IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 AS.No. 286 of 1997() -------------------- OS.276/1994 of ADDL.SUB COURT, KOCHI .................... APPELLANTS/PLAINTIFFS: ----------- 1. FRANCIS EDWIN SON OF IGNATIOUS THAYYIL, BUSINESS AGED 36, RESIDING AT THAYYIL HOUSE, VELI, FORT KOCHI, KOCHI TALUK. 2. JUDE LESLIE SON OF IGNATIUS THAYYIL, BUSINESS, AGED 33, RESIDING AT THAYYIL HOUSE, VELI, FORT KOCHI, KOCHI TALUK. BY ADV. SRI P.F.THOMAS, SRI.SUNIL THOMAS RESPONDENTS: DEFENDANTS: ------------- * 1. T.C.ANTONY, S/O.CHACKO THAREPARAMBIL, BUSINESS AGED 61, RESIDING AT THAREPARAMBIL HOUSE, BUILDING NO.C.C.VIII/1175, KOOVAPADOM, MATTANCHERRY, KOCHI.(DIED) 2. T.C.JOSEPH, S/O.CHACKO THAREPARAMBIL AGED 56, BUSINESS, RESIDING IN BUILDING NO.IX/461, PANDIKKUDI, MATTANCHERRY, KOCHI. ADDL. 3. MRS.CELINE ANTONY, W/O.LATE T.C.ANTONY, AGED 57 YEARS, HOUSE NO.9/47, THAREPARAMBIL HOUSE, WARD NO.7, ARINGANSALA, CHALAKUDY P.O., TRICHUR DISTRICT. A.S.No.286/1997 : 2 : ADDL. 4. MRS. PHILOMINA ANTONY, D/O.LATE T.C.ANTONY, -DO- -DO- -DO- ADDL. 5. MRS. RANI ANTONY, D/O.LATE T.C.ANTONY, -DO- -DO- -DO- ADDL. 6. MR.MARTIN ANTONY, S/O.LATE T.C.ANTONY, -DO- -DO- -DO- ADDL. 7. MRS. DEEPA ANTONY, D/O.LATE T.C.ANTONY, -DO- -DO- -DO- (ADDL. RESPONDENTS 3 TO 7 IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT VIDE ORDER DT. 3.1.2008 ON I.A.NO.2177/2007) BY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR, J. -------------------------------- A.S.No.286 of 1997 -------------------------------- Dated this the 31st day of March, 2008 JUDGMENT Plaintiffs are the appellants in this appeal. The appeal is filed challenging that part of the decree by which the trial court had refused to award the amount claimed as compensation for the damages caused to the plaint schedule building. Plaintiffs filed the suit for recovery of Rs.76,500/= from the respondents who were tenants. The court below passed a decree allowing the plaintiffs to recover an amount of Rs.5,220/- as damages and Rs.1,500/-, being the arrears of rent. 2. The following are the material averments in the plaint. Plaintiffs/appellants are the owners of the building bearing door No.C.C.VIII/1386 (New No. VIII/1176), consisting of four rooms with a verandha kitchen with wooden ceiling. The building was electrified and was having water connection. It was situated at Koovapadam Junction. The appellants got the property under a Registered Will as 29/1962 of Kochi Registry, which was subsequently probated. There was another building adjacent to the plaint schedule building, which was also occupied by the defendants as tenants. In AS No.286/1997 -: 2 :- that building, defendants/respondents were conducting a tea shop. The plaint schedule property was let out to the respondents by the father of the appellants on 7.4.1967, for a monthly rent of Rs.50/=. Appellants were minors on that date. Respondents undertook to keep the building in proper and clean condition, without causing any damage. It was also agreed that if the terms and conditions of the lease deed were violated, the land lord is entitled to initiate legal proceedings. The respondents were conducting a medical shop in the said building by name, 'Kochadan Medicals'. The respondents thereafter sublet the building to a stranger. Appellants filed petition for eviction on the ground of subletting and bonafide occupation. Petition for eviction was dismissed by the Rent Control Court, Kochi. Appellants filed R.C.A.No.30/1984, which was also dismissed. The appellants filed RCRP.No.87/1985 challenging those decisions. The revisional court ordered eviction. That decision was challenged by the respondents before this Court in O.P.No.856/1987. The Original Petition was dismissed on 2.11.1990. SLP No.18542/1991 filed by the respondents before the Supreme Court was also dismissed. The appellants filed another petition for eviction of the respondents from the other building. That R.C.P. was allowed. The appeal filed by the tenants was dismissed. But the revisional court reversed those AS No.286/1997 -: 3 :- decisions and dismissed the eviction petition. The appellants filed O.P.No. 911/1987, which was also dismissed. Against that, the appellants filed SLP before the Supreme Court, and the same was pending. 3. Plaintiffs/appellants thereafter filed E.P.No.151/1993 for delivery, which was allowed and delivery was ordered. During the pendency of the Execution Proceedings, appellants came to know that the respondents effected material alterations in the rooms of the building by removing walls separating the rooms, reduced the number of rooms, and removed the doors and windows. The above work was carried out after locking the building and without allowing the appellants to enter into the building. Respondents caused material damages to the building and structures. So, the second execution petition was not pressed and E.P.No.84/1994 was filed. On receipt of notice, respondents surrendered the key of the building through their counsel, who in turn, offered the key to the counsel for the appellants. According to the appellants, such a course was adopted by the respondents to prevent the appellants from bringing out the damages caused by them. Appellants filed E.A.No.307/1994 to depute an Amin to inspect the building to ascertain the nature and details of the building sought to be delivered. Amin filed a report AS No.286/1997 -: 4 :- which revealed the state and condition of the building and disclosed the damages committed. Thereafter, the court closed the Execution Petition. 