K.P. Visalakshy v. M/s Kerala Food Packers Ice Factory

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY ,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940** ## **AS.No. 151 of 2003** **AGAINST THE JUDGMENT IN OS 444/1990 of II ADDL.SUB COURT, KOZHIKODE DATED 24-01-1995.** ## **APPELLANT/PLAINTIFF :** **K.P.VISALAKSHY, W/O PURUSHOTHAMAN, KOYYERI THAZHAM, POST ELANHIPALAM, KOZHIKODE.** **BY ADV. SRI.K.A.SALIL NARAYANAN.** ## **RESPONDENTS/DEFENDANTS:** - **1 N.J.CHATHU,AGED 60 YEARS PROPRIETOR, M/S.KERALA FOOD PACKERS ICE FACTORY, WEST HILL, KOZHIKODE. (DIED) LRS IMPLEADED.** - **** 2 P.M SREEDHARAN, AGED 60,(DIED) LRS IMPLEADED. S/O P.M.ACHUTHAN, MANAGER, M/S.KERALA FOOD PACKERS ICE FACTORY, WEST HILL, KOZHIKODE.** - **3 ADDL.R3 AND R4 IMPLEADED. SMT.JAIN, W/O P.M.SREEDHARAN, PUTHALATH HOUSE, NEAR ORPHANAGE, WESTHILL, KOZHIKODE.** - **4 MYTHILI, “SHELTER”' NALLALAM U.P SCHOOL, NALLALAM ROAD, AREEKKODE, KOZHIKODE.** **** THE LEGAL HEIRS OF THE DECEASED R2 ARE IMPLEADED AS ADDL.R3 AND R4 VIDE ORDER DATED 29-01-2004 ON CMP NO.1765 OF 2003.** A.S No.151 OF 2003 2 ## **ADDITIONAL RESPONDENTS IMPLEADED.** **ADDL.R5 SRI.JACOB NEROTH, W-16/329, P.O BOX -17, ALAPPUZHA. ADDL.R6 SRI.JOHN MATHEW N, W-16/329, P.O BOX -17, ALAPPUZHA. ADDL.R7 SRI.ALEX JOSEPH** , **W-16/329, P.O BOX -17, ALAPPUZHA. ADDL.R8 SRI.JOHN CHACKO, W-16/329, P.O BOX -17, ALAPPUZHA. ADDL.R9 SRI.JOHN JOHN NEROTH, W-16/329, P.O BOX -17, ALAPPUZHA. ADDL.R10 SRI.FRANCIS GEORGE, W-16/329, P.O BOX -17, ALAPPUZHA.** *** LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.R5 TO R10 AS PER ORDER DATED 06-09-2018 IN I.A NO.3910/2007.** **BY ADV.SRI.ROY CHACKO FOR R1, R3 AND R4 TO R8.** **THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** A.S No.151 OF 2003 3 A.HARIPRASAD, J. -------------------------------------- A.S No.151 OF 2003 -------------------------------------- Dated this the 25th day of September, 2018 ## J U D G M E N T Defeated plaintiff in O.S No.444 of 1990 before the Court of Subordinate Judge, Kozhikode, is the appellant. Suit is one for realization of money. 2. Brief averments in the pleadings are as follows : Plaintiff purchased a pickup van bearing registration No.KRD 6311 for an amount of Rs.46,500/- from one Haridasan by virtue of an agreement dated 17-09-1984. She was in possession of the vehicle as per the terms of the agreement. After executing an agreement dated 03-09-1984, the plaintiff took M/s.Kerala Food Packers, an ice factory A.S No.151 OF 2003 4 owned by the first defendant, on a lease. Van was purchased for transportation of ice from the factory to the consumers. Plaintiff had run the ice factory till 03-09-1986. It was surrendered to the first defendant on 04-09-1986. An amount of Rs.11,288/- was due from the plaintiff to the first defendant on the date of surrender of factory. On settlement of accounts, the amount was ascertained and the defendant had granted time to the plaintiff to remit the amount. While so, the pick up van mentioned above was leased out by the plaintiff to the defendants on a daily rent of Rs.100/- on condition that the profit earned would be adjusted towards the liability of the plaintiff. It is the allegation that on surrendering vacant possession of the factory, the defendants agreed to surrender possession of the van as and when required by the plaintiff along with balance rent, if any. Since the defendants failed to perform their obligations, the suit was filed. 3. The defendants admitted that ice factory was rented out to the A.S No.151 OF 2003 5 plaintiff. Surrender of the factory on 04-09-1986 is also an admitted fact. The defendants admitted that the pickup van belonging to the plaintiff was handed over to them at the time of surrender of the factory. However, they would contend that the van was given to them as a security for repayment of money owed by the plaintiff to the defendants. According to the defendants' counter claim, an amount of Rs.18,533.72/- was to be paid by the plaintiff towards arrears of rent. Further, he is liable to pay an amount of Rs.5,762.55/- towards electricity charge and telephone charge. Therefore, a total sum of Rs.24,296.27/- was claimed by the defendants. 4. The court below raised the following issues in the suit as well as in the counter claim. - “ 1. Whether the vehicle KRD 6311 had been entrusted to the defendant as per an oral lease ? 2. Whether any amount is due from the defendant to the plaintiff ? A.S No.151 OF 2003 6 3. Whether the plaintiff is liable to pay any amount to the defendant ? 