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2001 DIGILAW 1307 (MAD)

A. K. S. Thiyagarajan and others v. M. Gopal

2001-11-05

M.CHOCKALINGAM

body2001
JUDGMENT: These two appeals have been preferred from the common judgment and decree of the learned Additional District Judge, Vellore made in A.S.Nos.180 and 181 of 1989 dated 28.2.1990 setting aside the judgment and decree of the learned Subordinate Judge, Arni made in O.S.Nos.82 and 83 of 1987, dated 28.9.1989. 2. The appellants herein filed two suits in O.S.No.82 and 83/87 against the respondent herein seeking delivery of possession of the plaints schedule properties situated in door Nos.235 and 236 Gandhi Market Road, Arni Town respectively with the following averments. The said schedule mentioned non residential buildings belonged to the plaintiffs. It was a new building. The construction was completed and informed to the local body in March, 1983. The first assessment was also made only in April, 1983. Previously there was an old building which was completely demolished and a new building was reconstructed and thus the building was exempted from the purview of the Rent Control Registration from the purview of the Rent Control Registration and the Civil Court alone has got jurisdiction. The defendant was a tenant under the plaintiffs in respect of the premises situated in door Nos.235 and 236 on a monthly rent of Rs.165 and Rs.44 respectively. The tenancy was oral and as per the English calendar month. It was a month to month tenancy. The respondent agreed to vacate as and when demanded. Since the appellants/ plaintiffs required the building in the occupation of the respondent, they called upon the respondent to deliver possession and have also issued a lawyer’s notice dated 24.11.1985 during terminating the tenancy. The same was served on 26.11.1985. The respondent also sent a reply notice. The respondent/defendant did not deliver possession as demanded and hence the suit. 3. Both the suits were contested by the respondent with the following averments in his written statement and additional written statement. The respondent was a merchant doing essence business and has been a tenant under the plaintiff in respect of the godown Nos.235 and 236 which were adjacent and of one block and the tenancy dated back to about 20 years. Owing to business misunderstanding of the respondent with his near relatives who were close to the plaintiffs, the suit for eviction has been filed and there was no bona fide on the part of the appellants. Owing to business misunderstanding of the respondent with his near relatives who were close to the plaintiffs, the suit for eviction has been filed and there was no bona fide on the part of the appellants. The appellants represented that they wanted to put up storied buildings over the godown in the occupation of the respondent so that they might rent them remuneratively and therefore they requested that the respondent might continue in a portion of the godown No.236 and continue his business and after the completion of the superstructure, the respondent might occupy the other portion of the godown in the old tenancy. The respondent continued in godown No.236, a part of the godown, while the construction was in progress. Thus the re-occupation of the vacated portion of the godown after the erection of those superstructure would not amount to lease of new building and the appellants could not press into service the exemption clause to take the matter out of the purview of the Rent Control Act. The lease was deemed to be in respect of the old building, situated in door Nos. 235 and 236. Eviction was not maintainable as the lease was subject to the contract that the old tenancy would be continued without interruption. The demand was made for fresh advance of Rs.24,000 without receipt and the higher rent and when the demand was not met, the suit has been filed. Already the respondent has paid an advance of Rs.10,000. The notice of termination was also not void. If the eviction was ordered, it will cause much loss and prejudice to the respondent. The appellants represented that if the respondent could occupy7 a part of the godown in No.236 till the superstructure was completed, the respondent could continue in door Nos.235 and 236 godown on the old tenancy after the completion of the superstructure. The appellants agreed to that course. Otherwise the respondent would not have obliged to vacate the portion of the godown. Since the appellants represented so, they are stopped by the doctrine of promissory estoppel. The proceedings under the Rent Control Act could alone be taken. the Civil Court has no jurisdiction. There was no cause of action for the suit and hence the suit was to be dismissed. 4. It is also contended by the respondent as follows. Since the appellants represented so, they are stopped by the doctrine of promissory estoppel. The proceedings under the Rent Control Act could alone be taken. the Civil Court has no jurisdiction. There was no cause of action for the suit and hence the suit was to be dismissed. 