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Judgment
Justice Thomas P. Joseph
The respondent appeared through counsel. The Second Appeal arises from the judgment and decree of the Sub Court, Cherthala in A.S. No. 67 of 2008 modifying the judgment and decree of Additional Munsiff''s Court, Cherthala in O.S. No. 592 of 2004 to the extent of claim for damages for unauthorized use and occupation.
The respondent is a Church, represented by its Vicar and the Trustee. It claimed that the shop room referred in the plaint schedule was let out to the appellant as per Ext.A1, rent deed dated 01.12.1994 for eleven months on rent at the rate of Rs. 65/- per month. The rent is in arrears for May and June, 2004. Exhibit A5, notice was issued to the appellant terminating the tenancy and demanding vacant possession and payment of rent arrears. That demand was not complied by the appellant. Hence the suit.
The appellant contended that the respondent has no right to institute the suit since the property belonged to Parayil family and there is an ongoing litigation between the Church and that family in the Sub Court, Cherthala as O.S. No. 5 of 1996. According to the appellant, the appeal arising from that suit is pending. The appellant is in possession of the shop room from 1965 onwards (on rental arrangement) and the rent payable then was Rs. 10/- per month. Later, the adjacent room was also given to the appellant on rent and the rent was enhanced to Rs. 12/- per month. As requested by the respondent, the appellant surrendered the shop rooms for renovation. After renovation it was given to the appellant for a monthly rent of Rs. 20/-. Later the Vicar of the Church filed O.S. No. 317 of 1993 for eviction of the appellant. That suit was settled and Ext.A1, lease deed was executed on 01.12.1994.
The respondent filed a replication contending that it purchased the suit property as per document No. 3286 of 1084 and that the decision in O.S. No. 5 of 1996 has nothing to do with the present litigation. It was also contended that in O.S. No. 317 of 1993 the appellant has admitted title of the respondent.
The trial court found in favour of the respondent and granted a decree for eviction with recovery of rent arrears for May and June, 2004 and damages for use and occupation at the rate of Rs. 1,000/- per month from 01.07.2004 with interest at the rate of 6% per annum from the date of decree.
The appellant challenged that judgment and decree in A.S. No. 67 of 2008. The learned Sub Judge while confirming the finding by the trial court modified the decree for recovery of damages to Rs. 100/- per month from 01.07.2004. Other part of the decree was confirmed. The modified judgment and decree of the first appellate court are under challenge in this Second Appeal.
The learned counsel for the appellant contended that title of the respondent in the suit property is not established since that matter is pending decision in O.S. No. 5 of 1996. It is also contended that the courts below were not correct in deciding the issue based on the principle of estoppel.
The learned counsel who took notice for the respondent contended that O.S. No. 5 of 1996 was dismissed for default and that suit is not pending. It is also pointed out that Exts.A8 and A9 estopped the appellant from denying the title of the respondent.
Exhibit A8 is the compromise petition filed by parties in O.S. No. 317 of 1993 and Ext.A9 is the compromise decree following Ext.A8. It is admitted by the appellant also that it is acknowledging the title of the respondent that he has entered into Ext.A8 compromise petition, got Ext.A9, compromise decree and took advantage of that by obtaining a fresh lease as per Ext.A1 dated 01.12.1994. Even in the present litigation there is no dispute that the suit property was let out to the appellant by the respondent. In that view of the matter the appellant could not deny title of the respondent even as provided u/s 116 of the Evidence Act. Hence the contention that the respondent was not competent to file the suit for eviction against the appellant cannot stand.
The learned counsel for the appellant submitted that there is a possibility of the matter being settled between the appellant and respondent in negotiation in which the case appellant expects to get a fresh lease of the premises. That is a matter which the parties can look into and decide as they agree to. This Court need not interfere in that matter.
It is lastly submitted that the appellant is aged about 78 years and is engaged in business in the scheduled premises. Since the appellant could not receive notice in the execution petition, it is submitted that the respondent has put up an additional lock for the shop room. In the circumstances the appellant is not able to open the shop room. The learned counsel has requested six months'' time to vacate in case no fresh lease deed is executed between the parties.
The learned counsel for the respondent submitted that having regard to the facts and circumstances no further time is required to be granted. It is also submitted that rent arrears and damages for use and occupation all are remaining unpaid.
Having regard to the difficulties of the appellant stated by the learned counsel I am inclined to grant some time to the appellant to vacate. I make it clear that if in the meantime parties wanted to settle the dispute it is for them to look into that matter. The Second Appeal is dismissed. However the appellant is granted time till 17.05.2013 from this day to vacate the schedule room subject to the following conditions.
(i) By the expiry of 17.05.2013, the appellant shall vacate the suit property without putting forth any claim or objection on any ground whatsoever.
(ii) The appellant shall not, during the said period or till he vacates the shop room, whichever is earlier cause damage to the suit property, assign his right or induct third parties into possession.
(iii) The appellant shall within two months from this day pay/deposit in the executing court for payment to the respondent the entire rent arrears and damages for use and occupation payable till this day as per the decree of the first appellate court.
(iv) The appellant shall continue to pay/deposit in the executing court for payment to the respondent damages for use and occupation at the rate fixed by the first appellate court from this day till 17.05.2013 or till he vacates, whichever is earlier, on or before the 19th of the succeeding month and if that day happens to be a holiday, the payment/deposit shall be made on the next working day.
(v) The appellant shall file an affidavit in the executing court within two (2) weeks from this day undertaking to comply with the above conditions.
(vi) If any of the above conditions is violated, it will be open to the executing court to proceed with the execution.
(vii) The respondent is directed, if it has put up additional lock for the shop room to remove the same within two weeks from this day so that it will be open to the appellant to open the shop room and be in enjoyment thereof during the period granted hereby.
(viii) It is further directed that the delivery proceedings will stand in abeyance upto 17.05.2013 or till the appellant vacates the shop room or till any of the conditions mentioned in clauses (i) to (v) is violated, whichever is earlier.