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


M/s.Pappi Chetty Raghaviah Chetty's Charities, represented by its Trustees & Others v/s Vinod Mohan Pro: M/s. Care Well Motors

    S.A.No.261 of 2009
    Decided On, 29 September 2012
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE R.S. RAMANATHAN
    For the Appellants: Ms. Chitra Sampath, Senior counsel. For the Respondents: R. Krishnasamy, Senior counsel for K. Mohanamurali, Advocate.


Judgment Text
(Prayer in S.A.No.261 of 2009: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree passed in A.S.No.21 of 2005 on the file of the VII Additional Judge, City Civil Court, Chennai, dated 28.6.2007 confirming the decree and judgment passed in E.A.No.3460 of 2004 in E.P.No.650 of 2004 in O.S.No.3170 of 2003 on the file of the X Assistant Judge, City Civil Court, Chennai.)

The plaintiff/decree holder is the appellant. The plaintiff/decree holder is a Public Charitable Trust and the defendant was a tenant under the plaintiff. The defendant attempted to demolish the superstructure that was leased out to him without the permission of the appellant/plaintiff and therefore, the appellant/plaintiff filed O.S.No.2364 of 2003 for injunction restraining the defendant from demolishing the tenanted premises. Thereafter, the appellant/plaintiff terminated the tenancy by issuing a notice, dated 28.04.2003 calling upon the defendant to vacant and hand over possession of the said tenancy premises on or before 01.06.2003 and also claimed damages for use and occupation. As the defendant failed to vacant and hand over possession, the plaintiff filed a suit in O.S.No.3170 of 2003 on the file of the XII Assistant Judge, City Civil Court, Chennai and that suit was filed on 13.06.2003 and a compromise was entered into between the plaintiff and the defendant in that suit and on the basis of the memo of compromise, the suit was decreed and as per the memo of compromise and as per the decree, the defendant agreed to vacate and hand over vacant possession of the premises on or before 15.03.2004, failing which the plaintiff is entitled to execute the decree and the defendant also agreed to pay future damages from March 2004 at the rate of Rs.700/- per month, till he vacates and hands over vacant possession. The compromise decree was passed on 23.02.2004. Thereafter, the defendant did not vacate and hand over the premises as per the compromise memo and therefore, the plaintiff filed E.P.No.650 of 2004 in O.S.No.3170 of 2003 to execute the decree and while executing the decree, it was found that the respondent was in possession of the property and he raised objection stating that he was a sub-tenant under the defendant and he was not bound by the decree and he was entitled to be in possession of the property and the decree cannot be executed against him. Hence, the appellant/plaintiff filed E.A.No.3460 of 2004 in E.P.No.650 of 2004 under Order 21 Rule 97 CPC for removal of the obstruction stating that the decree passed against the defendant can be executed against the respondent/obstructor and even according to the respondent/obstructor, as per the letter (Ex.C1) given to the Bailiff, he came into possession of the property in October 2003, after the filing of the suit and therefore, he is bound by the decree and any decree passed against the main tenant is binding on the sub-tenant and hence, he cannot obstruct the delivery of vacant possession and he must be removed.

2. The respondent/obstructor objected to the petition filed by the plaintiff/appellant stating that even prior to the filing of the suit by the plaintiff/appellant, he came into possession of the property in March 2003 and the plaintiff was also aware of his possession as a sub-tenant and deliberately, he was not impleaded in the suit and the decree obtained by the plaintiff/appellant against the defendant was a collusive and fraudulent one with the intention of evicting the respondent/obstructor and therefore, the decree is not binding on him and being the sub-tenant, who has been let in possession of the property by the main tenant, he is entitled to be in possession of the property and hence, he cannot be evicted.

3. The learned Assistant Judge accepted the contention of the obstructor and held that the plaintiff/appellant did not produce the lease deed between the plaintiff/appellant and the defendant and had it been produced, it would disclose that the tenant was entitled to sublet the premises and therefore, it was suppressed by the plaintiff/appellant and hence, the sub-lease by the defendant in favour of obstructor was legal and the obstructor came to be in possession of the property, even in March 2003 and it is proved by the obstructor through RW2 to RW4 and also Ex.R15 to R17 and also Ex.R4 and Ex.C1, the letter executed by the obstructor was obtained by force and as the obstructor was in possession of the property, even prior to the filing of the suit, the decree passed against the defendant will not bind the obstructor, as he was not a party to the suit and the compromise decree was also not in accordance with law and the obstructor is an authorized sub-tenant and is entitled to protection under the Rent Control Act and hence, he cannot be evicted and dismissed the application filed by the appellant/plaintiff and the same was confirmed by the learned 7th Additional Judge, City Civil Court, Chennai and hence, this second appeal.