4. It is also contended by the respondent as follows. The appellants have not averred anything when the respondent was inducted as a tenant in the alleged new buildings 235 and 236. The case of the respondent was that he had been continuously a tenant for number of years and even now continued as tenant. The notice of the appellants was appropriately replied to by the respondent’s advocate on 2.11.1981 saying that the defendant would not vacate. Later on the first appellant brought some of this people and made pressure to the respondent and said that an alternative arrangement could be made if the buildings could be vacated by the end of November 1981, In spite of it, the defendant became suspicious and hence he did not vacate the building. The plaintiffs had put up the stair case from the road side and constructed the first floor and while putting up the stair case in the front from the road, substantial width of the godown 235 was obstructed. The respondent carried on the business in 236 when 235 was built and vice-versa and never moved out of these buildings. The respondent never conducted his business in the rice mill of the plaintiffs. The said agreement itself being in violation of law and against public policy, the appellants could not rely on it because it would amount to any furtherance of illegal object. There was no new tenancy in respect of the buildings in 235 and 236. In the plaint also the appellants had purposefully not spelt out as to when the new commenced, and hence the suit was not maintainable. The respondent was praying rent to both the buildings 235 and 236 from December 1981 to the alleged completion of the construction and information to the local body in March, 1983 and receipts were issued by the appellants for the period, when the said godowns were alleged to have been demolished. Only in November 1984, the rents were increased and hence it will be clear that in the circumstances there was no fresh lease in respect of the new building. Only in November 1984, the rents were increased and hence it will be clear that in the circumstances there was no fresh lease in respect of the new building. Hence the suit has to be dismissed. 5. The trial Court on the above pleadings framed the necessary issues, tried both the suits and rendered a common judgment granting the relief of delivery of possession as asked for. Aggrieved over the same, the respondent/defendant preferred two appeals in A.S.Nos.82 and 83 of 1987 on the file of the Additional District Judge, who allowed the appeals setting aside the judgment of the trial Court and dismissed both the suits. The aggrieved plaintiffs have preferred these two second appeals therefrom. At the time of admission the following substantial questions of law were formulated for consideration: (1) In the light of the materials on record taken along with the uncontroverted facts, whether the finding of the lower appellate Court that Sec.30 of the Tamil Nadu Buildings (Lease and Rent Control) Act would not apply to the building is sustainable in law? (2) Having regard to the facts and circumstances and in particular to Ex.A-2 and the admission of the respondent which would establish that there had been a demolition and reconstruction, whether Sec.30 of the Tamil Nadu Buildings (Lease and Rent Control) Act could be said to be applicable for the reasons mentioned in the judgment of the lower appellate Court? (3) On the basis of this evidence and findings which disclose the fact that there was a demolition and reconstruction of a new building, and the induction of the respondent as a tenant in the new building, whether the judgment of the lower appellate Court to the effect that Sec.30 of the Tamil Nadu Buildings (Lease and Rent Control) Act would not apply, as the respondent appears to have been inducted even before the completion of the construction of the new building is sustainable in law? 6. The appellants herein have preferred these two appeals from the judgment of the lower appellate Court reversing the judgment of the trial Court, made in the said two suits filed by the appellants herein seeking delivery of possession of the plaints schedule mentioned properties from the respondent. 6. The appellants herein have preferred these two appeals from the judgment of the lower appellate Court reversing the judgment of the trial Court, made in the said two suits filed by the appellants herein seeking delivery of possession of the plaints schedule mentioned properties from the respondent. The learned Senior Counsel appearing for the appellant in both the appeals would submit that the respondent/defendant actually vacated from the suits mentioned premises in December, 1981 and handed over vacant possession of both the shops in question to the appellants and after taking possession, the appellants demolished the entire portion and put up a new construction and the respondent was inducted as a tenant in both the shops only in June, 1982; that in view of the same, the lower appellate Court should have held that Sec.30 of the Tamil Nadu Buildings (Lease and Rent Control) Act would apply to this case; that after the reply notice under Ex.B3, the respondent agreed to vacate the premises in question under Ex.A-2; that as per the agreement, the defendant had also vacated and kept all his articles in the rice mill belonging to the plaintiffs; that in the light of the admission made by the respondent under Ex.A-2 which was also fortified by the oral and documentary evidence adduced on behalf of the appellants, there was no scope to hold that Sec.30 would not apply to the case; that in the light of the uncontroverted documents filed by the appellants