IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.06.2008 CORAM : THE HON’BLE MR. JUSTICE S.TAMILVANAN A.S.No.668 of 1996 and C.M.P.No.12407 of 1996 Murugesan Udayar .... Appellant / Plaintiff vs. 1. Annadurai 2. Vibeeshnan .... Respondents/Defendants Appeal filed against the Judgment and Decree, dated 21.01.1995 made in O.S.No.21 of 1988 on the file of the Subordinate Judge,Tiruvannamalai. For Appellant : Mr.S.Kothandaraman For Respondents : Mr.T.R.Rajaraman for R1 JUDGMENT This appeal has been preferred against the Judgment and Decree dated 21.01.1995 made in O.S.No.21 of 1988, on the file of the Sub- Court, Tiruvannamalai. 2. The appellant herein was the plaintiff before the trial court, who filed the suit, seeking for a decree, directing the respondents herein to pay a sum of Rs.46,168/- with interest and costs. 3. It is not in dispute that the rice mill, flour mill etc, described in the schedule of the plaint, belonged to the appellant herein and the first respondent took over the building with all machineries, under a lease agreement, dated 23.01.1976, for a period of 10 years and accordingly, annual lease amount was fixed at Rs.2,000/-. 4. According to the appellant, both the respondents had entered into a lease agreement with the appellant. On the other hand, the respondents have contended that the first respondent alone had entered into the lease agreement with the appellant. The first respondent herein filed a suit in O.S.No.1624/78 on the file of the District Munsif Court, Tiruvannamalai, seeking injunction preventing https://hcservices.ecourts.gov.in/hcservices/ the appellant and others from disturbing his possession and enjoyment of the property, as per the lease agreement, the same was decreed. Against which, appeal in A.S.No.12/81 was preferred by the appellant, which was admittedly dismissed. The appellant herein filed a Second Appeal in S.A.No.345/82 on the file of this Court. The appellant had also filed C.M.P.No.9998 of 1986, seeking a direction to the first respondent to pay a sum of Rs.10,647.70/- towards arrears of rent and electric charges and C.M.P.No.999 of 1986, for directing the first respondent to deliver possession of the suit building and the machineries. 5. The first respondent herein had filed a memo to the effect that he was willing to hand over the key of the rice mill, flour mill and oil mill to the appellant. As per the order of this Court, the District Munsif, Tiruvannamalai, was directed to appoint an Advocate Commissioner to effect delivery of possession of the property to the appellant herein and note the condition and physical features in respect of the property. 6. The Advocate Commissioner, inspected the suit property on 27.12.1986 in the presence of both the parties and their advocates and filed a detailed report and plan on 17.03.1987, which was marked as Ex.A.1. According to the appellant, the first respondent had caused damage to the building, machineries etc. According to him, the respondents wantonly failed to renew the license and thereby allowed the machines to get rusted and become useless. According to the appellant, after taking over possession, he could not run the rice mill for want of license and he was forced to apply for a fresh license, because the license already granted for running the rice mill was not renewed by the first respondent for the years 1983-84, 1984-85. According to the appellant, he has spent Rs.6,000/- for carrying out various repairs in the building and for restoring the building to its original condition and he spent Rs.10,000/- for repairing the machineries, Rs.5,000/- for electric wiring, fittings and starter etc. He paid Rs.7,868/- to the Electricity Department towards arrears of consumption charges payable by the respondents, for getting the electrical supply. In order to carryout necessary repairs in the rice mill, according to the appellant, he spent Rs.4,000/- and there was a loss of earning of Rs.21,000/-, arrears of rent Rs.8,000/- and hence, the respondents are liable to pay a total sum of Rs.40,868/- along with Rs.5,300/- for the value of a 10 HP motor, that was removed by the respondents. With the above calculation, the appellant has filed the suit, seeking a decree for a sum of Rs.43,168/- to be paid with interest and costs, against the respondents herein. 7. According to the respondents, the second respondent is nothing to do with the lease agreement, since the same was between the appellant and the first respondent. The first respondent has further stated in his written statement that he is not liable to pay any https://hcservices.ecourts.gov.in/hcservices/ amount as damages to the appellant. According to him, the lease agreement of the rice mill had to be renewed every year and for the renewal of the license, signature of the appellant was necessary. However, due to difference of opinion between the appellant and the first respondent, the first respondent had filed a suit in O.S.No.1624 of 1978 against , within two years of the execution of the lease deed. Hence, the appellant did not sign the form for renewal of license and hence, the first respondent could not run the mill for sometime, however, no damage was caused by him to the building, machineries and other fixtures and fittings. According to him, pursuant to the order of this Court, Advocate Commissioner, inspected the suit property on 27.12.1998 and through him, the appellant took over the possession of the property and he has also stated that the appellant had not spent any amount, as alleged by him and also denied the alleged removal of a 10 HP electric motor belonged to the appellant, said to have been kept in the mill. According to the respondents, there was no such electric motor available in the mill. He has further stated that the claim of the appellant is frivolous and vexatious and accordingly, pleaded for the dismissal of the suit with costs. 