Full Judgment Text
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PETITIONER:
THE SECRETARY, TALIPARAMBA EDUCATION SOCIETY
Vs.
RESPONDENT:
MOOTHEDATH MALLISSERI ILLATH M.N. & ORS.
DATE OF JUDGMENT: 03/03/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Live granted.
This appeal by special leave arises from the judgment
of the learned Single judge of the Kerala High Court, made
on June 24, 1996 in S.A. No.2/1993.
The short question that arises for consideration is:
whether the respondents are entitled to terminate the lease
granted to the appellant? Clause 6 of the lease-deed reads
as under:
"The lessee need surrender and the
lessor cannot claim to recover the
property or the management of the
institution from the Society so
long as it is used for the purpose
of an education institution. But if
it over happens that the site and
buildings are used for purpose
other than those for which they are
intended and or the lessee finds it
not possible to manage the
institution as an eduction
institution, the lessor will have
the absolute right of re-entry."
In exercise of the right under the said covenant,
notice of termination was given by the respondents.
Resultantly, the respondents filed a suit. Though elaborate
contentions were raised for grant of the relief, namely,
user of the property for cultural purposes and receipt of
the amount from such user, to allow others to trespass into
the property and make use thereof as grounds to terminate
the lease, they more negatived by civil Court. Incidentally,
it was also a lease of the management of the institution.
The trial Court as well as the appellate Court negatived the
contentions and concurrently upheld the claim of the
appellant that there was no breach of the covenant. But in
the Second Appeal, the learned Judge on appreciation of
evidence has held that the respondents had allowed the
property to be trespassed, used the property for purposes
other than the one for which it was intended and, therefore,
the respondents are entitled to terminate the lease.
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Consequently, he decreed the suit. Thus, this appeal by
special leave.
Shri Vaidyanathan, learned senior counsel for the
appellant, has contended that in view of the concurrent
findings recorded by the courts below, the view taken by the
High Court is wholly unjustifiable. We find the contention
is well founded. Shri Vishwanatha Iyer, learned senior
counsel for the respondents, has contended that in view of
the finding recorded by the High Court, the various points
discussed and the finding recorded by the Courts below the
claims made out by the respondents to have the lease
terminated is correct. Initially, under the lease a right of
property was actually granted. It was argued that since the
property was misused by the management which was handed over
to the appellant, the respondents are entitled to be
terminate the lease. We find no force in the contention. The
question whether the property was allowed to be trespassed
was gone into by the trial Court and finding was recorded
that they did not acquiesce to the trespass and in fact
there was no trespass. It has not been established that user
of the property was for purposes other than those for which
it was intended. It is true that the shops were constructed
on some portion of the land but the rent derived therefrom
is being used for the maintenance and running of the
educational institution. Therefore, the user was not
detrimental to the purpose for which lease was granted. It
is also an admitted position that some of the rooms were let
out for cultural purposes and marriage purpose, but that is
not detrimental to the running and imparting of education to
the students. Obviously, these acts are done to augment the
funds of the Society for proper management. Under those
circumstances, the trial Court and the appellate Court came
to the concurrent conclusion that there is no misuser or
contravention of covenant No.6 of the lease. The High Court
was grossly in error in trenching upon appreciation of
evidence under Section 100 CPC and recorded reverse finding
of fact which is impermissible.
The appeal is, accordingly allowed. The judgment of the
High Court is set aside. The decrees of the trial Court and
the appellate Court stand confirmed but without costs.