Shabeer v. Balakrishnan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 1935 RSA.No. 889 of 2013 () -------------------AGAINST THE JUDGMENT IN AS 164/2012 of III ADDL.DISTRICT COURT KOZHIKODE AGAINST THE JUDGMENT IN OS 98/2011 of ADDL.MUNSIFF'S COURT - II KOZHIKODE APPELLANT(S)/APPELLANT/IST DEFENDANT: ------------------------------------SHABEER.V AGED 31 YEARS S/O.SAIDU MUHAMMED, VALAPPINTAKATH VEEDU EAST KALLAI.P.O., KASABA AMSOM & DESOM KOZHIKODE TALUK, KOZHIKODE DISTRICT, PINCODE-673 003. BY ADV. SRI.M.S.VINEETH RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANT NOS.2 TO 4: ----------------------------------------------------------- 1. A.BALAKRISHNAN, AGED 65 YEARS S/O.LATE AMBALI KARTHIKEYAN, 1/64A, AMBALI HOUSE WEST HILL.P.O., PUTHIYANGADI AMSOM & DESOM KOZHIKODE TALUK, KOZHIKODE DISTRICT, PINCODE-673 005. 2. A.VINOD, AGED 53 YEARS - S/O.LATE A.KARTHIKEYAN, 15, SKYLINE MEADOWS ERANJHIPALAM, CIVIL STATION.P.O. NAGARAM AMSOM & DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT, PINCODE-673 020. 3. A.RAVI, AGED 58 YEARS - S/O.LATE KARTHIKEYAN, B4, CRESENT MERVUE CONVENT CROSS ROAD, NEAR FIRE STATION CALICUT BEACH.P.O., KASABA AMSOM & DESOM KOZHIKODE TALUK, KOZHIKODE DISTRICT, PINCODE-673 032. 4. A.ANAND, AGED 51 YEARS - S/O.LATE A.KARTHIKEYAN, AMBALI HOUSE, WEST HILL.P.O. PUTHIYANGADI AMSOM & DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT, PINCODE-673 005. BY ADV. SRI.NIRMAL. S. CAVEATOR FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J.** **............................................................. R.S.A. No. 889 of 2013 ..............................................................** ## **Dated: 16-08-20913** ## **JUDGMENT** The first defendant in a suit for injunction is the appellant. Defendants 2 to 4 in the suit are the brothers of the plaintiff. The plaintiff contended that the plaint schedule room was trespassed upon by the first defendant and he started conducting furniture business therein without any authority. It is also contended that the first defendant has not obtained license from any authority for conducting business and that the conduct of the business is illegal and thus sought for injunction restraining him to conduct business in the plaint schedule building. 2. The first defendant filed written statement admitting the fact that the plaint schedule property belongs to the plaintiff and defendants 2 to 4. It was also **R.S.A. No. 889 of 2013** **2** stated that he was not aware whether suit as O.S. 50/2008 for partition filed by the plaintiff is pending before the Sub Court . It is further contended that the shed in question was entrusted to him by the mother of the plaintiff and he is a tenant in respect of the same ever since 1995 and thereafter he was conducting carpentry work in the said shed. It was further contended that after the death of the plaintiff's mother Madhavi, his brothers had tried to forcibly evict him from the shed. The allegation that he is carrying illegal trade of timbers in the plaint schedule property is denied. The allegation that he was questioned by the Forest Department for illegal storing of wood in the plaint schedule property is also incorrect. The second and third defendants had filed written statement contending that no illegal business is being conducted in the plaint schedule shed. 3. Before the Court below P.W.1 and P.W.2 were examined and Exts. A1 to A13 were marked. Ext. X1 series **R.S.A. No. 889 of 2013** **3** were also marked on the side of the plaintiff. The Commissioner's report was marked as Ext. C1 for which the Advocate commissioner was examined as P.W.2. 4. The learned Magistrate after elaborate discussion of the entire evidence on the side of the plaintiff found that the first defendant had not obtained any license for conducting the timber business in the plaint schedule property and that it is being illegally conducted by him for which the learned Munsiff has mainly relied upon the oral evidence of P.W.1 and also of the Advocate Commissioner and Ext.C1 report. The fact that the first defendant had not obtained license was not disputed. But the first defendant contended that no license is required at all for the conduct of the said business. The first defendant did not mount the witness box nor was any evidence adduced to refute the allegations made by the plaintiff. The learned Munsiff granted a decree for injunction against the first defendant from conducting timber business in the plaint **R.S.A. No. 889 of 2013** **4** schedule building without obtaining the required license from the authorities concerned. The learned Addl. District Judge after analysing the evidence concurred with the view taken by the learned Munsiff and dismissed the appeal. 5. The learned counsel for the appellant submits that the courts below were not justified in granting a decree for injunction as prayed for. It is vehemently argued by the learned counsel that defendants 2 and 3 did not support the case of the plaintiff and so it should have been found that the first defendant was conducting business as a lessee. It is further argued by the learned counsel that no license is required for conducting carpentry work in the plaint schedule building. He contends that the finding entered by the courts below that the timber business was conducted in the plaint schedule building is incorrect. 