Unnikrishnan v. Shibu and Shaji

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944 RSA NO. 354 OF 2022** **AGAINST THE JUDGMENT AND DECREE DATED 30.11.2020 IN AS 173/2016 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA DECREE AND JUDGMENT DATED 30.06.2016 IN OS 124/2013 OF ADDITIONAL SUB COURT, IRINJALAKUDA** ## **APPELLANT/APPELLANT/DEFENDANT** UNNIKRISHNAN AGED 76 YEARS S/O.LATE VALIYAVEETTIL KARUPPAKUTTY, KIZHUTHANI DESOM, KARALAKAM VILLAGE, MUKUNDAPURAM TALUK, THANISSERY P.O., PIN - 680 701. BY ADV B.JAYASANKER ## **RESPONDENT/RESPONDENT/PLAINTIFF:** 1 SHIBU AGED 49 YEARS S/O.KUNNATH KOCHURAMAN, VELLANI DESOM, KARALAKAM VILLAGE, MUKUNDAPURAM TALUK, THANISSERY P.O., PIN - 680 701. 2 SHAJI AGED 55 YEARS S/O.KUNNATH KOCHURAMAN, VELLANI DESOM, KARALAKAM VILLAGE, MUKUNDAPURAM TALUK, THANISSERY P.O., PIN - 680 701. BY ADV G.SREEKUMAR (CHELUR) **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON 05.12.2022 DELIVERED THE FOLLOWING:** R.S.A.No.354/2022 2 ## **M.R.ANITHA, J** ****************** R.S.A.No.354 of 2022 ----------------------------------------------Dated this the 5[th] day of December, 2022 ## **JUDGMENT** Defendant is the appellant and suit is one for arrears of rent. First plaintiff is the owner of the building situated in the plaint schedule property and he purchased the property from the defendant and his brother. Since the first plaintiff is working in Sharjah, plaintiffs 2 and 3 are possessing his property on his behalf. Since the construction of the defendant's house was not over, defendant sought permission of plaintiffs 2 and 3 to reside in the house situated in the plaintiff's property for two months. Then, as per the rent deed dated 20.05.2009, he took the building for rent on a monthly rent of Rs.3,000/- by paying Rs.10,000/- as advance. It was subsequently extended for six months from July, 2009 by executing another rent deed and on R.S.A.No.354/2022 3 05.02.2010 a rent deed was again executed for ten months. Defendant is continuing as tenant as per the rent deed dated 05.02.2010. But, rent has been paid only for two months from 20.05.2009. Lawyer notice was issued demanding rent. Thereafter, suit was filed for realisation of rent for 42 months. 2. Defendant filed written statement contending that plaintiffs and defendant are relatives. Hence, even though rent was paid, no receipt was issued. When plaintiffs tried to forcibly evict the defendant, he filed O.S.No.2701/2012. Thereafter, he vacated the building and surrendered the key during the pendency of O.S.No.2701/2012 on 04.03.2013. There is no rent arrears. PW1 was examined and Exts.A1 to A6 were marked from the side of the plaintiffs. DW1 to DW5 were examined and Exts.B1 to B4 were marked from the side of the defendant. 3. Trial Court, on appreciating the facts and circumstances and evidence, decreed the suit with cost. The appeal filed against the same was dismissed confirming the judgment and decree passed by the trial court. Aggrieved by the R.S.A.No.354/2022 4 concurrent findings by the courts below, the appellant approaches this Court in second appeal. 4. Notice was issued to the respondent and both sides were heard. 5. According to the learned counsel for the appellant/defendant, pending the proceedings, 2[nd] plaintiff died and no legal heirs have been impleaded and hence the suit ought to have been dismissed as abated. It is also his contention that Ext.B1 is the 4[th] rent deed executed by the defendant which would state that Rs.10,000/- was further received towards advance and though the plaintiffs allege about arrears of rent, in the subsequent rent deed, there is no mention of arrears of rent. If at all there was any arrears of rent, normally it would have find a place in the new rent executed. No document has been produced by the plaintiffs to substantiate the allegation and hence the contention of the defendant that even though rent was paid, being relatives no receipt was used to be issued ought to have been accepted. So, according to him, the only rent from R.S.A.No.354/2022 5 September, 2012 to February, 2013 is due and he has paid rent upto August, 2012. Only when the defendant filed O.S.No.2701/2012 for restraining the plaintiffs from forcefully evicting him from the building, this suit was filed claiming arrears of rent. It is also his contention that different and distinct cause of action based on different rent deeds have been clubbed together and suit has been filed claiming arrears of rent for 42 months which according to him, is not sustainable in law as per the dictum laid down in **Chirag Enterprises vs. Star Traders : 2012 (4) KLJ 328 : 2012 (4) KHC 271 :ILR 2012 (4) Kerala 266** . 