IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 AS.No. 133 of 1998() -------------------- OS.225/1988 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT/PLAINTIFF: ----------------- T.K. GOPI, AGD 39, S/O.SANKARAN KUTTY, RESIDING AT ETTUPARAYIL HOUSE, MAGANAM KARA, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK. BY T.K.GOPI. PARTY IN PERSON. RESPONDENT: -------------------- A.N. VASAPPAN, AGED ABOUT 49, RESIDING AT AMPILITHANATTU HOUSE, MANGANAM KARA, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- A.S.NO.133 OF 1998 C --------------------------- DATED THIS THE 7TH DAY OF SEPTEMBER, 2009 JUDGMENT The plaintiff in O.S.No.225/88 on the file of the Additional Sub Court, Kottayam is the appellant. This appeal is directed against the judgment and decree dated 25/76/1996 in O.S.No.225/88. The suit was filed for damages. The claim was for Rs.35,000/- under different heads. The trial court dismissed the suit finding that there is absolutely no evidence to show that the plaintiff has to be compensated by the acts of the defendant and the evidence adduced in the case is not at all sufficient to grant a decree as prayed for in the plaint. 2. The brief facts are as follows: Plaintiff is the tenant and the defendant is the landlord of building No.312 in Ward No.IX of Vijayapuram Panchayat. The said building was leased out to the plaintiff on 5/10/1981 on a monthly rent of Rs.50/-. The plaintiff was running a small scale -2- A.S.No.133/98 industrial unit under the Self Employment Scheme. The unit was engaged in manufacture and sale of suit cases and allied products. 3. The defendant wanted to shift the plaintiff's business to some other building and he demanded the plaintiff to vacate the premises. Since other accommodation is not available, the plaintiff could not comply with the demand. It is further alleged that thereupon the defendant started creating obstructions to the peaceful conduct of the business and all acts to drive away the plaintiff from the premises. Twice the schedule room was locked by the defendant and in fact it was opened at the intervention of the Deputy Superintendent of Police on complaint. When an attempt was made for forcible eviction, the plaintiff filed O.S.No.96/84 before the Munsiff's Court, Kottayam for an injunction restraining the defendant from obstructing the peaceful and smooth working of the plaintiff's business and from removing the machineries and other articles -3- A.S.No.133/98 kept in the plaint schedule room. The order of injunction passed by the learned Munsiff continued till a decree was passed allowing the suit. The defendant again locked the room with an additional lock making it impossible for the plaintiff to enter into the building. According to the plaintiff, due to the conduct of the defendant, he could not carry on his business from 13/2/1984 onwards. Due to the conduct of the defendant the entire assets of the appellant were destroyed, the goodwill is also lost and the appellant suffered mental pain and distress and hence he claimed damages of Rs.35,000/- under various heads and interest at the rate of 12% per annum from the date of obstruction. 4. In the written statement filed by the defendant it is inter alia contended that the plaint schedule building was let out to the appellant/plaintiff in October, 1981 for enabling the appellant to avail a loan from the bank. According to the defendant, the unit was never functioned in the schedule room. The room itself was given only for the purpose of availing a loan -4- A.S.No.133/98 from the bank and from the District Industries Centre, as requested by the plaintiff, since the loan will be released only on satisfaction of the authorities about the conduct of the business. It is further contended that the plaintiff has surrendered the room in 1983 and thereafter, he was not occupying the premises. Since the appellant was not getting any income from the alleged business, he is not entitled to claim any damages from the defendant. 5. The evidence consists of oral evidence of PWs.1 to 5, DWs.1 and 2 and Exts. A1 to A23. The trial court framed the issues and considered the evidence on record. 6. The trial court observed that since the suit is for realisation of money by way of damages on the allegation that the defendant has caused obstruction to the smooth functioning of the plaintiff's business in the plaint schedule room resulting in heavy loss and damages to the plaintiff, the main question to be considered is whether there was any such obstruction on the part -5- A.S.No.133/98 of the defendant. In the light of the contention raised by the defendant to the effect that even though for some time the plaintiff was in possession of the room, no effective business was conducted therein and therefore, the plaintiff has not earn any income from the business and therefore there is no question of causing any obstruction to the business. Therefore, the trial court considered the question as to whether any business was being carried on by the plaintiff in the schedule room, whether the defendant has obstructed the smooth functioning of the plaintiff's business and whether the plaintiff has sustained any loss of income due to the illegal acts