KORAH PUNNEN Vs. PARAMESWARA KURUP VASUDEVA KURUP
LAWS(KER)-1955-7-26
HIGH COURT OF KERALA
Decided on July 27,1955

KORAH PUNNEN Appellant
VERSUS
PARAMESWARA KURUP VASUDEVA KURUP Respondents

JUDGEMENT

- (1.) Clause.6, Clause.9(1) -- The Travancore Code (Lease and Rent) Control Order, 1950 was not intended to deal with private rights only. The Order was issued under the Travancore -- Cochin Public Safety Measures Act -- An enactment intended to avert such a situation cannot be said to be a private piece of legislation meant merely to confer certain benefits on a limited class of people. It will be an enactment based on public policy for achieving a public purpose -- The object of such an enactment cannot be achieved if parties are allowed to contract out of it Important Para(s):29 TRANSFER OF PROPERTY ACT, 1882 -- S.105 -- Easements Act, S.52 -- The distinguishing features of a lease are that there is a transfer of the right to enjoy the property which amounts to transfer of an interest in the property and that the lessee will have exclusive possession of the property -- Under the compromise there is a transfer of the right to he in possession of the building for a period of one year the consideration for the transfer being the agreement by the defendant to make periodical payments of rent at the particular rate Important Para(s):7 Civil Procedure Code, 1908 -- O.23 R.3 -- As one of the reliefs claimed in the suit was recovery of possession of the building, that portion of the compromise decree following recovery of possession of the building after the expiry of the term of one year Important Para(s):5 BUILDINGS (Lease and Rent Control) ORDER, 1950 (T.C.) -- Clause.9(1), Clause.(2)(vi) -- Suit for eviction --Maintainability of -- The wording of Sub-Clause.(2) shows that the landlord is bound to apply to the Controller if he wants to evict the tenant for any of the reasons mentioned in the sub clause Important Para(s):12 BUILDINGS (Lease and Rent Control) ORDER, 1950 (T.C.) -- Clause.9(1) -- Since the provision contained in Clause.9(1) is mandatory, and consent and compromise decrees are not exempted from the ambit of the clause -- The Court is debarred from evicting tenants in execution of compromise or consent decrees also except in accordance with the provisions of the Clause Important Para(s):14 Referred: 1889 (14) AC 228; 1940 (2) AER 601; 1926 AC 619; Referred to 1884 (9) AC 927; AIR 1953 All. 316; 1943 TLR 409; 1950 V DLRTC 421; Referred to 1953 KLT 110; AIR 1951 All. 227; AIR 1951 Assam 27; 1952 All. LJ 30; Referred to 1951 KLT 44; AIR 1953 TC 582; SA No. 296 of 1953; Referred to AIR 1954 SC 758; AIR 1954 Bom. 370; 1942 (2) AER 674; 1951 (2) KB 496; 1952 (1) AER 149; Referred to AIR 1939 All. 454; AIR 1952 Assam 21; Referred to ILR 1953 TC 706; 1122 Cochin LR 252; 1953 KLT 378; 1122 Cochin LR 436; AIR 1949 Mad. 765; 1122 Cochin 477; 1947 TLR 813; Referred to 1921 (2) KB 291; 1943 (1) KB 618; 1944 (1) KB 309; 1950 (1) KB 455; 1950 (1) KB 671; 1952 VII DLR Cal. 1; AIR 1950 Bom. 252; AIR 1948 Mad. 346; AIR 1953 Mad. 705; Referred to Advocates: K. P. Abraham; P. K. Krishnankutty Menon; K. T. Ninan; For Appellants T. K. Narayana Pillai; For Respondents JUDGMENT Travancore Cochin High Court
(2.) The defendants are the appellants. The appeal is from the decision of M.S. Menon, J., in Second Appeal No. 953 of 1952 of this Court and was filed with leave granted by him. The Division Bench before which the appeal came up for hearing referred it to a Full Bench by the following Order of Reference:- The questions of law raised in this appeal are of great importance and far-reaching consequences. The decree that is sought to be enforced against the appellants is based on a compromise entered into between the defendants and the plaintiffs in O.S. No. 191 of 1123 on the file of the District Munsiffs Court at Kottayam. In execution the defendants claimed the benefits of the Travancore - Cochin Buildings (Lease and Rent Control) Order, 1950. The decree holders maintained that the undertakings embodied in the compromise petition amount to a waiver by these tenants of the benefits which they could have availed of under the Rent Control Order and that, therefore, they cannot now invoke