the notification issued under the BRC Act exempting the buildings under the provisions of the BRC Act, it is contended.
6. Heard both sides.
7. The main argument advanced by the learned counsel for the appellants is that even according to the plaintiff the lease was originally granted in 1925 and so it cannot be said that the Society was registered under the Madras Co-operative Societies Act, 1932. But there is evidence to show that after the commencement of the Madras Co-operative Societies Act, the lease was renewed. R.S.A. No. 797 of 2012 4 Ext. P11 is the bye-law of the Society and Ext. P12 is the Certificate of Registration dated 25-5-2005.
8. Since a contention was raised that the plaintiff- Society was not registered under the Co-operative Societies Act or the Madras Co-operative Societies Act, 1932, plaint was amended. Ext.A12 is the certificate issued by the District Industries Centre, Kozhikode. It was stated that the Society was registered under Sec. 8 of the Kerala Co-operative Societies Act, 1969. It was also stated that the General Manager of the District Industries Centre exercised the powers conferred upon him under Sec. 7 of the Kerala Co-operative Societies Act, 1969 has issued the certificate as aforesaid stating that the plaintiff/Society was registered under the Kerala Co-operative Societies Act. It was found by the lower appellate court that the bye-law Ext. A11 (the bye-law) of the Society was registered under the said Section and the Society was given the registration No. F-716. Therefore, in the light of the incontrovertible R.S.A. No. 797 of 2012 5 documentary evidence, Exts.A11 and A12, it is a futile exercise on the part of the appellants to contend that the plaintiff/Society was not registered under the Kerala Co- operative Societies Act. It was also pointed out by the learned counsel for the respondents that Ext.A14 rent deed was admittedly executed by the defendants' predecessor Madhava Menon who described himself as the tenant and the plaintiff - Society was described as the landlord. The number of Society shown therein as F-716. Even in the reply notice to Ext.A1 the suit notice, defendants admitted the tenancy with their predecessor Madhava Menon and that the plaintiff-Society was admitted as the landlord.
9. There is no dispute regarding the fact that as per the notification issued by the Government the enabling provision contained in under Sec. 25 of the Kerala Buildings ( Lease and Rent Control) Act, the Government exempted the Co-operative Society from the operation of R.S.A. No. 797 of 2012 6 Sec. 11 of the Kerala Act 2/65. There is also no dispute regarding the fact that the Madras Co-operative Societies Act had been repealed by the coming into force of the Kerala Co-operative Societies Act, 1969. Sec. 110 of the Kerala Co-operative Societies Act deals with the repeal and savings. It reads as follows:- "110. Repeal and savings :- The Madras Co- operative Societies Act, 1932 (VI of 1932) , as in force in the Malabar District referred to in sub- section (2) of S. 5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956) and the Travancore- Cochin co-operative Societies Act, 1951 (X of 1952) are repealed".
10. The non-obstante clause contained in sub section (2) of Sec. 110 of the Kerala Co-operative Societies Act makes the position clear that without prejudice to the provisions of Ss. 4 and 23 of the Interpretation and General Clauses Act, 1125, all notifications and notices issued R.S.A. No. 797 of 2012 7 under any of the Acts repealed shall, so far as may be, deemed to have been respectively made, issued and instituted under this Act. Sub Clause (ii) of Section 110 (2) says that any society existing in the State on the date of commencement of the Co-operative Societies Act which had been registered or deemed to be registered under any of the repealed Acts shall be deemed to be registered under the Act and the bye-laws of such society, shall, so far as they are not inconsistent with the provisions of this Act, continue in force until altered or rescinded. Therefore, sub clause (ii) of Sec. 110 (2) makes it all the more clear that the Society which was registered under the Madras Co-operative Societies Act 1932 shall be deemed to be registered under the Kerala Co-operative Societies Act and the Society shall continue in force until it is altered or rescinded.
11. Therefore, in the light of what is stated above, the argument vehemently advanced by the learned counsel for R.S.A. No. 797 of 2012 8 the appellants that the plaintiff-Society was not registered or cannot be deemed to have been registered under the Kerala Co-operative Societies Act, 1969 must fall to the ground. The other contention that has been raised by the appellants is that there was no proper notice under Sec. 106 of the T.P.Act and that notice was not sent to all the legal representatives of deceased Madhava Menon. The defendants are claiming under deceased Madhava Menon who was the original tenant. Notice was sent to the legal representatives of deceased Madahva Menon. Even if it is assumed that notice was not served on all the legal representatives of deceased Madhava Menon that will not in any way affect the suit since there was substantial representation of the estate of deceased Madhava Menon. Since they are claiming only as legal representatives of deceased Madhava Menon the contention that each of them should have been served with a notice is bereft of any merit. R.S.A. No. 797 of 2012 9 Sufficient time was given as provided under Sec. 106 of the T.P. Act. It was specifically stated that after 15 days of the receipt of the notice on any day which appears to the tenant as the date of entrustment the lease shall be deemed to have been determined and the building shall be surrendered. The suit was filed long after the expiry of the period aforesaid. As such the contention that the notice under Sec. 106 of the T.P. Act is bad in law is also found unsustainable. No other tenable ground survives for consideration. No substantial question of law arises in this appeal. It is hence dismissed. Dated this the 5th day of December, 2013. Sd/-N.K. Balakrishnan Judge. /truecopy/ P.S.toJudge