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2007 DIGILAW 1564 (MAD)

N. Yonus Sait v. T. Joseph & Another

2007-06-01

S.ASHOK KUMAR

body2007
Judgment :- The above revisions are filed against the order dismissing the revision petitioner/plaintiffs applications in I.A.Nos.I.A.Nos. 665 and 667 of 2006 in O.S.Nos.169 and 170 of 2006 on the file of the learned District Munsif, Uthagamandalam, filed by him for grant of interim injunction restraining the respondents/defendants from putting up any illegal and unauthorised construction on his property. .2. The brief facts of the case are as follows:- .The revision petitioner Yunus Sait is the owner of the residential cum non-residential premises of the schedule mentioned suit property, which is known as Adama Buildings. He filed two suits one against T.Joseph in O.S.No:169 of 2006 and another in O.S.No:170 of 2006 as against one Narayana Das Samtani. Both of them are admittedly the tenants of the buildings, which consists of ground and first floor. It is also the admitted case of the parties that premises was rented out for residential as well as commercial purposes. It is also not in dispute that there was a fire accident and according to the revision petitioner/plaintiff, the petition premises was entirely burnt and destroyed in the said fire accident. According to him, the respondents/defendants attempted to put up illegal and unauthorised construction in the suit premises without the permission or concurrence of the landlord/plaintiff which necessitated him to file the two suits against them for a perpetual injunction restraining them or their men from putting up any construction in the suit property. 3. Pending the said Original Suits, the revision petitioner/plaintiff also filed I.A.Nos:665 and 667 of 2006 for interim injunction restraining the respondents/defendants respectively from putting up any illegal and unauthorised construction without his permission pending the said two suits. However, the learned District Munsif, Udhagamandalam, on a consideration of the pleadings and the submissions made by the respective counsels, dismissed both the Interlocutory Applications. Aggrieved of the same, the present two CRPs are filed before this court. .4. Learned counsel for the revision petitioner/plaintiff contended that at the most the defendants as tenants are entitled to invoke the provisions of Section 14(1)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act only for effecting repairs, despite notice, that too cannot be carried out without the building being vacated by them. .4. Learned counsel for the revision petitioner/plaintiff contended that at the most the defendants as tenants are entitled to invoke the provisions of Section 14(1)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act only for effecting repairs, despite notice, that too cannot be carried out without the building being vacated by them. According to the learned counsel for the petitioner, the trial court is wrong in holding that the tenant is living in the ground floor of the tenanted portion and he may be permitted to carry out minor repairs so as to make it habitable for his family to live in the said premises. The trial court also wrong in holding that replacing the damaged tin sheets or plastering of burnt area in the walls will not amount to putting up new structures and also in holding that the building is intact after the fire accident took place. Section 22 of the Tamil Nadu Buildings (Lease and Rent Control) Act would only provides that if a landlord fails to make necessary repairs to the building within a reasonable time after notice is given then the tenant is entitled to make repairs and to have repairs effected and carried on by the landlord. In the event of the landlord fails or neglects to effect such repairs, it is always open to the Rent Controller to pass appropriate orders after due notice to the landlord, thereby allowing the tenant to effect repairs at his cost and deduct the expenses incurred thereof from and out of the rental payable by him. According to the learned counsel for the petitioner, the petitioner has not given any permission to carry out any repairs to the premises since the building has been totally erased and damaged in the fire accident. 5. On the other hand, learned counsel for the respondents/defendants contended that the revision petitions are not maintainable at all since only appeals would lie with the Appellate Court as against the orders passed by the trial court in the Interlocutory Applications filed for grant of interim injunctions under Order 39 Rule 1 and 2 CPC. 5. On the other hand, learned counsel for the respondents/defendants contended that the revision petitions are not maintainable at all since only appeals would lie with the Appellate Court as against the orders passed by the trial court in the Interlocutory Applications filed for grant of interim injunctions under Order 39 Rule 1 and 2 CPC. Thus, when there is a remedy available under Order 43 Rule 1 read with Section 104 CPC, the jurisdiction of this Court under Art.227 of the Constitution of India cannot be invoked as has been held by this court in the decisions reported in 2005 (I) MLJ 178 and 2006 (2) MLJ 619 . .6. Further, according