4. The following substantial questions of law were framed at the time of admission:-

'1. Whether the courts below were right in rejecting the evidentiary value of Ex.C1, when the same was admitted by the obstructor?

2. Whether the findings of the courts below are vitiated and perverse as the courts below had overlooked the fatal admissions made by R.W.1 in his evidence?'

5. According to me, one more substantial question of law arises for consideration, which is as follows:-

Whether the obstructor/respondent, who is admittedly a sub-tenant is entitled to claim protection, when the decree was obtained against the main tenant?

6. The learned Senior counsel appearing for the parties also agreed on the above substantial question of law and submitted the arguments on all the three substantial questions of law.

7. Ms.Chitra Sampath, the learned Senior counsel appearing for the appellant submitted that the courts below erred in holding that the decree passed in O.S.No.3170 of 2003 was a collusive one, in the absence of any materials produced by the respondent to substantiate the same. The learned Senior counsel appearing for the appellant further submitted that the sub-tenant is not entitled to challenge the ex-parte decree passed against the main tenant on the ground of collusive in nature and relied upon the judgment reported in AIR 1964 SC 1889 in the case of RupchandGupta vs. Raghuvanshi (Pvt.) Ltd., and another.

8. She further submitted that admittedly, the appellant is a Public Charitable Trust and both the courts below have also held that the appellant is a Public Charitable Trust and that is also accepted by the respondent and hence, the provision of Tamil Nadu Buildings (Lease and Rent Control) Act will not apply to the premises in question and only the provision of Transfer of Property Act will apply and even assuming that if the sub-tenant came into possession of the property prior to the filing of the suit, as claimed by the respondent/obstructor, being a sub-tenant, who was inducted into the possession of the property without the written consent of the landlord and without the permission of the landlord, he is not entitled to any protection under the Act and such a sub-tenant need not be impleaded as a party to the suit and such sub-tenant is bound by the decree passed against the main tenant.

9. She further submitted that the courts below erred in holding that the sub-tenancy was an authorized one on the ground that the lease deed was not produced and even according to the respondent/obstructor, he did not claim that he was an authorized sub-tenant and the main tenant was also authorized to sublet the premises and in the absence of such pleading by the respondent that the main tenant was authorized to sublet the premises under the lease deed and therefore, he was an authorized sub-tenant, the courts below ought not to have taken the plea that the sub-tenancy was an authorized one and therefore, he was entitled to be in possession of the property as he was not made as a party to the suit.

10. She further submitted that the courts below without properly appreciating the Hon'ble Division Bench judgment of this court reported in 1968 (1) MLJ 386 in the case of Madurai Nayagamma and others vs. Plantain Merchants Association, represented by its Secretary, erroneously held that sub-tenant is entitled to be in possession of the property, when he was not impleaded as a party to the suit. She also relied upon the judgment reported in 84 L.W. 743 in the case of K.C.ChanduKutti Kurup vs. Gulam Mohideen Sahebin support of her contention.

11. The learned Senior counsel appearing for the appellant, therefore, submitted that being a sub-tenant, he is bound by the decree passed against the main tenant and it is not open to him to raise the question that the decree obtained against the main tenant was a collusive one in the absence of any materials placed before the court and even assuming that Ex.C1 the letter executed by the respondent was obtained from him by force as contended by the respondent and the respondent came into possession of the property in March 2003 prior to the filing of the suit, the decree can be executed against him and the same cannot be challenged by the respondent.

12. On the other hand, Mr.R.Krishnaswamy, the learned Senior counsel appearing for the respondent has contented that Exs.R14 to R16 would prove that the sub-tenant, namely the respondent/obstructor came into possession of the property even in March 2003 and that was also corroborated by the evidence of RW2 to RW4 and both the courts relied upon the admission of RW2 to RW4 and on the basis of Exs.R14 to R17 concurrently held that the respondent came into possession of the property even in the month of March 2003, much prior to the filing of the suit and therefore, the suit filed against the defendant without impleading the respondent is not proper and the decree obtained in O.S.No.3170 of 2003 is not binding upon the respondent, as he was not made as a party to the suit when he was admittedly in possession of the property on the date of filing of the suit.

