IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 AS.No. 243 of 1998(A) --------------------- OS.95/1995 of SUB COURT, PALA .................... APPELLANT/PLAINTIFF ---------------------------------- 1.SNDP SHAKHA YOGAM NO.754 ` EDAMATTOM VILAKKUMADOM REP BY E B RAJU, EETTICKAL HOUSE, VILAKKUMADAOM POOVARANY 2. RAJENDRAN, MUTTATHUKUNNEL HOUSE EDAMATTOM KARA POOVARANY 3. RAJU, S/O.BHASKARAN, EETTICKAL HOUSE EDAMATTOM POOVARANY 4. VIJAYAN, S/O.BHASKARAN OF -DO- 5. SASIDHARAN, S/O.BHASKARAN, - DO- 6. BHASKARAN, S/O.KUNJU KUNJU MANDAPATHIL HOUSE EDAMATTOM POOVARANY 7. SIBEY, S/O.GOPALAN, PULICHAMACKEL HOUSE EDAMATTOM, POOVARANY BY ADV. SRI.A K AVIRAH SRI.VIJU ABRAHAM SRI.DINNY THOMAS RESPONDENTS/PLAINTIFF & 1ST DEFENDANT ------------------------------------------------------------------ 1.BHASKARAN, AGED 57, S/O.KRISHNAN KUNNUMPURATHU HOUSE VILAKKUMADAM KARA, POOVARANY VILLAGE 2. SNDP YOGAM KOLLAM, REP BY ITS SECRETARY, SNDP YOGAM OFFICE KOLLAM ADV. SRI.RAJEEV V.KURUP SRI.A.N.RAJAN BABU FOR R2 SRI.P.GOPALAKRISHNAN (MVA) FOR R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19.07.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.243 of 1998 & cross objection ------------------------------------- Dated this the 19th day of July 2011 Judgment The defendant in OS No.95/95 before the Sub Court, Pala, who suffered a decree at the hands of the trial court, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Shorn off unnecessary details, the facts absolutely essential for the purpose of disposal of this appeal are as follows : The building belonging to the second defendant was let out to the plaintiff in the suit on a monthly rent of Rs.25/- which was later enhanced. The plaintiff would allege that he was conducting a tea-shop in the building and he came to know that the second defendant S.N.D.P.Yogam had passed a resolution to put up a Guru Mandiram” in the tenanted premises. Apprehending that he may be forcibly evicted from the premises, he instituted OS SA 243/98 2 No.444/94 before the Munsiff's Court, Pala seeking permanent prohibitory injunction, restraining the respondents therein from forcibly evicting him from the tenanted premises. It is claimed in the plaint that subsequent to the filing of the suit, he was asked to vacate from the premises by the defendants and he was threatened as if he did not do so. According to the plaintiff, on 18.04.1995, shortly after midnight, the defendants went to the spot and pulled down the structure, which was occupied by him. Considerable damages were caused to his articles in the premises. He estimated the loss at Rs.14,250/-. On the basis of the allegation that defendants 3 to 8 were acting at the behest of defendants 1 and 2, the suit was laid claiming damages. 3. The first defendant did not choose to contest the suit. Defendants 2 to 8 filed a joint written statement, claiming that the suit lacks bona fides. They pointed out that they had not done any acts as alleged in the plaint. They also alleged that the plaintiff was a chronic defaulter SA 243/98 3 in payment of rent and they had, at no point of time, tried to forcibly evict him from the tenanted premises. The building was in a dilapidated condition and it suffered damages due to the wanton use by the tenants of the building – the plaintiff and one Madhavan, who was conducting stationery business in the building. They denied that they had pulled down the structure as alleged and had caused any damages. 4. On the above pleadings, necessary issues were raised by the court below. The evidence consists of the testimony of PWs1 to 6 and documents marked as Exts.A1 to A15 from the side of the plaintiff. The defendants examined DWs 1 to 3 and had Exts.B1 to B6 marked. 5. The trial court, on an evaluation of the evidence found that a resolution had been passed by the 2nd defendant to demolish the structure involved in this proceedings and to put up a Guru Mandiram in its place. The evidence of PWs 2,3 and 5 was found sufficient to SA 243/98 4 show that defendants 3 to 8 were the miscreants, who committed the mischief. On the basis of these findings, a decree was passed against the defendants. This brings him before this court. 6. Two questions arise for consideration in the second appeal : 1.Whether the structure was demolished as alleged by the plaintiff ? 2.If it is so, whom among the defendants are liable for the same ? 7. Both the issues can be considered together as the evidence is common. It is not in dispute that the plaintiff was occupying the premises which belonged to the second defendant as tenant and he was conducting a tea shop therein. While the plaintiff would say that the structure was in a good condition, the defendants would say that it was in a dilapidated condition. The defendants' contention was that it gave way on its own and the defendants have not done any act to demolish the building. The plaintiff SA 243/98 5 would say otherwise. 8. The learned counsel for the appellant pointed out that merely because a resolution has been passed by the second defendant, deciding to put up a Guru Mandiram in the tenanted premises, it does not lead to the conclusion that they were bent upon evicting the plaintiff somehow or the other even by demolishing the building. Attention was drawn to the fact that if as a matter of fact, what the plaintiff claims is true, obviously he would have preferred a complaint before the police. The observation of the court below that in the written statement filed in OS No.444/94, the defendants had not stated that the building was in a dilapidated condition so that it cannot be believed now is not correct. According to the learned counsel, in the said suit which was against forcible eviction, the condition of the building was not an issue involved and so, it was unnecessary to mention the said fact. The learned counsel for the appellant also contended that even assuming that some persons might have pulled down the structure, unless SA 243/98 6 there is clinching evidence to show that it was done at the behest of defendants 1 and 2, at least they may not be made liable. It is also contended that the quantum of damage is excessive. 