IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 RSA.NO. 758 OF 2008() --------------------------------- AS.105/2005 OF ADDL. SUB COURT, KOZHIKODE OS.436/2003 OF ADDL.M.C.,KOZHIKODE-I .................... APPELLANT – APPELLANT – PLAINTIFF: ----------------------------------------------------- K.P.GOKULADAS, S/O. CHATHU AGED 59 YEARS, RESIDING AT SIVASAKTHI IN MAREKKAT NILAM,MOKAVOOR DESOM OF KOZHIKODE. BY ADV. SRI.NIRMAL. S RESPONDENT(S) – RESPONDENTS - DEFENDANTS: -------------------------------------------------------------------- 1. GOVERNMENT OF KERALA, REP BY CHIEF SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM 2. SECRETARY GOVERNMENT OF KERALA, SOCIAL WELFARE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. ATTANGAL THAZHATH JAYABHARATHI W/O. DINESAN, AGE NOT KNOWN, WORKER ANGANAVADY NO.33, P.O.ERANHIKKAL, CALICUT, ELATHUR VILLAGE MOKAVOOR AMSOM DESOM KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION 02/03/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.758 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of March, 2010 J U D G M E N T --------------------- This Second Appeal arises from judgment and decree of learned Additional Sub Judge, Kozhikode in A.S. No.105 of 2005 confirming dismissal of O.S. No.436 of 2003 by the the court of learned Additional Munsiff-I, Kozhikode. Appellant/plaintiff is the owner of house No.697 in Ward No.II of Elathur Village. According to him respondent No.3 approached him with a request for starting an Anganwadi and accordingly the shed attached to the above said house was given on rent of Rs.200/- per month from 1.9.2000 for the purpose of conducting the Anganwadi. While so appellant asked respondent No.3 to vacate the shed by April, 2001 to R.S.A. No. 758 of 2008 -: 2 :- facilitate repair on the roof of his house. But respondent vacated the building only by 3.6.2001. On account of the delay in respondent No.3 vacating, appellant could not repair roof of the house which collapsed causing a damage to the tune of Rs.30,000/-. He therefore sued the respondents for recovery of damages to the tune of Rs.30,000/-. Respondent No.3 contended that appellant was a member of the Committee formed for the purpose of setting up the Anganwadi and while the Committee was in search of a suitable space appellant offered the shed attached to his residential building for the purpose and that was taken on rent of Rs.200/-. Expenses for construction of the shed was raised by contribution. While so R.S.A. No. 758 of 2008 -: 3 :- for some reason or other appellant became enmical towards the Committee and wanted the Anganwadi to be shifted. Accordingly Anganwadi was shifted from the building of the appellant from 3.5.2001. The committee also shifted its articles from the shed. Respondent No.3 denied that it was on account of the delay in the Anganwadi being shifted from the shed that appellant could not carry out the repairs of the roof of the building. Trial court found on evidence that contention of appellant cannot be sustained and dismissed the suit. That was confirmed by the first appellant court. Hence this Second Appeal. Substantial questions of law framed in the appeal are whether courts below committed an error in holding R.S.A. No. 758 of 2008 -: 4 :- that appellant has already taken compensation from the Government for repairs of the roof and whether courts below have misread the evidence on record. Learned counsel for appellant while harping upon the above contentions stated that at least the courts below ought to have granted a decree for rent arrears. 2. So far as the argument regarding rent arrears is concerned, I have gone through the copy of plaint given to me for perusal by learned counsel and found that claim is only for damages on account of the alleged collapse of the roof of the residential building, according to the appellant as respondent No.3 did not shift the Anganwadi on time. There is no claim for rent arrears nor court R.S.A. No. 758 of 2008 -: 5 :- fee has been paid for such relief and hence the claim for rent arrears in this proceeding did not arise. 3. So far as refusal of the courts below to award damages as claimed by the appellant is concerned, the claim is on the premise that since Anganwadi was shifted only belatedly appellant could not carry out the repairs of the roof of his building. Courts below found from the evidence on record of respondent No.3 as D.W.1 and Exts.C1 and C1(a) that notwithstanding existence of the shed and the Anganwadi there was sufficient facility for the appellant to carry out repairs to the roof of the building if he wanted the same and hence collapse of the roof cannot be attributed to the R.S.A. No. 758 of 2008 -: 6 :- alleged delay in shifting the Anganwadi. It has come in the evidence of appellant as P.W.1 that on the premise that roof of the building fell down due to natural calamity he has already received a sum of Rs.1,250/- from the District Collector concerned. In the circumstances courts below are justified in holding that appellant is not entitled to claim any damages. 4. Learned counsel made a fervent plea to avoid the costs ordered by the courts below. On the facts and circumstances which I have stated above including that claiming that roof of the building collapsed due to natural calamity appellant had no difficulty to get Rs.1,250/- from the District Collector concerned I am not inclined to R.S.A. No. 758 of 2008 -: 7 :- think that appellant must be absolved from his liability to pay the costs as ordered by the courts below. 5. No substantial question of law is involved in the Second Appeal requiring its admission. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. No. 758 of 2008 -: 8 :- R.S.A. No. 758 of 2008 -: 9 :- R.S.A. No. 758 of 2008 -: 10 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO. =================== J U D G M E N T R.S.A. No. 758 of 2008 -: 11 :- MARCH, 2010 R.S.A. No. 758 of 2008 -: 12 :-