IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 AS.No. 691 of 1999(C) --------------------- OS.246/1994 of SUB COURT, KOTTARAKKARA .................... APPELLANT(S): DEFENDANT -------------- P.B. VENU, PUSHPAMANGALAM, BHARANIKAVU, PUNALOOR P.O. BY ADV. SRI.P.B.SURESH KUMAR(QUILON) RESPONDENT(S): 2ND PLINTIFF & ADDL. 3RD PLAINTIFF --------------- 1. K. PRIYADARSI, AYURVEDIC PHYSICIAN, AGED 44, CHEMBAKASSERY VEEDU, KAKKODU P.O., PUNALUR. 2. SUBADRA, W/O. LATE YASODHARAN VAIDYAN, AGED 66 YEARS, CHEMBAKASSERY VEEDU, KAKKODU P.O., PUNALUR. ADV. SRI.P.PUSHPARAJAN FOR R1 & R2 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- A.S. 691 of 1999 -------------------------------------- Dated: AUGUST 28, 2009 JUDGMENT The defendant is the appellant. The suit was one for mandatory injunction and for damages. The suit was decreed in part with cost. 2. The case of the respondents/defendants as detailed in the plaint and as testified by the 2nd plaintiff as PW.1 before the lower court in brief is this: Plaintiffs 1 and 2 were the tenants of the plaint schedule two rooms. In1980 the appellant/defendant got assigned the rights of the landlord in a clandestine manner. In 1982 he filed RCP 11/1982 before the Punalur Rent Control Court for eviction of the plaintiffs which was dismissed. The said order was confirmed in appeal and also in revision before the High Court. Thereafter the defendant again filed RCP 5/1993 before the same court. Meanwhile on December 24, 1993, the appellant/defendant and his men destroyed the northern walls and roof of the portion of the building for which police has registered a crime against them. The commission issued from the court in RCP 5/1993 filed a false report stating that the A.S. 691 of 1999 2 damage was due to natural calamity. The plaintiffs filed a petition before the Accommodation Controller for repairing the premises which was rejected, but on appeal the District Collector allowed the said petition. But the defendant and his men prevented the plaintiffs from repairing the building. The defendant filed OP 77/1991 before the High Court to quash the order of the District Court which was also dismissed. While the said O.P. was pending, defendant and his men on 14.8.1994 at 7.30 a.m. destroyed a substantial portion of the building for which also Punalur Police registered a crime. On 18.10.1994 at about 7.30 a.m. the defendant and his men destroyed the entire building. The Punalur Police has registered another crime against the defendant. Due to the mischief committed by the defendant, the 2nd plaintiff had been forced to stop business temporarily on 14.8.1994 and completely from 18.10.1994 and suffered serious damages. The plaintiffs are limiting their claim to Rs.30,000/-. The plaintiffs are also entitled for a mandatory injunction directing the defendant to restore the premises in its original position. Thus the plaintiffs claimed damages of Rs.30,000/- and a mandatory injunction directing the defendant A.S. 691 of 1999 3 to restore the plaint schedule building to its original position. 3. The appellant/defendant in his written statement and as DW.1 contended that the building was damaged due to natural calamity. He denied all the allegations made in the plaint. 4. During the pendency of the suit the 1st plaintiff died and additional 3rd plaintiff was impleaded as his legal representative. On the side of the respondents/plaintiffs Pws.1 to 3 were examined and Exts.A1 to A6 series were marked before the lower court. Dws.1 and 2 were examined and Exts.B1 to B9 were marked on the side of the defendant. 5. The lower court on an appreciation of evidence found that it was the defendant and his men who damaged the building and decreed the suit for recovery of an amount of Rs.5000/- from the defendant with interest and cost. The lower court rejected the prayer of the plaintiffs for mandatory injunction as by the destruction of the building the lease is extinguished. The defendant has challenged the said decree and judgment in this appeal. 6. Heard the counsel for the appellant. Counsel for the respondent was absent. A.S. 691 of 1999 4 7. Counsel for the appellant argued that as there is no evidence to show that it was the appellant and his men who destroyed the building, the lower court is not justified in awarding damages and decreeing the suit. 8. The lower court has correctly found that the plaintiffs are not entitled for a mandatory injunction as the entire building has been damaged. As regards the claim for damages, the lower court came to the conclusion that it was the defendant and his men who damaged the building on the basis of Exts.A1, A4 and A5 which are copies of FIR and mahazar in the cases registered by the police on a complaint by the plaintiffs regarding the alleged damage caused to the building by the defendant. But the police has not charged any case against the defendant. Therefore merely on that basis alone it cannot be said that it was the defendant and his men who destroyed the plaint schedule building. 9. The lower court also relied on the evidence of PW.3, watchman of the plaintiffs, who deposed that on August 14, 1994 at 7.30 p.m. a number of persons came and destroyed the petition schedule building. But even PW.3 did not say that it A.S. 691 of 1999 5 was the defendant and his men who destroyed the building. Further, he is an interested witness being the watchman of the plaintiffs. Therefore the lower court is not justified in relying on his evidence for coming to the conclusion that it was the defendant and his men who destroyed the building. Thus as such there is no reliable evidence to show that it was the defendant and his men who damaged the plaint schedule building. On the other hand DW.2, the Advocate Commissioner deputed in RCP 5/1993 of Punalur Rent Control Court, has testified and reported in his report Ext.B5 that the building was very old and dilapidated. Therefore the finding of the lower court on this point cannot be sustained. 10. There is another aspect. Even according to the lower court, there is no evidence on the side of the plaintiffs to show the actual quantum of damages allegedly suffered by the plaintiffs. The case of the plaintiffs is that they had to stop the business because of the destruction of the building and that they are entitled to damages of Rs.30,000/-. The plaintiffs did not produce the account of the business to show the actual amount of income received by them from the business. That apart, I A.S. 691 of 1999 6 have already found that the plaintiffs have failed to show that it was the defendant and his men who damaged the petition schedule building. That being so, the decree and judgment of the lower court has to be set aside and the suit has to be dismissed. In the result, the appeal is allowed. The decree and judgment of the lower court is set aside and the suit is dismissed. In the circumstances of the case, the parties shall bear their own costs. P.Q. BARKATH ALI, JUDGE mt/- A.S. 691 of 1999 7