Point of Law: Housing Board – Jurisdiction - A provision of law ousting the jurisdiction of Civil Court, is to be strictly construed.

JUDGMENT :

This Regular Second Appeal is filed by the plaintiff, challenging the concurrent dismissal of his suit for a declaration that, Ext.A9 order passed by the defendant-Kerala State Housing Board, is illegal. The issue involved relates to, rent payable for the tenanted premises.

2. The plaintiff was the lessee of the first defendant-Housing Board (hereinafter referred to as, “the Board”), in respect of a room in the shopping complex belonging to the Board. Ext.A1 is the lease agreement dated 02.05.1983 executed in the said regard. The period of lease was for one year from 02.05.1983. Ext.A1 lease deed contained a clause enabling renewal of the lease on an enhanced rent of 10%. According to the plaintiff, on the expiry of the original term of one year, he continued as a lessee by payment of the original rent, without renewal of the lease. Ext.A3 preliminary order was issued by the Board to the plaintiff under Section 85(1) of the Kerala State Housing Board Act, 1971, (hereinafter referred to as, “the Act”), requiring to vacate the leased premises consequent on arrears of rent. According to the plaintiff, though the provisional order was objected to and was pending consideration, he was evicted from the premises on 06.11.1991. Subsequently, the Board issued Ext.A4 notice dated 20.03.1992, in terms of Section 86(1) of the Act, requiring the plaintiff to pay the arrears of rent in terms of Ext.A1 agreement. The same was objected to by him as per Ext.A5 reply contending that, after expiry of the original term fixed under Ext.A1 agreement he was continuing on the same terms and conditions of Ext.A1, that he had been paying the rent, and that the due is only Rs.16,238.40. He also sought for a detailed statement of accounts. Thereafter the Board issued Ext.A6 order dated 10.10.1992, under Section 86(1) of the Act, requiring the District Collector to recover the arrears of rent through revenue recovery proceedings. The same was challenged by the plaintiff before this Court in OP 14404/1992. As ordered by the Court, an amount of Rs. 16,000/-, being the admitted arrears of rent, was paid by the plaintiff. This Court, as per Ext.A18 judgment, granted an opportunity to the parties to have the accounts settled. Pursuant thereto, the plaintiff submitted Ext.A8 objections regarding the calculation of rent made by the Board. On consideration of the same, the Board passed Ext.A9 order dated 07.11.1998, requiring payment of the amount as mentioned therein as arrears of rent, and justifying its earlier proceedings. Challenging the same, the plaintiff approached this Court in OP 1737/1991. In the Writ Appeal that arose therefrom, as WA 1050/1999, the Division Bench as per Ext.A10 judgment, noticed that disputed facts are involved, and relegated the plaintiff to the remedy by way of a civil suit for appropriate relief. It is pursuant thereto that the suit has been filed challenging Ext.A9 order.

3. The Board relied on the clause in Ext.A1 agreement for renewal of the lease at an enhanced rent, and justified its demand for the enhanced rent. The jurisdiction of the civil court to entertain the suit was also challenged.

4. The trial court held that, on expiry of the original period fixed under Ext.A1, the plaintiff was liable to pay enhanced rent in terms of the renewal clause and that the same is liable to be recovered as damages. It was also held that, there is an express bar of jurisdiction of the Civil Court under Section 89 of the Act. On appeal by the plaintiff, the first appellate court found that the plaintiff has a right of appeal in terms of Section 87 of the Act, and that, on exhausting the said remedy it shall be open for the plaintiff to file a suit in the light of the directions of the Division Bench of this Court in Ext.A10 judgment in WA 1050/1999. It is aggrieved thereby that the Regular Second Appeal is filed.

5. Heard learned counsel Sri.M.Narendra Kumar on behalf of the appellant-plaintiff, Sri.Harish Vasudevan the learned Counse