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2003 DIGILAW 590 (MAD)

Perumal Konar v. G. Ravindran & Others

2003-04-04

A.RAMAMURTHI

body2003
Judgment :- The unsuccessful first defendant in both the courts below, is the appellant. 2. The case in brief is as follows:- The plaintiff filed a suit for declaration and for recovery of possession from the 1st defendant in respect of first schedule property and also claimed a sum of Rs.90/= per month by way of damages for use and occupation. The father of defendants 2 to 4, viz., Subramania Karaiyalar purchased the 1st schedule property under a registered document dated 13.07.1945 from Kirudhu Rowthar and on his demise, in the family partition, this property as well as other properties fell to the share of defendants 2 to 4. The 1st schedule property was leased out to the 5th defendant on a monthly rent and thereafter, the 2nd schedule property, which is a portion of the 1st schedule property, was leased out by the 5th defendant in favour of the 1st defendant on 14.11.1980 on a monthly rent of Rs.90/= and the rent is payable on the 5th of every English calendar month. However, the 1st defendant had trespassed into the other properties also on 01.06.1982 and he did not pay the rent regularly. The 5th defendant filed a suit in O.S.No.451 of 1985 against the 1st defendant. The 1st defendant took a plea that the 5th defendant had no right whatsoever to lease out the same and the property belongs to defendants 2 to 4. Subsequently, the 1st defendant took the schedule mentioned property from defendants 2 to 4 on the same monthly rent and enjoyed the property. The 1st defendant also gave evidence that the 1st schedule property belongs to defendants 2 to 4. Subsequently, the suit filed by the 5th defendant was dismissed on 24.12.1986. The 5th defendant also preferred A.S.No.56 of 1987 and the appeal was also dismissed. The plaintiff for valid consideration, purchased the 1st schedule property from defendants 2 to 4 and others under a registered document dated 15.09.1993 and also effected transfer of assessment in his name and is paying tax. A Rectification Deed was also entered into on 27.09.1993. The 5th defendant also preferred A.S.No.56 of 1987 and the appeal was also dismissed. The plaintiff for valid consideration, purchased the 1st schedule property from defendants 2 to 4 and others under a registered document dated 15.09.1993 and also effected transfer of assessment in his name and is paying tax. A Rectification Deed was also entered into on 27.09.1993. Thereafter, the 1st defendant filed a suit on the file of District Munsif Court, Tenkasi in O.S.No.576 of 1993 against the plaintiff herein as well as defendants 2 to 4 for permanent injunction, wherein the 1st defendant admitted that he is enjoying the property as a tenant, but would state that he had put up superstructure in the property. Defendants 2 to 4 also filed Rent Control Original Petition No.6 of 1990 against the 1st defendant herein for eviction from the schedule mentioned property. But the 1st defendant took a plea that the site belongs to the 5th defendant and he had taken the site only on lease and subsequently put up construction bearing door No.59-B. Since defendants 2 to 4 are related to the 1st defendant, on their request, he had signed in blank papers and it was used for the purpose of creating lease deed and other documents. There is no relationship of landlord and tenant between the 1st defendant and defendants 2 to 4. He also claimed benefits under the City Tenants' Protection Act. The application filed by the 1st defendant claiming benefits under City Tenants' Protection Act was dismissed. The rent control petition filed by defendants 2 to 4 was also dismissed. Rent Control Appeal No.5 of 1992 was filed by defendants 2 to 4 and thereafter, the plaintiff sent a notice to the 1st defendant, for which he sent a reply denying the right, title and interest of the plaintiff. Hence, the suit. 3. The 1st defendant filed a written statement and denied the various averments in the plaint. He denied the title of the plaintiff or defendants 2 to 4 in respect of the property. He took the vacant site on lease from the 5th defendant and put up superstructure and, as such, he is entitled to claim benefit under the City Tenants' Protection Act. He denied the title of the plaintiff or defendants 2 to 4 in respect of the property. He took the vacant site on lease from the 5th defendant and put up superstructure and, as such, he is entitled to claim benefit under the City Tenants' Protection Act. In order to defeat the suit O.S.No.451 of 1985, which was filed by the 5th defendant, he had joined hands with defendants 2 to 4 and signed in blank papers as if there is a lease deed. Rent control petition 6 of 1990 filed by defendants 2 to 4 was subsequently dismissed and rent control appeal was also preferred and the same is pending. The notice sent by the plaintiff is not valid under law since 15 days' clear notice was not given. The court fee paid is also not proper and correct. The plaintiff is not entitled to claim any relief. 4. Defendants 2 to 4 remained ex parte. The 5th defendant also died during the pendency of the suit and no legal heirs were impleaded. 