6. Since defendants 2 and 3 filed written statement disputing the case set up by the plaintiff, the courts below should not have granted a decree for **R.S.A. No. 889 of 2013** **5** injunction. The further contention advanced by him is that the courts below erred in relying upon Ext. C1 report. The learned counsel for the first respondent would submit that no tenable contention has been raised by the first defendant/appellant . 7. It is trite law that there is distinction between substantial question of fact and substantial question of law. It is also trite law that all questions of law are not substantial questions of law. There is nothing to show that there was any perversity in the approach made by the courts below in analysing the pleadings and evidence. 8. Be that as it may, the pleadings and evidence can also be considered to find whether any wrong approach was made by the courts below in granting a decree for injunction against the first defendant/appellant. Though the first defendant contended that he was granted lease by Madhavi, the mother of the plaintiff and Defendants 2 to 4, no oral or documentary evidence was adduced by the first **R.S.A. No. 889 of 2013** **6** defendant/appellant to prove that contention. It is vehemently argued by the learned counsel for the appellants that Defendants 2 and 3 who filed written statement did not dispute the fact that the first defendant is in possession of the building, and so, the courts below were not justified in granting an injunction. But it is important to note that the decree for injunction granted is only against the conduct of timber business in the plaint schedule property without obtaining license from the authorities concerned. Admittedly, not even a single scrap of paper was produced by the first defendant/appellant to show that any license was obtained by him for the conduct of the business. 9. Now it is vehemently argued by the learned counsel for the appellant that no license is required for the conduct of the business. It is even argued that what is conducted is a petty carpentry work. It is inconceivable on what basis the learned counsel has argued in that line. It **R.S.A. No. 889 of 2013** **7** seems the counsel is oblivious of the fact that the first defendant who wanted to contend that he was conducting only a petty carpentry work did not even care to mount the witness box to say that he was only conducting carpentry work. 10. It is pointed out by the learned counsel for the respondent/plaintiff that the first defendant had realised the insurmountable difficulty to explain the Commissioner's report in which it was specifically stated by the Advocate Commissioner that lorry loads of teak wood, mahagony and other timber logs were seen unloaded in the plaint schedule property. It is not known how the first defendant/appellant can bring to that property, lorry loads of teak wood and other trees including forest woods without obtaining permit or pass from the Forest Authorities and from the Sales Tax Authorities. By producing the reply received from the officers of the Public Information Offices under the Right to Information Act, the learned counsel for **R.S.A. No. 889 of 2013** **8** the plaintiff submits that all the authorities had replied that the first defendant had not obtained any license from any authority for the conduct of the business. 11. The contention that no license is required for conduct of the business is too tenuous to be countenanced. There was absolutely no explanation for the appellant as to how lorry loads of teakwood and other timber could be seen in the plaint schedule property when the Advocate commissioner inspected the property. It is also submitted by the learned counsel for the plaintiff/respondent that till 2003, timber business was conducted in the said property by the second defendant. For that purpose, the license obtained from the Corporation was also produced. That would scuttle the plea raised by the appellant that he was granted oral lease of the shed by the plaintiff's mother Madhavi in 1995 and he was conducting business therein. In spite of the adduction of the oral and documentary evidence which would demolish the case of the first **R.S.A. No. 889 of 2013** **9** defendant/appellant he did not care to mount the witness box. That itself will speak volumes. As rightly pointed out by the courts below it is a case where adverse inference has to be drawn against the first defendant for not mounting the witness box. Still the learned counsel for the appellant argues that no license is required and that there is no evidence regarding the conduct of the timber business. 