9. The learned counsel for the respondents, on the other hand, pointed out that there are telling circumstances in this case to show that the mischiefs could have been done only by the defendants and their followers. It is pointed out that a resolution was passed by the second defendant deciding to demolish and put up a Guru Mandiram therein thereby indicating that they were bent upon in getting the premises vacated adopting any method. This had driven the plaintiff to file a suit against the defendants from forcibly evicting him. The learned counsel also pointed out that there cannot be any direct evidence regarding the involvement of defendants 1 and 2 since it is not possible to get documentary evidence in that regard. But from the circumstances, it could have been done only by defendants 3 to 8 at the behest of defendants 1 and 2. SA 243/98 7 10. The lower court has chosen to rely on certain circumstances to come to the conclusion that it must have been the defendants, who must have done the mischiefs. The trial court observes that there is no direct evidence to implicate the defendants. The circumstances relied on by the trial court are (1) the resolution passed by the second defendant and (2) defendants 3 to 8 are their office bearers. One significant fact has to be noticed here. It is not in dispute that the plaintiff had filed OS No.444/94 before the Munsiff's Court, Pala for a permanent prohibitory injunction. This court is given to understand that there was an interim injunction also. It was during the pendency of the suit that the alleged act is said to be committed. That means, the act was committed in total violation of the order passed by the court concerned. One would normally expect the plaintiff to alert the court regarding the violation of its order, but nothing seems to have been done in that regard. Whatever that be, the evidence in this case has to be considered for arriving at a conclusion whether the claim SA 243/98 8 made by the plaintiff is true. The circumstance that the second defendant has passed a resolution by itself may not be sufficient to cast the liability on defendants 1 and 2. All that was decided was that in the place of the tenanted premises, they wish to put up a Guru Mandiram after pulling down the structure. That does not mean that the resolution was to the effect to drive out the tenant in the premises. Of course, the trial court has chosen to rely on the evidence of PWs 2, 3 and 5 to come to the conclusion that the act has been done by the defendants. Among those witnesses, PW2 is the plaintiff himself. Of course, the other witnesses say about the acts, but except PW2, others are not certain about the persons who had done the mischiefs, except to say that later on they came to know that it had been done by the followers of S.N.D.P. It could not be said that the reliance placed by the trial court on the evidence of PWs 2, 3 and 5 is without any justification. However, the observation of the court below that merely because the second defendant has not, in the written SA 243/98 9 statement in OS No.444/94, taken a contention that the building was in a dilapidated condition, shows that the building is in good condition, cannot be accepted. As rightly pointed out by the learned counsel for the appellant, that was not an issue in the said suit and the S.N.D.P.Yogam had made it clear that they had no intention to forcibly evict the tenant. However, as rightly noticed by the court below, it is difficult to believe that the building would have given way of its own. The evidence is to the effect that that must have been done by defendants 3 to 8. The said issue is answered accordingly. 11. The next question which is to be considered is whether defendants 1 and 2 can be made liable for the acts committed by defendants 3 to 8. The trial Court sought to make the second defendant liable on the basis of the resolution passed by them. But, the resolution, as already stated, cannot be taken as a ground to cast the liability on them. They have nothing to do with the incident. The second defendant is a separate entity distinct from that of SA 243/98 10 the first defendant. There is absolutely no evidence to show that even assuming that defendants 3 to 8 had committed the act, defendants 1 and 2 had instigated them. It is difficult to support the finding of the Court below that defendants 1 and 2 are also liable for the damages suffered by the plaintiff. 12. What now remains to be considered is the cross objection filed by the plaintiff regarding the quantum of damages awarded by the court below. The learned counsel for the cross objectioner pointed out that the lower Court was not justified in fixing the compensation only at Rs.8,000/- as there were clinching evidence to show the actual damages suffered by the plaintiff. 13. Going through the judgment of the lower Court, it is found that it was after considering the claim made by the plaintiff for damages under each head separately, that the Court below has fixed the damages at Rs.8,000/- and the court below has given its reasons as to why certain items should be rejected and damages could SA 243/98 11 be granted in respect of certain items. The learned counsel for the cross objectioner was unable to assail the said findings effectively. There is no reason to differ from the quantum of damages awarded by the Court below. The cross objection, therefore, stands dismissed. In the result, this appeal is partly allowed. The decree passed by the Court below as against defendants 3 to 8 is confirmed while the decree passed in respect of defendants 1 and 2 is set aside. There will be no order as to costs. P.Bhavadasan, Judge sta SA 243/98 12