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


Ramesh kumar & Another v/s M/s. Kota Veeraswamiah Charities Represented by Trustees & Others

    S.A.No.1213 of 2009 & 1214 of 2009
    Decided On, 22 June 2010
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR.JUSTICE M. JAICHANDREN
    For the Appellants: Akhil R. Bhansali, Advocate. For the Respondents: R1 to R4 V. Chanakya, Advocate.


Judgment Text
(The second appeal has been filed against the judgment and decree made in O.S.No.1281 of 2005, on the file of the VIIth Assistant City Civil Court, Chennai, dated 10.10.2006, and that confirmed in the judgment and decree of A.S.No.274 of 2007, dated 4.2.2009, made by the VIth Additional City Civil Court, Chennai.)


1. The second appeal has been filed against the judgment and decree, dated 4.2.2009, made in A.S.No.274 of 2007, on the file of the VIth Additional City Civil Court, Chennai, confirming the Judgment and decree, dated 10.10.2006, made in O.S.No.1281 of 2005, on the file of the VIIth Assistant City Civil Court, Chennai.


2. The suit, in O.S.No.1281 of 2005, had been filed by the plaintiffs, who are the respondents in the present second appeal, praying for a judgment and decree directing the defendant/appellant herein to vacate and deliver vacant possession of the first floor residential portion under the occupation of the defendant, in the premises bearing door No.87, Narayana Mudali Street, Sowcarpet, Chennai and to pay damages for the use and occupation of the suit premises, at Rs.6,000/- per month, from 1.10.2004 onwards.


3. The plaintiffs in the suit had stated that the portion of the property described in the suit schedule had been let out to the defendant, for residential purpose. However, the defendant had, unauthorisedly, without a written consent from the plaintiff charities, had converted the suit premises for non-residential purposes by using it as a godown and storing the goods relating to his business. The defendant?s tenancy had been duly determined by the plaintiffs by a notice, dated 9.8.2004.


4. It had also been stated that the suit building, under the occupation of the defendant, belongs to the plaintiffs' public religious and charitable trust. As such, it is exempted from the purview of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, by way of a Government Order, in G.O.Ms.No.2000, dated 16.8.1976. Therefore, the plaintiffs are entitled to file a suit before a civil Court for evicting the defendant, by filing an ejectment suit.


5. In the written statement filed on behalf of the defendant, the allegations and claims made by the plaintiffs had been denied. The defendant had stated that he is a tenant, in respect of the non-residential portion of the building, contrary to the claims made by the plaintiffs. The defendant had never converted the premises in question for non-residential purposes. The reliefs sought for by the plaintiffs are unsustainable in law.


6. In view of the averments made on behalf of the plaintiffs, as well as the defendant, the trial Court had framed the following issues for consideration:


1. Whether the plaintiffs are entitled to the damages, as claimed by them in the suit?


2. For what other reliefs they are entitled to?


7. One witness had been examined on behalf of the plaintiffs and two documents had been marked in their favour. One witness had been examined on behalf of the defendant and a document had also been marked on his behalf.


8. In view of the averments made in the plaint and the written statement and in view of the evidence available on record and the submissions made by the learned counsels appearing on behalf of the parties concerned, the trial Court had found that the claims made by the plaintiffs are sustainable in the eye of law. The trial Court had found that even though Exhibit A.1, notice, dated 9.8.2004, issued under Section 106 of the Transfer of Property Act, 1882, on behalf of the plaintiffs, had been received by the defendant, on 13.8.2004, as seen from the postal acknowledgment card marked as Exhibit A.2, the defendant had not chosen to send a reply to the said notice. In the notice, dated 9.8.2004, it had been stated that the defendant had been using the suit premises for non-residential purposes contrary to the agreement of lease. Since there was no denial from the defendant, the trial Court had accepted the claims made on behalf of the plaintiffs. Further, on noting the physical features and the amenities provided in the suit premises, the trial Court had come to the conclusion that it is meant for residential purpose. The tenancy created under Exhibit B.1 had been determined by the plaintiffs and therefore, the defendant has been in unauthorised occupation, from 1.10.2004. Therefore, he is liable to pay Rs.3,000/- per month till the defendant vacated the suit premises. Therefore, By a judgment and decree, dated 10.10.2006, the trial Court had passed a decree in favour of the plaintiffs. The trial Court had also directed that the defendant should pay a sum of Rs.3,000/- per month to the plaintiffs, from 1.10.2004 till he hands over vacant possession to the plaintiffs.


9. Challenging the judgment and decree of the trial Court, dated 10.10.2006, made in O.S.No.1281 of 2005, the defendant had preferred an appeal, in A.S.No.274 of 2007, on the file of the VIth Additional City Civil Court, Chennai.


10. Based on the grounds raised by the appellant, and in view of the averments made on behalf of the parties to the appeal, the first appellate Court had framed the following points for determination:-


1. Whether the finding of the trial Court that the respondents/plaintiffs are entitled to get delivery of possession and damages for the use and occupation of the suit premises is correct or not?


2. Whether the appeal has to be allowed or not?


11. On analysing the evidence available on record, the first appellate Court had found that the appellant in the first appeal, who was the defendant in the suit, had categorically admitted in the written statement filed before the trial Court that he was a tenant under the plaintiffs, in respect of the suit premises and that he is using the premises for non-residential purposes. As such, it was clear that there was a landlord tenant relationship between the plaintiffs and the defendant.


12. The first appellate Court had also found, from Exhibit B.1, that the plaintiff is a public charitable trust exempted from the provisions of the Tamil Nadu Building (Lease and Rent Control) Act, 1960. From the evidence of P.W.1 and in view of Exhibits A.1 and A2, it was established that the notice regarding the termination of the tenancy had been issued by the plaintiffs and it had been received by the defendant. Further, from the evidence of D.W.1, it was clear that no reply had been sent by the defendant. The claim made on behalf of the defendant that no proper reason had been given by the plaintiffs, in the notice of termination of the tenancy, was not acceptable. Further, the first appellate Court had concluded that the amount of Rs.3,000/- per month, fixed by the trial Court, as damages for the use and occupation of the suit premises by the defendant, is not on the higher side. As such, the first appellate Court had confirmed the judgment and decree of the trial Court by its judgment and decree, dated 4.2.2009.


13. Aggrieved by the judgment and decree of the first appellate Court, dated 4.2.2009, made in A.S.No.274 of 2007, the defendant in the suit has preferred the present second appeal before this Court raising the following questions, as substantial questions of law:


"1. Whether the Court can ignore documentary evidence establishing that building was let out for commercial purpose and rely only on contradictory oral evidence of plaintiff?


2. Whether the presence of a bathroom would make the premiss residential when law mandates provision of such facilities in commercial establishments?


3. Whether the Civil Court has jurisdiction to entertain a suit for eviction in respect of a private trust property in light of the provisions of the Tamil Nadu Buildings Lease and Rent Control Act?


4. Whether the mere demand to vacate would constitute a notice to quit as contemplated by the provisions of Section 106 of the Transfer of Property Act?


5. Whether the acceptance of rent after service of the alleged quit notice would amount to waiver by the plaintiff of the demand to vacate?"


14. Additional substantial questions of law raised by the appellant are as follows:


"a. Is the plaintiff not bound to prove by letting in evidence that it is a public charity and therefore it is a public Trust entitled to the benefits of the G.O.Ms.No.2000 dated 16.8.1976?


b. Whether the Courts below are correct in concluding that the plaintiff society is a charitable trust entitled to exemption from operation of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 under G.O.Ms.No.2000 dated 16.8.1976 in the absence of any evidence or legal material?"


15. The learned counsel appearing for the appellant had submitted that the plaintiffs trust is not a public charitable trust and therefore, it is not exempted from the provisions of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, as claimed by the plaintiffs. It is for the plaintiffs to prove, by sufficient evidence, the actual status of the trust. The plaintiffs had failed to adduce sufficient documentary and oral evidence to prove that the plaintiffs trust is a public charitable trust.


16. The learned counsel had further submitted that the suit premises is not a residential premises, as it is a commercial property. The plaintiffs had not filed any document to show that the property is a residential property. Further, no lease agreement had been filed before the courts below to prove the tenancy and the consequential existence of landlord-tenant relationship between the plaintiffs and the defendant. As such, the judgment and decree of the courts below are unsustainable in the eye of law.


17. Per contra, the learned counsel appearing on behalf of the plaintiffs, who are the respondents in the present second appeal, had submitted that the issue as to whether the plaintiffs trust was a public charitable trust or not had not arisen for the consideration of the trial Court, as it had not been disputed by the defendant. The defendant, who is the appellant in the second appeal, has raised the issue for the first time, belatedly, before this Court. Even though the plaintiffs had issued a notice, under Section 106 of the Transfer of Property Act, 1882, terminating the tenancy of the defendant and asking him to vacate the premises in question, no reply had been sent by the defendant.


18. The learned counsel had relied on the decision reported in PRABHAKARAN AND ANOTHER Vs. PARISH PRIEST ST. MICHAEL'S CHURCH, KETTI IN THE DISTRICT OF NILGRIS (2007 4 CTC 86) to show that there is no necessity to state the reason for the eviction in the notice. Further, it had been established that the suit premises had been given to the defendant for residential purposes. As there is no error in the judgment and decree of the courts below, the second appeal is liable to be dismissed.


19. The learned counsel appearing for the appellants had also relied on the following decisions in support his contentions:


19.1. In KIRAN SINGH Vs. CHAMAN PASWAN (AIR 1954 SC 340), it had been held as follows:


"It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties."


19.2 In SHANKARLAL GANULAL KHANDELWAL Vs. BALMUKUND SURAJMAL BHARUKA (DECASED BY LRS). (Manu/MH/0701/98), it had been held as follows:


"...... Bu tin noffussil Courts in India, where pleadins were precisely drawn, it was found in practice that if they were strictly construed in terms of the said provisions, grave injustice would be done to parties with genuine claims. To do justice between those parties, for which Courts are intended, the rigor of r.5 has been modified by the introduction of the proviso thereto. Under that proviso the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Courts, presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the Original side of the Bombay High Court, we are told, the leadings are drafted by trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional circumstances to provent obvious injustice to party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to rely upon them for non-suiting the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality, and the traditions and conventions of a Court wherein such pleadings are filed....."


20. In view of the submissions made by the learned counsels appearing on behalf of the appellant and the respondent in the second appeal and on a perusal of the records available and in view of the questions of law raised, this Court does not find sufficient cause or reason to interfere with the conclusions arrived at by the courts below.


21. From the evidence available on record, it is clear that the suit pre

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mises had been occupied by the appellant for residential purpose. Thereafter, he had used the said premises for commercial purposes. The appellant had admitted the existence of the landlord-tenant relationship. The tenancy agreement, dated 16.4.1999, had also been marked as Exhibit B.1. Further, he had not replied to the notice, dated 9.8.2004, issued by the respondent, marked as Exhibit A.1, the receipt of which, by the appellant, is clear from the postal acknowledgment, dated 13.8.2004, marked as Exhibit A.2. The contentions raised by the appellant, with regard to the nature and character of the plaintiffs trust, cannot be countenanced at this belated stage, as they had not been raised before the courts below. It is clear that no reply had been sent by the appellant for the termination notice, dated 9.8.2004. In such circumstances, the claims made on behalf of the appellant are not acceptable. As such, this Court does not find any error in the findings of the Courts below. Therefore, the grounds raised in the second appeal are not sustainable in the eye of law. Hence, the second appeal stands dismissed. However, while dictating the judgment, the learned counsel appearing for the appellant had prayed for five months time for the appellants to vacate the suit premises. Due to the objections raised by the learned counsel appearing for the respondents 1 to 4 for granting five months time for the appellant to vacate the suit premises, this Court finds it fit to grant four months time for the appellants to vacate the suit premises in question. No costs.
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