IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 RFA.No. 47 of 2003() -------------------- OS.1244/1995 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT (S): IST DEFENDANT IN OS --------------------------------------------------------- ROSSY J.KALLIYATH, W/O.ADVOCATE CHAKKAPPAN KALLIATH, OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI – 18. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADV. SRI.CHAKKAPPAN KALLIATH SRI.DAVIS KALLIATH SRI.DAVIS J.CHIRAMEL SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): PLAINTIFFS & 2ND DEFENDANT RESPECTIVELY IN OS --------------------------------------------------------------------------------------------------------- SWARAJ COMPANY, ARINGADI, THRISSUR. ADV. SRI.JIJO PAUL THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.M.APPL. NO.313/2003 IN RFA. NO.47/2003 DISMISSED 26/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = R.F.A.NO. 47 OF 2003 = = = = = = = = = = = = = = = Dated this the 26th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.1244/95. The suit is one for damages. The plaintiff is a wholesale merchant in grocery items. He is doing his business in shop room XXVI/804 of Thrissur Municipality. The first defendant had a two storied building which was in a very dilapidated condition. Due to the non-action of the defendants the building collapsed and caused damages to the articles belonging to the plaintiff and therefore the plaintiff has claimed damages of Rs.64,087/-. On the other R.F.A.. 47 OF 2003 -:2:- hand the defendant would contend that the property belonged to the 2nd defendant and it had been given to the 1st defendant and therefore she is the owner of the property and in the year 1991 she had issued a notice to her tenant informing about the dangerous conditions of the building and to vacate. Since they had not vacated first defendant could not effect any repairs and that had resulted in the falling down of the building and therefore she may not be saddled with the liability to pay damages. The trial court on a consideration of the materials granted a decree for Rs.59,807/- with 6% interest from the date of suit till realisation. It is against that decision the first defendant has come up in appeal. 2. Heard the learned senior counsel appearing for the appellant as well as the R.F.A.. 47 OF 2003 -:3:- counsel for the respondent. The short point that has to be decided first is regarding the liability of the first defendant. The first defendant has admittedly become the owner of the property. She had issued a notice to the tenants as early as in 1991 intimating about the dilapidated condition of the building and the necessity for surrender. Things went on like that and ultimately the building collapsed. Learned counsel for the appellant would contend by virtue of the statutory enactments like the Building Rent Control Act etc. the landlord can only move an application for eviction on the ground of re-construction and it takes a considerable length of time. The defendants were informed by the landlord and the defendants had not vacated the premises. So she cannot be saddled with the liability. It is true that R.F.A.. 47 OF 2003 -:4:- under the Rent Control legislation limitations are there for the landlords but the limitation of the landlords should not be extended to the neighbouring owners whose life and property would be in peril if the property is not repaired. A reading of the notice would reveal that the owner was aware of the consequences and that is why in the notice itself in the year 1991 she had warned the tenants that she will be taking action for the removal of the said building through Municipality and also through the R.D.O. Thrissur. That notice is dated 15.3.91. But the collapse had taken place in September 1995, i.e. after four years. The landlord did not move her little finger to get the premises vacated or demolished through the process of law. It has also to be stated that under the general provisions of the Transfer of R.F.A.. 47 OF 2003 -:5:- Property Act the lessee is bound to maintain the property and when the lessee is found that the building is in a dilapidated condition he can give directions to repair and that also has not been done. So a neighbour who cannot have anything to say on this matter under the ordinary circumstances is not bound to suffer for the non-function of the landlord or the tenants. Therefore being the owner of the building the landlord cannot get away from the damages. It is true that the tenants had also contributed to the same but it is for the landlord to decide what action he has to take against his tenants. Therefore the finding of the trial court that the landlord is liable to pay the amount cannot be disturbed. 3. Now so far as the claim is concerned immediately after the institution of the suit a R.F.A.. 47 OF 2003 -:6:- Commission was taken and the Commissioner had reported about the damaged articles found in the premises of the plaintiff's property and he had given a quantity as well and the quantity is connected with the bill produced and therefore the Court has not arbitrarily fixed the damages to be paid. The Court has also granted Rs.5,000/- because of the fact that the weighing machine is not totally destroyed. So the quantum arrived at by the trial court also cannot be said to be arbitrary. 4. Now, lastly the question is regarding the interest and payment of costs. Under the present set up the difficulties faced by the landlords as well as tenants are to be taken into consideration. A landlord cannot go and demolish the premises which are in the possession of the tenants for the reason the R.F.A.. 47 OF 2003 -:7:- tenants have got protection under Act 2 of 1965. But that does not give the licence to the tenant or landlord to cause injury to the neighbour or their materials. So taking in to consideration of these aspects I feel that this Court can fix a consolidated amount of damages to be paid within a stipulated time and in case of failure to pay the consolidated amount within the stipulated time permit the plaintiff to execute the decree in accordance with law. Therefore I modify the judgment and decree of the trial court and hold that if the first defendant is making the payment of Rs.80,000/- on or before 30th September, 2010 the suit claim can be recorded as satisfied and in case the amount is not paid within that time the plaintiff will be at liberty to execute the decree as passed by the trial court. I make it very clear that the R.F.A.. 47 OF 2003 -:8:- time fixed for payment of Rs.80,000/- will not be extended under any ground for the reason that it is a condition that is imposed to see that a decree holder is at least getting the amount after 15 years of continuous litigation. Parties are directed to bear their respective costs. I also make it very clear if the first defendant after making payment if permissible by law can institute a suit for realisation of the amount, if the law permits, from her tenants. M.N. KRISHNAN, JUDGE. ul/- R.F.A.. 47 OF 2003 -:9:- M.N. KRISHNAN, J. = = = = = = = = = = R.F.A. No. 47 OF 2003 = = = = = = = = = = = J U D G M E N T 26th July, 2010.