6. Learned counsel for the plaintiffs, on the other hand, would contend that the suit is only for arrears of rent and tenancy is admitted and the payment of rent to the plaintiffs is also admitted. The fact that second plaintiff expired pending the suit and his legal heirs were not impleaded, is not at all a reason to non-suit the plaintiffs in a case of realisation of arrears of rent when co-owners are already in the party array. According to the R.S.A.No.354/2022 6 learned counsel for the plaintiffs, though the second plaintiff expired during the pendency of the proceedings, Ext.A1 is the power of attorney executed by the first plaintiff in favour of the third plaintiff. He would also contend that the argument raised by the learned counsel with regard to non-mentioning of arrears of rent in the rent deed is not specifically pleaded in the written statement and hence the plaintiffs did not get any opportunity to counter the argument by adducing necessary evidence. 7. Needless to say, a second appeal can be sustained in law only if there is substantial question of law to be decided. It is relevant in this context to quote **Govinda Raju v. Mariamman: 2005 SCC 500** wherein it has been held that second appeal would lie to the High Court from a decree passed in appeal in any court subordinate to the High Court if the High Court is satisfied that the case involved a substantial question of law. It is also held that the existence of substantial question of law is a sine qua non for the exercise of jurisdiction under Section 100 of the Code of Civil Procedure, 1908. In **Gurnam Singh (D) By Lrs..** R.S.A.No.354/2022 7 **vs Lehna Singh(D) By Lrs. : 2019 (7) SCC 641** also it has been held that framing of substantial question of law is a sine qua non for the exercise of jurisdiction under Section 100 of C.P.C. It is also made specific that jurisdiction of the High Court to entertain a second appeal under Section 100 C.P.C after 1976 amendment is confined only when second appeal involves a substantial question of law. 8. In the present case, the substantial question of law projected by the learned counsel for the appellant is that the plaintiffs consolidated the amount based on different rent deeds without specifying the amounts thereto and hence in the absence of each and every distinct claims specifically pleaded with precise amounts, the suit is not maintainable. To support his contention, learned counsel relied on **Chirag Enterprises** referred above. But, on going through the fact situation of that case, it is seen that, that was a case in which the plaintiff engaged in wholesale business of boiled rice and first defendant is a partnership firm and second defendant is the managing partner of the firm and R.S.A.No.354/2022 8 they are the customers of the plaintiff in rice business and the plaint allegation is that an amount of Rs.1,95,730.55/- towards credit purchase of rice is due from the defendants. The defendant denied the allegation and contended that no amount is due or payable by the defendants to the plaintiff. Plaintiff produced Exts.A1 and A2 credit bills dated 14/02/1996 and 20/04/1996 respectively and the credibility of Exts.A1 and A2 was challenged and it was found that corresponding relevant records were not brought in evidence by the plaintiff to corroborate Exts.A1 and A2 credit bills. Ext.A3 series though produced, were in Gujarati language and contents were not proved. So, it was found that the evidence tendered by the plaintiff did not give any material to connect Exts.A1 to A3 with the claim against the defendants. In the said circumstances, it has been held that when a claim for consolidated amount which arise from several and distinct claims becomes barred by limitation and no relief is sought separately for such distinct claims/claim accrued on different dates can be considered separately and independently in the matter of R.S.A.No.354/2022 9 limitation if each and every such distinct claims are specifically pleaded with precise amounts and the cause of action is found upon such separate and distinct ground. In the present case, the suit has been filed for arrears of rent. As per the averments in the plaint, three rent deeds were executed in between the parties consecutively starting from 20/05/2009. The defendant admits the execution of those rent deeds and admittedly by him he vacated the premises only during the pendency of O.S.No.2701/2012. As per Article 52 of the Limitation Act, the period of limitation for a suit for arrears of rent is three years from the date when the arrears become due. So, rent for past three years based on rent deed executed in between the plaintiffs and the defendant consecutively cannot be taken separately and independently and there is no necessity to file separate suits for claiming rent with respect to three separate rent deeds, as has been contended by the learned counsel for the defendant. 