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2008 DIGILAW 3750 (MAD)

K. Velayutham v. Venkata Naicker Trust

2008-10-15

P.JYOTHIMANI

body2008
Judgment :- The tenant, who has filed a petition under section 9(1) of the Tamil Nadu City Tenants Protection Act, 1922 against the respondent/landlord to decide the minimum extent of land necessary for his convenient enjoyment and to fix its price with a direction to the respondent to convey to the petitioner the extent of land for which the price is fixed, having lost his case in both the courts below, has filed the present revision petition. 2. The respondent has filed a suit in O.S.No.316 of 1997 on the file of District Munsif, Erode for a direction to vacate the petitioner herein from the premises comprised in new Door Nos.86 to 89 (Old Door No.82A), New Shandy Road, now E.V.K. Sampath Salai, Erode Town on the ground that the petitioner is a chronic defaulter in payment of rent. 3. The petitioner has filed a written statement in the said suit stating that he has put up the superstructure in the vacant site at his cost and that the rent which was tendered has been refused by the respondent. The petitioner has also filed O.P.No.9 of 1997 under section 9(1) of the Tamil Nadu City Tenants Protection Act, 1922, praying for an enquiry to decide the minimum extent of land which may be necessary for the convenient enjoyment of the petitioner and to fix the lands price with a direction to the respondent to convey to the petitioner the extent of land for which the price is fixed. In the O.P., it was the case of the petitioner that he has taken on lease the vacant site in May, 1958 from late E.V.K. Sampath on a monthly rent of Rs.35/-and he has also paid an advance of Rs.1,000/- and the rent was subsequently enhanced and at last it was Rs.600/- per month. It is his case that after taking vacant site in possession, the petitioner constructed a thatched shed to run lorry repairing workshop and in the year 1968, he altered the thatched shed into pucca tiled room, tiled hall, store room, godown, tools room, etc. The plan which has been submitted for the approval was returned by the Municipality on 14. 1964 for certain compliance. The plan which has been submitted for the approval was returned by the Municipality on 14. 1964 for certain compliance. However, according to the petitioner, in anticipation of approval of the building plan, he had put up the construction and he was warned by the authorities that separate action will be taken for the unauthorized construction. During 1969 to 1977, the petitioner was running the workshop in the name, Guruvayoorappan Auto Works and he was also carrying on welding works and lorry repairing works. According to him, he is entitled to compensation for the construction put up by him under section 3 of the Tamil Nadu City Tenants Protection Act, 1922, and after receipt of summons in the abovesaid suit, he has filed the petition. 4. On the other hand, it was the case of the respondent in the counter affidavit filed in O.P. that what was let out was a non-residential building and not a vacant site. It is denied that the petitioner has put up the construction. The averment of the petitioner regarding building plan approval is also denied. It is stated that the respondent has filed O.S.No.316 of 1997 in August, 1997 having presented the plaint on 8. 1997 and the petition in O.P. was filed on 210. 1997 which is barred by limitation since as per the provisions of the Act, within 30 days from the date of receipt of summons, the petition should have been filed. It is also stated that there are tiled, thatched, cement sheet roofing in the suit property and the total extent of the property is 11¾ cents and the building is housed in 7 cents and the remaining vacant site measures about 4 ¾ cents. It is also stated that the property is a Trust property and therefore, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has no application. 5. On the petitioner side, documents Exs.A-1 to A-39 were marked and on the respondent side, Exs.B1 to B-28 were marked. On the side of petitioner/tenant, the son of the petitioner was examined as P.W.1 apart from one Thiru Murugesan as P.W.2 while on the side of respondent, Thiru E.V.K.S.Ilangovan was examined as R.W.1. 5. On the petitioner side, documents Exs.A-1 to A-39 were marked and on the respondent side, Exs.B1 to B-28 were marked. On the side of petitioner/tenant, the son of the petitioner was examined as P.W.1 apart from one Thiru Murugesan as P.W.2 while on the side of respondent, Thiru E.V.K.S.Ilangovan was examined as R.W.1. The learned trial Judge, after elaborate discussion of entire issues and analysis of evidence, having concluded that the respondent has been assessed by the Revenue authorities in respect of the property, has held that the petitioner has not come with clean hands and therefore, dismissed the O.P. The appeal filed by the petitioner against the order in the O.P., also came to be dismissed in C.M.A.No.7 of 2004 by the learned Appellate Authority/I Additional District Judge, Erode, against which the tenant has filed the present revision petition. 