Shibily Rehman vs Yousaf
2022 Latest Caselaw 6254 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                     OP(C) NO. 1891 OF 2021
        AGAINST THE ORDER DATED 1.10.2021 IN IA 4/2021 IN
              OS.NO.4/2020 OF SUB COURT, CHENGANNUR


PETITIONER/PETITIONER/PLAINTIFF:

           SHIBILY REHMAN,
           AGED 34 YEARS,
           S/O. MUHAMMED KUNJU, PARATHIPALLIL, PANOOR MURI,
           PALLANA P.O, THRIKUNNAPUZHA VILLAGE, KARTHIKAPALLY
           TALUK, ALAPPUZHA DISTRICT, PIN - 690515.


           BY ADV K.K.SATHISH


RESPONDENTS/RESPONDENTS/DEFENDANTS:

    1      YOUSAF,
           AGED 72 YEARS,
           S/O. HYDROSE, MAKKIYIL VEDU, PUNNAPRA MURI,
           PUNNAPRA VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA
           DISTRICT, PIN - 688004.

    2      ABDUL HAKEEM,
           AGED 46 YEARS,
           S/O. ABDUL RAHEEM, NEDIYEDATH MADATHIL, KARUVATTA
           NORTH MURI, KARUVATTA VILLAGE, KARTHIKAPPALLY
           TALUK, ALAPPUZHA DISTRICT, PIN - 690517.

    3      MUHAMMED SHEFEEQUE,
           AGED 42 YEARS,
           S/O. ABDUL HAKEEM, NEDIYEDATH MADATHIL, KARUVATTA
           NORTH MURI, KARUVATTA VILLAGE, KARTHIKAPPALLY
           TALUK, ALAPPUZHA DISTRICT, PIN - 690517.

           BY ADV M.R.SUDHEENDRAN


     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26.05.2022,
THE COURT ON 03.06.2022 DELIVERED THE FOLLOWING:
 O.P(C).No.1891/2021             2




                     A. BADHARUDEEN, J.
              ================================
                      O.P(C).No.1891 of 2021
              ================================
                 Dated this the 3rd day of June, 2022


                         JUDGMENT

The plaintiff in O.S.No.4/2020 on the file of Sub Court,

Chengannur, is the petitioner herein and he assails order in

I.A.No.4/2021 dated 1.10.2021 in the above Suit, whereby the

learned Munsiff dismissed an application for appointment of a

commission, filed by the petitioner. The respondents herein are the

defendants in the above Suit.

2. Heard the learned counsel for the petitioner Advocate

K.K.Sathish and Advocate M.R.Sudheendrakumar appearing for

respondents 1 to 3.

3. It is submitted by the learned counsel for the petitioner

that the petitioner filed I.A.No.4/2021 to appoint an expert

Engineer as commissioner to assess the value of construction

carried out by the plaintiff in the plaint schedule property. But the

same was dismissed by the learned Munsiff without justification.

Therefore, according to the learned counsel for the petitioner,

appointment of an expert engineer to assess the value of

construction in the plaint schedule property is absolutely necessary

to prove the case of the plaintiff and, therefore, the court below

went wrong in dismissing the petition.

4. Negativing this contention, it is argued by the learned

counsel for the respondents that the defendants never permitted the

plaintiff to make construction in the plaint schedule building and

the defendants admitted receipt of Rs.3 lakh as advance. It is

submitted further that as on the date of filing the written statement,

Rs.5 lakh was in arrears towards rent and the attempt of the

petitioner is to avoid payment of arrears of rent and to continue the

occupation of the building dragging on this lis. He submitted

further that when the building was given on rent, the plaintiff, who

started bakery business therein, might have made some internal

modifications to suit the room for bakery business, for which no

consent was given by the defendants and therefore, the defendants

are not liable to pay any amount under the said head.

5. I have perused Ext.P1 copy of the plaint. In the plaint,

the plaintiff claimed that Rs.3 lakh alleged to be paid as security

deposit at the time of the lease arrangement and also Rs.4,59,468/-

towards the amount spent by the plaintiff to carry out construction,

after taking the building on rent from 20.02.2017 onwards. The

specific case of the plaintiff is that earlier the plaint schedule room

was occupied by one Navas and accordingly, the plaintiff took the

plaint schedule room on rent for running bakery business after

paying Rs.3 lakh as security deposit, so as to pay the advance for

the said sum given by Navas. The further case of the petitioner is

that he had made construction to the tune of Rs.4,59,468/-. Though

the Suit was filed in the year 2020 and the defendants filed written

statement without much delay, the petitioner filed commission

application only on 12.09.2021. As per the plaint averments, the

plaintiff admitted the fact that the plaint schedule room was

occupied by one Navas on rent. That plea is in support of the fact

that at the time when the plaintiff took possession of the plaint

schedule room, the same was fit for occupation. The plaintiff not

produced any documents before the trial court or before this Court

regarding the permission given by the defendants to make further

construction in the room. Most importantly, if the petitioner wants

to assess the work, if any, done by him, then also, he should have

obtained an earlier report before doing the additional work so as to

show the position of the room before start of the so called

construction made by the petitioner with a view to segregate the

work he alleged to have done. Thus it appears that appointing an

expert engineer to assess the work, without ascertaining the stage

where from the additional work was carried out itself is a futile

exercise.

6. That apart, in this case, the petitioner miserably failed to

show any materials inclusive of the terms of the lease deed or

otherwise to substantiate that the petitioner was permitted to carry

out additional construction work. Moreover, if the room was

occupied by Navas before occupation of the petitioner, then the

modification work, if any, is a matter of convenience of the

petitioner. I leave the same to be decided by the court on evidence.

As far as the present application is concerned, I hold that the

learned Munsiff after appraising the above fact rightly dismissed

the application. Thus the said order does not require any

interference.

Accordingly, this Original Petition stands dismissed.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/

APPENDIX OF OP(C) 1891/2021

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO. 4/2020 ON THE FILE OF THE SUB COURT, CHENGANNUR.

Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS IN O.S NO.4/2020 ON THE FILE OF THE SUB COURT, CHENGANNUR.

Exhibit P3 TRUE COPY OF THE IA NO.4/2021 IN OS NO.

4/2020 ON THE FILE OF THE SUB COURT, CHENGANNUR.

Exhibit P4 TRUE COPY OF THE OBJECTION FILED TO EXT.P3 PETITION BY THE RESPONDENTS.

Exhibit P5 TRUE COPY OF THE ORDER DATED 1.10.2021 IN IA NO.4/2021 IN O.S NO. 4/2020 PASSED BY THE COURT BELOW.