8. The trial court, considering the oral and documentary evidence and the arguments advanced by both sides, held that the appellant herein was not entitled to a decree, as prayed for and accordingly, dismissed the suit with costs. Aggrieved by which, this appeal has been preferred by the plaintiff. 9. In the grounds of appeal, the appellant has stated that the court below has not considered that the damage to the building and machineries were caused, while they were in the possession and custody of the respondent and that the damage was not occurred due to any natural decay or wear and tear. According to the appellant, the respondents had failed to protect the machineries and therefore, the trial court could have directed the respondents to pay damages, as claimed by the appellant and even the court below has not considered the Commissioner's Report properly, in order to assess the damage caused by the respondents and that the court below could have decreed the suit claim. 10. The points for determination in this appeal are as follows : 1. Whether the appellant has established that he sustained damage to both building and machineries, due to the negligence of the respondents and for which, he is entitled to claim damages ? 2. Whether the suit claim is barred by limitation, as held by the trial court ? 11. It is not in dispute that the appellant and the first respondent had entered into a lease agreement on 23.01.1976, whereby https://hcservices.ecourts.gov.in/hcservices/ the rice mill, flour mill, rotary etc., were leased out to the first respondent for 10 years, up to 25.01.1986 for a yearly lease amount of Rs.2,000/-. Subsequently, the first respondent filed the suit in O.S.No.1624 of 1978 on the file of the District Munsif, Tiruvannamalai, for the relief of injunction, restraining the appellant herein and others from disturbing his possession and enjoyment of the property, as per the lease agreement. The suit was decreed and the appeal preferred by the appellant in A.S.No.12/81 was admittedly dismissed. Against which, the appellant herein preferred Second Appeal in S.A.No.345/82. As per the order passed in C.M.P.No.9998 of 1986, this Court directed the first respondent herein to pay a sum of Rs.10,645.70/- towards arrears of rent and electric charges. Similarly in C.M.P.No.9999 of 1986, this Court directed the first respondent to deliver the possession of the suit building and the machineries, the same were also not in dispute. As per the order of this Court, District Munsif, Tiruvannamalai was directed to appoint an Advocate Commissioner to effect the delivery of possession of the property and to note the condition and physical features, in respect of the property. Accordingly, Advocate Commissioner was appointed and the Advocate Commissioner, inspected the suit property on 27.12.1986 in the presence of both the parties and their counsel and filed his report with plan. 12. According to the appellant, the damage caused to building, machineries, wiring and motor boxes, starters etc, are only due to the negligence of the respondents. The appellant has specifically stated in the plaint that the respondents herein had wantonly failed to renew the license and thereby allowed the machineries to get rusted and become useless. The appellant has given the details for claiming damages as follows : Particulars of valuation : a) Cost of 10 HP Motor removed by defendant : Rs. 5,300.00 b) Arrears of rent from 23.01.1983 to 27.12.1986, the date of taking possession: Rs. 8,000.00 c) Loss of carrying : Rs. 4,000.00 d) Cost of repairs to the building : Rs. 6,000.00 e) Cost of repairs to the machineries including Jalladai machine : Rs.10,000.00 f) Electrical wiring, switches, starter etc.,: Rs. 5,000.00 g) Electricity arrears paid : Rs. 7,868.00 ------------------ Total : Rs.46,168.00 ------------------ 13. It is seen from the original plaint that 4th Jan 1988 is the date available on the seal of Subordinate Judge's Court, Tiruvannamalai. Hence, being a suit for claiming arrears of lease, https://hcservices.ecourts.gov.in/hcservices/ the period of limitation is only, three years, prior to the date of filing of the suit, as per Limitation Act. 14. The appellant has stated that a 10 HP motor, placed in the rice mill was removed by the first respondent and the value of the same was Rs.5,300/-. The learned counsel for the first respondent submitted that no such motor was available and removed by the respondents herein, as alleged by the appellant. In order to establish the alleged removal of a 10 HP motor, the appellant has not produced the lease agreement or a copy thereof before the court below, so as to verify any such motor was entrusted to the respondents. Similarly, the cost of carrying out repairs in the building, repairs to the machineries, including Jalladai machine, electric wiring, switches, starters etc, though the appellant has claimed a sum of Rs.25,000/- and there is no supporting documents produced by the appellant for claiming the aforesaid amount. 