Edavalath Kunhima Umma v. Cheriya Kolappurath Viji Suresh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930** **RSA.No.602 of 2008 (E)** **---------------------------** **AS.59/2006 of SUB COURT, KOYILANDY OS.114/1999 of MUNSIFF COURT, KOYILANDY** **....................** ## **APPELLANT/APPELLANT/DEFENDANT:-** **----------------------------------------------** **EDAVALATH KUNHIMA UMMA, AGED 62 YEARS, D/O AMMED HAJI, SWASTHAM, RESIDING AT ULLIYERI AMSOM, DESOM, KOYILANDY TALUK.** **BY ADV. SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **------------------------------------------------** **CHERIYA KOLAPPURATH VIJI SURESH, AGED 27 YEARS, W/O SURESH SWASTHAM, RESIDING AT ULLIYERI AMSOM, DESOM, KOYILANDY.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## K.P.BALACHANDRAN, J. -----------------------------------------------R. S. A. No.602 of 2008 -----------------------------------------------Dated this the 24[th] day of July, 2008 ## **JUDGMENT** The defendant in O.S.114/99 on the file of the Munsiff's Court, Koyilandy against whom concurrent verdict was passed by the courts below decreeing the suit for money against her is the appellant. 2. The respondent/plaintiff filed O.S. 114/99 aforesaid for recovery of money from the appellant/defendant inter alia on the allegation that the appellant/defendant had leased a shed bearing No.U.P.7/88A in Ulliyeri to her on a daily rent of Rs.70/- as per Ext.A1 agreement dt.20/05/1998; that a sum of Rs.65,000/- was paid by her to the appellant/ defendant as per the said agreement as advance for the entrustment; that plaintiff was running a workshop in the premises along with the adjacent premises belonging to her father- -2- R. S. A. No.602 of 2008 in-law; that rent of the premises was paid up to 29/06/98; that the building fell down in a cyclone on 30/06/98; that despite repeated requests the appellant/defendant has not cared to reconstruct the shed that has fallen down or to return the advance though initially she had undertaken to reconstruct the shed; that notice was issued by the plaintiff to the defendant and thereafter also she was not prepared to reconstruct the shed; that plaintiffs sustained heavy loss on account of the failure of the appellant/defendant to reconstruct the building; that the defendant is making profit out of the advance amount received by her and that therefore, a decree be granted against the defendant directing her to pay the plaintiff a sum of Rs.75,769 and 32 paise with interest at the rate of 18% per annum from the date of suit till realisation and with costs. -3- R. S. A. No.602 of 2008 3. The appellant/defendant filed written statement resisting the suit. According to her, the lease agreement is still subsisting though the shed which was the subject matter of the lease had collapsed in a cyclone on 30/06/98 as alleged and that the defendant is not liable to pay any amount to the plaintiff pursuant to the alleged agreement. It is true that the building was leased out to the plaintiff on a daily rent of Rs.70/- and that rent was paid up to 29/06/98. However, it is incorrect to say that Rs.65,000/- was paid to the defendant as advance. The plaintiff herself was constructing a small shed after getting permission from the defendant spending her own money and later, she had approached the defendant and told that such permission should be given in writing and for that purpose plaintiff also had brought a blank stamp paper and obtained signature therein R. S. A. No.602 of 2008 -4- from the defendant and now it is understood that the plaintiff making use of the said signed stamp paper has fabricated the lease agreement. The defendant did not execute any lease agreement nor did she receive any advance. There was only an oral agreement for the plaintiff to construct a shed and to do business therein and there was no demand from the plaintiff to reconstruct the building till issuance of the notice. The defendant is not liable to pay the amount claimed or any interest and the suit be dismissed. 4. On the above pleadings the trial court raised necessary issues for trial and considering the case in the light of the above pleadings and the evidence adduced at trial which consisted of oral evidence of PWs.1 to 3 and DW1 and documentary evidence Ext.A1 to A3 and B1 and B2 decreed the suit with costs. Appeal filed by the appellant before the first R. S. A. No.602 of 2008 -5- appellate court as A.S.59/06 was dismissed confirming the correctness of the decree passed by the trial court. Hence, this R.S.A by the aggrieved defendant. 5. It is contended before me by the learned counsel for the appellant that Ext.A1 is not an agreement admitted by the defendant and there is no proper proof regarding its execution and further that inasmuch as the lease had not got terminated by the collapse of the tenanted shed the appellant is not liable to repay the advance amount. He has also relied on the decision of the Apex Court in _T.Lakshmipathi v. P. Nithyananda Reddy [(2003) 5 SCC 150]_ to contend that even in case the building which is subject matter of the lease gets demolished the lease takes in also the land on which the building stood and therefore, when the building is destroyed or demolished the lease is not determined when the land beneath R. S. A. No.602 of 2008 -6- it continues to exist and therefore, the doctrine of restoration cannot be invoked on destruction or demolition of the building under lease. In the said decision it has also been held that the lease comes to an end when the tenant obviously restores the possession by surrender. In the instant case, the tenant has given option to the landlord either to reconstruct the shed or to return the advance and the appellant who originally agreed to reconstruct the shed had not performed her obligations and it was therefore, that the suit was filed by her for return of the advance amount. Hence, this is a case where the tenant has abandoned the right to claim reconstruction of the building and has restored possession of the premises to the landlord giving up her right to have the lease continued. There is no merit therefore, in the contention that a suit for recovery of money R. S. A. No.602 of 2008 -7- advanced will not lie when the tenament in full is not destroyed but only the super structure is destroyed and the lease continues. 6. The further contention that there was no rent agreement entered into between the plaintiff and the defendant and that Ext.A1 is one brought into existence by the plaintiff on a stamp paper got signed from the appellant/defendant and no amount had been received from the respondent/plaintiff by way of advance as alleged and therefore, the suit for money is not maintainable is also of no merit as despite the plaintiff tendering evidence as PW1 and examining also PWs.2 and 3 to substantiate her case and has proved Ext.A1 as the rent deed executed by the defendant and the contents of Ext.A1 shows that Rs.65,000/was advanced to the appellant/defendant, the appellant has not cared to enter the witness R. S. A. No.602 of 2008 -8- box to deny execution of Ext.A1 or receipt of the amount alleged to have been received by her under Ext.A1. It was in the above circumstance that the courts below concurrently found that the plaintiff is entitled to a decree for recovery of amounts claimed by way of return of advance paid to the appellant/defendant. There is absolutely no merit in this R.S.A assailing the concurrent verdicts passed by the courts below and there is no question of law and much less any substantial question of law arising for consideration by this Court in this R.S.A. 7. In the result, I dismiss this R.S.A in limine refusing admission. K.P.BALACHANDRAN, JUDGE kns/-