High Court Kerala High Court

Bhaskaran vs Lalitha Raghunathan on 4 November, 2009

Kerala High Court
Bhaskaran vs Lalitha Raghunathan on 4 November, 2009
       

  

  

 
 
  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

R.S.A. NO.870 of 2009
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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

R.S.A. NO.870 of 2009
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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