IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 634 of 2009()
1. C.RAJAN,S/O.LATE KUNHIKRISHNAN NAIR,
... Petitioner
Vs
1. THE SECRETARY, KOYILANDY MUNICIPALITY,
... Respondent
2. KOYILANDY MUNICIPAL COUNSEL,
For Petitioner :SRI.DILIP MOHAN
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :10/08/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No.634 of 2009
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Dated this the 10th day of August, 2009
JUDGMENT
The Second Appeal is directed against the the judgment and decree
in A.S. 26/2007 on the file of the Sub Court, Koyilandy which arises from
the judgment and decree in O.S. No.151/2006 on the file of the Munsiff
Court, Koyilandy. The suit for injunction restraining the defendants, from
evicting the plaintiff forcefully from the premises belonging to 1st
defendant-Municipality, was dismissed by the trial court and confirmed in
appeal Hence the Second Appeal. The parties hereinafter referred to as
plaintiff and defendants as arrayed in the suit.
2. The plaintiff is conducting a workshop making gold covering
and silver ornaments in the plaint schedule room belonging to the 1st
defendant-Municipality. It is his case that the plaint schedule room
developed leakage and parts of the concrete on the terrace started falling
down and due to the repeated requests, ultimately, in the month of May
2004 the 1st defendant-Municipality started repair works. Due to the said
repair works the plaintiff had to partly close the business and shift the
same to another building. According to him, he had compelled to pay
an amount of Rs.87,000/- as rent to the other building for 29 months at the
rate of Rs. 3,000/- per month, that he had to incur expenses for shifting the
materials and hence the loss caused to him is solely due to the wilful
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negligence and omission on the part of the Municipal Authorities to do the
repair works in time. It is also submitted by the plaintiff that even though
he approached the defendants for getting exemption from paying the rent
for the period of 29 months during which period the plaint schedule room
was under maintenance, his request fall in deaf ears. The 1st defendant-
Municipality also issued a notice dated 29.9.2009 demanding the rent.
3. In the written statement filed by the defendants they
contended that the plaintiff is not a tenant but only a licensee, that they
put up an over head roof of sheets for preventing the leakage, that
nobody was directed to surrender the premises for the purpose of repair
works and there was no need for the stoppage of business in the plaint
schedule room due to the repair works . It is also contended by them that
the plaintiff is not entitled to get any exemption from paying the rent and
that the plaintiff has defaulted payment of rent for a long period.
Therefore they are constrained to issue a notice to the plaintiff
demanding the payment of rent. In order to avoid the payment of rent,
the present suit was filed for injunction. They also contended that no
attempt was made by them to evict the plaintiff by force.
4. The evidence in this case consists of the oral testimony of
PW1 and Exts.A1 and A2 on the side of the plaintiff. No evidence was
adduced by the defendants.
5. The trial court noticed the fact that even though the plaintiff
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has stated that he is entitled to get an exemption of Rs. 87,000/- i.e the
amount he had paid for a period of 29 months at the rate of 3,000/- per
month to the other building, the only prayer in the suit is for an injunction
and no relief is claimed by the plaintiff for realisation of the said amount
which is alleged to be incurred due to the shifting of the materials and
business. The trial court held that there is no evidence to prove that he
shifted his business to another building and he paid Rs. 3,000/- per month
as rent for 29 months. At the same time the defendants contended that
the building required minor repairs because of the leakage and they put up
overhead roof sheets and thus the leakage is solved and that for the said
purpose there is no need for the plaintiff to vacate the building .
6. The trial court also considered the legality of Ext.A1 notice
issued by the defendants directing the plaintiff to vacate the premises.
Admittedly, the plaintiff is a defaulter of licence fee for a long period.
Referring to Section 215 (8) of the Kerala Municipalities Act, the trial court
held that if there is any default beyond the period for which deposit is
made, it is mandatory on the part of the Secretary to demand the Licencee
to remit the Licence fee together with such penalty or interest within 7 days
of the service of such notice and in case of failure, the Secretary shall
cause the premises to be closed down temporarily and the person or
persons in occupation shall be got removed with the assistance of Police or
otherwise. In such circumstances the trial court held that the plaintiff is
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not entitled to get any reliefs as prayed for and dismissed the suit.
7. In the appeal filed by the plaintiff the lower appellate court
also re-appreciated and re-considered the questions raised by him and
held that the findings arrived at by the trial court on facts, circumstances
and evidence, requires no interference. The lower appellate court
observed that there is no material to show that the plaint schedule room
was in a dilapidated condition and that the plaintiff had suffered a huge
loss and earnings because of the repair works and consequent shifting of
the business to the other building. The lower appellate court also observed
that there is no prayer for any compensation from the defendants for the
loss sustained by him by the consequent shifting of the business to other
building and that the plaintiff has not brought out any material to show
that he was unable to conduct the business in the plaint schedule room
during the time when the repair was effected. The legality of Ext.A1 notice
was also considered by the lower appellate court and held that Ext.A1
notice is a valid notice issued under the circumstances stated in the written
statement filed by the defendants. Finally, the Lower appellate court
agreed with the findings of the trial court and confirmed the same.
8. The findings of the courts below are based on facts evidence
and circumstances. I find that no grounds are made out by the
plaintiff/appellant to interfere with the findings of the courts below, by
invoking this Court’s jurisdiction under Section 100 of the C.P.C. No
questions of law much less any substantial question of law arises for
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consideration in this appeal. This appeal fails and dismissed in limine.
9. The learned counsel for the plaintiff/appellant submitted that
the plaintiff is entitled to get exemption of rent for the period when the
plaint schedule room was under maintenance ,that the plaintiff is
compelled to shift the business to other building for the reason that he was
not in a position to carryout the business in the plaint schedule room since
major repair works were going on there. Even though the plaintiff
approached the Municipal Authorities for getting exemption from paying
the rent during the period when the plaint schedule room was under
repair, the Municipal Authorities dismissed his petition in that regard. The
counsel for the plaintiff/appellant requested that the plaintiff may be
permitted to approach the Appellate Authority under the Municipalities Act
to ventilate his grievances. In such circumstances this Court directs the
Appellate Authority to consider the plaintiff’s statutory appeal if the plaintiff
file the same within a period of one month from today and pass appropriate
orders, as expeditiously as possible without considering the question of
limitation in filing that appeal
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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R.S.A. No.634 of 2009
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JUDGMENT
10th August, 2009