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


The Official Trustee of Tamil Nadu representing the Trust Estate of Kadapakkam Charities v/s T.R.Ramachari (deceased) & Others

    A.A.O.No. 987 of 1989
    Decided On, 25 March 1999
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE K. GNANAPRAKASAM
    For the Appellant: N. Sankara Vadivel, Advocate. For the Respondents: S. Venkateswaran, Advocate.


Judgment Text
1. This civil miscellaneous appeal is directed against the order dated 25.7.1989 made by IV Additional Judge, City Civil Court, Madras in I.A.No.19827 of 1984 in O.S.No.547 of 1984.

2. The appellant herein filed a suit in O.S.No.547 of 1984 against the respondents herein for possession of suit property and for arrears of damages past and future. The respondent filed a petition in I.A.No.19827 of 1984 claiming that he was a tenant of the land under the appellant from the original trustee and thereafter continued to be a tenant after taking over of the estate by the appellant herein and therefore, he is entitled to the benefits of the Tamil Nadu City Tenants Protection Act. The said petition was resisted by the appellant herein, on several grounds; mainly that the respondent herein was not a tenant in respect of the suit property and he was only a licensee. The appellant also contended that the petition filed by the respondent herein was barred by time.

3. The trial court accepted the case of the respondent that he was tenant under the plaintiff in respect of the suit property and allowed the petition filed by the respondent holding that he is entitled to the benefits of the Tamil Nadu City Tenants Protection Act. Aggrieved by the said order, the appellant has preferred this appeal.

4. The learned advocate for the appellant has submitted that the respondent was not at all a tenant under the plaintiff and he was only a licensee and therefore, the order passed by the trial court that the respondent was a tenant, is not proper and the same is vitiated. It is further submitted that the petition filed by the respondent herein was barred by time. Several other grounds were also raised in the memorandum of grounds of appeal; but the appellant had pressed very much on the ground that the petition filed by the respondent was barred by time.

5. The learned advocate for the appellant has submitted that the respondent had filed vakalat on 11.4.1984 itself. But he filed the petition under Sec.9 of the City Tenants Protection Act ( i.e.) I.A.No.19827 of 1984, only on 29.9.1984, nearly five months after the filing of the vakalat. The respondent/tenant should have filed the petition under Sec.9 of the City Tenants Protection Act, within thirty days from the date of receipt of summons. Here, the respondent had entered appearance through his advocate on 11.4.1984 itself, but he had filed the petition only on 29.9.1984 and hence, the petition is barred by time.

6. On the contrary, the learned Advocate for the respondent has submitted that though he had filed vakalat on 11.4.1984, he had not received the summons and copy of the plaint in O.S.No.547 of 1984 and he received them only on 12.11.1984. But, however, the respondent had filed the petition under Sec.9 of the City Tenants Protection Act on 29.9.1984 and hence, the same was well within time and the petition is not barred by time as contended by the appellant.

7. The learned advocate for the appellant has further submitted that there cannot be any truth in the statement or submission made by the respondent that he has not received the summons and copy of the plaint either on 11.4.1984 or before that even though they have filed vakalat on the said date. He has justified in making such submission by pointing out the averments in para 2 of the affidavit in I.A.No.19827 of 1984, wherein the respondent has stated as follows:

'The plaintiff has filed the above suit in ejectment. While I have been a lessee of the land even from the original Trustee and thereafter continued to be a tenant after the taking over of the estate by the plaintiff, it has been wrongly alleged in the plaint that I am only a license.'

Admittedly, this affidavit was filed on 29.9.1984 itself and on the date of filing of the said affidavit he had full knowledge about the averments made in the ‘plaint’. That only in the said circumstances, the respondent has stated that, 'it has been wrongly alleged in the plaint that I am only a licensee'. But, however, the respondent would contend that though he had filed the vakalat on 11.4.1984, he got the summons and copy of the plaint only on 12.11.1984, which cannot at all be accepted on the teeth of the averments made in the affidavit, that he has not received the copy of the plaint.

8. The respondent cannot approbate and reprobate by stating that he has agreed that he had filed vakalat on 11.4.1984 and also filed the petition on 29.9.1984, wherein he made an allegation that 'the averments made in the plaint are wrong' and stated that he had received the copy of the plaint only on 12.11.1984. Taking into consideration the averments made in the affidavit and also the admitted fact that the respondent had filed vakalat on 11.4.1984 itself, he cannot be heard to say that he has not received the copy of the plaint prior to the filing of the petition and he had received the same only on 12.11.1984. Hence, it has been clearly made out that the respondent had not filed the petition under Sec.9 of the City Tenants Protection Act within one month from the date on or from 11.4.1984, on which date he had filed vakalat.