it was clear that the appellants had demolished both the shops and had put up new building thereon; that Sec.30 of the Act would apply to the buildings in question; that the reasonings given by the lower appellate Court for giving a finding that Sec.30 of the said Act would not apply was contrary to the evidence on record, besides being contrary to law; that Ex.A-2 which was relied upon by the lower appellate Court would by itself establish the fact that the building had been demolished and the respondent was put in possession of the new buildings only; that the first appellate Court was error in filing that the respondent had been put in possession even before the completion of the new building and therefore Sec.30 of the Act would have no application; that the evidence of P.W.1 and the documents filed by the appellants’ side were neither inconsistent nor in any manner against the case pleaded by the appellants; that though a new building was completed on 1.6.1982 and the respondent was put in possession of the building on the said date, notice to the municipality has been given in March,, 1983 and those facts could not be construed to mean that the respondent was put in possession even before the completion of the building and that the buildings do not qualify for exemption under Sec.30 of the said Act; that the lower appellate Court should have seen that in any event, even assuming without admitting that the respondent was put in possession of the new building even before completion of the building, nevertheless the provisions contained in Sec.30 would apply to the said building and thus the lower appellate Court without proper perspective of the evidence adduced have set aside the well considered judgment of the trial Court has got to be restored and the suits are to be decreed as prayed for and delivery of possession has to be ordered. 7. 7. Vehemently opposing every one of the contentions of the appellant’s side, the learned counsel for the respondent would submit that both the suits filed by the appellants were not maintainable since the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act were applicable to the properties in question; that it is an admitted position that the respondent continued his business in door Nos.235 and 236 belonging to the appellants for more than 25 years and thus the tenancy has continued all along; that there was no new construction as alleged by the appellants and hence the suit building was not exempted from the purview of the House Rent Control Act 18 of 1960; that it is pertinent to note that the respondent continued to be a tenant of the suit premises and has been carrying on his business, but he had not vacated the same at any point of time that in order to prove the continuity of tenancy, and possession by the respondent, he filed number of documents before the trial Court; that though the trial Court failed to consider and appreciate the same, the first appellate Court on proper scrutiny and appreciation has accepted the evidence and has rightly dismissed the suits; that it is pertinent to note that the appellants have not stated anywhere in the plaint as to when the respondent was inducted to the suit property, after the construction of the new building or when the construction of the new building was over; that even as per the recitals of Ex.A-2, relied on by the appellants, the respondent was entitled to be in possession of the said premises as a tenant; that at the time when the suit was taken up for trial, even as per the case of the appellants, the building was not exempted from the purview of Act 18 of 1960; that the respondent never vacated and kept his articles in the rice mill belonging to the appellants as contended by them; that it is pertinent to point out that the respondent was put in possession even before the alleged completion of the new building and hence the lower appellate Court was perfectly correct in holding that Sec.30 of the said Act has no application to the present facts of the case; that since the respondent was put in possession of the new building even before its completion, the provisions contained in Sec.30 of the said Act cannot be applied to the suit building; that it is pertinent to note that the respondent has been paying the monthly rental as agreed between the parties continuously and even after the construction of the new building, which would clearly indicate the conduct of the appellants in receiving the rental with an intention to continue the respondent as a tenant, even after the construction of the new building and under the stated circumstances, the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act is not applicable to the building in question and hence the first appellate Court was perfectly correct in dismissing the suits and hence it has got to be sustained. 