5. The trial court framed 4 issues and on behalf of the plaintiff, P.Ws.1 and 2were examined and Exs.A-1 to A-15 were marked and on the side of the 1st defendant, D.W.1 were examined and Exs.B-1 to B-4 were marked. X-1 document was marked through one of the witnesses. The trial court decreed the suit in favour of the plaintiff and mesne profits is left open to separate proceedings. Aggrieved against this, the 1st defendant preferred A.S.No.128 of 1997 on the file of II Additional District Court, Tirunelveli and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, the 1st defendant has come forward with the present second appeal. 6. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration. (1) Whether the findings of the lower appellate court not vitiated in law by the failure to consider the entire evidence on record and fails to apply the correct principle of law ? (2) Whether there is proper notice of termination of lease under section 106 of the Transfer of Property Act ? and whether the suit is bad for want of said notice ? (3) Whether the suit is maintainable without proper notice under section 11 of the City Tenants Protection Act ? (2) Whether there is proper notice of termination of lease under section 106 of the Transfer of Property Act ? and whether the suit is bad for want of said notice ? (3) Whether the suit is maintainable without proper notice under section 11 of the City Tenants Protection Act ? (4) whether the petition filed under section 9 of the City Tenants Protection Act is not maintainable as contended by the courts below as if the same petition filed in Rent control proceedings has been dismissed ? (5) Whether the plaintiff is entitled for recovery of possession and arrears of rent and future rents ? 7. Heard the learned Senior Counsel for the parties. 8. The plaintiff purchased the schedule mentioned property from defendants 2 to 4 under Exs.A-7 and A-8 dated 15.09.1993. Later, a rectification deed was also executed relating to the same property under Ex.A-9 dated 27.09.1993. Now, the plaintiff has filed the suit based upon the title deed for declaration that the property belongs to him and also called upon the 1st defendant to deliver possession of the property and claimed damages of Rs.90/= per month. The trial court as well as the lower appellate court granted a decree in favour of the plaintiff and aggrieved against this, the 1st defendant has preferred the present second appeal. The learned counsel for the 1st defendant / appellant contended that the courts below ought to have held that the appellant is entitled to protection under Tamil Nadu City Tenants Protection Act. There was no notice issued under section 11 of the City Tenants Protection Act. The appellant is a tenant under the 5th defendant and not under defendants 2 to 4. The 5th defendant already filed a suit against the 1st defendant in O.S.No.451 of 1985 on the file of District Munsif Court, Tenkasi, wherein the 1st defendant filed a written statement that the property belonged to defendants 2 to 4. When defendants 2 to 4 filed RCOP No.6 of 1990 calling upon the 1st defendant to vacate from the place, the 1st defendant took a plea that he had taken vacant site on lease from the 5th defendant and put up a shed at the cost of Rs.15,000/-. When defendants 2 to 4 filed RCOP No.6 of 1990 calling upon the 1st defendant to vacate from the place, the 1st defendant took a plea that he had taken vacant site on lease from the 5th defendant and put up a shed at the cost of Rs.15,000/-. It is, therefore, evidently clear that when the 5th defendant took steps against the 1st defendant, a plea was raised admitting the title with defendants 2 to 4 and when defendants 2 to 4 filed a rent control petition, the 1st defendant claimed title to the property on the 5th defendant. No doubt, the suit filed by the 5th defendant as well as the rent control petition filed by defendants 2 to 4 were dismissed. Defendants 2 to 4 filed a rent control appeal and the same was pending. At that time only, the plaintiff had purchased the property from defendants 2 to 4 and the assessment was also transferred in the name of the plaintiff. The plaintiff sent a notice under Ex.A-11 dated 09.11.1993 and for which, a reply was sent by the 1st defendant under Ex.A-12 dated 19.11.1993 disputing the right, title and interest in the property. Hence, the plaintiff was constrained to file the suit. 9. This Court framed 5 substantial questions of law; but the learned Senior Counsel for the appellant did not argue on these substantial questions of law and wanted to frame an additional substantial question of law to the effect that the plaintiff is not entitled to file a suit without getting a finding from the Rent Controller that there was no relationship of landlord and tenant between the parties. The learned senior counsel for the plaintiff, on the other hand, opposed and contended that such a plea was not taken by the appellant even in the written statement or in the grounds of appeal in the lower appellate court as well as in this court. The learned senior counsel for the appellant contended that the substantial question of law sought to be raised is one going to the root of the matter and, as such, under sub-section 5 of Section 100 of Civil Procedure Code, this Court can frame the additional substantial question of law. The learned senior counsel for the appellant contended that the substantial question of law sought to be raised is one going to the root of the matter and, as such, under sub-section 5 of Section 100 of Civil Procedure Code, this Court can frame the additional substantial question of law. Under the proviso to sub-section 5, if therein a substantial question of law which goes to the root of the matter, then it is always open to the Court to frame additional substantial question of law and hear the parties and dispose the same in accordance with law. On the other hand, if the point raised is only a question of law and not a substantial question of law, then it cannot be framed in the stage of second appeal. 