9. The advocate for the respondent relied on the case of Thoyammal and another v. K.A.Rathnavelu Nadar Thoyammal and another v. K.A.Rathnavelu Nadar Thoyammal and another v. K.A.Rathnavelu Nadar , A.I.R. 1927 Mad. 113 wherein the Division Bench of our Court has held that:

'Under Sec.9 of the Act the service should be personal service. The relevant portion of the section is' within 15 days (as it then was) after the service on him of summons apply to the court ' etc.'

There is no quarrel about the principle laid down in this decision. The tenant had made out that there was no knowledge about the said affidavit filed by the landlord. But, in our case, the respondent had engaged an advocate and filed vakalat on 11.4.1984, itself and also pleaded in the affidavit that the averments made in the plaint are wrong and in the said circumstances, it cannot be said that he was not aware of the averments made in the plaint and he cannot take shelter by stating that the summons were not served upon him.

10. The respondent also relied upon another decision of our court in the case of Jivaraj Motilala v. Marthaka Plastic Industries and others Jivaraj Motilala v. Marthaka Plastic Industries and others Jivaraj Motilala v. Marthaka Plastic Industries and others , 98 L.W. 366 wherein Ratnam, J. (as he then was) had considered about the service of summons in a suit filed under O.37, C.P.C. In paragraph 7, His Lordship has held that:

'Here again, it is difficult to accept the stand taken by the respondents to the effect that the vakalat had been filed only in the proceedings taken out by the petitioner for securing an order of attachment before judgment, for, it is seen from a reference to the vakalat that it had been filed in the main suit and not only in the interlocutory application for an order of attachment before judgment. The vakalat has not been merely put into the court. Earlier, the filing of the application by the petitioner for securing an order of attachment before judgment has been referred to. It is an response to a notice served in that application, on 12th April, 1979, counsel undertook to appear on behalf of the respondents and finally filed the vakalat in the suit on behalf of the respondents on 17th April, 1979 and thereafter a counter as well as an affidavit of undertaking had been filed on behalf of the respondents by the same counsel and on 20th April, 1979 after recording the undertaking, the application for attachment before judgment was closed.'

'No doubt, O.37, Rule 3(3), C.P.C. contemplates notice of appearance being given by the defendant to the plaintiff's pleader on the day when the defendant entered appearance. But, on the facts and circumstances of this case, it appears to me that, that was not necessary because the vakalat on behalf of the respondent had been filed in the suit itself to the knowledge of the petitioner as well as his counsel and an address for service had also been indicated in the vakalat filed by the respondents and that would be more than sufficient notice of appearance by the defendants'.

I respectfully accept the said view taken by His Lordship and apply the same to the case on hand. Here, the respondent having filed vakalat on 11.4.1984 cannot be heard to say that he has not received the summons and notice in the said case.

11. The advocate for the respondent also relied on the case of S.A.Ramachandran v. S.Neelavathy S.A.Ramachandran v. S.Neelavathy S.A.Ramachandran v. S.Neelavathy , (1997)1 S.C.C. 767 that case arises out of notice contemplated under Sec.11 of City Tenants’ Protection Act as a condition before filing a suit for ejectment. The Apex Court has held that Notice under Sec.11 is a condition precedent to institution of suit for ejectment of tenant. The plaintiff must mention in the plaint that he had given the notice and had instituted the suit three months thereafter. That is not the issue involved in our case.

12. Sec.9 of the Tamil Nadu City Tenants’ Protection Act states that:

'Any tenant who is entitled to compensation under Sec.3 and against whom a suit in ejectment has been instituted proceeding under Sec.41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord may (within one month of the date of the publication of Madras City Tenants’ Protection (Amendment) Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the Municipal town township or village in which the land is situate) or within (one month) after the service on him of summons apply to the court for an order that the landlord shall be directed to sell for a price to be fixed by the court, thethere was no knowledge about the said affidavit filed by the landlord. But, in our case, the respondent had engaged an advocate and filed vakalat on 11.4.1984, itself and also pleaded in the affidavit that the averments made in the plaint are wrong and in the said circumstances, it cannot be said that he was not aware of the averments made in the plaint and he cannot take shelter by stating that the summons were not served upon him.

10. The respondent also relied upon another decision of our court in the case of Jivaraj Motilala v. Marthaka Plastic Industries and others Jivaraj Motilala v. Marthaka Plastic Industries and others Jivaraj Motilala v. Marthaka Plastic Industries and others , 98 L.W. 366 wherein Ratnam, J. (as he then was) had considered about the service of summons in a suit filed under O.37, C.P.C. In paragraph 7, His Lordship has held that:

'Here again, it is difficult to accept the stand taken by the respondents to the effect that the vakalat had been filed only in the proceedings taken out by the petitioner for securing an order of attachment before judgment, for, it is seen from a reference to the vakalat that it had been filed in the main suit and not only in the interlocutory application for an order of attachment before judgment. The vakalat has not been merely put into the court. Earlier, the filing of the application by the petitioner for securing an order of attachment before judgment has been referred to. It is an response to a notice served in that application, on 12th April, 1979, counsel undertook to appear on behalf of the respondents and finally filed the vakalat in the suit on behalf of the respondents on 17th April, 1979 and thereafter a counter as well as an affidavit of undertaking had been filed on behalf of the respondents by the same counsel and on 20th April, 1979 after recording the undertaking, the application for attachment before judgment was closed.'