8. The appellants herein admittedly the owners of the suit premises bearing door Nos.235 and 236, Gandhi Market Road, Arni Town filed the suits for recovery of possession of the suit property from the respondent herein, who has been a tenant for a long time, doing his business under an agreement of tenancy and paying the rents to the appellants herein. Though the building in question is situated within the Vellore Municipal limit, instead of filing eviction petitions under the relevant provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, the appellants filed the said Civil action for recovery of possession stating that the building in question bearing door Nos.235 and 236 was a new one; that the old building was completely demolished and a new building was constructed, completed and informed to the local body in March,, 1983 and the first assessment was made only in April, 1983 and thus the building was exempted from the purview of the Rent Control legislation and after determining the lease tenancy by a due notice as contemplated in law. The only defence that was putforth by the respondent herein was that he had been a tenant for the past 25 years; that he did not vacate the building at any point of time; that the tenancy has continued without any break and the re-occupation of the vacated portion of the godown after the erection of the superstructure would not amount to lease of a new building and hence the appellants could not avail the exemption clause under Sec.30 of the Tamil Nadu Buildings (Lease and Rent Control) Act and hence the suits were to be dismissed as not maintainable. 9. At the outset it has to be stated that both the suits were filed by the appellants after determining the tenancy by issuing notice under Sec.106 of the Transfer of Property Act. Though it was pleaded by the respondent in his written statement that the said notices were not valid, both the Courts have found that the notices were valid and in accordance with law and nothing is canvassed by the respondents side in this Court, so far as those notices are concerned. 10. Though it was pleaded by the respondent in his written statement that the said notices were not valid, both the Courts have found that the notices were valid and in accordance with law and nothing is canvassed by the respondents side in this Court, so far as those notices are concerned. 10. As seen above, the only question that would arise for consideration is whether the appellants could avail the exemption under Sec.30 of the Tamil Nadu Buildings (Lease and Rent Control) Act to file the suits instead of initiating rent control proceedings. It is the specific case of the appellants that the construction of the building in question was completed and informed to the local body in March,, 1983 and thus it is a new building and hence the building is exempted from the purview of the Rent Control legislation. It is not in dispute that the respondent became a tenant under the appellants in respect of the two shops comprised in the old building long before. From the available oral and documentary evidence, it could be well seen that the respondent was occupying the two shops in the old buildings and when there was a proposal to demolish and reconstruct a new building by the appellants, an agreement was entered into between the parties on 23.11.1981 under Ex.A-2, whereby the respondent agreed to vacate both the shops situated in door Nos.235 and 236 and hand over possession on 30.11.1981. A revised plan in respect of the new construction was approved by the Vellore Municipality on 26.2.1982 which is marked as Ex.A-3. It is an admitted position that the whole building bearing door Nos.235 and 236 which was previously existing was thoroughly demolished and a new construction has come into existence. It could not have been possible either to demolish the existing old building or to reconstruct a new building in that site without the possession being vacated by the respondent and surrendered to the appellants herein. Taking into consideration Ex.A-2 agreement and Ex.A-3 approved plan, it would be abundantly clear that the respondent should have vacated and surrendered possession as found under Ex.A-2 agreement and a new construction as found under Ex.A-3 should have been made. 11. The contention of the appellants’ side that the property tax assessment for the new building was made from April, 1983 is not disputed by the respondent. 11. The contention of the appellants’ side that the property tax assessment for the new building was made from April, 1983 is not disputed by the respondent. Fresh assessment in respect of the new building should have been made only on the construction being notified to the municipality. The contention of the respondent that he did not vacate the entire building, but he vacated only a portion of the same and he was continuing his business at one part while the construction of the new building was going on the other part cannot be countenanced in view of the admitted position that a new building has come into existence in the place of the old building. The learned counsel for the respondent brought to the notice of the Court that the respondent was put in possession of the building on 1.6.1982 itself even before the completion of the building in March, 1983 and thus it would be clear that the respondent has been continuing to be a tenant even before the completion of the building and hence the exemption under Sec.30 of the Tamil Nadu Buildings (Lease and Rent Control) Act is not applicable to the present facts of the case. Even assuming that the respondent was put in possession of the building in June, 1982 i.e. even prior to the completion of the new building, it would not in any way change the character of the building. The learned counsel for the respondent would vigorously contend that the tenancy of the respondent was without any interruption and he has been