IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 RSA.No. 41 of 2010() -------------------- AS.99/2004 of SUB COURT,ATTINGAL OS.167/1998 of MUNSIFF COURT,VARKALA .................... APPELLANT/ APPELLANT/DEFENDANT --------------------------------------- AMEERUDHEEN, S/O. ABDUL MAJEED, AGED 37 YEARS,ANEEZA MANZIL VANDITHADAM, KUDAVOOR DESAM, KUDAVOOR VILLAGE. BY ADV. SRI.M.ZIYAD ADV. SRI. SANU S PANICKER RESPONDENT/RESPONDENT/PLAINTIFF ------------------------ 1. VASUDEVAN, S/O. KUNJAN AGED 66 YEARS, PRASAD BHAVAN, THOTTAKADU, KARAVARAM VILLAGE. 2. LALITHA, W/O. VASUDEVAN, AGED 54 YEARS, PRASAD BHAVAN, THOTTAKADU, KARAVARAM VILLAGE, REP. BY POWEER OF ATTORNEY HOLDER THULASEEDHARAN S/O.JANARDHANAN, 47 YEARS, PADMA DANE, THANNAKKAL VELLOOR VILLAGE, TRIVANDRUM. ADV. SMT.K.KUSUMAM (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.41 of 2010 --------------------------------------- Dated this 11th day of March, 2010 JUDGMENT The only challenge in this second appeal arising from judgment and decree of learned Sub Judge, Attingal in A.S.No.99 of 2004 confirming decree for eviction passed by learned Munsiff, Varkala in O.S.No.167 of 1998 is whether courts below erred in not holding that at the time of the entrustment respondents had taken a sum of Rs.1,50,000/- by way of security from the appellant. 2. It is not disputed before me that respondents owned the shop rooms referred to in plaint schedule and the same were let out to the appellant as per Ext.A7, lease deed dated 10-06-1997 for a period of one year which expired on 09-06-1998. Respondents issued Ext.A2, notice dated 20-05-1998 terminating tenancy by the midnight of 09- 06-1998 and demanding vacant possession with rent arrears. Appellant contended that the entrustment was on 01-05-1994 and from then onwards he is engaged in business in the shop rooms. At the time of that entrustment, father of respondent No.2 had taken Rs.1,50,000/- by way of security to be returned at the time of his vacating the shop rooms. He denied that there is rent arrears as pleaded by the respondents. The further contention is that termination of tenancy is not valid. Learned Munsiff answered the issues in favour R.S.A.No.41 of 2010 2 of the respondents and decreed eviction with rent arrears of Rs.7200/- and damages for use and occupation at the rate of Rs.1200/- per month from 10-06-1998 till surrender of possession. That was challenged by the appellant before the learned Sub Judge in A.S.No.99 of 2004. While so, on 25-08-2005 taking a cue from the observation made by learned Munsiff in his judgment appellant filed I.A.No.1556 of 2005 seeking amendment of the written statement (dated 08-03-2000) to incorporate a counter claim for a decree for recovery of the said sum of Rs.1,50,000/-. That application was dismissed. The appeal also was dismissed. Hence this second appeal raising by way of substantial question of law whether the first appellate court was justified in concluding from the evidence of PW1, power of attorney holder of respondent that no amount was paid by the appellant by way of security at the time of original entrustment. Learned counsel would contend that even as per evidence of PW1, power of attorney holder of the respondent he has knowledge about the entrustment from 1997 alone, evidence would show that the first entrustment was in the year 1994 and hence PW1 could not have given contra evidence regarding payment of security. According to the learned counsel, refusal of respondents to mount the witness box should have resulted in adverse inference being drawn against them. Evidence of DW1 ought to have been accepted. It is also contended by learned counsel that first appellate court went wrong in dismissing I.A.No.1556 of 2005 for R.S.A.No.41 of 2010 3 amendment of written statement to incorporate the counter claim. Learned counsel for respondents supported judgment and decree of the courts below. 