The court established that a party evicted cannot be held liable for fees post-eviction without explicit court findings authorizing such claims.

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

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/-

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.

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 Cour