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2005 DIGILAW 1607 (MAD)

Mohammed Ali v. M. Duraiswamy

2005-09-23

M.KARPAGAVINAYAGAM

body2005
Judgment :- (Appeal against the judgment and decree dated 22.03.2004 made in A.S.No.145 of 2003 on the file of Principal District Judge, Coimbatore, as against the judgment and decree dated 20.12.2002 made in O.S.No.414 of 1998 on the file of I Additional District Munsif, Coimbatore.) Mohammed Ali, appellant herein, is a tenant under M.Duraiswamy, respondent herein. The suit filed by the respondent against the appellant for mandatory injunction and permanent injunction was decreed. Aggrieved by that, the appellant filed first appeal before the lower appellate Court, which, in turn, confirmed the decree, passed by the trial Court. Hence, this Second Appeal, by the tenant. 2. According to the respondent/plaintiff, the suit property belongs to him and the defendant has been in possession and enjoyment of the same as a tenant since 1987. The defendant, without his permission, tried to put up an additional construction in the suit site. Therefore, he filed a suit for permanent injunction. During the pendency of the suit, the defendant completed the construction, as temporary injunction was not granted. Hence, he, by way of an amendment, sought for mandatory injunction and permanent injunction, in respect of the superstructure in question, in the suit. 3. The suit was contested by the appellant/defendant, stating that he occupied the suit vacant site in the year 1987 on a monthly rent of Rs.750/-; the said tenancy was renewed from time to time and, finally, it was enhanced up to Rs.1600/- per month. Since the timber shop was destroyed by fire 14.02.1998, he, after obtaining permission from the plaintiff, constructed a building and, as such, the plaintiff is not entitled for mandatory injunction or permanent injunction. 4. On the basis of the above pleadings, necessary issues were framed. 5. The trial Court, accepting the case of the plaintiff, decreed the suit in his favour, by granting both mandatory injunction and permanent injunction. This was confirmed by the lower appellate Court as well, in the appeal filed by the defendant. 6. 4. On the basis of the above pleadings, necessary issues were framed. 5. The trial Court, accepting the case of the plaintiff, decreed the suit in his favour, by granting both mandatory injunction and permanent injunction. This was confirmed by the lower appellate Court as well, in the appeal filed by the defendant. 6. Challenging the decrees passed by both the Courts below in this Second Appeal, Mr.N.Ishtiaq Ahmed, learned counsel for the appellant, would contend that the appellant/defendant did not put up any unwarranted construction, except making suitable alterations for convenient business, since the suit premises was burnt down in communal rights, and the decree, passed in O.S.No.414 of 1998, is not legally enforceable, as the sufficient court fee was not paid on the date of decree. 7. I have heard the learned counsel for the appellant and also the learned counsel for the caveator. 8. On going through the judgments, rendered by both the Courts below, it is clear that the construction was made in the suit site, belonging to the plaintiff, by the defendant, even without getting permission from the plaintiff. 9. As a matter of fact, when the suit was filed by the plaintiff, seeking for permanent injunction, restraining the defendant from continuing the construction, he sought for interim injunction, pending the suit, but the same was not granted. Taking advantage of the same, the defendant continued and completed the construction. This has given rise to a new cause of action for the plaintiff to seek for amendment of the prayer for mandatory injunction, for a direction to demolish the construction. The fact that the suit was filed for permanent injunction for prohibiting the construction itself would indicate that no such permission was granted by the plaintiff. 10. Both the Courts below would consider the evidence of both P.W.1, plaintiff, and D.W.1, defendant, and also the documentary evidence, including the Commissioner's Report, and conclusively find that on the date of lease agreement, there was a shed in the vacant site and the defendant, prior to the filing of the suit, began to construct a new building, adjacent to the said shed, without getting permission from the plaintiff. It is also noticed that the plaintiff filed R.C.O.P., pending the suit, for eviction, on the ground of demolition, reconstruction and wilful default and got the order in his favour. 11. It is also noticed that the plaintiff filed R.C.O.P., pending the suit, for eviction, on the ground of demolition, reconstruction and wilful default and got the order in his favour. 11. When such being the factual situation, it cannot be stated that the defendant, after obtaining permission from the plaintiff, constructed the building. On the other hand, as indicated above, initially, the plaintiff sought only interim injunction, pending the suit for permanent injunction, and, when the defendant continued construction when the plaintiff could not obtain interim injunction, the plaintiff thought it fit to file a petition, praying for amendment, and sought for mandatory injunction. Admittedly, the order for amendment, for the prayer of mandatory injunction, was not challenged by the defendant before the appropriate forum, even during the pendency of the suit. 12. As held by this Court in 2001 (III) CTC 642 (Raymonds Woollen Mills Limited, Madras, v. Mrs.Azra and two others), a tenant is not authorised by the Tamil Nadu Buildings (Lease and Rent Control) Act, to carry out improvement or structural alteration, at his sweet will. A statutory tenant may not do anything to the property, owned by the landlord, except to the extent permitted by the Act. The statutory right given to the tenant in the Act is only to the extent that he should not be dispossessed, except in accordance with the provisions of the Act. It does not comprehend a right to do anything that the tenant desires, such as, alteration, addition, improvement etc. There is no inherent right in a statutory tenant to improve, alter, repair or reconstruct, against the wishes of the landlord. 13. In this case, the commencement of the construction and completion of the same have been established by the plaintiff that the same was made by the defendant without his permission and, as such, the plaintiff would be entitled to both mandatory injunction and permanent injunction. Therefore, there is no substantial question of law in this appeal. 14. Second Appeal is dismissed. Consequently, the connected C.M.P.No.15789 of 2004 is also dismissed.