IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 AS.No. 577 of 1994() -------------------- OS.26/1991 of SUB COURT, KASARAGOD .................... APPELLANTS:DEFENDANTS ----------------------------------------- 1.STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KASARAGOD. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS TRIVANDRUM 3. DEPUTY DIRECTOR OF EDUCATION KASARAGODE BY GOVERNMENT PLEADER SRI.T.K.SAJI RESPONDENT: PLAINTIFF ------------------------------------ SMT. AMINA UMMA ADV. SRI.K.G.GOWRISHANKAR RAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/09/2009, ALONG WITH AS NO. 742 OF 1994 AS NO. 578 OF 1994 AS NO. 46 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 3564 OF 1994 IN A.S. NO. 577 OF 1994 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 17.9.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.Nos. 577, 578 & 742 of 1994 and A.S.No. 46 of 1996 ---------------------------------------- Dated this the 17th day of September, 2009 JUDGMENT Two original suits viz. O.S.No. 26/1991 and 139/1992 are filed before the Sub Court, Kasaragod , by the plaintiff against the State of Kerala and 2 others for arrears of rent with future interest at the rate of 10% per annum with costs. A.S. Nos. 577 and 578 of 1994 are filed by the State of Kerala and two others ( defendants in the suits) challenging the common judgment and decree in the above mentioned suits. While A.S. Nos 742 of 1994 and 46 of 1996 are filed by the plaintiff in the suit against the decision of non-awarding of cost by the trial court. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suits. 2. The trial court decreed O.S. No. 26/1991 allowing the plaintiff to realise Rs. 43,419.75 with future interest at 10% per annum on Rs. 43,420/- and O.S No. 139/1992 is decreed allowing the plaintiff to realise the balance suit claim of Rs. 1687.20 with future interest at 10% per annum on Rs.1687. In both suits the parties are directed to bear their respective costs 3. In O.S. No. 26/1990 the plaintiff claims rent arrears from 1.11.1982 to 31.12.1990 at the rate of Rs.879/- per month In OS. No. 139/1992 the plaintiff claims the arrears of rent for the subsequent period. A.S.Nos. 577, 578 & 742 of 1994 and A.S.No. 46 of 1996 -2- 4. After taking into account the contentions of the parties,the trial court held that the suit claim in O.S. No. 26/1991 as far as it relates to the arrears of rent is fully admissible and with regard to the suit claim in O.S. No. 139/1992 also so far as it relates to the arrears from 1.1.1991 is also admissible and it having been discharged by the State, what remains now is only the question of interest as claimed by the plaintiff. It is contended by the defendants that the interest is not payable as there is no covenant in Ext.B1 lease deed. Having found that the State has defaulted the payment of rent from 1.11.1982 the trial court held that it is only just and proper to impose interest for the delay in paying the rent . So the trial court rightly held that the defendants are liable to pay interest at 10% per annum on the arrears of rent for the delay caused. I am also of the view that the trial court is perfectly justified in holding so ,since Ext.B1 does not prohibit interest on the delayed payment of rent. 5. As I stated earlier the suit claim by the plaintiff in both cases is fully admissible. It is to be noted that the suit claim in O.S. No. 26/1991 was Rs. 1,02,827.75. Deducting Rs. 59,408/- paid by virtue of the interim decree and judgment passed by the trial court on 24.1.1992, the balance suit claim works out to Rs. 43,419.75. With regard to O.S. No. 139/1992 the suit claim was Rs.20,146.20. The State has discharged Rs.18,459.00 Deducting that amount the plaintiff is entitled for a decree of Rs. 1687.20 in O.S. No. 139/1992. The above said interim decree and A.S.Nos. 577, 578 & 742 of 1994 and A.S.No. 46 of 1996 -3- judgment are remained unchallenged. 6. During the pendency of these appeals the defendants filed C.M.P. 4081/1994 in A.S. No. 577 of 1994. In the affidavit filed in support of the above said C.M.P it is averred that in fact the defendants paid entire arrears and according to them they have paid excess amount of Rs. 8790./- to the plaintiff since there was a direction by the trial court during the trial to remit an amount of Rs. 59,408 /- The defendants also produced the details of rent paid to the plaintiff along with the affidavit in the list showing the mode, rate and the amount paid. They have also claimed that the additional documents produced before this Court along with the C.M.P. No. 4081 of 1994 in A.S. No. 577 of 1994 would undoubtedly show that the entire arrears is discharged by the defendants. I find that the additional documents produced, shows that there is excess payment by the defendants. So the suits are remanded to the trial court for a fresh adjudication. I am of the view that for a proper adjudication of the dispute the trial court shall also take into consideration the additional documents on record. C.M.P. No. 4081/1994 in A.S. No.577 of 1994 is allowed. 7. A.S. No.742/1994 and A.S. No.46/1996 are filed by the plaintiff challenging the decree and judgment to the extent of not allowing the costs by the trial court. The reason stated by the trial court that the due to the financial crisis, the State was unable to pay the rent in time and A.S.Nos. 577, 578 & 742 of 1994 and A.S.No. 46 of 1996 -4- therefore the plaintiff was not entitled to cost of the suits is not sustainable in law. Admittedly defendants committed default in paying the rent and hence certainly the plaintiff is entitled to the cost of the suits. Since the cause of action the suits have arisen due to the failure of the defendants in paying the rent amount regularly, the plaintiff was compelled to approach the court. Since the plaintiff had to pay more than Six thousand rupees as Court fee alone and the plaintiff is a poor widow, the trial court shall consider the question of awarding cost to the plaintiff while disposing of the suits afresh after the remand. In the result, the judgment and decree passed by the trial court in O.S. No. 26/1991 and 139/1992 are set aside and remanded to the trial court for denovo consideration. The trial court shall try and dispose of the suits within a period of 9 month from the rate of receipt of a copy of this judgment. The parties shall appear before the trial court on 8.10.2009. Both parties have the liberty to adduce fresh evidence if any before the trial court. No order as to costs. The plaintiff is entitled to refund of court fee. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.Nos. 577, 578 & 742 of 1994 and A.S.No. 46 of 1996 ---------------------------- JUDGMENT 17th September, 2009