M/s. Kerala Roadways Limited, Calicut and M/s. Kerala Roadways (P) Limited, Coimbatore vs C.V. Raju

D. Murugesan, J.—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 farther 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. It is the case of the second

defendant that it was true that 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.

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 8.12.82 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 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. 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 25.11.82. 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. 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. In view of the above, the Second Appeal is allowed, but

there is no order as to costs..