9. In **Chirag Enterprises** , the fact situation was entirely different. The suit was filed based on two credit bills on different R.S.A.No.354/2022 10 dates and there was no supporting documents or account books produced by the plaintiff to substantiate the claim. In the said circumstances, it was held that each and every distinct claims are to be specifically pleaded with precise amounts and cause of action to be found upon such separate and distinct periods. It has no application to the case in hand. So, substantial question of law projected by the learned counsel is not at all sustainable in the fact situation of this case. 10. Admittedly, the defendant was a tenant under the plaintiffs. Though a contention was raised by the learned counsel that the second plaintiff died, to whom 7.5 cents of property in which the building situates, pending the proceedings and his legal heirs are not impleaded, admittedly a part of property belongs to the first plaintiff also and first plaintiff is none other than the son of the second plaintiff and third plaintiff is the brother of the first plaintiff and power of attorney was given by the first plaintiff to the second and third plaintiffs. After the death of the second plaintiff, since the first and third plaintiffs who are his legal heirs R.S.A.No.354/2022 11 are already in the party array and the suit is one for realisation of arrears of rent alone, there is substantial representation and hence death of the second plaintiff will not result in the abatement of the suit against plaintiffs 1 and 3. So, the contention to the contra advanced by the learned counsel is not at all sustainable in law. 11. The next contention advanced by the learned counsel is with regard to the rent arrears found to be due from him without any materials. According to him, plaintiffs could not bring in any documents and his evidence was accepted by the courts below and the same standard ought to have been adopted to the evidence of the defendant also when he states that, being relatives, no receipt was issued in respect of the payment of rent. But, it is to be noted that, as per Sections 101 and 102 of the Evidence Act, the burden of proof is upon the person who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. It is the defendant who asserts that rent R.S.A.No.354/2022 12 has been paid till September, 2012. So, it is he who fails if no evidence is adduced in this regard. So, the burden of proof is absolutely on him to prove that the rent arrears upto August, 2012 has been paid by him. So also, as has been rightly found by the courts below, by virtue of Section 9 of the Kerala Building Lease and Rent Control Act, 1965, if the receipt was not issued by the landlord, every tenant who makes a payment on account of rent or advance shall be entitled to obtain a receipt in the prescribed form for the amount paid, duly signed by the landlord or his authorised agent and where landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of building, the tenant may either remit the rent to the landlord by money order after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or by notice in writing, require the landlord to specify within ten days from the date of R.S.A.No.354/2022 13 the notice by him, a bank into which the rent may be deposited by tenant to the credit of landlord etc. So, when such a course is open to the tenant, once the landlord is refusing to issue receipt he cannot be heard to contend that inspite of payment of rent, landlord refuses to issue receipt. 