the aid of that Order. This contention was upheld in the decision appealed against and in doing so the decision of this Court in ILR 1953 Travancore - Cochin 30 was followed. That decision in a way supports the decree holders contention. All the same, it cannot be denied that there is considerable force in the appellants contention that the facts of that case are clearly distinguished from the fact of the present case. It is also argued that even with out any pronouncement on the questions of waiver and estoppel the decision in that case would be rested on the other aspects peculiar to that case. In the present case the questions of waiver and estoppel directly arise for decision. On these questions the view taken in ILR 1953 T.C. 30 does not appear to be absolutely in favour of the extreme position contended for on behalf of the decree holders. It has only been stated that under certain circumstances there could be a waiver of special statutory rights conferred on particular class of persons for their own benefit. On behalf of the appellants the extreme position taken is that there could be no such waiver at all. Different aspects of this question have been considered in a series of decisions by Indian High Courts and also by English Courts. It cannot be said that there has been unanimity in the views as expressed in these decisions. We think that it is very desirable that the different aspects of the points raised in this appeal are fully examined and an authoritative ruling given by a Full Bench of this Court on the question as to whether there could be a waiver of the rights conferred by the Buildings (Lease and Rent Control) Order and if so to what extent and under what circumstances. Accordingly we refer this case for decision by a Full Bench. Sd/- K. Sankaran, J. Sd/- P.K. Subramonia Iyer, J.
(3.) The suit was instituted on 8.5.1123 by the original plaintiff, who is now dead, against the first defendant, the Managing Director of a company known as Punnan and Kurup (India) Limited, for recovery of a building with arrears of rent. The second defendant company-was subsequently impleaded in the suit. After the death of the original plaintiff, plaintiffs 2 to 4, her legal representatives, continued the suit. When the suit was instituted the Travancore Buildings Rent Control Order, 1122 was in force. It was alleged in the plaint that the plaintiff was entitled to recover possession of the building as she required it for her own residence, as the rent was in default from Chingom 1123 onwards and as the defendant had denied the title of the plaintiff in the reply notice sent by him on 3.1.1123. The first defendant contended that the plaintiff had no title to the building and to the property in which it was situated and that they had been sold to him by the original owner thereof. The second defendant company-also raised the same contentions. The suit was subsequently compromised by the parties and a compromise petition was filed in court on 25.7.1951. The defendants admitted the title of the plaintiffs to the building and its site. They also paid the rent due to the plaintiffs till the end of Karkatagom 1126. The plaintiffs allowed the defendants to occupy the building for one year more from the 1st Chingom 1127 on a monthly rent of Rs. 40/-, the rent being payable before the 30th of every month. The defendants agreed to surrender possession of the building to the plaintiffs after the 31st Karkatagam 1127 (15th August 1952). If the defendants failed to surrender possession within that date of the plaintiffs could recover possession of the building by executing the decree. The defendants also agreed to pay rent at the rate of Rs. 50/- a month from the date of the expiry of the term of one year. It was provided that if default was made in the payment of the rent for any one month the defendants would be liable to pay enhanced rent at the rate of Rs. 50/- a month from the date of default and also to surrender possession even before the expiry of the term. The defendants recognized the right of the plaintiffs to be in possession of the compound in which the building is situated. The suit was decreed in terms of the compromise.;


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