Padipparambath Meethal Raghavan v. T. Unnikrishnan and others (Legal heirs of the plaintiff)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH DAY OF NOVEMBER 2012/6TH AGRAHAYANA 1934 RSA.No. 1444 of 2012 () ----------------------AS.227/2008 of III ADDITIONAL DISTRICT COURT, KOZHIKODE OS.27/2005 of PRINCIPAL MUNSIFF COURT-II,KOZHIKODE APPELLANT(S)/APPELLANT/DEFENDANT: -------------------------------- PADIPARAMBATH MEETHAL RAGHAVAN, S/O.PARANGODAN, AGED 61 YEARS, R.K.HOUSE, PANTHEERANKAVU AMSOM, KODAL DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/SUPPL.RESPONDENTS 2 TO 6/LEGAL HEIRS OF PLAINTIFF: ----------------------------------------------------------------- 1. T.UNNIKRISHNAN, AGED 61 YEARS, S/O.APPU, CHETTUM PARAMBATH HOUSE, PERUMANNA AMSOM, VELLAYIKODE DESOM, KOZHIKODE DISTRICT-673026. 2. T.LEELA, AGED 63 YEARS W/O.CHANDRAN, THAYYIL HOUSE, CHELAVOOR VILLAGE KOZHIKODE-673571. 3. T.REENA, W/O.RAMACHANDRAN, AGED 60 YEARS, MAYANGOTT CHALIL HOUSE PERUVAYAL AMSOM, KOZHIKODE-673024. 4. T.PUSHPA - W/O.VISWAN, AGED 56 YEARS, PARAMBATH HOUSE, PERUMANNA AMSOM KOZHIKODE DISTRICT -673026. ## 5. P.SANTHA - W/O.APPU, AGED 60 YEARS, PANANGAVIL HOUSE, MANAKKADAVU, PANTHEERANKAVU AMSOM, KOZHIKODE-673019. ADV. SRI.R.BINDU (SASTHAMANGALAM) - (CAVEATOR FOR R1) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.1444 of 2012 -------------------------------------Dated this the 27[th] day of November, 2012.** ## **JUDGMENT** The second appeal arises from the judgment and decree of the Principal Munsiff's Court-II, Kozhikode in O.S.No.27 of 2005 as modified by the III Additional District Judge, Kozhikode in A.S.No.227 of 2008. 2. The original plaintiff (respondents are the legal representatives of the original plaintiff) sued the appellant/defendant for a decree for mandatory injunction to direct the appellant to vacate the plaint A schedule building with arrears of license fee and damages for use and occupation. According to the original plaintiff, as per Ext.A1, license agreement dated 05.05.2003 the plaint A schedule and the plaint B schedule movables were given to the appellant for a period of 11 months on condition of payment of license fee at the rate of `1,200/per month. It is the further case of the original plaintiff that though in Ext.A1, license agreement `20,000/- was mentioned as security paid, the appellant paid only `9,500/- in cash and issued a cheque dated 31.02.2004 for the balance amount which was dishonoured. The license fee is in arrears after 04.02.2004. The period of license expired by 04.04.2004. Original plaintiff issued Ext.A3, notice to the appellant to which the appellant sent Ext.A5, reply raising frivolous contentions. Hence the suit. 3. The appellant denied execution of Ext.A1 and claimed that he is a 2 RSA No.1444/2012 tenant of the plaint A schedule. He denied that the plaint B schedule belonged to the original plaintiff. He claimed that he has spent `16,000/- for repair of the building and `20,000/- was paid as advance. The cheque for `10,500/- was for the amount the appellant had borrowed from the original plaintiff. The appellant deposited `11,300/- being the rent till 27.03.2004 and claimed to have paid a further sum of `700/- on 28.03.2004. The rent payable for the subsequent months by money order was refused by the original plaintiff. 4. The trial court found in favour of due execution of Ext.A1, held that it is a license and granted a decree in favour of the original plaintiff. The trial court also found that though Ext.A1 mentioning the security deposit of `20,000/-, the appellant had paid only `9,500/-. 5. The first appellate court found that `20,000/- was paid as advance. The other findings entered by the trial court were confirmed. The first appellate court permitted the appellant to deduct `20,000/- from the amount he is otherwise liable to pay to the original plaintiff. 6. The learned counsel for the appellant contends that the finding of the courts below that Ext.A1 was executed by the appellant and it is a license agreement is erroneous. A further argument the learned counsel has advanced is that though, PW1, the son of the original plaintiff claimed that during the pendency of the suit the original plaintiff had executed assignment deed No.2073 of 2008 in favour of PW1 concerning the suit property, that document was suppressed from the notice of the trial court. It is pointed out by the learned counsel that during the pendency of the appeal before the first appellate court, 3 RSA No.1444/2012 the original plaintiff died and PW1 filed application to implead himself as additional respondent while the appellant filed application to implead all the legal representatives of the deceased plaintiff as respondents. The application filed by PW1 was closed, the application filed by the appellant was allowed and all the legal representatives were impleaded as additional respondents. According to the learned counsel, PW1 who suppressed execution of document No.2073 of 2008 from the notice of the trial court has come to the court with unclean hands and hence the respondents are not entitled to the discretionary relief. 7. Alternatively the learned counsel requested for one years' time to vacate the plaint A schedule building. It is pointed out that the appellant is running a vaidhyasala in the plaint A schedule building and it would take at least a year's time to find an alternate accommodation. 