IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 RSA.No. 1049 of 2004(G) ------------------------------------ AS.4/1998 of DISTRICT COURT, KASARAGOD OS.103/1992 of SUB COURT, KASARAGOD .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------------- B.VISHNU KAKKILLAYA, AGED 60 YEARS, SON OF SRIDHARA KAKKILLAYA, HINDU, ENGINEER, RESIDING AT BANK ROAD, KASARAGOD, P.O. VIDYANAGAR, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.K.SHRIHARI RAO RESPONDENT(S): RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------------- 1. KERALA STATE SMALL INDUSTRIES DEVELOPMENT AND EMPLOYMENT CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, SANTHI NAGAR, THIRUVANANTHAPURAM. 2. THE OFFICER-IN-CHARGE SIDCO INDUSTRIAL ESTATE, VIDYANAGAR, KASARAGOD TALUK & DISTRICT. R1 BY ADV. SRI.M.A.MANHU, SC, SIDCO R1 & R2 BY ADV SRI.R.T.PRADEEP THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, ALONG WITH CRP. NO.733 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = R.S.A. NO. 1049 OF 2004 AND C.R.P. 733 OF 2004 = = = = = = = = = = = = = = = Dated this the 27th day of January, 2011. J U D G M E N T RSA 1049/04 is preferred against the judgment decree in A.S.4/98 of the District Judge, Kasaragod and CRP 733/04 is filed against the order in I.A.415/03 in A.S.4/98. The brief facts necessary for the disposal are stated as follows. The appellant who is the revision petitioner is a tenant under the first defendant with respect to three sheds C7, C8 and C9 in the industrial estate at Vidyanagar. He is running a small scale industry and the shed C7 and C8 are held under an arrangement on 25.2.73 and C9 under an arrangement dated 14.12.73. There was total exemption of payment of rent for 5 years and subsequently by other orders concessions had R.S.A. NO. 1049 OF 2004 AND C.R.P. 733 OF 2004 -:2:- been given at the rate of 80%, 60%, 40% and 20% for the four year period. The suit had been filed when a demand for Rs.30,975.90 as arrears of rent is claimed and the plaintiff would submit that a sum of Rs.9,924.84 alone is liable to be paid and therefore the demand with respect to Rs.21,051.06 was against and therefore the suit for a declaration. 2. The defendant on the other hand would contend that the demand notice exactly stipulates the rent due and therefore the plaintiff is not entitled to any relief. The trial court on a consideration of the materials produced by both the sides passed a preliminary decree and it is against that, the appeal was preferred. When the appeal was taken up for argument it was fairly conceded that an amount R.S.A. NO. 1049 OF 2004 AND C.R.P. 733 OF 2004 -:3:- of Rs.1,800/- that has been paid had not been given credit to and therefore deducting the same the matter can be proceeded with. They are Rs.576/- paid on 18.9.84, Rs.6,512/- paid on 10.10.85, Rs.612/- paid on 10.12.90 etc. The learned appellate judge accepted that argument deducted Rs.1,800/- from the demand of Rs.30,975/- fixed the amount at Rs.29,175/- and reduced interest from 16.5 to 9% payable from 13.6.92. When such a judgment and decree was rendered an application for review was filed as I.A.415/03 which is the subject matter of revision before this Court in C.R.P.733/04. The learned District Judge had considered the materials threadbare in the review petition also and thereafter held that methodology is adopted only for protraction which cannot be entertained R.S.A. NO. 1049 OF 2004 AND C.R.P. 733 OF 2004 -:4:- and therefore dismissed the review petition as there was no error apparent on the face of the records or any other sufficient reasons to review it. 3. Now the suit is only for really fixation of the amount due from the plaintiff to the defendant. Admittedly the plaintiff is a lessee under the defendant . The defendant had given maximum assistance possible and available by exempting the total rent for five years and rent at the rate of 80%, 60%, 40% and 20% for the next four years and whatever amount has been paid has been given credit to and when the mistake regarding non crediting of certain amounts that had also been conceded to and that is why the appellate court entered into a detailed finding and held that what is the R.S.A. NO. 1049 OF 2004 AND C.R.P. 733 OF 2004 -:5:- amount due and dismissed the appeal. 4. Now I do not find any substantial question of law involved in this case though so many questions are raised. The Hon'ble Supreme Court in the decision reported in Gurdev Kaur v. Kaki AIR 2006 (SC) 1975 had made it clear that the second appellate Court cannot act as a third Court of trial and therefore even if there is an erroneous finding on the fact, the question cannot be determined. The learned Judges in the above said decision were concerned about the anxiety shown by the appellate judges by reminding the Courts of its duty in accordance with law. In paragraph 70 the Hon'ble Supreme Court observed that, “The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of R.S.A. NO. 1049 OF 2004 AND C.R.P. 733 OF 2004 -:6:- Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly mis-appreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross mis- appreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. 5. The Hon'ble Supreme Court also made it clear that the legislature never wanted second appeal to become a third trial on facts or one more dice in the gamble. Now a latter view has been expressed wherein if there is total perversity or misappreciation, the Courts can look into that. But in the case before me the R.S.A. NO. 1049 OF 2004 AND C.R.P. 733 OF 2004 -:7:- defendant in the suit has only rendered assistance to the plaintiff exonerated him from paying full rent for five years and part rent for another four years and had given credit to whatever amount that is given other than Rs.1,800/- which had been subsequently given credit to when the mistake was pointed out. So there is no injustice, illegality or irregularity in the conduct of the defendant but the plaintiff under some guys or others wants to delay the payment of rent. So I feel that both the second appeal and the CRP do not merit and therefore they are dismissed. 6. I am told that there is a scheme whereby the first respondent is determining to transfer right under outright purchase scheme giving credit to the amount that is paid as rent. If R.S.A. NO. 1049 OF 2004 AND C.R.P. 733 OF 2004 -:8:- such a scheme is available and if it can resolve the matter in some way or other it is only a welcome fact and dismissal of the CRP or the R.S.A. will not stand in the way of such settlement between the parties. The parties are directed to bear their respective costs. Accordingly appeal and CRP are dismissed. M.N. KRISHNAN, JUDGE. ul/-