13. The learned Senior counsel appearing for the respondent further submitted that a sub-tenant is entitled to challenge the decree obtained against the main tenant on the ground that the decree obtained against the main tenant was a collusive decree and the same can be challenged in EP and there is no necessity for the sub-tenant to file a suit to get a declaration that the earlier decree was a collusive one and relied upon the judgment reported in (2000)7 SCC 543 in the case of Gram Panchayat of Village Naulakha vs. Ujagar Sngh and others.

14. The learned Senior counsel further relied upon the judgment reported in (2002)2 SCC 656 in the case of RatanLal Jain and others vs. Uma Shankar Vyas and others, in support of his contention that sub-tenant cannot be evicted on the basis of the decree obtained against the main tenant.

15. The learned Senior counsel appearing for the respondent also relied upon the judgment reported in (1976) 3 SCC 602 in the case of Smt.SefaliRoy Chowdhary and others vs. A.K.Dutta, in support of his contention that the sub-tenant is entitled to be in possession of the property and he is entitled to get his possession protected and therefore, the courts below rightly held that the sub-tenancy was authorized by lease deed and the sub-tenant came into possession of the property, much prior to the filing of the suit and Ex.C1 will not prove that the sub-tenant came into possession of the property after the filing of the suit, having regard to the evidence of RW2 to RW4 and Exs.R14 to R17 and the sub-tenant was entitled to the protection and therefore, the concurrent findings of the courts below need not be interfered with by this court in this second appeal and the second appeal is liable to be dismissed.

16. Heard both sides.

17. As stated supra, it is admitted that the appellant is a Public Charitable Trust. It is also admitted that the lease consists of buildings and land. As the appellant is a Public Charitable Trust, the Tamil Nadu Buildings (Lease and Rent Control) Act will not apply to the appellant and therefore, the respondent/obstructor cannot claim any protection under the provision of the said Act.

18. It is the contention of the learned Senior counsel appearing for the appellant that in Ex.C1, the respondent/obstructor admitted that he came into possession of the property in October 2003 and therefore, his admission must be taken in preference to the evidence of RW2 to RW4 and Exs.R14 to R17 and therefore, having regard to Ex.C1, the obstructor/respondent came into possession of the property, after the filing of the suit, he cannot contend that the decree passed against the main tenant is not binding on him and being a person, who was induced into possession of the property during the pendency of the suit, he is not entitled to claim any equity in his favour.

19. I am not able to accept the contention of the learned Senior counsel appearing for appellant regarding Ex.C1. It is the contention of the learned Senior counsel appearing for the respondent that Ex.C1 was obtained by force, when the Bailiff came to take possession of the property with police protection. It is admitted that when the appellant filed the execution proceedings to take delivery of the property as per the compromise decree, the respondent/obstructor was found in possession of the property and police protection was also obtained and when the Bailiff wanted to execute the warrant, the respondent obstructed the delivery and at that time a statement was obtained from the respondent. The appellant did not examine the Bailiff to repudiate the claim of the respondent that Ex.C1 was obtained by force and no reason was adduced by the appellant for non-examination of the Bailiff, who was the competent person to speak about the circumstances in which Ex.C1 was executed by the respondent.

20. Further, RW2 to RW4 are independent persons, who have no animosity against the appellant and they gave evidence that they gave their vehicle to the respondent even in March 2003 and also substantiated the same through Exs.R14 to R17.

21. Considering the evidence of RW2 to RW4 and Exs.R14 to R17, both the courts below have rightly held that there was no reason to disprove the evidence of RW2 to RW4 and Exs.14 to R17 and rightly came to the conclusion that the evidence of RW2 to RW4 and Exs.R14 to R17 would prove that the respondent came into possession of the property, even in March 2003 and therefore, Ex.C1 cannot be accepted to prove that the respondent came into possession of the property in March 2003. According to me, both the courts below rightly appreciated Exs.R14 to R17 and the evidence of RW1 to RW4. Hence, I do not find any reason to interfere with the concurrent findings of the courts below in that respect and I hold that Ex.C1 was obtained by force from the respondent and the respondent came into possession of the property even in March 2003 and he did not come into possession in October 2003 as per Ex.C1. Hence, the substantial question of law No.1 is answered against the appellant.