12. It is true that the defendant would also contend about the non-mentioning of the rent arrears in the subsequent rent deed executed in between the parties. It is to be noted that the parties are close relatives and the building construction of the defendant was going on and only because he could not complete the construction within the period of two months initially fixed, the period was subsequently extended. Ext.A3 produced from the side of the plaintiffs would prove that on the same condition regarding payment of rent and on the same advance already paid, defendant is continuing to occupy the building on rent. There is no legal mandate also to state specifically the rent arrears in the subsequent rent deed executed between the parties. Moreover, as has been rightly found by the courts below, R.S.A.No.354/2022 14 the defendant did not raise such a contention in the written statement and hence the plaintiffs could not meet the said contention by explaining the same during evidence also. No question was also seem to have been put to PW1 during crossexamination in that regard. So, the non-mentioning of arrears of rent in Ext.A3 sale deed also cannot be said as fatal to the plaintiffs. Moreover, the evidence of defendant himself is relevant in this context to be appreciated. He would categorically admit during cross-examination that the deceased Kochuraman (2[nd] plaintiff) used to come to the house and make chaos demanding rent. A question was also put to him that he has filed a complaint in the police station for non-payment of rent. Though DW1 would depose that it was to vacate the premises, the admission of DW1 that the deceased Kochuraman used to come to the house and demand rent also would probabilise the case of the plaintiffs that the rent was in arrears. Otherwise, the deceased 2[nd] plaintiff ought not have went to the rented premises demanding rent and made commotion in his house. So also, though defendant R.S.A.No.354/2022 15 examined DW4 and DW5, the mother of the first plaintiff as well as the sister-in-law of the first plaintiff, both of them turned hostile. Though DW2 and DW3 were examined by the defendant to prove that DW2 used to pay the rent to the second plaintiff as has been rightly found by the trial court, defendant has no such case in the written statement that second plaintiff used to collect rent from DW2 and the month for which DW2 paid rent to 2[nd] plaintiff also could not be revealed by DW2 and DW3. So, court below rightly refused to accept the evidence of DW2 and DW3 to prove the factum of payment of rent. 13. The defendant also put forward a contention that an amount of Rs.20,000/- was paid and received as advance. He got marked Ext.B1 subject to proof from his side in which there is specific mention regarding advance payment of Rs.10,000/- on the date of execution of the document. But, plaintiffs did not admit execution of Ext.B1. Though learned counsel would contend that during cross-examination the plaintiffs admit about the execution of four rent deeds and this would be the fourth R.S.A.No.354/2022 16 one, as rightly contended by the learned counsel for the plaintiffs, Ext.B1 is in original and the specific case of the plaintiffs is that original rent deed used to be kept with the landlord and only the copy would be with the tenant. Ext.A3 produced by the plaintiff is also original one. Production of Ext.B1 without the signature of the landlord also would probabilise the case of the plaintiffs that Ext.B1 is not a rent deed executed in between the plaintiffs and defendant. Hence the claim of the defendant that Rs.20,000/- paid as advance is also not sustainable. 14. Hence, the concurrent findings of the trial court as well as the first appellate court that the rent of the building is in arrears, as claimed by the plaintiffs is based on convincing facts and circumstances and evidence adduced in this case. So, I do not find any reason to interfere in that aspect. So also, though the learned counsel for the defendant also raised a contention that rent for 42 months have been claimed by the plaintiffs, which is not permissible under law, on going through the R.S.A.No.354/2022 17 judgment passed by the trial court it is seen that claim has been subsequently limited to 36 months and the learned Munsiff only found the entitlement of the plaintiffs to realise rent for 36 months @ Rs.3,000/- per month which was found to be Rs.1,08,000/- deducting Rs.10,000/- received towards advance along with interest @ 12% per annum for the arrears was directed to be paid. Hence I do not find any substantial question of law emerging for consideration for entertaining this second appeal. In the result, appeal is found to be devoid of any merit and hence dismissed. No cost. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge