IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 870 of 2009()
1. BHASKARAN,
... Petitioner
Vs
1. LALITHA RAGHUNATHAN,
... Respondent
For Petitioner :SRI.R.PADMAKUMAR
For Respondent :SRI.RASHEED C.NOORANAD
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/11/2009
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.870 of 2009
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Dated this the 4th day of November, 2009
J U D G M E N T
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This Second Appeal arises from judgment and decree of learned
Additional District Judge, Mavelikkara in A.S. No.6 of 2003 confirming
the decree for recovery of rent arrears passed by learned Munsiff,
Mavelikkara in O.S. No.173 of 1999. Respondent instituted the suit for
eviction of the appellant and recovery of arrears of rent alleging that
appellant is a tenant of the shop rooms described in the plaint
schedule. According to the respondent entrustment was on condition
of payment of rent of Rs.3/- per day for room No.146 and Rs.4/- per
day for room No.152. Respondent claimed that rent is in arrears from
January, 1998. Terminating tenancy and demanding rent arrears at the
above rate from January, 1998 onwards respondent issued notice to
the appellant on 27.9.1999. Appellant contended that notice under
Section 106 of the Transfer of Property Act is not valid and claimed
that rental arrangement, orally was from January, 1979 onwards for a
monthly rent of Rs.3/- for both the rooms together to be paid on or
before 16th of every month. He contended that there is no rent
arrears. Learned Munsiff refused to grant eviction but decreed the suit
in part allowing respondent to realise rent arrears to the tune of
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Rs.3,220/- with interest. First appellate court confirmed that decree
and hence the Second Appeal urging by way of substantial question of
law whether in the absence of evidence regarding daily rent courts
below were justified in granting decree as prayed for. Learned counsel
contends that finding entered by the courts below is not correct.
2. There is no document produced by either side to prove the
rental arrangement. Concededly it was oral. Father-in-law of
respondent gave evidence as P.W.1 and testified to the case of
respondent. P.W2 claimed to be the collection agent of respondent.
He claimed that he was collecting rent from the appellant at the rate
claimed by the respondent. According to him rent is in arrears from
1.1.1998. Appellant gave contra evidence as D.W1. He also
claimed that he replaced the thatched roof of the building with tin
sheet and incurred expenses. Learned Munsiff found that case of
respondent is proved by the evidence of P.Ws.1 and 2. It is also
found that there is no evidence to show that appellant incurred
expenses for replacement of the roof. It is accordingly that decree
was grated by the trial court. First appellate court concurred.
3. Finding of trial court as to the rate of rent and arrears is
based on appreciation of evidence produced by both sides. When the
finding of the trial court rests on oral evidence even the first appellate
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court could interfere only if there is some special feature in the oral
evidence which escaped notice of the trial court and which if
considered would tilt the decision in favour of the appellant. No such
situation arose on the facts of the case. Though appellant claimed that
he has paid the rent, plea of discharge is not proved. It is in the above
circumstances that learned Munsiff granted decree for rent arrears
which was confirmed by the first appellate court. No substantial
question of law is involved in the Second Appeal requiring its
admission and notice to respondent.
The Second Appeal is dismissed in limine.
THOMAS P.JOSEPH, JUDGE.
vsv
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THOMAS P.JOSEPH, J.
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R.S.A. NO. 870 OF 2009
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J U D G M E N T
4TH NOVEMBER, 2009