22. Further, even assuming that the respondent came into possession in the month of March 2003, as held above, the question that falls for consideration is whether the respondent is entitled to protection and whether the respondent can obstruct the delivery of property as per the decree passed in O.S.No.3170 of 2003. Admittedly, O.S.No.3170 of 2003 was filed on 13.06.2003 against the main tenant and after contest, a compromise was entered into between the appellants and the defendant, by which the defendant/main tenant agreed to vacate the property and a compromise memo was filed and on that basis, the decree was passed. As stated above, on the date of filing of the suit, the respondent was in possession of the property. Therefore, the question that arises for consideration is whether the decree passed against the main tenant is binding on the respondent and whether the respondent can challenge the decree as a collusive one, while the appellant/plaintiff took steps to execute the decree obtained by him.

23. As stated supra, the respondent cannot claim any protection under the Rent Control Act, as the plaintiff is a Public Charitable Trust. Therefore, the parties are governed by Transfer of Property Act.

24. In the judgment reported in AIR 1964 SC 1889 in the case of RupchandGupta vs. Raghavanish (Private) Limited, it has been held as follows:-

'..It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allow this and so the omission cannot be said to be an improper act.'

25. In the above case also, a suit was filed by the landlord against the main tenant and the main tenant did not contest the suit, an ex-parte decree was passed and when the landlord took steps to execute the ex-parte decree, it was challenged by the tenant and in that circumstances, the Hon'ble Supreme Court held as above.

26. Further in similar circumstances, this court held in the judgment reported in 84 LW 743 in the case of K.C.ChanduKutti Kurup vs. Gulam Mohideen Saheb, that a sub-tenant can be removed on the basis of the decree obtained against the main tenant, even though, the sub-tenant was not made as a party to the suit filed against the main tenant.

27. In that case also, the suit was filed by the landlord against the main tenant and the suit was compromised and as per the compromise memo, the plaintiff became entitled to possession and the tenant, who suffered the decree refused to vacate and hand over the property and therefore, the landlord filed application to execute the decree and the person in possession of the property claiming to be a tenant under the main tenant obstructed delivery and therefore, the landlord filed application under Order 21 Rule 97 CPC for removal of obstruction. In that context, this court has held that a sub-tenant, who is in possession, is a tenant only of his lessor and the sub-tenant has neither a privity of contract nor privity of estate with the landlord and hence, he has no right to raise objection and rejected the objection raised by the sub-tenant.

28. In the judgment reported in 1968(1) MLJ 386 in the case of Madurai Nayagamma and others vs. Plantain Merchants Association, represented by its Secretary, a reference was made to the Hon'ble Division Bench judgment as follows:-

'Whether an order of eviction obtained against a chief tenant could be executed by evicting the sub-tenants, who were not made parties to the application for eviction.'

29. In that case, the Tamil Nadu Buildings (Lease and Rent Control) Act was made applicable to the property in question and while interpreting section 26 of the said Act, the reference was answered holding that the order of eviction obtained against a main tenant can be executed by evicting the sub-tenants, who are not made as parties in the application for eviction. Therefore, as per the judgments cited by the learned Senior counsel appearing for the appellant, as stated above, the law is very clear that the decree obtained against the main tenant is binding on the sub-tenant, even though he was not made as a party to the suit and a sub-tenant cannot contend that the decree obtained was a collusive one, even though the decree was an ex-parte decree or compromise decree.

30. In the judgment reported in (2002)2 SCC 656 in the case of RatanLal Jain and others vs. Uma Shankar Vyas and others, relied upon by the learned Senior counsel appearing for the respondent, the facts are different. In that case, sub-lease was permitted and as per the permission granted under the lessee, the lessee sublet the property and while passing the decree, it was specifically stated in the decree that the decree holder is entitled to only symbolic possession in respect of shops in the possession of sub-tenant. In that case also, the sub-tenants were not made as parties and having regard to the decree passed in the above case as stated above, the Hon'ble Supreme Court held that when the sub-tenancy was permitted and decree holder was only entitled to get symbolic possession in respect of the property in possession of the sub-tenant, the decree cannot be executed against the sub-tenant. But in this case, there is no decree restricting the decree-holder/appellant from executing the decree only in respect of the main tenant.