to the counsel for the respondents/defendants, the replacement of roof sheets, which were damaged by the fire accident will not amount to putting up new construction. The roof was covered only to protect the building from further damage to the building as there continuous rains at that time at Ooty and therefore the roof sheets were replaced emergently only to protect the building and for the safety and security of the inmates of the respondent family. It is the case of the respondents that they are not putting up any new structures and therefore there is no necessity to obtain any permission from the Municipal Authorities. Therefore Section 22 of the T.N.Buildings Act also will not be applicable to the present case. Further, according to the learned counsel, the revisions have become infructuous since the covering of the roof of the shop was already completed and the shop was reopened even prior to the obtaining of an interim injunction in the Miscellaneous Petitions in these revisions and therefore nothing survives in these CRPs. 7. It is also pertinent to note that the revision petitioner/plaintiff has already filed RCOP.No:20 of 2002 against the respondent in CRP.No:1264/2006 for fixing of a fair rent and not satisfied with the order also preferred RCA.7/2003 and the same is still pending. The petitioner also filed RCOP.No:3 of 2003 against the respondent in CRP.NO:1265 of 2006 for eviction which is also pending before the learned Rent Controller, Ooty. On their part, one of the respondent also filed a suit in O.S.No:310 of 2004 when the petitioner tried to block the entrance of the respondents house and interim injunction petition in I.A.No:434 of 2004 and the said proceedings are also pending. On their part, one of the respondent also filed a suit in O.S.No:310 of 2004 when the petitioner tried to block the entrance of the respondents house and interim injunction petition in I.A.No:434 of 2004 and the said proceedings are also pending. It is the case of the respondents that since there was heavy rains a that point of time, he made arrangements to cover the roof with sheets which was damaged by the fire accident so as to protect the building thereby preventing the water gushing into the building as there is only wooden floor is available in the first floor and to stop further damages to the building where the respondents (in CRP.1264/06) family is living in the ground floor. Further it is alleged that the repair work was completed in the shops and the respondents reopened the shop and started their businesses 28. 2006 and 9. 2006 respectively. It is also contended that the respondents have covered the roof with new sheets and white washed the building. .8. The learned Trial Judge, who had the benefit of perusing the photographs produced by the learned counsel for the petitioner himself, found that replacing the damaged tin roof sheets will not amount to putting up of a new structure; the building rented out to the respondents is quite intact and the fire had only damaged the goods in the respondents shop along with some damages to the walls and the roof. The learned Trial Judge also found that the entire structure has not collapsed and the allegation that the respondents are attempting to construct a new structure is not correct. As already stated, it is found by the trial court that the building is intact and only the goods along with roof has been lost and the respondents attempt to replace the burnt roof will in no way tantamount to putting up a new structure. Therefore it is clear that the respondents who are tenants in the premises are entitled to carryout the repairs when the landlord refuses to do the same until they are evicted by due process of law. The repair namely the replacing the roof sheets means only a restoration of a building to a sound or good state and it does not amount to putting up new construction as alleged by the petitioner. 9. The repair namely the replacing the roof sheets means only a restoration of a building to a sound or good state and it does not amount to putting up new construction as alleged by the petitioner. 9. Further, as rightly observed by this court in the decisions reported in in 2005 (I) MLJ 178 and 2006 (2) MLJ 619 , when there is an appellate remedy, the petitioner/plaintiff has to only invoke that remedy under Order 43 Rule 1 read with Section 104 CPC. In The T.N.Electricity Board, rep.by its Supdt Engineer, Vellore Electricity Distribution Circle and another Vs. S.Dharma Lingam, ( 2006 (2) MLJ 619 ) this court held that when there is another alternative remedy open to the party, which is effective and adequate to meet the needs of the case, the High Court will not use its extraordinary powers under Article 227 of the Constitution. Other adequate and comprehensive remedy by way of appeal to appellate court is available, but not availed of, interference under Article 227 is not correct. 10. Therefore, in any view of the matter, I am not inclined to interfere with the impugned orders in these Revisions as there is no irregularity or perverse recording of finding on any material resulting in manifest injustice. In the result, both the CRPs are dismissed. Consequently, connected Miscellaneous Petitions are also dismissed.