IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 SA.No. 42 of 1997(E) ---------------------------- (AS.NO.57/1993 OF SUB COURT, QUILANDY, OS.NO.128/1992 OF MUNSIFF COURT, QUILANDY) .................... APPELLANTS/RESPONDENTS DEFENDANTS: ----------------------------------------------------------------- 1. KANHIROLI MOHAMMED KOYA, PRESENT PRESIDENT, MUNIROOL ISLAM SABHA, VELUR AMSOM, KONGANNUR DESOM, QUILANDY. 2. KIZHAKKE VALAPPIL KADER, SON OF MUHAMMED MUSALIAR, MERCHANT, SECRETARY MUNIROOL ISLAM SABHA, VELUR AMSOM, KONGANNUR DESOM, QUILANDY. BY ADVS. SRI.TPM.IBRAHIM KHAN, SRI.T.M.SUNIL. RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------- KAVALAYIL MAMMED, SON OF UMMER, MERCHANT, VELOOR AMSOM, KANGANNUR DESOM, QUILANDY TALUK. BY ADVS. SRI.R.K.MURALEEDHARAN, SRI.R.PARTHASARATHY. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- S.A No. 42 of 1997 -------------------------- Dated this the 10th June, 2010 J U D G M E N T Two suits were instituted as O.S 128/92 and O.S 87/92 before the Munsiff's Court, Koyilandy. O.S 128/92 was filed by the tenant against the landlord. O.S 87/92 was filed by the landlord against tenant claiming arrears of rent. Tenant had spent Rs.4300/- for repairing the oven. Apart from the above claim tenant had also sought refund of the deposit in respect of insufficiency of tenancy. Both the suits were jointly tried. O.S 128/92 was treated as the leading case and evidence was adduced in the said case. 2. The evidence consists of the testimony of PWs1 to 3 and Exts.A1 was marked from the side of the plaintiff. DW1 was examined and Exts.B1 to B7 were marked from the side of the defendants. After considering the evidence before it, the trial court dismissed both the suits. S.A No. 42 of 1997 2 3. A.S 53/93 was filed by the plaintiff in O.S 87/92 and A.S.No.57/93 was filed by the plaintiff in O.S No.128/1992. The lower appellate court dismissed A.S. 53/93 and A.S 57/93 was allowed in part enabling the tenant to realise a sum of Rs.3268/- with 6% future interest. 4. Aggrieved by the same, respondents in O.S 57/93 has come up in appeal. 5. The following substantial questions of law have been formulated in this appeal. "I. Are the courts below correct in proceeding with suit and appeal without framing an issue regarding the most relevant and crucial question in the suit being "whether the landlord had permitted the tenant to construct the oven according to his needs and agreed to defray the expenses for it"? II. Is it not for the plaintiff to prove the allegations in the plaint regarding the question of permission granted by the landlord to the tenant to construct the oven, in which case is the appellate court correct in holding that it is a matter for the defendant to explain? III. Is the appellate court right in deciding a suit for realisation of money without looking into the question of limitation which was a specified issue raised by the trial court? S.A No. 42 of 1997 3 IV. Is the landlord bound to give the value of improvements to the tenant for construction made without the consent of the landlord and the construction being solely for the comfort and business of the tenant? 6. It is not disputed that the respondent herein was a tenant. In the suit filed by the tenant there were two claims one for return advance amount and other for the amount spent by him for repairing the oven. The trial court dismissed both the suits . But the appellate court accepted his claim regarding the amount spent for repairing the oven and suit was decreed in part. 7. Learned counsel appearing for the defendants pointed out that the court below was not justified in decreeing the suit in favour of the tenant. The claim was barred by limitation which plea was accepted by the trial court. But according to the learned counsel, that was not considered by the appellate court. It is therefore contended that decree of the lower appellate court cannot be sustained. 8. Learned counsel appearing for the plaintiff pointed out that after vacating the premises the plaintiff S.A No. 42 of 1997 4 has demanded the amount spent for repairing the oven. Therefore, the observation of the trial court that it is barred by limitation cannot be justified and that the appellate court justified in partly decreeing the suit. 9. Going by the judgment of the trial court, it is seen that the trial court was not inclined to accept the claim made by the tenant for want of evidence. It is true that the tenant was unable to produce the documents as such regarding the repair work carried out by the tenant. When the matter came up before the appellate court, the appellate court perused Ext.B5 which is a request made by the tenant to the landlord for reimbursement of at least half of the amount that he had spend for repairing the oven. From the said letter it could seen that the landlord had given Rs.3750 for repairing the oven. The said letter also shows that landlord had permitted the tenant to repair the oven. 10. Learned counsel appearing for the appellant pointed out that Ext.B5 is dated 4.10.984 and therefore the suit filed in 1992 claiming the amount towards the S.A No. 42 of 1997 5 expenses incurred for repairing the oven is clearly barred by limitation. Ext.B5 could be treated only as request for which there was no response from the side of the appellant. 11. In the case on hand the tenant was continuing even thereafter and as rightly pointed out by the learned counsel for the respondents accounts could be settled at the time of vacating the premises. Thus viewed the suit is not barred by limitation. 12. The court below has found that going by Ext.B5 an amount of Rs.3268 is due from the appellant to the respondents and has granted decree with 6% future interest. The lower appellate court cannot be found fault for accepting Ext.B5 as evidence of the amount due to the tenant. At any rate, there is no reply from the side of the land lord. The appellant is unable to show that the findings of the lower appellate court are either perverse or unwarranted by the evidence on record. After all the tenant has sought for was the amount spend by him for repairing the oven as permitted by the landlord. No S.A No. 42 of 1997 6 substantial questions of law have been raised in this appeal and accordingly the appeal is dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma S.A No. 42 of 1997 7 S.A No. 42 of 1997 8 P.BHAVADASAN, JUDGE ma S.A No. 42 of 1997 9