9. The learned counsel for the plaintiff/respondent has also drawn the attention of the Court to Ext. X1 series which would show that the Municipal Corporation has initiated action against the first defendant/appellant for not taking license or permission for conduct of the business in the said property. It was also pointed out that under Sec. 447 (1) of the Kerala Municipality Act, (“the Act “for short) a party who is conducting business is bound to take license. The contention that he was only doing a carpentry work was found to be nothing but a brazen lie. It is inconceivable how without obtaining any license from Forest department **R.S.A. No. 889 of 2013** **10** and Sales Tax Department such lorry loads of teak wood and other timber logs could be brought to the plaint schedule building and how the first defendant/appellant could conduct timber business in the said property with impunity without obtaining license from the Corporation. Is it that the first defendant/appellant is so powerful that all the authorities concerned are reluctant to take prompt action against the first defendant ?. It is a matter to be seriously considered. 10. The learned counsel appearing for the plaintiff/first respondent submits, relying upon the decision in **Sivadasan v. Mattannur Municipality** - **2008 (4) KLT 684** that even if no rules are notified covering the trade run by the appellant still he is liable to take license in view of Sec. 447 (1) of the Municipality Act. Even otherwise, there is no dispute regarding the fact that for conducting timber business license is required. But the appellant wanted to contend that he is not conducting **R.S.A. No. 889 of 2013** **11** timber business but only a petty carpentry work. That was found to be a tissue of falsehood. The very fact that the first defendant/appellant did not care to enter the witness box to give evidence regarding the case put forward by him or to refute the evidence given by P.W.1 and P.W.2 would run counter to the argument advanced on behalf of the appellant that no such business is being conducted there. 11. It was observed by the lower appellate court that the Commissioner could find loads of timber logs which includes teak trees, rose wood trees etc. in the suit property. Besides, the Commissioner could also see 12 persons working in the schedule property who told the Advocate commissioner that they were being engaged by the appellant herein. It was also pointed out that in the written statement the case set up by the first defendant is that the wooden logs seen there were brought by the parties themselves. That itself will unravel the fallacy of the case put forward by him. The appellant wanted to contend **R.S.A. No. 889 of 2013** **12** that he is only a petty carpenter, but at the same time he also wanted to justify that his parties brought loads of timber to that premises. Not only that in the objection filed by him to the report of the Commissioner, it was stated that except the shed given to the appellant herein the remaining land was given to one Jayaraj timbers for keeping timber. No such case was stated in the written statement. 12. Sec. 447 (1) of the Act makes it clear that no place within the Municipal area shall be used for any one or more of the purposes specified in the Rules made in that behalf or for any other trade without a license and except in accordance with the conditions specified therein. Additional conditions are also prescribed for issuance of license for running hotels, restaurants etc. Sec. 448 also is applicable to the facts of this case, the learned counsel for the first respondent/plaintiff submits. The Advocate Commissioner could also find certain machineries kept in **R.S.A. No. 889 of 2013** **13** the plaint schedule property which also according to the plaintiff would show that those machines were used by the appellant herein for the conduct of the timber business therein. Relying on the observations made by the Advocate Commissioner, the courts below found that the plaint schedule property is used by the first defendant for running a timber business/furniture industry without any license. The argument that those timber logs belonged to Jayaraj timbers and they had brought those timber logs to the property remains unfounded and unsubstantiated. What is pleaded is not proved and what is argued is neither on the basis of any pleading nor based on any evidence. The learned Munsiff has discussed the evidence in detail. It is a well discussed and well-reasoned judgment. The learned Appellate Judge has re-appreciated the evidence and has rightly upheld the decisions rendered by the trial Court. 13. The courts below have analysed the evidence adduced by P.W.1 and P.W.2, Commissioner's report (Ext. **R.S.A. No. 889 of 2013** **14** C1) and Ext.X1 series etc. to hold that the first defendant/appellant was conducting a timber business in the plaint schedule building without obtaining any license from any of the authorities. Since the plaint schedule building belongs to the plaintiff though may be as a coowner he has got every right to file the suit for injunction against the illegal conduct of business in the plaint schedule building. No question of law, much less substantial question of law arises in this Second Appeal, and hence it is only to be dismissed. In the result, this Regular Second Appeal is dismissed. **Sd/N.K.BALAKRISHNAN,** **JUDGE.** **ani/** **/true copy/** ## **P.S. to Judge**