3. As I stated the only issue now surviving for a decision is whether finding of the courts below as to the alleged payment of security at the time of entrustment in the year 1994 is erroneous. Though Ext.A7, lease deed is dated 10-06-1997 evidence of PW1, power of attorney holder of respondents would indicate that even from 1994 onwards appellant has been in possession of the shop rooms. Appellant has produced some documents also to show that he was doing business in the said shop rooms even prior to Ext.A7 dated 10- 06-1997. But, that does not by itself take the appellant anywhere. The question of drawing adverse inference due to non examination of respondents arises only when acceptable evidence has been let in by the appellant and respondents are required to adduce contra evidence. It is not as if whenever a party to the proceeding failed to mount the witness box court is obliged to draw an adverse inference against him. So far as evidence of alleged payment of security is concerned, it is true that DW1 has given evidence but, that evidence has been challenged in cross examination. Cross examination is a mode of discrediting version of the witness. In this case there is successful challenge to the evidence of DW1 regarding the alleged payment of Rs.1,50,000/- by way of security in the year 1994. Appellant has no R.S.A.No.41 of 2010 4 case that he paid the amount to any of the respondents. According to him, at a time when respondents were abroad and entrustment was done through the father-in-law of respondent No.2, he made the payment to the father-in-law of respondent No.2. Learned counsel for appellant submits that the father-in-law of respondent No.2 was not alive at the relevant time and hence could not be examined. What is available is only the interested version of appellant as DW1 which by itself is not sufficient. I must also bear in mind that in Ext.A7, lease deed dated 10-06-1997 admittedly there is no reference to any payment by way of security to or on behalf of the respondents. It is in these circumstances courts below found against the plea of security paid to the respondents. 4. So far as dismissal of I.A.No.1556 of 2005 is concerned, that application was filed on 25-08-2005, while the suit demanding eviction was filed in the year 1998 and appellant written statement on 08-03-2000. It is true that counter claim can be made even after filing written statement but, in respect of a cause of action which has accrued to the appellant before filing the written statement. Assuming that alleged cause of action accrued to the appellant before filing of written statement, when the counter claim is preferred it must be within the period of limitation. Here written statement itself was filed on 08-03-2000 and I.A.No.1556 of 2005 is filed in the first appellate court on 25-08-2005 and hence at any rate beyond the time prescribed R.S.A.No.41 of 2010 5 for realisaiton of the amount allegedly paid to the respondents by way of security. Dismissal of I.A.No.1556 of 2005 is legal and proper. On going through the judgment under challenge, perusing the deposition of PW1 and DW1 and hearing learned counsel on both sides I am not satisfied that any substantial question of law is involved in the appeal requiring decision. 5. Learned counsel requested that six months' time may be granted to the appellant to vacate the shop rooms. According to learned counsel, appellant has to find out an alternative accommodation for his business. Learned counsel for respondent submits that respondents are senior citizens and are in dire need of the shop rooms. Having regard to the circumstances stated by learned counsel on both sides, I am inclined to grant three months' time from this day to vacate the shop rooms but on condition that entire arrears of rent and damages for use and occupation as awarded by learned Munsiff till 31-03-2010 shall be deposited in the trial court on or before 31-03-2010 and appellant continued to pay damages at the rate awarded by the learned Munsiff from 01-04-2010 till the time granted hereby expires or appellant vacates the shop rooms whichever is earlier. Damages payable from 01-04-2010 deposited on or before the 5th day of the succeeding month. Appellant shall file an affidavit in the trial court within three weeks from today undertaking to comply with the above terms and conditions and to vacate the premises on the R.S.A.No.41 of 2010 6 expiry of the time granted hereby without putting forth any claim or objection whatsoever. Resultantly the second appeal is dismissed in limine granting three months' time to the appellant to vacate the shop rooms subject to the terms and conditions stated above. THOMAS P JOSEPH, JUDGE Sbna/