IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 RSA.No. 964 of 2008() --------------------- AS.75/2006 of PRINCIPAL SUB COURT,KOCHI OS.203 203/2008 of ADDL.MUNSIFF COURT,KOCHI .................... APPELLANT/APPELLANT/DEFENDANT:- --------------------------------------------------- P.K.KUNJUMON, S/O.KUNJUMOHAMMED, AGED 56 YEARS, PANACHIKKAL HOUSE, C.C.NO.23/579 B, K.M.B. NAGAR, PALLURUTHY SOUTH, EDAKOCHI VILLAGE. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT(S): RESPONDENT,/PLINTIFF:- ------------------------------------- KOCHI CO-OPERATIVE SOCIETY LTD., NO.E 100, LALAN ROAD, KOCHI -2, REPRESENTED BY ITS SECRETARY, SMT. E.R.DEVI. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. ------------------------------- R.S.A No. 964 OF 2008 ------------------------------- Dated this the 26th November, 2008. JUDGMENT The defendant in O.S.203/2005 on the file of the Munsiff's Court, Kochi is the appellant in this second appeal. The suit instituted by the respondent Co-operative Society was one for specific performance of Ext.A3 agreement dated 23.8.2004. Both the Courts below have decreed the suit as prayed for. Hence this appeal. 2. The facts are within a narrow compass. The appellant- defendant is the owner of the plaint schedule building situated at Palace Road, Kochi. The respondent-plaintiff which is a Co- operative Society was running a provision store in the said building from the year 1974 onwards. Since the building was getting dilapidated the defendant expressed his desire to reconstruct the building. As per Ext.A3 agreement dated 23.8.2004 executed between the plaintiff and defendant, the plaintiff undertook to vacate the building to enable the defendant to reconstruct the building on condition that it will be allotted to the plaintiff after R.S.A. NO: 964/2008 2 reconstruction. But when the building was ready for occupation after reconstruction the defendant did not accede to the request of the plaintiff to allot the building to the plaintiff. Hence the suit. 3. The suit was resisted contending inter alia that even though the plaintiff was requested to occupy the building after its reconstruction, the plaintiff did not occupy the building and therefore, the defendant entrusted the building to other tenants and that the plaintiff was not entitled to a decree for specific performance of Ext.A3 agreement. 4. Both the courts have held that the defendant who contended that inspite of due notice to the plaintiff to occupy the building after its reconstruction the plaintiff did not occupy the building, did not substantiate the said contention by adducing oral or documentary evidence. He did not even mount the witness box to corroborate his contention. In the absence of any evidence adduced by the appellant, the courts below accepted the plaintiff's case and granted specific performance of Ext.A3 agreement by directing the defendant to put the plaintiff in possession of the plaint schedule building. No question of law much less any substantial question of law arises for consideration in this second R.S.A. NO: 964/2008 3 appeal. I am not also inclined to accede to the request of the appellant-defendant by giving an opportunity by remanding the case to the court below. The question of law formulated in the memorandum of appeal also do not arise for determination in the second appeal, which is accordingly dismissed in limine. 5. Learned counsel for the appellant prayed for four months time within which he wanted to terminate the tenancies in favour of the tenants now occupying the building. If the appellant-defendant files an affidavit before the executing court within two weeks from today undertaking to hand over vacant possession of the building to the plaintiff on or before 31.3.2009 and also undertaking that he shall not induct any strangers or commit any act of waste in the plaint schedule property, the appellant shall be given time till 31.3.2009 to hand over vacant possession of the premises to the decree holder. V. RAMKUMAR JUDGE jj