ANANDAN NADAR Vs. RAMACHADRA MENON

JUDGEMENT

(1.) The validity of a clause in an agreement between a tenant and a landlord by which the tenant undertook to remove the building occupied by him after a period of 3 years from the commencement of tenancy is the matter of controversy in this Second Appeal. Whether such a clause is opposed to public policy in view of the protection given to a tenant under the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short the Act) was considered by the Division Bench to be of sufficient importance to merit consideration of the case by the Full Bench. The case has thus come up before us.

(2.) The dispute concerns a thatched shop building consisting of 3 rooms situate in a property of 43 cents in Peroorkada which is within the city of Trivandrum. One Sri Pandit was the owner of the property described as A schedule in the plaint, 43 cents in extent. That was purchased from him by the first plaintiff under a sale deed Ext. P1 of the date 3-8-1961. At that time the Property was outstanding on lease with one Parameswaran Pillai, the deceased father of the first defendant and the brother inlaw of the second defendant. While holding under the lease the said Parameswaran Pillai constructed a shop building therein and occupied it for his business. The said building is the B schedule in the plaint. The right of Parameswaran Pillai devolved on the defendants and the mother of the first defendant. They executed a deed of surrender to the first plaintiff on 30-8-1961 surrendering the lease. Ext. P2 is the copy thereof Defendants 1 and 2 then took the said shop building with the three rooms numbered as T.C. 217, 219 and 220 under a rental arrangement. This was from the first plaintiff and was on the very date of Ext. P2 surrender of the earlier lease of the property. This building is described as B schedule in the plaint standing in the portion of the A Schedule.43 cents. Under Ext P3 the rent deed, the defendants agreed to pay the first plaintiff rent of Rs. 18/- per annum The term was fixed as 3 years. It was further provided in that agreement" Ext. P3, that to enable the landlord to construct a new shop building on the site of the rented premises the defendants would remove the building in existence on the expiry of the period of 3 years, that this will be done at their expense, and that on surrendering vacant possession of the site to the first plaintiff one of the rooms in the new building to be constructed by him will be let out to the defendants in the suit. If by reason of the failure of the defendants to demolish the building on the expiry of 3 years hindrance is caused to the construction of the building by the first plaintiff it was agreed that the first plaintiff was free to remove the building after giving two weeks' notice. The term of 3 years fixed under Ext P3 expired. The first plaintiff called upon the defendants to remove the shop building occupied by them. The defendants did not comply. Thereupon the suit from which this second appeal has arisen was filed by the plaintiffs second plaintiff being the power of attorney holder of the first plaintiff The plain tiffs aver that by the failure of the defendants to remove the building on the expiry of the period of 3 years and that in spite of demand the plaintiffs hare become entitled to seek removal through court and seek vacant possession of the plot. It is also prayed that the building may be declared as belonging to the plaintiff. The suit was resisted by the defendants. The defence was that there was no voluntary consent by the defendants to the surrender of the earlier lease held by Parameswaran Pillai under Ext. P2 and that Ext P3 rent deed which followed was also without the voluntary consent of the executants It was also pleaded that the provisions of Act 1 of 1964 conferred the benefit of permanency of tenure on the defendants and therefore the plaintiff was not entitled to get any of the reliefs prayed for in the plaint.

(3.) The suit had a chequered career. It was originally decreed by the Second Additional Munsiff, Trivandrum by judgment dated 17-2-1967. The right of the first plaintiff to the decree schedule property was declared and the defendants were directed to remove the building within 3 months. The appeal filed by the second defendant against that decree was allowed. The appellate Court, in reversing the decree passed by the learned Munsiff, accepted the contention of the second defendant urged in appeal that there was no valid notice to quit prior to the institution of the suit and also accepted the case that the agreement, Ext. P3, should not be given effect to as the agreement was void for the reason that it purported to waive the right of the tenant under the Act. The plaintiffs took the matter to this court in S. A. 610 of 1968. This court set aside the judgment of the District Court, Trivandrum in appeal since it was noticed that the plea which succeeded before the District Court had not been set up in the pleadings of the defendants. The matter was directed to be considered afresh and the defendants were given an opportunity to amend their written statement. After the suit stood remitted to the District Court such amendment of the pleadings was sought by the second defendant. It was contended by way of amendment of the written statement that the plaintiffs can seek relief in regard to the building in the suit only in accordance with S.11 of the Act and that any provision in the rent deed which infringes the right to the benefit under the said Act ought not to be considered as valid and therefore the plaintiffs would not be entitled to relief. It was also contended that notice under S.106 of the Transfer of Property Act had not been issued. The District Court allowed the appeal. The appellant before the Court below succeeded in his plea that the provisions of the Buildings (Lease and Rent Control) Act being applicable the provision contained in Ext. P3 to the effect that defendants will have to vacate the building by demolishing the same after the expiry of 3 years from the date of execution of Ext. P3 was a provision which will set at naught the safeguards given to the tenants under S.11 of the Act and such benefit could not be waived. The second appeal to this Court was against this judgment. In view of the importance of the question arising for decision in the Second Appeal, our learned brother Balagangadharan Nair J. before whom the case came up referred the case to a Division Bench. V. P. Gopalan Nambiyar J. and T. Chandrasekhara Menon J. before whom the appeal came up have referred this case to the Full Bench.