6. Mr. V.K. Muthusamy, learned senior counsel appearing for the petitioner, by taking this Court to various portions of evidence given by the witnesses, would submit that the documentary evidence Exs.A-31 and A-32 which are notice and memo issued by the Erode Municipality and addressed to the petitioner clearly show that the building has been put up by the petitioner unauthorisedly and therefore, according to the learned senior counsel, those documents are sufficient to prove that what was let out should have been a vacant site only and it should be construed that the petitioner has put up the superstructure. He would also submit that the evidence of R.W.1 is most unreliable since he has categorically answered to all relevant questions that he has no knowledge about the same. His further submission is that even if the respondent is a private Trust, it is not as if the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is not applicable. He would submit that on the factual situation, inasmuch as the petitioner has put up the superstructure, he is entitled to compensation under section 3 of the Tamil Nadu City Tenants Protection Act, 1922 (in short, "the Act") and it was after the landlord filed the suit for possession, within the stipulated time, the petitioner has filed the petition under section 9 of the Act. He would also submit that as per section 11 of the Act, for the landlord to file a suit, he must issue notice giving three months time and only after the expiry of three months, suit can be filed and in the present case, the landlord has given the notice on 16. 1997 as seen from Ex.B-8 and without waiting for three months, the suit has been filed on 8. 1997 and the suit as filed is contrary to section 11 of the Act. He would rely upon the judgment of the Supreme Court in S.A. Ramachandran vs. S. Neelavathy [1997 (1) CTC 298 (SC)] apart from the judgment of this Court in Mohammed Haneef vs. Haleel Basha [ 1996 (2) MLJ 301 ]. 7. On the other hand, Mr. A.P. Suriyaprakasam, learned counsel appearing for the respondent submitted that both the Courts have factually found that what was let out was a building and that has also been substantiated by Ex.A-1 document and it was, only after analysis of evidence, both the Courts have come to the conclusion that the petitioner is not entitled to the relief as claimed and therefore, there is no illegality or irregularity in the orders passed by both the Courts below. He would also submit that the trial Court has analyzed the entire documentary evidence, especially Exs.B-11 to B22 and Exs.B-26 to 28 which are all property tax receipts filed on behalf of the respondent in which the property has been assessed in the name of E.V.K. Sampath and the documents are clear to show that for the assessment, the respondent has in fact paid the amounts and therefore, on the basis of concurrent findings of both the courts below, there is no question of interference by this Court since there is no procedural irregularity or illegality. He would submit that in spite of direction given by this Court in C.R.P.Nos.1654 and 1655 of 2004 dated 29. 2007, the suit has not been disposed of. He would also submit that section 11 of the Act is not relevant for the purpose of this case. 8. The submission of the learned senior counsel for the petitioner that the suit filed by the respondent in O.S.No.316 of 1997 is contrary to section 11 of the Tamil Nadu City Tenants Protection Act, 1922 has to be considered at the outset. 8. The submission of the learned senior counsel for the petitioner that the suit filed by the respondent in O.S.No.316 of 1997 is contrary to section 11 of the Tamil Nadu City Tenants Protection Act, 1922 has to be considered at the outset. It is true that section 11 of the Act prohibits the landlord from instituting a suit for ejectment or application under section 41 of the Presidency Small Cause Courts Act, 1882 before expiry of three months notice given in writing requiring the tenant to surrender vacant possession to the landlord. Section 11 states as follows: "11. Notice before institution of suits or applications against tenants.- No suit in ejectment or applications under section 41 of the Presidency Small Cause Courts Act, 1882 ( Central Act XV of 1882) shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building and offering to pay compensation for the building and trees, if any, and stating the amount thereof. (A copy of such notice shall, at the same time, be sent, in the case of property situated in the City of (Chennai), to the Commissioner of the Corporation of (Chennai), or, in the case of property situated in any (municipal town, township or village) to which this Act is extended, to the executive authority of the (municipality township) or the executive officer of the panchayat, as the case may be, or any other authority as may be notified by the Government.)" 