of the defendant. After discussing the oral and documentary evidence on record, the court below held that even though the plaintiff has produced Ext.A1 to A23, no scrap of paper is available to show that the plaintiff was engaged in the manufacturing of suit cases and actually the business was being carried on by him in the schedule room. The court below further held that since the suit is for damages mainly -6- A.S.No.133/98 on the allegation that the defendant has caused obstruction to the running of the business and the plaintiff has sustained damages on various accounts, the burden of proof that the business was really carried on in the said room and he has earned Rs.500/- per month from the business is heavily upon the plaintiff and that he has miserably failed to prove his case by adducing reliable cogent evidence. 7. The suit was dismissed mainly for two reasons. The first reason is that the plaintiff failed to prove that the business was being carried on in the premises and the other reason that since he has failed to prove that he was running the business, there is no question of sustaining loss of income from the business and therefore, the further question whether he has sustained damages to goods and articles etc. does not arise. So, the entire case was decided on the basis of the finding that there is no proof regarding the conduct of business in the plaint schedule room. Based on the finding, the court below held that the plaintiff has -7- A.S.No.133/98 not sustained any loss of income as claimed and there is no question of causing damages to the goods and articles. I have examined the first question in the light of the documents produced by the plaintiff. Ext.A4 is the judgment in O.S.No.96/84, which was filed by the plaintiff for a perpetual injunction restraining the very same defendant-landlord from interfering with the peaceful functioning of the industrial unit in the plaint schedule room and from removing the machineries and other articles kept therein. The learned Munsiff framed the following issues in Ext.A4 judgment. (1) Is the plaintiff a lessee of the plaint schedule building? (2) Is there a termination of lease? (3) Should the defendant be restrained by an order of injunction? (4) Reliefs and costs. 8. All the questions agitated before the Sub Court was examined in detail on the basis of the oral evidence of PWs.1 to -8- A.S.No.133/98 3, Exts.A1 to A8, DWs.1 to 3, and Exts.B1, C1 and C2 reports. In Exts. C1 and C2 reports the Commissioner reported that the plaint schedule building remain locked when he first visited the site and on his second visit two locks placed by the plaintiff and defendant were removed by the said parties on request. He inspected the plaint schedule room and found 128 articles, which are necessary for running the unit. The details of items are stated in Exts.C1 and C2 reports produced in the said suit which is marked as Ext.A9 in the present suit. The court, after considering the oral and documentary evidence including Exts.C1 and C2 reports, held that the industrial unit owned by the plaintiff, who is the plaintiff in the earlier suit, was functioning as alleged in the suit and further held that the evidence would clearly show that the plaintiff was conducting an industrial unit. Ext.A4 is the judgment in O.S.No.96/84, which is a suit between the parties. 9. The trial court found that there is no proof to show that -9- A.S.No.133/98 the business was being carried on by the plaintiff in the plaint schedule room and therefore, the question of sustaining damages to the goods and articles kept in the plaint schedule room cannot stand. In the light of the clear evidence, which would go to show that the plaintiff was carrying on business in the premises, the present suit for damages requires reconsideration. The dismissal of the suit is solely based on the finding that there was no business in the premises and therefore no question of sustaining damages would arise. 10. In the light of the positive evidence to show that the plaintiff was doing business in the schedule premises, I think that the matter requires re-consideration by the trial court and in the interest of justice, I afford an opportunity to the parties to substantiate their case. 11. In the circumstances, the judgment and decree under appeal is set aside and the matter is remanded to the trial court for denovo consideration on the basis of the findings recorded by -10- A.S.No.133/98 this Court. The trial court shall examine the claim for damages on the basis of the oral and documentary evidence adduced by the parties and dispose of the suit in accordance with law within a period of nine months from today. The parties shall appear before the trial court on 5/10/2009. The parties are at liberty to adduce fresh evidence, if any. In the light of the court's finding that the plaintiff conducted business in the premises the parties need tender evidence on the claim for damages only. Appeal is allowed. The appellant is entitled to refund of court fee. No order as to costs. HARUN-UL-RASHID, Judge. kcv. -11- A.S.No.133/98 HARUN-UL-RASHID,J. -------------------------- A.S.NO.133 OF 1998 -------------------------- JUDGMENT 7th September, 2009