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2000 DIGILAW 378 (MAD)

Kerala Roadways Ltd. , Calicut v. C. V. Raju

2000-03-31

D.MURUGESAN

body2000
JUDGMENT: The defendants are the appellants. The plaintiff rented out his premises to an extent of 60’ x 18’ at door No.29/205, Sukrawarpet, Coimbatore to the second defendant for a monthly rent of Rs.650. The second defendant vacated the premises on 19.7.1982. It is the further case of the plaintiff that he has not taken possession from the second defendant and he found several damages to the building and he made oral request to the second defendant to compensate for the same. Since the second defendant did not comply with the request of the plaintiff for payment of compensation, the plaintiff issued lawyer’s notice dated 15.10.1982 calling upon the second defendant to pay a sum of Rs.10,000 towards damage to which the second defendant in his reply dated 25.10.1982 declined the said request. Therefore, the plaintiff filed O.S.No.2350 of 1982 on the file of Principal District Munsif, Coimbatore for recovery of Rs.9,500 from the defendant. 2. It is the case of the second defendant that it was true the building was taken on rent from the plaintiff on a monthly rent of Rs.650 on 17.7.1974. However, the defendant disputes that when the possession was handed over to the plaintiff on 19.7.1982, there were no damages as contended by the plaintiff and, therefore the second claim of the plaintiff for damages has to be rejected. 3. During the course of the trial, an application was taken out by the plaintiff for appointment of a Commissioner to assess the damage. Accordingly, the Commissioner assessed the damage on 8.12.1982 which is Ex.C-1. It is true that Commissioner when he visited the premises on 8.12.1982 found certain damages to the floor and wall of the premises and also the rolling shutter was rusted. Both the Courts below agreeing with the Commissioner’s report sought to justify the claim of the plaintiff on the ground that the defendant has not disproved the damages recorded by the Commissioner. It is relevant to point out even though it is claimed that there was a written agreement of tenancy, no such documents have been produced by either of the parties. However, the Courts below proceeded on the basis of presumption that the building when it was rented might have been a new building and the same was not given possession in good condition. However, the Courts below proceeded on the basis of presumption that the building when it was rented might have been a new building and the same was not given possession in good condition. I have gone through the evidence adduced on behalf of the plaintiff and I do not find the statement of the plaintiff to suggest that these damages were caused only by the act of the defendant except by pleading the same in the plaint. The Courts below have misconstrued the scope of the report of the Commissioner to hold that the damages noted by the Commissioner should be necessarily attributed to the defendant who was in occupation of the premises. Further, both the Courts below have failed to note that the possession of the building was handed over on 19.7.1982. There is no evidence adduced on behalf of the plaintiff to show that at the time when the possession was taken, the plaintiff had reserved his right to sue for damages or the possession was taken under protest. It is further to be noted that the plaintiff after taking possession of the building on 19.7.1982 had kept quiet for nearly three months and issued lawyer’s notice only on 15.10.1982 and filed the suit on 25.11.1982. When the claim of the plaintiff is denied by the defendant in the reply notice dated 25.10.1982, it is the bounden duty of the plaintiff to establish that the damages found in the building were, in fact, caused by the defendant. This burden heavily lies on the plaintiff especially when the plaintiff has taken possession of the building on 19.7.1982 itself. In the absence of any proof, both the Courts below ought not to have relied upon the Commissioner’s report to shift the burden to the defendant to establish that the damage as pointed out by the Commissioner was, in fact, caused by the defendant. The scope of the Commissioner’s report is only to find out the damages and not further more. Even if it is admitted that there are damages to the building, it is the further duty of the plaintiff to establish that these damages were caused by the defendant. In the absence of any evidence to establish the same, merely because the report of the Commissioner refers to certain damages to the building, it will not entitle the plaintiff to sustain the claim for damages. In the absence of any evidence to establish the same, merely because the report of the Commissioner refers to certain damages to the building, it will not entitle the plaintiff to sustain the claim for damages. Both the Courts below have miserably failed in shifting the burden on the defendant when the plaintiff himself has not discharged the burden in respect of the claim made in the plaint. Further as already referred, both the Courts below have proceeded to find that the damages had been caused by the defendant only on presumptions, probabilities and surmises. In my considered view, such finding cannot be sustained in the absence of any evidence. The findings of both the Courts below that the damages were caused by the defendant and consequently the defendants are liable to compensate the plaintiff are perverse and based on no evidence. Accordingly those findings cannot be sustained in the eye of law. 4. In view of the above, the second appeal is allowed, but there is no order as to costs.