10. It is necessary to state that defendants 2 to 4 already filed a rent control petition 6 of 1990 against the appellant herein under section 10(2)(i) of Rent Control Act. The appellant denied the title of defendants 2 to 4 and thereupon, the rent control petition was dismissed on merits. Defendants 2 to 4 also preferred the rent control appeal aggrieved against the said order and during the pendency of the rent control appeal only, they have conveyed the property in favour of the plaintiff for a valid consideration and thereupon the plaintiff had acquired valid title and interest. After purchase only, the plaintiff sent a notice under Ex.A-11 calling upon the appellant to surrender possession of the property. These facts clearly indicate that the vendors of the plaintiff already filed rent control petition and because of the dispute raised by the appellant, the rent control petition was dismissed. When this being the position, the present contention of the learned counsel for the appellant that there should be a clear finding by the Rent Controller that there is no relationship of landlord and tenant and only thereafter, the plaintiff would be entitled to file a suit, cannot be accepted. When once the Rent Controller dismissed the petition, it is always open to the aggrieved party instead of proceeding further under the Rent Control Act, he can always file a suit and get the relief. When once the Rent Controller dismissed the petition, it is always open to the aggrieved party instead of proceeding further under the Rent Control Act, he can always file a suit and get the relief. It is not necessary that the plaintiff should exhaust all his remedies under the Rent Control Act by filing rent control appeal and thereafter revision before this Court and then only, he should revert back of filing a suit. If the contention of the learned counsel for the appellant is accepted, then it will lead to unnecessary delay and till then the person in occupation will be squatting on the property without either paying the rent or without delivering possession. 11. The learned Senior Counsel for the appellant relied on the decision reported in M.K.RAMALINGAM ..vs.. GOVERNMENT OF MADRAS ( AIR 1955 SC 604 ) that a respondent may rightly be allowed to raise a question even at appellate stage when it is a pure question of law. This decision was given prior to the amendment of Civil Procedure Code and, as such, it is no longer applicable. 12. The learned counsel for the appellant also relied on SANTOSH HAZARI ..vs.. PURUSHOTTAM TIWARI ( AIR 2001 SC 965 ) as follows:- "Under section 100 CPC, a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial', a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis". The principle in this decision is applicable and only if the appellant is able to establish that the question raised is a substantial question of law, then alone it can be entertained. 13. Reliance is also placed on RUKMANI ..vs.. NARAYANAI (1996 (II) MLJ Reports 477) as follows:- "The Civil Court cannot by-pass the procedure under the second proviso to Section 10(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act and strightaway grant a decree for possession without reference to the provisions of the Rent Control and obtaining orders thereunder. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Rent Control Act otherwise than as stipulated by the section is incompetent for lack of jurisdiction of the court and any decree of the court in such a suit is null and void and of no effect". 14. Reliance is also placed on SARWAN KUMAR ..vs.. MADAN LAL AGGARWAL ( 2003 (1) SUPREME 946 ), wherein it has been held as follows:- "A decree for ejectment passed by a Civil Court qua legal heirs of a deceased statutory tenant for a commercial tenancy in the State of Delhi before the declaration of law by Supreme Court in Gian Devi Anand ..vs.. Jeevan Kumar, 1985 Suppl.(1) SCR 1, that such a tenancy is heritable, is not executable and the judgment debtors can successfully object to the execution of the decree on the ground that same was passed by a court lacking inherent jurisdiction and therefore inexecutable". 15. The learned Senior Counsel for the 1st respondent / plaintiff relied on S.V.VENKATARAMA REDDIAR ..vs.. Jeevan Kumar, 1985 Suppl.(1) SCR 1, that such a tenancy is heritable, is not executable and the judgment debtors can successfully object to the execution of the decree on the ground that same was passed by a court lacking inherent jurisdiction and therefore inexecutable". 15. The learned Senior Counsel for the 1st respondent / plaintiff relied on S.V.VENKATARAMA REDDIAR ..vs.. ABDUL GHANI (AIR 1980 MADRAS 276), wherein it has been held as follows:- "The question is whether the civil court has jurisdiction to entertain the suit in ejectment or pass a decree against the appellant when his defence is that he is a statutory tenant and liable to be evicted only under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. So far as this matter is concerned, it is by now well settled that there is nothing in Section 10 of the Act prohibiting the institution of a suit for possession or decree for possession. What is prohibited under the section is only the execution of a decree for ejectment passed by a civil court". This decision is applicable to the case on hand. The same view is reiterated in RAMIAH,S ..vs.. ARIYAKUDI KALYANA KRISHNA HOSPITAL TRUST (1988-I-L.W.409). 