Kerala High Court
Dr.A.Saseendran vs Kandiyil Ibrayi Haji on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
RSA NO. 682 OF 2006
AGAINST JUDGMENT AND DECREE DATED 30.11.2005 IN AS 7/2001 OF I
ADDITIONAL SUB COURT,KOZHIKODE
AGAINST THE JUDGMENT AND DECREE DATED 05.04.2000 IN OS
833/1997 OF PRINCIPAL MUNSIFF COURT ,KOZHIKODE-II, KOZHIKODE
APPELLANT/APPELLANT/DEFENDANT:
DR.A.SASEENDRAN, AGED 47 YEARS,
S/O.A. KARUNAN, IGI CHINTHAVALAPPU FLATS,
RAM MOHAN ROAD, CALICUT-673 004.
BY ADV
SRI.MILLU DANDAPANI
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 KANDIYIL IBRAYI HAJI,
AGED 55 YEARS, PONMERI AMSOM,
PARAMBIL DESOM, VATAKARA TALUK.
2 ONTHATH KUNHABDULLA HAJI,
S/O. MOIDU HAJI, AGED 56 YEARS,
PONMERI AMSOM AND PARAMBIL DESOM,
VATAKARA TALUK.
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON
29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RSA NO.682/2006
2
K.BABU, J.
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R.S.A. No.682 of 2006
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Dated this the 29th day of October, 2021
JUDGMENT
This Second Appeal is directed against the judgment and
decree of the Munsiff Court-II, Kozhikode in O.S. No.833/97,
modified by Subordinate Judge's Court, Kozhikode in A.S.
No.7/2001.
2. The original suit was instituted by the
plaintiffs/respondents seeking a mandatory injunction directing
the defendant to vacate the plaint schedule property after
removing the articles therefrom and also for a prohibitory
injunction restraining the defendant from entering into the plaint
schedule building. The plaintiffs had also prayed for arrears of
license fee due from the defendant.
3. The plaintiffs pleaded that on the request of the
defendant, who is a Doctor by profession, the plaint schedule
building was entrusted to him as a licensee for a period from
RSA NO.682/2006
01.10.1996 to 31.08.1997, based on Ext.A1 agreement dated
01.10.1996 fixing the license fee as Rs.6,000/- per month. The
plaintiffs further contended that the defendant paid the license fee
only for one month, and thereafter, he kept the license fee in
arrears.
4. The appellant/defendant resisted the suit, contending
that he had not entered into any license agreement with the
plaintiffs. The defendant executed the agreement on the
understanding that it is a lease deed and only later he came to
know the distinction between a lease and license. The building
was taken by the defendant from the plaintiffs on a monthly rent
of Rs.6,000/- and he had paid the rent up to August, 1997, but no
receipts were issued by the plaintiffs.
5. After appreciating the rival contentions based on the
materials placed before the Court, the Trial Court decreed the suit
and granted a mandatory injunction directing the defendant to
vacate the plaint schedule building within three months from the
date of the judgment after removing his articles therein. The
plaintiffs were also allowed to realise an amount of Rs.60,000/-
RSA NO.682/2006
from the defendant as arrears of licence fee for the period from
01.11.1996 to 31.08.1997.
6. The defendant challenged the judgment and decree in
A.S. No.7/2001 before the Subordinate Judge's Court, Kozhikode.
7. The First Appellate Court confined its findings to the
point whether the granting of decree for arrears of license fee as
claimed in the plaint is sustainable or not. The Court found that
the plaintiffs had formally taken possession of the shop room by
collecting the key of the room from the trial Court on 05.09.2000,
and the appellant was evicted from the shop room in October
1997.
8. The First Appellate Court partly allowed the appeal and
plaintiffs were allowed to realise an amount of Rs.35,000/- from
the appellant as arrears of license fee for the period from
01.11.1996 to 31.08.1997 and thereafter an amount of
Rs.6,000/- per month as damages for the use and occupation till
the date of vacating the building with interest at the rate of 12%
per annum from the date on which the rent for each month fell
due.
RSA NO.682/2006
9. This Court by judgment dated 15.09.2006 had
dismissed the appeal finding that there was no substantial
question of law. Subsequently, the appellant filed R.P.No.352 of
2007 and the same was allowed and disposed on 07.06.2007,
formulating the following substantial question of law:-
"When as against the claim of the plaintiff for a
decree of mandatory injunction directing the
defendant to vacate the plaint schedule building with
arrears of licence fee at the rate of Rs.6,000/- per
month from 1.11.1996 onwards, the definite case of
the defendant/appellant was that he was forcibly
evicted pending suit on 12.10.1997 and the report of
the Advocate Commissioner also probabilised the
fact that the defendant was evicted and the plaintiff
was in possession of the plaint schedule building and
which fact was specifically found in favour of the
defendant by the lower appellate Court in Paragraph
5 of its judgment dated 30.11.2005, can the
decrees passed by the Courts below for recovery of
licence fee for the period from 12.10.1997 be
justified?"
10. The specific finding of the First Appellate Court is that
the appellant/defendant is bound to pay damages for the use and
occupation till the date of vacating the building with interest at
the rate of 12% per annum. The First Appellate Court, in
Paragraph 5 of the judgment, specifically made it clear that, the
appellant was evicted in October 1997. There is no decree by the
Court below directing the appellant/defendant to pay licence fee
RSA NO.682/2006
for the use and occupation for the period from 12.10.1997.
Therefore, no substantial question of law as framed survives.
Hence, the Regular Second Appeal is disposed of with the above
observations.
Sd/-
K.BABU
JUDGE
VPK
