IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR.JUSTICE THOMAS P JOSEPH FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 RSA.No. 16 of 2010() -------------------- AS.177/2007 of SUB COURT, KOZHIKODE OS.736/2006 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANTS/APPELLANTS IN A.S./DEFENDANTS IN O.S. -------------------------------------------------------------------- 1. P.P.UDAYASANKAR, AGED 49 YEARS, S/O.P.BHASKARAN, RESIDING AT "SANGEETHA", PUTHIYANGADI AMSOM DESOM OF KOZHIKODE TALUK. 2. P.P.MANOJ, S/O.P.BHASKARAN, RESIDING AT PONNAMPARAMBATH HOUSE, PUTHIYANGADI AMSOM DESOM OF KOZHIKODE TALUK. 3. P.P.KISHORE, S/O.P.BHASKARAN, RESIDING AT PONNAMPARAMBATH HOUSE, PUTHIYANGADI AMSOM DESOM OF KOZHIKODE TALUK. 4. P.P.SUNILKUAMR, S/O.P.BHASKARAN, RESIDING AT PONNAMPARAMBATH HOUSE, PUTHIYANGADI AMSOM DESOM OF KOZHIKODE TALUK. 5. P.P.GOVINDARAJ, S/O.P.BHASKARAN, RESIDING AT PONNAMPARAMBATH HOUSE, PUTHIYANGADI AMSOM DESOM OF KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT/RESPONDENT IN A.S./PLAINTIFF IN O.S. --------------------------------------------------- ACHAMBATT SAIDU MUHAMMED, S/O.ARAKKAL MUNAMOTH MUHAMMED, RESIDING AT "HILMI", VELIPRAM AMSOM DESOM, RAMANATTUKARA VILLAGE, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON THE SAME DAY DELILVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.16 of 2010 --------------------------------------- Dated this 05th day of February, 2010 JUDGMENT Appellants/tenants of the room referred to in the plaint schedule are aggrieved by the judgment and decree for mandatory injunction directing them to remove a signboard they have put up on outer side of northern wall of the building where they are engaged in business of foot wears and other leather items. According to the respondent/landlord, the room was taken on rent by the predecessor of appellants from his predecessor as per a lease deed dated 30-09-1986 (Ext.A1) which reserved right for the landlords to advertise signboards of their choice on outer side of its northern wall. In violation of that right reserved for the landlords, appellants put up signboards at that side. Hence the suit for mandatory injunction. Respondent had also an apprehension that appellants might demolish the northern wall. Trial court answering the issues in favour of respondent granted decree for mandatory/prohibitory injunction. That was confirmed by the first appellate court and hence the second appeal urging by way of substantial question of law whether courts below have rightly construed Ext.A1 while holding in favour of respondents. It is contended by learned counsel for appellants that on 01-09-1987 a fresh lease deed was executed between predecessor-in-interest of R.S.A.No.16 of 2010 2 appellants and respondent regulating the terms and conditions of the lease (which is not disputed by the respondent) and hence trial court was not justified in granting decree based on Ext.A1. Learned counsel contends that photocopy of the rent deed dated 01-09-1987 was produced by the respondent, that was not objected by the appellants but trial court refused to admit the same in evidence. Counsel for respondent supported judgment and decree of the courts below. 2. It is not disputed that as per Ext.A1 dated 30-09-1986 right for advertising signboards on outer side of northern wall of the shop room was reserved with the landlord. It is also not disputed that the signboard now exhibited by the appellants run counter to that reservation. Contention is that on 01-09-1987 there was a fresh lease between predecessors of appellants and the respondent and though photocopy of that document was produced and was not objected by the appellants, trial court did not admit the same in evidence. Sections 65 and 66 of the Indian Evidence Act deals with admission of secondary evidence and rules as to notice to produce. Under section 63 of that Act copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies are treated as secondary evidence. So far as the rule as to notice to produce is concerned, section 66 says secondary evidence shall not be admitted in evidence unless the party proposing to give such secondary evidence has previously given to the R.S.A.No.16 of 2010 3 party in whose possession or power the document is. In this case according to the appellants they had no objection to the photocopy of rent deed dated 01-09-1987 produced by the respondent and hence trial court ought to have admitted the same in evidence. Even if that contention of learned counsel is accepted I am not inclined to interfere with judgment and decree challenged in this case for that reason as learned counsel was fair enough to concede that even in rent deed dated 01-09-1987 there is similar right reserved by the landlord enabling him to advertise signboard on outer side of wall on the northern side. Therefore even if that document was admitted in evidence that would not in any way affect right of respondents. Hence failure to admit photocopy of rent deed dated 01-09-1987 has not prejudiced the claim of appellants and this court in second appeal need not interfere with concurrent finding as to the right of the respondent which is under challenge. The further contention on behalf of appellants is that even after rent deed dated 01-09-1987, there was a further enhancement of rent, though not evidenced by any document and as per that arrangement, respondent did not any further enjoy the right to exhibit signboard on outer side of northern wall. This however is not admitted by the respondent and there is no reliable evidence to support that plea. Mere fact that there was an enhancement of rent need not necessarily result in creation of a fresh lease or, violation of the terms and conditions of the lease deed dated 30-09-1986 or 01-09- R.S.A.No.16 of 2010 4 1987. Having heard counsel on both sides and on going through the judgments under challenge I am satisfied that no substantial question of law is involved in the second appeal. Resultantly the second appeal fails and it is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/