4. Reliefs and costs ?” 5. To substantiate their contentions, both parties have adduced oral evidence through two witnesses each. Exts.A1 to A9 and Exts.B1 and B2 series are the documents produced by the parties. 6. Heard both sides. 7. Learned counsel for the appellant submitted that the court below has committed a grave error in appreciating the evidence. According to him, the suit should have been decreed as prayed for and the counter claim should have been rejected. 8. Per contra, learned counsel for the defendants/respondents contended that the appeal itself is incompetent. It is pointed out that only one appeal is filed challenging the decree in the suit as well as the the counter claim. A Division Bench of this Court in National Insurance Co. Ltd. v. Fathimath Zuhara (2016(3) K.L.T 459) expressed A.S No.151 OF 2003 7 an opinion that one appeal is sufficient in the case of a decree in a suit and a counter claim, but however separate grounds should be raised in challenge of the decrees and sufficient court fees also should be paid. 9. In answer to this contention, learned counsel for the appellant contended that the appellant was permitted to sue as an ''indigent person'' before the trial court. In the appeal also, a Division Bench had granted permission to her to institute and prosecute the appeal as indigent person. Therefore, payment of court fee for challenging the decree in the suit and the counter claim may not arise in this case. However, as pointed out by the learned counsel for the respondents no specific challenge has been made in the appeal memorandum against the decree in the counter claim. Learned counsel for the appellant pointed out that grounds B, K and O pertain to the counter claim. On a reading, it can be seen that those are general allegations touching upon merit of the decree in the suit. It has been A.S No.151 OF 2003 8 held by the three bench Judge of the Supreme court in Premier Tyres as Ltd. v. Kerala State Road Transport Corporation (1993(2) K.L.T 130) follows : “ Where an appeal arising out of connected suit is dismissed on merits the other cannot be heard, and has to be dismissed. Where no appeal is filed, as in this case from the decree in connected suit it has the same effect of non filing of appeal against a judgment or decree. Thus the finality of finding recorded in the connected suit, due to non filing appeal precludes the Court from proceeding with appeal in other suit.” Therefore, if the decree in the counter claim is not specifically challenged and when both proceed on the same footing, certainly the appeal against the decree in the suit will be hit by the principles of res judicata in Section 11 of the C.P.C. On that ground, the appeal has to fail. 10. Coming to the facts of the case, the court below has A.S No.151 OF 2003 9 analyzed the evidence meticulously and came to the conclusion that there is no evidence adduced by the appellant to show that there was a rental arrangement of van between herself and the defendants. It is submitted by the learned counsel for the appellant that the defendants were in possession of the pickup van which belonged to the plaintiff is an admitted case. It is also an admitted fact that they did not return the van to the plaintiff. Legally speaking the obligation to return a security arises only on discharge of the liability. The court below after considering the oral and documentary evidence found that there is no reliable material produced by the plaintiff to show that there was a rental arrangement between the plaintiff and the defendants in respect of the vehicle. Testimony of independent witness DW2 was also relied on by the court below to find that the pickup van was handed over by the plaintiff to the defendants at the time of vacating the factory as a security for repayment of the amounts admitted by her. The court A.S No.151 OF 2003 10 below relied on the pleadings as well as the evidence to find that the plaintiff has admitted to the liability to a certain extent. On a perusal of the entire materials before this Court, I find no reason to take a different view from the view taken by the trial court. In the result, the appeal is dismissed. The appellant shall be liable to pay costs and court fee payable throughout. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. amk A.S No.151 OF 2003 11 A.HARIPRASAD, J. -------------------A.S No.151 OF 2003 -----------------Dated 25-09-2018 J U D G M E N T