4. After getting possession of the property, appellants entered into the building and it came to their notice that extensive damages were caused to the building. This was done with a view to wreck vengeance on the appellants. The entire wooden ceiling of the building was removed and taken away. The building was blackened by soot. The entire electric fittings were found loosened and hanging with the switches damaged. The beam in the main hall was broken and tied up. Walls separating the rooms were removed. Shutters of windows and doors were broken. Windows were found missing or removed, walls broken and damaged. The floors damaged and unusable. The veranda of the building was used as a kitchen and the entire room was damaged and covered with soot. According to the appellants, they were entitled to get an amount of Rs.75,000/= as compensation for the damages caused to the building. Appellants claimed an amount of Rs.1500/= as arrears of rent for thirty months, with interest at the rate of 12% from the date of the suit till the date of recovery. So, the prayer to grant the decree allowing the plaintiffs to withdraw an amount of Rs.76,500/=. AS No.286/1997 -: 5 :- 5. Respondents filed a written statement contending that the suit was not maintainable. The title of the appellants over the plaint schedule building was denied. The averment that the building consisting of four rooms with veranda, kitchen with wooden ceiling was let out to them was also denied. There was no water connection. The allegation that the respondents committed default in payment of rent was denied. The rent was being paid regularly. But the appellants were not in the habit of issuing receipts. It was contended that for the purpose of tea shop and medical shop, ceiling was constructed by the tenants with the knowledge and consent of the appellants. No material alteration was effected except some repairs to the property which was absolutely necessary to keep the property in a good condition were effected. The terms and conditions in the rent deed were subject to the provisions of the Rent Control Act. The averment that the building was given on sub-lease was denied. The averment that the special leave petition filed by the appellants against the order of eviction passed by the Rent Control Court in RCP.No.132/1981 was denied. It was contended that key of the plaint schedule building was offered in the open court, but the decree holders did not accept the same. Thereafter, the building was surrendered. The averments that the respondents intentionally AS No.286/1997 -: 6 :- caused damages to the building and structures were denied. The materials used for the construction of the building were sub standard one. The appellants never effected any repairs right from 1967. Hence the alleged damages were caused on account of the natural consequences of wear and tear. The report of Amin was not binding on the respondents and no action can be taken on the basis of that report. The building which was in occupation of the respondents was surrendered in the normal condition, except with minor damages due to wear and tear. The averment that respondents caused extensive damage to the building was denied. The averment that the building was blackened by smoke and ceiling were removed were denied. There was no wooden ceiling to the building when it was occupied. It was stated that ceiling were provided in some portion by the respondents. The averments that the entire electric wiring were loose and hanging were denied. The averment that windows were removed was denied. The beam was in the damaged condition from the very beginning of the tenancy arrangements. There were no walls to separate rooms. Veranda was not used as a kitchen. The allegation that the respondents caused holes in the walls were also denied. The quantum of damages claimed was denied. The claim for arrears of rent was also denied. They prayed for a dismissal of the suit. AS No.286/1997 -: 7 :- 6. A Commissioner was deputed who filed Ext.C1 report. On the side of the appellants PWs 1 to3 were examined and Exts.A1 to A4 were proved and marked. On the side of the respondents DWs 1 and 2 were examined. No documentary evidence was adduced. The trial court found that the appellants were entitled to get an amount of Rs.5220/= as damages caused to the building. It was also found that they are entitled to recover an amount of Rs.1500/= by way of arrears of rent. Rest of the claim was disallowed. Dissatisfied with that part of the decree by which the other claims were disallowed, plaintiffs have filed this appeal. 