'No doubt, O.37, Rule 3(3), C.P.C. contemplates notice of appearance being given by the defendant to the plaintiff's pleader on the day when the defendant entered appearance. But, on the facts and circumstances of this case, it appears to me that, that was not necessary because the vakalat on behalf of the respondent had been filed in the suit itself to the knowledge of the petitioner as well as his counsel and an address for service had also been indicated in the vakalat filed by the respondents and that would be more than sufficient notice of appearance by the defendants'.

I respectfully accept the said view taken by His Lordship and apply the same to the case on hand. Here, the respondent having filed vakalat on 11.4.1984 cannot be heard to say that he has not received the summons and notice in the said case.

11. The advocate for the respondent also relied on the case of S.A.Ramachandran v. S.Neelavathy S.A.Ramachandran v. S.Neelavathy S.A.Ramachandran v. S.Neelavathy , (1997)1 S.C.C. 767 that case arises out of notice contemplated under Sec.11 of City Tenants’ Protection Act as a condition before filing a suit for ejectment. The Apex Court has held that Notice under Sec.11 is a condition precedent to institution of suit for ejectment of tenant. The plaintiff must mention in the plaint that he had given the notice and had instituted the suit three months thereafter. That is not the issue involved in our case.

12. Sec.9 of the Tamil Nadu City Tenants’ Protection Act states that:

'Any tenant who is entitled to compensation under Sec.3 and against whom a suit in ejectment has been instituted proceeding under Sec.41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord may (within one month of the date of the publication of Madras City Tenants’ Protection (Amendment) Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the Municipal town township or village in which the land is situate) or within (one month) after the service on him of summons apply to the court for an order that the landlord shall be directed to sell for a price to be fixed by the court, the whole or part of, the extent of land specified in the application.'

The section is so clear that the tenant within one month after the service of summon on him apply to the court for an order that the landlord shall be directed to sell for a price to be fixed by the court, the whole or part of the extent of land specified in the application. Here, admittedly, the respondent/tenant had filed vakalat on 11.4.1984 and having filed Vakalath on 11.4.1984, he cannot be heard to say that he was not aware of the averments made in the plaint, just because he had not received the summons and it is presumed that the tenant having filed vakalat on 11.4.1984, he is expected to know the entire facts of the case in the plaint.

13. Of course, O.5, Rule 1 of Civil Procedure Code speaks about summons which states:

'When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified.'' Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim…'

This shows that summon is nothing but a ‘call’, calling upon the defendant in a suit to appear before the court, which has issued to summon on a particular day, and to answer the claim of the suit.

O.5, Rule 2 of Civil Procedure Code states:

'Every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement.'

This shows that if summons has been issued, it should accompany by a copy of plaint. Proviso to O.5, Rule 1 states that no such summons shall be issued when the defendant has appeared on the presentation of the plaint and admitted the plaintiff's claim. In our case, the respondent had filed vakalat on 11.4.1984, which indicates his appearance before this Court. Having filed vakalat on 11.4.1984, the respondent/tenant has not stated that he has not received the summons accompanied by the copy of the plaint. Not even a memo has been filed before the court to that effect. It

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is not his case that he came to know about the hearing of the case by air and filed vakalat. Having filed the vakalat, he is expected to know the entire facts of the case. He could receive the copy of the plaint from the court also. In fact, in the affidavit, filed on 29.9.1984, in support of the petition under Sec.9 of the City Tenants Protection Act, he has stated that,' it has been wrongly alleged in the plaint that I am only a license'. This line indicates that he had gone through the plaint. Even in the said affidavit, no averment has been made that he has neither received the summons nor the copy of the plaint. Only in the said circumstances, I come to the conclusion that the respondent/tenant might have received the summons and the copy of the plaint either through the court or from the court and only in the said circumstances, he had field the petition under Sec.9 of the Act, making such an allegation that it has been' wrong alleged in the plaint that he was a only a licensee, 'which application was filed on 29.9.1984, nearly five months after filing of the vakalat and admittedly, the said petition was not filed within one month from the date of filing of the vakalat and that therefore, the petition filed by the respondent is barred by time and hence, the petition is liable to be dismissed. 14. Though the trial court had taken note of this fact, in para 8 of its order, it held that though vakalat was filed on 11.4.1984, the summons were served only 12.11.1984, and the petition was filed on 19.9.1984 and the same was in time and I am unable to accept the said finding of the trial court, which in my view is not correct and the same is liable to be set aside and the same is hereby set aside. 15. In the result, the Civil Miscellaneous Appeal is allowed. No costs.
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