IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 SA.No. 107 of 1995(D) --------------------- AS.27/1993 of ADDL.SUB COURT,THALASSERY OS.344/1991 of ADDL.MUNSIFF COURT,KANNUR .................... APPELLANT: RESPONDENT:1ST DEFENDANT: --------------------------------------------------------------------- THE KANNUR MUNICIPALITY, REPRESENTED BY ITS COMMISSIONER. BY ADV. SRI.ISSAC M.PERUMPILLIL SRI.R.ANILKUMAR RESPONDENTS: APPELALNT:PLAINTIFF:2ND DEFENDANT: --------------------------------------------------------------------------------------- 1. C.GOVINDAN NAMBIAR, S/O.GOVINDAN NAMBIAR, RETIRED ENGINEER, RESIDING IN TALAP, KANNUR – 2, KANNUR TALUK. 2. THE CANNANORE CO-OPERATIVE HOTEL CUM- CANTEEN EMPLOYEES SOCIETY THROUGH ITS SECRETARY K.DINESH, S/O.KUNHAMBU, RESIDING AT EDAKKAD AMSOM, ATTADAPPU DESOM, KANNUR TALUK. BY ADV. SRI.T.KARUNAKARAN NAMBIAR ) SRI.K.T.SHYAMKUMAR ) R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.1272/1998 IN S.A.NO.107/1995 DISMISSED 14/03/2008 SD/- M.SASIDHARAN NAMBIAR,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO.107 OF 1995 ------------------------------------------ Dated 14th March 2008 J U D G M E N T First defendant in O.S.344/1991 on the file of Munsiff court, Kannur is the appellant. First respondent is the plaintiff and second respondent, the second defendant in the suit. First respondent instituted the suit for mandatory injunction and permanent prohibitory injunction. Subsequently decree for damages was also sought. Plaint schedule property is room No.6 of a three storied building in the Municipal shopping complex in Pattalam road. Building belongs to the appellant Municipality. Room No.6 was admittedly obtained by the first respondent as per proceeding dated 5/6/1989 on a monthly licence fee of Rs.441/-. He is conducting his office, where he is rendering technical assistance in the construction work. He is a retired public health Engineer. Upstair portion of the building and the remaining portion of the ground floor were rented out to the second respondent. Second respondent was conducting SA 107/1994 2 tourist home by name Canco Tourist Home. First respondent contended that the appellant was negligent in maintaining the building and there was leakage to drainage pipe of the upstair portion of the building and as a result filthy water from the drain pipes started entering the the plaint schedule room causing damages to the furniture, carpets and other fittings. According to the first respondent, he orally and in writing requested second respondent to effect repair and second respondent did not do anything. It was alleged that he also informed the appellant Municipality to carry out the repair but the appellant was negligent in carrying out the work and as a result, damage was caused to furniture and other articles. Appellant sought a decree for mandatory injunction directing the appellant to restore water pipe and drainage pipes to its original condition and a permanent prohibitory injunction restraining appellant and second respondent from using the first floor of the building causing damages to the plaint schedule room. After the Commissioner submitted a report assessing the damages, plaint was amended claiming Rs.5,000/- as damages. Appellant filed a written statement contending that Municipality was not negligent in maintaining the SA 107/1994 3 building and damage to the pipe or drain was not brought to the notice of the Municipality and as and when the lawyer notice was received, the Municipality had taken steps to repair the damaged pipes and they were repaired and first respondent is not entitled to the decree sought for. It was contended that suit was filed by first respondent in collusion with second respondent to avoid payment of licence fee and therefore suit is to be dismissed. Second respondent in the written statement contended that he did not cause any damages to the building or the pipe. He admitted that drainage pipes were damaged and it is not due to his action and he is not liable for damages. 2. Learned Munsiff on the evidence of PW1, Exts.A1 to A8, B1 to B3 and C1 found that damages were already rectified by the Municipality and held that first respondent is not entitled to the decree for injunction, either mandatory or temporary. Learned Munsiff further found that there is no evidence to prove that appellant was apprised of the damages caused to the pipe or drainage and immediately after getting Ext.A2 notice, Municipality carried out the repair and therefore Municipality is not liable to pay any damages. Suit was dismissed. SA 107/1994 4 3. First respondent challenged the judgment before Sub court, Thalassery in A.S.27/1993. Learned Sub Judge on re-appreciation of evidence confirmed the findings of the learned Munsiff that as the damage caused to the drainage pipe were already repaired, first respondent is not entitled to the decree for injunction both mandatory and prohibitory. But accepting Ext.C1 report, learned Sub Judge found that damage was caused to the furniture and other articles of first respondent and quantum of damage is Rs.5,000/-. Without a specific finding that damage was caused by the appellant, learned Sub Judge directed the appellant to pay damages. Suit was decreed directing appellant to pay damages of Rs.5,000/- with interest at 6% from the date of the suit. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. 1) In the absence of clear evidence as to at whose instance the alleged injury was caused, can the court below award damages recoverable from the appellant Municipality. 2) In the absence of a provision to attend annual maintenance whether the first appellate court was justified SA 107/1994 5 in directing the appellant to pay damages. 5. Learned counsel appearing for appellant was heard. 6. First respondent is admittedly a licensee in possession of the plaint schedule room belonging to the appellant Municipality. First respondent instituted the suit for permanent prohibitory injunction as well as mandatory injunction. Trial court and first appellate court found that complaint of the first respondent that he cannot use the plaint schedule building because of the non repairing of the drainage pipe of the first floor of the building was repaired subsequent to the institution of the suit and so first respondent is not entitled to the decree for mandatory as well as prohibitory injunction. Though trial court dismissed the claim for damages, first appellate court granted the damages. As rightly argued by the learned counsel appearing for appellant, when the trial court specifically found that appellant was not informed of the damages or the necessity to repair the pipes or the drainage, it cannot be said that appellant was liable for damages. First appellate court did not enter a specific finding that appellant caused damages SA 107/1994 6 or was negligent in carrying out the repair work. On the other hand, based on Ext.C1 report first appellate court fixed damages at Rs.5,000/- and without a finding that appellant caused damages or considering whether appellant in law is bound to pay damages, judgment of the trial court was reversed and appellant was directed to pay damages. That finding of the first appellate court, without a finding on the liability of the appellant is not sustainable. 7. When first respondent has no case in the plaint that after the appellant noticed the damages to the pipe or the drainage, he had intimated the appellant or requested the appellant Municipality to carry out the repair. When examined as PW1, case of the first respondent was that he had orally requested second respondent to carry out the repair work and on the failure he sent a letter to second respondent to carry out the repair. He no case that he has requested the Municipality before sending Ext.A2 notice to carry out repair. In such circumstances trial court was perfectly justified in holding that first respondent at no point of time before sending Ext.A2 notice intimated the appellant Municipality that damage was caused to the drainage pipe SA 107/1994 7 of the first floor of the building causing damage to his room. He has also not requested the Municipality to effect repair work. In such circumstance, it cannot be said that the appellant was negligent in maintaining the building or carrying out the necessary repair. If first respondent had directed the appellant Municipality in writing to carry out repair and due to the negligence of the Municipality, damage was caused appellant Municipality would be liable to pay damages. When even according to first respondent, appellant Municipality was not informed about the damage caused to the pipe and drainage on the first floor and after getting Ext.A2 notice repaired the damages, it cannot be said that appellant was responsible for the damages if any, caused to the room obtained by the first respondent or the articles or furniture kept therein. In such circumstances, first appellate court was not justified in granting a decree against the appellant. Appeal allowed. Decree granted by the Sub court, Thalassery in A.S.27/1993 is set aside. The judgment of the trial court in O.S.344/1991 is restored. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 107/1994 8 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.107 OF 1995 14th March 2008 ============================