16. It has been held in LIC OF INDIA ..vs.. INDIA AUTOMOBILES AND COMPANY AND OTHERS (AIR 1991 (I) SC 1) that the Tamil Nadu Buildings (Lease and Rent Control) Act does not take away or narrows down jurisdiction of Civil Court. Its jurisdiction is excluded only in determining fair rent of premises. It has been held in KSHITISH CHANDRA PURKAIT ..vs.. SANTOSH KUMAR PURKAIT AND OTHERS ( (1997) 5 SCC 438 ) as follows:- "It is not every question of law that could be permitted to be raised in second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in sub-section (5) of Section 100 CPC. Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law". The reason for permitting the substantial question of law to be raised, should be "recorded" by the Court. Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law". The reason for permitting the substantial question of law to be raised, should be "recorded" by the Court. Further, (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100 CPC in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind..........Generally speaking, an appellant is not to be allowed to set up a new case in second appeal or raise a new issue (otherwise than a jurisdictional one), not supported by the pleadings or evidence on the record and unless the appeal involves a substantial question of law, a second appeal shall not lie to the High Court under the amended provisions......the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law". The reason for permitting the substantial question of law to be raised, should be "recorded" by the Court. It is implicit therefrom, that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not any legal plea that could be raised at the stage of second appeal. It should be a substantial question of law". This decision is applicable to the case on hand in all fours. 17. It is not any legal plea that could be raised at the stage of second appeal. It should be a substantial question of law". This decision is applicable to the case on hand in all fours. 17. It is also clear from sub-section(5) of Section 100 of Civil Procedure Code that the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. The proviso to sub-section (5) reads as follows:- "Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question". The Amendment Act of 1976 has drastically restricted the scope of second appeals and the jurisdiction of the Court to entertain second appeals is hedged in by limitations. 18. The learned senior counsel for the respondent relied on RAM KHILONA AND OTHERS ..vs.. SARDAR AND OTHERS ( (2002) 6 SCC 375 ) under section 100 of Civil Procedure Code that the High Court deciding the second appeal on a question neither taken in memorandum of appeal nor raised in that form before the courts below. Such interference by High Court in second appeal with concurrent decision of courts below, held on fact, was clearly against the law and spirit of Section 100. 19. It is, therefore, clear from the aforesaid decisions and discussion that only if the question of law raised by the appellant is a substantial question of law, then alone it can be framed and opportunity can be given to the parties to putforth their contention and a finding can be given. So far as this case is concerned, it has not been raised as a plea by the appellant either in the written statement or in the grounds of appeal. Only at the time of the arguments, the plea has been raised as if it is a substantial question of law. So far as this case is concerned, it has not been raised as a plea by the appellant either in the written statement or in the grounds of appeal. Only at the time of the arguments, the plea has been raised as if it is a substantial question of law. In fact, the Full Bench decision of this Court cited supra (S.V.VENKATARAMA REDDIAR's case) clearly indicates that there is no bar in filing a suit in the Civil Court to get a decree for delivery of possession, but it cannot be executed in a rent control matter. Now, the contention of the appellant that only if there is a clear finding by the Rent Control Authorities that there is no relationship of landlord and tenant between the parties, then alone the party is entitled to file a suit in a Civil Court, is not proper and correct and it may appear to be a question of law. In my view, it cannot be construed as a substantial question of law to be framed and considered. There is a concurrent finding by the courts below that the plaintiff has got title to the property and the plaintiff is entitled to the relief of declaration as well as recovery of possession. Nothing has been pointed out to take a different view from the concurrent finding given by the courts below. Except a new ground raised at the time of arguments as if it is a substantial question of law, no other valid point has been raised by the learned senior counsel for the appellant. In my view, both the courts below have rightly considered the contentions raised by the parties and there is no erroneous appreciation either in law or on facts and no interference is called for. 20. For the reasons stated above, the Second Appeal fails and is dismissed. No costs. Consequently, CMP No.15406 of 2001 is closed.