7. The only question arising for consideration in this appeal is whether the appellants are entitled to get any additional amount as compensation. The fact that respondents caused some damages to the property was not disputed. Ext.A4 is the rent deed under which the building was let out to the respondents. Tenants had undertaken not to cause any damage to the building. According to the appellants, contrary to the terms of this rent deed, after suffering the order of eviction and before surrendering the building, the tenants with a mala fide intention to cause damage to the appellants, caused material alterations to the building. Ext.A1 is the order passed by the Rent Control Court in E.A.No.307/1994 in RCP.No.132/81 of the AS No.286/1997 -: 8 :- Munsiff's Court, Kochi. It shows that in E.P.No. 84/84, appellants had filed a petition to direct the Amin to inspect the building and to ascertain the nature and details of the building sought to be delivered. The description of the rooms were also given. Ext.A2 is the report filed by the Amin after inspecting the building. Amin had reported that the building had sealing and that was removed. He had also reported that the entire building was blackened due to smoke. He had also reported that electric wiring and fittings were damages and were hanging in a very dangerous condition. He had also reported that the beam in the hall was broken and it was tied up using the piece of coir. Further, the walls separating the rooms were demolished. He had submitted a plan also. The report and plan submitted by the Amin gives the details of damages caused to the plaint schedule building before surrendering the same to the landlords. 8. Though a Commissioner was deputed, he did not ascertain the actual damages. In fact, he sought for the assistance of an expert, which was not provided. So, the only material available is the report of the Amin and Ext.A3 quotation issued by the building Contractor. The appellants adduced oral evidence. Regarding the removal of walls separating the rooms, the appellants had admitted that the wall was constructed by the respondents. A suggestion was AS No.286/1997 -: 9 :- put to PW.1 as to whether the flooring was damaged on account of flood. But he denied the same. According to PW.1, the contractor quoted an amount of Rs.53000/= for repairs. An amount of Rs.20,000/= was quoted for replacing broken beam. PW.2 is the building contractor who gave Ext.A3 quotation. 9. DW.1 is the first respondent. He gave evidence to the effect that the building was taken rent in the year 1951. He had admitted that there were two rooms, a hall and a kitchen. In the chief examination he had stated that there was no ceiling to the building. He deposed that the tenants constructed the ceiling and partition. According to him, there was a ceiling for only two rooms. He further deposed that after 1966, no repairs were effected. He also deposed that damages were caused to the electric supply lines by the appellants just before the visit of the Commissioner. Thereafter he deposed that the wiring was not damaged by the appellants, but it occurred on account of the old age of the building. During Cross examination, he had to admit that there were ceiling for two rooms and he had constructed ceiling only for a room. He had also admitted that eastern room was being used as kitchen and because of the smoke emanating from that room, other rooms were blackened with smoke. He had also deposed that two doors of the kitchen and two AS No.286/1997 -: 10 :- doors which opens to outside of the building were damaged while the building was in possession of tenants. During cross examination, he again changed his version and asserted that it was the appellants who pull down the electric wiring and that was done one hour prior to the visit of the Commissioner. So, the evidence of DW.1 clearly establishes that the electric wiring was willfully damaged and not on account of the wear and tear and old age of the building as contended by him. So, the only question arising for consideration is whether it was caused by the appellants or the respondents. The building was inspected by Amin deputed by the court while the same was occupied by the respondents. The report was filed before recording the surrender. In that report, Amin had stated that the entire electric wiring was damaged. In Ext.A3, for effecting repairs to electric wiring an amount of Rs.2200/= was fixed. For plastering and white washing an amount of Rs.3000/= was fixed. An amount of Rs.14,800/- was set apart for replacing window frames and glass. The trial court found that the respondents have no consistent case. It also found that for ceiling the cost of Rs.600/= per square meter, for an area of 14.5 sq. meter was fixed. After deducting 40% as depreciation, the amount will come to Rs.5400/=. The court below had taken note of the report of the Amin and also the admission of DW.1 regarding the windows AS No.286/1997 -: 11 :- and doors. The total amount claimed by the building contractor for fixing doors, windows, plastering and electrical point etc. will come to Rs.20,080/=. After deducting 40% as depreciation, the amount will come to Rs.8832/=, which can be rounded to Rs.9000/= Appellants are entitled to get an additional amount of Rs.9000/= by way of damages. The trial court went wrong in not awarding the same. So, I am of the view that the appeal has to be allowed in part. In the result, the appeal is allowed in part. A decree is passed allowing the appellants to recover an amount of Rs.9000/= more by way of damages from the respondents. The respondents shall deposit the amount within two months from today. Appellants are entitled to get 6% interest also from this date, in case the respondents fail to deposit the amount within the above stipulated period. K.PADMANABHAN NAIR, JUDGE nj. AS No.286/1997 -: 12 :- K.PADMANABHAN NAIR, J. A.S.No.286 of 1997 JUDGMENT 31st March, 2008.