IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 RSA.No. 634 of 2009() --------------------- AS.26/2007 of SUB COURT, QUILANDY OS.151/2006 of MUNSIFF COURT, QUILANDY .................... APPELLANT:APPELLANT/PLAINTIFF ------------------------------------------------- C.RAJAN,S/O.LATE KUNHIKRISHNAN NAIR, AGED 40 YEARS, BUSINESS, KRISHNA HOUSE, MOODADI AMSOM, MUCHUKUNNU DESOM, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE BY ADV. SRI.DILIP MOHAN RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------- 1. THE SECRETARY, KOYILANDY MUNICIPALITY, PANTHALAYNI AMSOM,KOTHAMANGALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. KOYILANDY MUNICIPAL COUNSEL, REPRESENTED BY ITS CHAIRMAN, KOYILANDY MUNICIPALITY, PANTHALAYANI AMSOM, KOTHAMANGALAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1417 OF 2009 IN R.S.A. NO. 634 OF 2009 DISMISSED SD/-HARUN-UL-RASHID,JUDGE 10/8/2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.634 of 2009 ---------------------------------------- Dated this the 10th day of August, 2009 JUDGMENT The Second Appeal is directed against the the judgment and decree in A.S. 26/2007 on the file of the Sub Court, Koyilandy which arises from the judgment and decree in O.S. No.151/2006 on the file of the Munsiff Court, Koyilandy. The suit for injunction restraining the defendants, from evicting the plaintiff forcefully from the premises belonging to 1st defendant-Municipality, was dismissed by the trial court and confirmed in appeal Hence the Second Appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff is conducting a workshop making gold covering and silver ornaments in the plaint schedule room belonging to the 1st defendant-Municipality. It is his case that the plaint schedule room developed leakage and parts of the concrete on the terrace started falling down and due to the repeated requests, ultimately, in the month of May 2004 the 1st defendant-Municipality started repair works. Due to the said repair works the plaintiff had to partly close the business and shift the same to another building. According to him, he had compelled to pay an amount of Rs.87,000/- as rent to the other building for 29 months at the rate of Rs. 3,000/- per month, that he had to incur expenses for shifting the materials and hence the loss caused to him is solely due to the wilful R.S.A. No. 634 of 2009 -2- negligence and omission on the part of the Municipal Authorities to do the repair works in time. It is also submitted by the plaintiff that even though he approached the defendants for getting exemption from paying the rent for the period of 29 months during which period the plaint schedule room was under maintenance, his request fall in deaf ears. The 1st defendant- Municipality also issued a notice dated 29.9.2009 demanding the rent. 3. In the written statement filed by the defendants they contended that the plaintiff is not a tenant but only a licensee, that they put up an over head roof of sheets for preventing the leakage, that nobody was directed to surrender the premises for the purpose of repair works and there was no need for the stoppage of business in the plaint schedule room due to the repair works . It is also contended by them that the plaintiff is not entitled to get any exemption from paying the rent and that the plaintiff has defaulted payment of rent for a long period. Therefore they are constrained to issue a notice to the plaintiff demanding the payment of rent. In order to avoid the payment of rent, the present suit was filed for injunction. They also contended that no attempt was made by them to evict the plaintiff by force. 4. The evidence in this case consists of the oral testimony of PW1 and Exts.A1 and A2 on the side of the plaintiff. No evidence was adduced by the defendants. 5. The trial court noticed the fact that even though the plaintiff R.S.A. No. 634 of 2009 -3- has stated that he is entitled to get an exemption of Rs. 87,000/- i.e the amount he had paid for a period of 29 months at the rate of 3,000/- per month to the other building, the only prayer in the suit is for an injunction and no relief is claimed by the plaintiff for realisation of the said amount which is alleged to be incurred due to the shifting of the materials and business. The trial court held that there is no evidence to prove that he shifted his business to another building and he paid Rs. 3,000/- per month as rent for 29 months. At the same time the defendants contended that the building required minor repairs because of the leakage and they put up overhead roof sheets and thus the leakage is solved and that for the said purpose there is no need for the plaintiff to vacate the building . 6. The trial court also considered the legality of Ext.A1 notice issued by the defendants directing the plaintiff to vacate the premises. Admittedly, the plaintiff is a defaulter of licence fee for a long period. Referring to Section 215 (8) of the Kerala Municipalities Act, the trial court held that if there is any default beyond the period for which deposit is made, it is mandatory on the part of the Secretary to demand the Licencee to remit the Licence fee together with such penalty or interest within 7 days of the service of such notice and in case of failure, the Secretary shall cause the premises to be closed down temporarily and the person or persons in occupation shall be got removed with the assistance of Police or otherwise. In such circumstances the trial court held that the plaintiff is R.S.A. No. 634 of 2009 -4- not entitled to get any reliefs as prayed for and dismissed the suit. 7. In the appeal filed by the plaintiff the lower appellate court also re-appreciated and re-considered the questions raised by him and held that the findings arrived at by the trial court on facts, circumstances and evidence, requires no interference. The lower appellate court observed that there is no material to show that the plaint schedule room was in a dilapidated condition and that the plaintiff had suffered a huge loss and earnings because of the repair works and consequent shifting of the business to the other building. The lower appellate court also observed that there is no prayer for any compensation from the defendants for the loss sustained by him by the consequent shifting of the business to other building and that the plaintiff has not brought out any material to show that he was unable to conduct the business in the plaint schedule room during the time when the repair was effected. The legality of Ext.A1 notice was also considered by the lower appellate court and held that Ext.A1 notice is a valid notice issued under the circumstances stated in the written statement filed by the defendants. Finally, the Lower appellate court agreed with the findings of the trial court and confirmed the same. 8. The findings of the courts below are based on facts evidence and circumstances. I find that no grounds are made out by the plaintiff/appellant to interfere with the findings of the courts below, by invoking this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for R.S.A. No. 634 of 2009 -5- consideration in this appeal. This appeal fails and dismissed in limine. 9. The learned counsel for the plaintiff/appellant submitted that the plaintiff is entitled to get exemption of rent for the period when the plaint schedule room was under maintenance ,that the plaintiff is compelled to shift the business to other building for the reason that he was not in a position to carryout the business in the plaint schedule room since major repair works were going on there. Even though the plaintiff approached the Municipal Authorities for getting exemption from paying the rent during the period when the plaint schedule room was under repair, the Municipal Authorities dismissed his petition in that regard. The counsel for the plaintiff/appellant requested that the plaintiff may be permitted to approach the Appellate Authority under the Municipalities Act to ventilate his grievances. In such circumstances this Court directs the Appellate Authority to consider the plaintiff's statutory appeal if the plaintiff file the same within a period of one month from today and pass appropriate orders, as expeditiously as possible without considering the question of limitation in filing that appeal (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No.634 of 2009 ---------------------------- JUDGMENT 10th August, 2009