paying the rent all along. This contention cannot be accepted in view of the documentary evidence produced by the respondent’s side. Ex.B.4 is the rental receipt dated 7.9.1981 and Ex.B5 is another rental receipt issued on 5.7.1982. The respondent has not filed any rental receipt for the period from September, 1981 to June, 1982. Taking into consideration Ex.A-2 agreement dated 23.11.1981 entered into between the parties wherein the respondent agreed to surrender possession on or before 30.11.1981 and the non payment of rental for the period from September, 1981 to June, 1982 and the fact that the respondent was put in possession of the building on 1.6.1982, it cannot be stated that either the tenancy was continuous or it remained uninterrupted. The respondent is unable to give any Explanation why there was no payment of rental for the period from September, 1981 to June, 1982. In view of all the above, it can be well stated that as per the agreement under Ex.A-2, the respondent has surrendered possession of the premises to the appellants enabling them to demolish and construct a new building. Only after the completion of the new building, the respondent commenced payment of rental from July, 1982. No doubt this would would be clearly pointing to the surrender of possession of the old building by the respondent and entering into a new tenancy agreement in respect of the newly constructed building. Sec.30 of the Tamil Nadu Buildings (Lease and Rent Control) Act, speaking of the exemption in case of certain buildings reads as follows: “Sec.30: Exemption in the case of certain buildings: Nothing contained in this Act shall apply to- (i) any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned.” From the available evidence it would be very clear that the old building was demolished and a new building has come into existence only in March, 1983 and has been newly assessed to property tax. Both the suits were filed by the respondent in the year 1987 i.e. within 5 years from the completion of the construction and notification to the municipal authority concerned. It has to be borne in mind that this provision availing exemption to new buildings was mainly intended to give the landlords the rights which as owners of the buildings they had under the ordinary law viz.. to give them on lease of rents which they thought what was remunerative and to evict the tenants during that period without any fetters imposed by the Act. the Court is of the view that the case reported in Abdul Azeez & Sons v. Mavalirajan, (1977)1 T.L.N.J. 69 squarely applies to the present facts of the case. It has been held in that decision as follows: “Tamil Nadu Buildings (Lease and Rent Control) Act 1960. Sec.2, 30(i) Building-Removal of roofing keeping the walls intact - Fresh construction - New Building has come into existence - applicability of Sec.30 - Jurisdiction of Civil Court. In J.S.Irani v. T.S.PLP.Chidambaram Chettiar, (1952)2 M.L.J. 221 : A.I.R. 1953 Mad. 650. It has been held in that decision as follows: “Tamil Nadu Buildings (Lease and Rent Control) Act 1960. Sec.2, 30(i) Building-Removal of roofing keeping the walls intact - Fresh construction - New Building has come into existence - applicability of Sec.30 - Jurisdiction of Civil Court. In J.S.Irani v. T.S.PLP.Chidambaram Chettiar, (1952)2 M.L.J. 221 : A.I.R. 1953 Mad. 650. this Court had occasion to consider the definition of the term ‘building’ occurring in the earlier Act, namely, 1946 Act. Admittedly there is no material difference between that definition and the definition in the present Act. According to the learned Judge, a ‘building’ as defined in the Act must be one which is intended for human habitation or for using it for non-residential purposes such as carrying on a business. In this particular case, after the appellant surrendered possession of the two halls, the tiled roofing was removed. Once the tiled roofing was removed, admittedly what stood were only the walls. The question for consideration is, whether those walls could be said to constitute ‘building’. Those walls standing alone would not have constituted a building for human habitation or for non-residential purposes such as carrying on business. Therefore they could not have constituted a ‘building’ as defined in the Act. As soon as the pillars were erected and the height of the walls was raised and asbestos roofing was put up, a building as defined in the Act came into existence and since that building came into existence only in 1966, that would attract the provisions of Sec.30(i). If it so attracts, it will be outside the jurisdiction of the Act and consequently the Civil Court has jurisdiction to pass a decree for eviction in the present case.” Thus for the discussions made and reasons stated above, the Court is of the considered view that the suit is filed by the appellants are very well maintainable and thus the finding of the lower appellate Court that Sec.30 of the Tamil Nadu Buildings (lease and Rent Control) Act would not apply to the building cannot be sustained. All the substantial question of law formulated are answered in favour of the appellants. 12. In the result, both the second appeals are allowed with costs, setting aside the judgment and decree of the first appellate Court and restoring the judgment and decree of the trial Court. Both the suits are decreed as prayed for.