31. Further, in this case, the sub-tenancy is not permitted and the courts below erred in holding that in the absence of lease deed produced by the appellant, it can be presumed that the lease deed contains a clause permitting sub-lease. As stated supra, it is not the case of the respondent that under the lease deed, sub-tenancy is permitted. On the other hand, the respondent admitted in evidence that he was not aware that the main tenant was permitted to sub-let the property. Therefore, when the main tenant was not authorized to sublet the leasehold premises, any decree passed against the main tenant will be binding on the sub-tenant and therefore, the judgment of the Hon'ble Supreme Court reported in (2002)2 SCC 656 in the case of RatanLal Jain and others vs. Uma Shankar Vyas and others will not support the case of the respondent.

32. Further, in the judgment reported in (2000)7 SCC 543 in the case of Gram Panchayat of Village Naulakha vs. Ujagar Singh and others, it is held that it was not necessary to file an independent suit for declaration as to its collusive nature of the earlier suit as a condition precedent. The facts of that case are also entirely different from the facts of the present case. The appellant in that case, namely GramaPanchayat of Village Naulakha filed an application under section 7 of the Punjab Village Common Lands (Regulation) Act 1961 and an order was passed in favour of Collector on 12.10.1998, the Collector found that an earlier decree obtained by the respondents against the appellant for injunction was a decree obtained by the respondents in collusion with the then Sarpanch and was not binding on the panchayat and took steps to execute the order and that was challenged by the respondent and in that context, it was held that in order to contest a later suit or proceedings that an earlier judgment was obtained by collusive, it was not necessary to file an independent suit and there is no necessary to set aside the earlier decree.

33. Further, the plea of collusion has to be proved and mere making of allegation is not sufficient.

34. As stated supra, except making an averment in the counter that the decree obtained in O.S.No.3170 of 2003 by the appellant/decree holder against the defendant was collusive in nature, no materials were placed

Please Login To View The Full Judgment!
before this court to substantiate the same. 35. Further, in the judgment reported in AIR 1964 SCC 1889, the Hon'ble Supreme Court has held that even in respect of ex-parte decree, it cannot be contended that the decree was obtained by collusive. Further, in the judgment reported in 84 LW 743, a compromise memo was entered into between the plaintiff and the main tenant and thereafter, when the decree holder attempted to take possession, the sub-tenant obstructed delivery and this court held that the sub-tenant cannot question the decree and he is not entitled to protection. The judgment reported in (1976)3 SCC 602 will not apply to the facts of this case and in that case, by virtue of repealing of the earlier Act, the sub-tenant was given the status of main tenant under the Repeal Act and in that context, it was held that the sub-tenant was entitled to remain in possession of the property, as he became the tenant by virtue of the Repeal Act. Therefore, having regard to the facts of the case and the judgment reported in AIR 1964 SC 1889, 1968(1)MLJ 386, a sub-tenant is bound by the decree passed against the main tenant, even though he was not made as a party and the sub-tenant cannot challenge the decree obtained against the main tenant. Hence, the additional substantial question of law is answered in favour of the appellant and I hold that the respondent, being a sub tenant, who is also an unauthorized sub-tenant is not entitled to obstruct the delivery of possession by the decree holder, even though he was not made as a party to the suit filed by the owner against the main tenant. 36. The courts below without properly appreciating the legal principles as stated above and without properly appreciating the facts of the case and the judgment reported in 1968 (1) MLJ 386 and (2002)2 SCC 656 erred in holding that the sub-tenant is entitled to protection and dismissed the application filed by the decree holders/appellants and therefore, the substantial question of law No.2 is also answered in favour of the appellant. 37. In the result, the second appeal is allowed and the order of the courts below in EA No.3460 of 2004 in E.P.No.650 of 2004 and the judgment and decree in A.S.No.21 of 2005 are set aside and the appellant is entitled to execute the decree passed in O.S.No.3170 of 2003 and the respondent/obstructor cannot prevent the appellant from executing the decree by reason of obstruction and the application in E.A.No.3460 of 2004 in E.P.No.650 of 2004 in O.S.No.3170 of 2003 on the file of the X Assistant Judge, City Civil Court, Chennai is allowed. No costs.
O R