8. The learned counsel who took notice for the respondents contends that the inter se dispute between PW1 and other legal representatives of the deceased plaintiff is not required to be decided in this proceeding since PW1 has not challenged the order impleading the other respondents in the first appeal and the decree of the first appellate court is in favour of all the respondents. 9. So far as the contention that PW1 has suppressed material facts is concerned, I find myself unable to accept it. PW1 has explained that it is because he wanted to avoid loss of time by an impleadment of himself in the trial court on the strength of assignment deed No.2073 of 2008 that the said fact 4 RSA No.1444/2012 was not disclosed. I must notice that even if the original plaintiff had disposed of the plaint A and B schedules as per the said assignment deed, nothing prevented the original plaintiff from continuing the litigation though, it was at the risk of the assignee. 10. In so far as the decree is granted by the first appellate court in favour of the legal representatives of the deceased original plaintiff and that part of the decree is not under challenge from them, there is no reason why the appellant should feel aggrieved about that. 11. So far as execution of Ext.A1 is concerned, relying on the evidence of PW1, the son of the original plaintiff and PW2, a witness to Ext.A1, the trial court found that Ext.A1 is executed by the appellant. I must also bear in mind the version of the appellant that the original plaintiff had obtained signed blank, stamp papers from him for preparation of the lease agreement. In fact the signature in Ext.A1 is not being disputed by the appellant. In the above circumstances, the courts below are correct in deciding in favour of due execution of Ext.A1. 12. A copy of Ext.A1 is given to me for perusal. I have gone through Ext.A1 and find that it is a case where, by Ext.A1, appellant was permitted to use the plaint A and B schedules subject to the terms and conditions therein. Reading Ext.A1, I am in agreement with the finding of the courts below that it is only a license agreement. I must also notice that the law does not stand in the 5 RSA No.1444/2012 way of parties entering into a license agreement. What is frowned upon is only the creation of license agreement to camouflage the real relationship between the parties. No such situation arises in the facts of the case. 13. The first appellate court has found that a sum of `20,000/- was received by the original plaintiff by way of advance and that the appellant is entitled to adjust the same in the amount he is liable to pay to the respondents as per the decree of the first appellate court. 14. On hearing the learned counsel on both sides, I do not find any substantial question of law involved, requiring admission of the second appeal. 15. So far as the request for time to vacate the building is concerned, having heard the learned counsel on both sides and considering the difficulties of the appellant expressed by the learned counsel, I am inclined to grant time till 31.05.2013 from this day to vacate the building. I make it clear that the time granted hereby will not stand in the way of the appellant requesting further time in the executing court and the executing court considering that request and passing appropriate orders after hearing the parties. Resultantly, the second appeal is dismissed. But, the appellant is granted time till 31.05.2013 to vacate the premises subject to the decision the executing court may take as aforesaid and subject to the following conditions: 6 RSA No.1444/2012 i. The appellant shall pay/deposit for payment to the respondents the entire amount due as per the decree of the first appellate court less `20,000/- which he is allowed to adjust, on or before 27.01.2013. ii. The appellant shall continue to pay/deposit in the executing court for such payment damages for use and occupation at the rate of `1,200/- (Rupees one thousand and two hundred only) per month due from 01.12.2012. Such payment/deposit shall be made on or before the 5[th] of the succeeding month and if that day happens to be a holiday, the payment/deposit shall be made on the next working day. iii. The appellant shall file affidavit in the executing court within two weeks from this day undertaking to vacate the premises by 31.05.2013 (subject to the decision of the executing court as above stated). iv. It is directed that if any of the above conditions is violated, it will be open to the respondents to proceed with execution notwithstanding the time granted hereby. v. The execution proceeding will stand in abeyance till 31.05.2013 or till the appellant vacates the building or till any of the conditions above stated is violated, whichever is earlier. 7 RSA No.1444/2012 vi. In case on the request of the appellant and after hearing both sides the executing court decides to grant further time, it will be open to the executing court to impose any or all of the above conditions or any further condition as circumstances may warrant including the amount for damages for use and occupation payable by the appellant. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**