15. As contended by the learned counsel for the appellant, in the Commissioner's Report, marked as Ex.A.2, he has stated that the building of the rice mill was in a dilapidated condition and for about 15 feet, there was no roof in the building, since it has been fallen down and the remaining portion of the roof had been made up of tiles. The mill was not in a running condition, since there was no electric supply. As there was no roof portion, due to sun and rain, the electric motor was also found rusted. According to the learned Advocate Commissioner, as the mill was not in a running condition and the tub, cement platform etc, in the mill were found not under use for so many years. 16. Even in the year 1978, dispute arose between the appellant and the first respondent, due to which, the first respondent herein filed a suit, seeking injunction against the appellant herein. Only after filing, the second appeal of the suit, the appellant got a direction for handing over of the possession of the rice mill and also the machineries. According to the first respondent, due to the dispute, he could not get the signature of the appellant for the yearly renewal of the license and that he could not run the mill. The Commissioner's Report would show that there was damage caused to the building and the machineries, which were found rusted, due to sun and rain, for which, according to the trial court, the appellant cannot totally fix the responsibility on the respondents. In the valuation particulars, the appellant has given certain figures and ask the amount saying that he had spent the amount towards the repairing of the building and machineries, including electrical wiring. 17. According to the learned counsel for the contesting respondent, only the appellant was responsible for the damage caused to the building and the machineries. In such circumstances, merely based on the report of the Commissioner, on the assessed damage, the appellant cannot claim any amount, without establishing the https://hcservices.ecourts.gov.in/hcservices/ responsibility on the respondents. Though the lease agreement was entered into on 23.01.1976, the appellant has been the owner of the building and the machineries and as such, he had every right to inspect the premises, in order to protect his interest. Had he inspected the rice mill and the premises periodically, he could have noticed everything. Due to the dispute between the appellant and the first respondent, the mill were not functioning and proper care was also not taken in safeguarding the building and machineries, for which appellant cannot fix the responsibility on the first respondent and claim damages, as computed by him. 18. As held by the court below, the limitation for claiming lease amount, the period of limitation is only three years, beyond the period of three years, the appellant cannot claim the same, as it is barred under the Limitation Act. In the instant case, as per the admitted fact, till 25.01.1986, the contesting first respondent had been the lessee under the appellant and as per the lease agreement, he has to pay annual lease amount of Rs.2,000/- per year. As per the original plaint available, it it seen that the suit was filed before the Sub-Court, Tiruvannamalai on 04.01.1988. 19. As contended by the learned counsel for the appellant, since the suit was filed in the year 1988, the appellant can claim arrears of lease, as per the agreement for the period not exceeding the limitation of three years. Accordingly, for the period 1985 and 1986, the appellant can claim arrears of lease / rent, since the lease agreement was for ten years. It is not the case of the contesting respondent that the rent was paid during that period. Accordingly, the appellant is entitled to annual lease arrears of Rs.2,000/- per year, for 1985 and 1986, for two years, as the same was not barred by limitation. Admittedly, during the period, the contesting respondent was in possession and enjoyment as lessee of the property and therefore, he has to pay arrears of lease for the period along with other dues, payable by him, subject to Limitation Act. However, the appellant has not produced any supporting document to show that the electric charge was paid by him during the relevant period. It is not in dispute that the lease period, as per the agreement was till 25.01.1986. 20. On the facts and circumstances, I am of the view that the appellant has established that he is entitled to arrears of lease of Rs.4,000/- for the years 1985 and 1986, for which, the claim is within the period of limitation. However, the trial court has dismissed the suit, without considering the same. Therefore, the appeal is partly allowed and the first respondent is directed to pay a sum of Rs.4,000/- with 6% interest and proportionate costs to the appellant. The other part of the claim has not been established by the appellant. https://hcservices.ecourts.gov.in/hcservices/ 21. In the result, the appeal is partly allowed and the first respondent is directed to pay a sum of Rs.4,000/- with 6% interest and proportionate costs to the appellant. The cost already paid by the appellant, pursuant to the impugned Judgment and Decree of the Court below, shall also be repaid by the first respondent to the appellant with 6% interest. Consequently, connected Civil Miscellaneous Petition is closed. However, there shall be no order as to costs in this appeal. Sd/- Deputy Registrar. /true copy/ Sub Asst. Registrar. tsvn To 1. The Subordinate Judge, Tiruvannamalai. 2. The Section Officer, VR Section, High Court, Madras. + 1 CC To Mr.T.R.Rajaraman, Advocate SR NO.28872 A.S.No.668 of 1996 MDR(CO) SRA(14/08/2008) https://hcservices.ecourts.gov.in/hcservices/