HAJIRA UMMA Vs. RAZAK

JUDGEMENT

(1.) DEFENDANT in O. S. No. 133 of 1981 on the file of the Sub Court, tellicherry is the appellant in the second appeal. The plaint if filed the suit for recovery of possession of the plaint schedule building, which consists of a residential building with the land appurtenant thereto having an extent of 61/2 cents. The defendant took the building on rent on 17-8-70 on a monthly rent of rs. 50/ -. The lease was for a period of six months and after the expiry of the term of the lease, the defendant was continuing as a tenant holding over on the same terms and conditions. While so, the defendant entered into an agreement with the plaintiff-respondent, wherein the defendant offered to purchase the building and the appurtenant land for a consideration of Rs. 12,500/ -. A sum of rs. 4,500/- was paid as part of the consideration and as per the agreement, I he sale deed was to be executed on 30-1-75. The plaintiff contended that the defendant committed breach of the agreement and she failed to pay the balance amount and so the sale deed could not be executed. The plaintiff filed rent control O. P. 196/76 for evicting the defendant from the suit building. The defendant contended that she had been in possession of the building as per the terms of the agreement for sale and that the Rent Control Court has no jurisdiction. The original petition was accordingly dismissed on 17-3-77, vide Ext. A20 order. Thereafter the plaintiff filed the suit for recovery of possession of the building on the strength of title. The plaintiff also claimed damages for use and occupation at the rate of Rs. 80/ -.

(2.) THE defendant opposed the suit contending that the suit is not maintainable. THE defendant denied the alleged breach of agreement. THE defendant maintained that she has been in possession of the house and the surrounding land pursuant to Ext. Bl agreement. It was also alleged that the proper remedy of the plain tiff was to file a suit for specific performance of the agreement by claiming balance consideration.

(3.) THE short question that arises for consideration is whether the civil court has got jurisdiction to pass an order of eviction against the defendant. Admittedly the building is situated within the area where the Building (Lease and Rent Control) Act is made applicable. THE plaintiff filed rent control O. P. 196/76 for evicting the defendant by invoking s. 11 (2) of the Act. This petition was dismissed by Ext. A20 order, as the defendant contended that she has been in possession of the building by virtue of the agreement. However, it is important to note that even though Ext. Bl agreement was entered into between the parties, the plaintiff has no case that the tenancy in favour of the defendant had come to an end. THE plaintiff issued a notice terminating the tenancy and after the termination of the tenancy the defendant continued as a statutory tenant. A person remaining in occupation of the premises let out to him after the determination or expiry of the period of tenancy is, commonly though in, law not accurately, called a statutory tenant. He cannot be turned out as he in entitled to the protection of the statute. This Court in Vasu v. Kallianikutty Amma (1982 KLT 53 =1982 K. L. J. 36)explained as to what is a statutory tenant. It was held: "the expression "statutory tenancy" is something coined by the courts to explain the position of a tenant who continues to be in possession of the building during the pendency of Rent control proceedings. Tenancy is strictly a matter of contract. If it is for a term it expires at the end of the term. If there is no agreed term, it can be terminated by due notice. When the tenancy is terminated either by efflux of time or by notice, the landlord - tenant relationship ceases to be there. But still the tenant cannot be turned out of the building except under the provisions of the Rent Control Act where that applies. S. 2 (6) of Act 2 of 1965 defines a tenant so as to include a person continuing in possession after the termination of his tenancy. That is, even after the termination of the contractual tenancy, he continues to be a tenant for the purpose of the Act. He will have all the rights and obligations of a tenant as defined in the Act, inspite of the termination of his tenancy. It is this peculiar position of his under the provisions of the statute that is denoted by the expression "statutory tenancy". Under the scheme of the enactment of Act 2 of 1965, a person in occupation continues to be a tenant even if the tenancy is validly terminated and he is still entitled to the protection of the Act.