w w w . L a w y e r S e r v i c e s . i n


Mr. Vincent v/s Dharmamurthy Rao Bahadur Calavala Cunnan Chetty Charities rep. by its Trustees

    CRP(PD) No. 907 of 2005 and M.P.No. 10594 of 2005
    Decided On, 12 July 2007
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE S. ASHOK KUMAR
    For the Petitioner : R. Manickavel, Advocate. For the Respondent: V. Mohan, Advocate.


Judgment Text
(Civil Revision Petition is filed against the fair and decretal order dated 20.10.2004 made in I.A.No.2145 of 2003 in O.S.No. 3304 of 2000 on the file of the learned V Assistant Judge, City Civil Court, Chennai.)


The above Civil Revision Petition is filed by the defendant against the fair and decretal order dated 20.10.2004 made in I.A.No.2145 of 2003 in O.S.No. 3304 of 2000 by the learned V Assistant Judge, City Civil Court, Chennai, dismissing the I.A., filed under Section 5 of the Limitation Act to condone the delay of 203 days delay in filing the application under Section 9 of the Tamil Nadu City Tenants Protection Act.


2. The respondent, charitable Trust herein filed the suit to vacate and hand over possession of the suit premises and to pay past damages for use and occupation at the rate of Rs.1,262/= per month for the period from 1.9.1997 to 30.6.199 and to pay future damages at the same rate from 1.7.1999 till date of surrendering the vacant possession to the plaintiff. According to the plaintiff, the petitioner herein is a tenant in respect of the Plot No.4, Door No:19, Foxen Street, Perambur, Chennai-11 on a monthly rent of Rs.0.50 paise for nearly 40 years. He is a chronic defaulter in payment of meagre rent and had not paid the rent at 0.50 paise from July 1989 onwards. Hence the tenancy was terminated ending with 31.8.1997 vide termination notice dated 30.7.1997. Compensation was also offered to the premises put up by the petitioner's father. The plaint summon was served on the defendant on 18.9.2000 and vakalath was filed by him on 21.9.2000 itself.


3. Pending the suit, the petitioner herein filed I.A.No:245 of 2003 on 10.12.2002 to condone the delay of 203 days in filing the Section 9 application. The respondent/plaintiff resisted the suit contending that the actual delay is 784 days and the defendant having not explained each day's delay, there is no merit in entertaining the Section 9 application. The defendant does not even know the correct extent of the property which is in his possession. The condone delay petition was filed without accompanied by the section 9 application.


4. The learned V Assistant Judge, City Civil Court, Chennai, on a consideration of the pleadings of the parties and perusing the material papers, dismissed the condone delay Interlocutory Application, holding that since the plaintiff is a public charitable trust, the defendant cannot claim to execute sale deed of the suit property by taking out an application under Section 9 of the Tamil Nadu City Tenants Protection. Further, there is a delay of more than two years in taking out the application when the stipulation is only 30 days from the date of service of suit summons to file an application under Section 9 of the said Act. Aggrieved of the same the present revision is filed by the defendant.


5. As the actual delay has been disputed by either side of the counsel, this court directed to send for the original records and accordingly the original records were also sent by the City Civl Court. A perusal of the records would show that the suit summons were served by way of affixure in the door on 20.9.2000 and vakalat has been filed on behalf of the defendant on 21.9.2000. But the I.A., for condoning the delay has been filed only 10.12.2002 with a delay of more than two years. But in the I.A., only a delay of 203 days has been sought to be condoned, which is factually incorrect. However, from a perusal of the typed set of papers, it is clear that the defendant, being in possession of the land and premises for more than 40 years, had expressed his willingness to purchase the same by paying the market value of the land even in his reply notice to the termination of tenancy notice, besides pointing out his right to file the application under Section 9 of the Tamil Nadu City Tenants Protection Act. The plaintiff also accepts that the defendant is the owner of the superstructure and also offered to pay compensation. The reason attributed by the defendant for the inordinate delay in filing the Section 9 application is that the entire suit property is occupied by more than 30 land tenants. There is no proper survey of the area of occupation of the individual tenants. The boundaries and extents are not clearly demarcated and therefore all the tenants jointly applied and arranged for survey of the entire land and to fix survey stones to their respective occupations enabling them to specify before the court the actual extents and the boundaries of the lands in their respective occupations in the Section 9 application. The above reason is sustainable and therefore, the delay in taking out the Section 9 application is liable to be condoned. It is also submitted by the learned counsel for the revision petitioner that there are about 10 suits filed by individual tenants and in each application filed under Section 5 of the Limitation Act, the delay varies depending upon each case.


6. Apart from that, as rightly contended by the learned counsel for the revision petitioner, the learned Trial Judge should not have considered the aspect of applicability of Act 2 of 1996 while considering the application filed under Section 5 of the Limitation Act. Such an exercise could be done only at the

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time of consideration of the application filed under Section 9 of the Tamil Nadu City Tenants Protection Act. 7. In the above circumstances, the CRP is allowed setting aside the the order dated 20.10.2004 made in I.A.No.2145 of 2003 in O.S.No. 3304 of 2000 passed by the learned V Assistant Judge, City Civil Court, Chennai, and the learned Judge is directed to take up the application filed under Section 9 of the Tamil Nadu City Tenants Protection Act and decide the same on merits and accordingly to law. 8. Consequently, connected CMP is closed. No costs.
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