IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 SA.No. 17 of 1995(B) ------------------------------ OS.294/1987 of ADDL.MUNSIFF COURT,KOCHI AS.36/1990 of PRINCIPAL SUB COURT, KOCHI .................... APPELLANT(S): RESPONDENT/ DEFENDANT ------------------------ 1. SAROJINI, AGED 72,W/O. SAMKUNNI VAIDYAR, PANDARAPARAMBIL, THEKKUMMURI, PALLURUTHY VILLAGE, KOCHI 6. 2. VIJAYA, AGED 47 , D/O. SANKUNNI VAIDYAR DO. DO. 3. MANI, AGED 45 , D/O. DO. DO. 4. SUSHAMA, AGED 43 , D/O. DO. DO. 5. SAUHARDHANAN, AGED 40, S/O. DO. DO. 6. SUSEELA, AGED 34, D/O. DO. DO. BY ADV. MR.K.G.SARATHKUMAR RESPONDENT(S): APPELLANT/PLAINTIFF ------------------------- *1. K.A.ALBERT, S/O. ANTHO, AGED 77, KALAPPURAKKAL, EDACOCHIN DESOM, EDAKOCHI VILLAGE, KOCHI TALUK (DIED) R2 IMPLEADED. 2. LILLY, W/O. LATE K.A.ALBERT, KALAPPURAKKAL EDACOCHIN DESOM, EDACOCHI VILLAGE, KOCHI TALUK. L.RS OF THE DECEASED RESPONDENT IS IMPLEADED AS ADDL. R2 AS PER ORDER DT. 17.3.99 ON CMP. 2458/98. BY ADVS. MR.K.V.AUGUSTINE MR.K.A.SHAJI MATHEW THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. =============== Second Appeal No.17 of 1995 ===================== Dated this the 21st day of January, 2009. J U D G M E N T The defendants in O.S.No.294 of 1987 on the file of the Court of the Additional Munsiff of Cochin are the appellants in this second appeal. The first respondent in this second appeal is the plaintiff therein. After this second appeal was filed, the first respondent passed away and thereupon, his wife, the additional second respondent in this second appeal was impleaded as his legal heir. The suit instituted by the first respondent for recovery of arrears of rent and damages was dismissed by the trial court. On appeal filed by the first respondent, the lower appellate court decreed the suit. Hence, this second appeal. 2. The appellants were the tenants of a shop room owned by the plaintiff. The suit was instituted claiming Rs.434/- S.A.17/1995 -: 2 :- as arrears of rent for the period from 1-11-1985 to 28-2-1987 with interest thereon at 12% per annum and also the sum of Rs.5,000/- as damages on the allegation that tenants did not keep the building in good repair and also caused damage to the building. The defendants resisted the suit contending inter alia that the building was kept in good repair, that the rent is not in arrears, that they have not caused any damage to the building and that if at all any damage was caused, it occurred after they surrendered possession of the building to the plaintiff. The trial court deputed an Advocate Commissioner to assess the damage caused to the building. He assessed the damage caused to the building with the assistance of a carpenter, who was examined as PW3. Based on the estimate prepared by PW3, the Advocate Commissioner filed Exhibit C1 report stating that to repair the building, the plaintiff will have to spend Rs.14,000/-. The trial court, on analysis of the evidence, oral and documentary, held that plaintiff is entitled to recover arrears of rent. The claim for damages was however, declined on the ground that the Advocate S.A.17/1995 -: 3 :- Commissioner had engaged PW3 without the permission of the court and that though the Advocate Commissioner had estimated the damages caused to the building at Rs.14,000/-, the plaintiff has not amended the plaint and claimed the said amount as damages. The suit was accordingly decreed in part allowing the plaintiff to realise from the defendants the sum of Rs.434/- with interest thereon at 12% per annum on the principal sum of Rs.400/- from the date of suit till realisation. The plaintiff carried the matter in appeal. By judgment delivered on 8-4-1994, the lower appellate court allowed the appeal and decreed the suit as prayed for. Besides, the arrears of rent decreed by the trial court, the plaintiff was allowed to realise the sum of Rs.5,000/- together with interest thereon at 6% per annum from the date of suit till realisation. Hence, this second appeal. 4. The trial court disallowed the claim for damages on the ground that PW3 was engaged without the permission of the Court and that after the Advocate Commissioner filed Exhibit C1 S.A.17/1995 -: 4 :- report, the plaintiff did not claim the amount assessed by the Advocate Commissioner as damages. The lower appellate court held that it is open to the plaintiff to limit his claim to Rs.5,000/- even though the damages assessed by the Advocate Commissioner was on the higher side. The lower appellate court also held that the mere fact that the Advocate Commissioner engaged PW3 without the permission of the court is not a ground to discard the valuation made by the Advocate Commissioner and that nothing has been brought out in the cross examination of PW3 to discredit his testimony. The evidence on record discloses that the Advocate Commissioner had quantified the damage caused to the building at Rs.14,000/-. The plaintiff did not however claim recovery of the said amount. As rightly held by the lower appellate court, it was open to the plaintiff to limit his claim to the sum of Rs.5,000/- originally claimed in the plaint. As regards, the objection of the trial court to the Advocate Commissioner taking the assistance of PW3 without the permission of the court, I agree with the lower appellate court S.A.17/1995 -: 5 :- that as nothing has been brought out in evidence to discredit the testimony tendered by PW3, the action of the Advocate Commissioner in having taken the assistance of PW3 cannot be said to be objectionable. The Advocate Commissioner is not an expert who could have valued the building without the assistance of a carpenter. PW3 is an experienced carpenter and nothing has been brought out in evidence to discredit his testimony. The extent of damage caused to the building is not in dispute. Therefore, the mere fact that the Advocate Commissioner engaged PW3 to help him cannot be a ground to discard the report submitted by the Advocate Commissioner. I therefore hold that there is no merit in this second appeal. The second appeal fails and is accordingly dismissed. No costs. P.N.RAVINDRAN, Judge. skr