9. In the present case, what has to be decided is not as to whether the suit instituted by the respondent is a validly instituted suit or not and the said issue has to be decided by the trial Court in the suit which is still pending. In the present case, what has to be decided is not as to whether the suit instituted by the respondent is a validly instituted suit or not and the said issue has to be decided by the trial Court in the suit which is still pending. For the purpose of deciding the right of the petitioner under section 9 of the Act, what has to be decided is as to whether the petitioner has put up the superstructure and what was leased out was only vacant land in which superstructure was put up by the petitioner and hence, the petitioner is entitled to compensation for the construction put up by him under section 3 of the Tamil Nadu City Tenants Protection Act, 1922, for which the tenant has to file an application under section 9 of the Act after institution of a suit for eviction by the landlord. 10. In the present case, the petitioner has admittedly filed an application after receiving notice or summons in the suit. It is also seen that in fact the petitioner has entered appearance in the suit and filed written statement denying the statement made by the respondent that the petitioner is a chronic defaulter. It is also relevant to point out that the petitioner who has chosen to state in the written statement filed by him in the suit filed by the respondent that he is entitled to the protection under section 9(1) of the Tamil Nadu City Tenants Protection Act, 1922, has not chosen to raise the issue about maintainability or otherwise of the suit on the basis of alleged violation of section 11 of the Act. In such circumstances, it is not necessary for this Court to decide as to whether the suit instituted by the respondent is contrary to section 11 of the Tamil Nadu City Tenants Protection Act, 1922. 11. In the case of S.A. Ramachandran vs. S. Neelavathy [1997(1) CTC 298 (SC)], the Apex Court has considered the validity or otherwise of the suit instituted by the landlord without complying with section 11 of the Tamil Nadu City Tenants Protection Act, 1922. 11. In the case of S.A. Ramachandran vs. S. Neelavathy [1997(1) CTC 298 (SC)], the Apex Court has considered the validity or otherwise of the suit instituted by the landlord without complying with section 11 of the Tamil Nadu City Tenants Protection Act, 1922. While considering the contention raised on behalf of the landlord that by resorting to the rights under section 9 of the Act, the tenant waived his right under section 11 based on various judgments of this Court, the Honble Apex Court has of course held that the requirement of section 11 is in the nature of condition precedent which has to be complied with before instituting a suit and the non-compliance would be fatal to such suit. The Apex Court has also held that section 11 cannot be compared to section 80 of Code of Civil Procedure. Further, on the factual situation of that case, the Apex Court found that the tenant was never allowed to invoke the provisions of section 9 of the Act since the petition for condoning the delay in filing a petition under section 9 of the Act was dismissed by the High Court and therefore, there was no chance for the tenant to raise his right under section 9 of the Act, and held that he has got a right to raise his defence under section 11 of the Act in a suit for ejectment filed by the landlord. The operative portion of the judgment of the Supreme Court is as follows: "9. It is obvious that if a suit is instituted without giving notice or if a notice is given but the suit is filed before the expiry of three months, it would be in violation of the prohibitions set out in Section 11. Such a suit cannot proceed. Even the cause of action, which consists of a bundle of facts, apart from other facts, would depend upon giving a notice to the tenant and waiting for a period of three months before instituting the suit. From the tenor of Section 11, it appears that in every suit instituted under Section 11 of the Act, will have to be mentioned in the plaint that the plaintiff had given a notice (contemplated by that Section) in writing to the tenant and that the suit was being instituted after expiry of three months from the notice. 10. .... 11..... 12. 10. .... 11..... 12. The High Court after having come to the conclusion that the provisions of Section 11 were mandatory has held that the notice contemplated by Section 11 of the Act which is required to be given to the tenant can be waived expressly or impliedly by the tenant by his conduct and it is on the ground of waiver that the High Court has, in the instant case, interfered and decreed the suit of the respondent for the appellants eviction from the premises in question as the High Court was of the opinion that the appellant having made an application under Section 9, waived his right to object to the institution of suit which, admittedly, was filed without giving notice contemplated by Section 11 of the Act. 13. The High Court has relied upon its earlier decision in Vedachal Naicker v. Duraiswmai Mudaliar ( 1950 (1) M.L.J. 732 ) to come to the conclusion that by invoking the provisions of Section 9, the appellant waived his right to object for want of notice under Section 11. In that case, the High Court has relied upon the Privy Council decision in Vellayan Chettiar v. The Government of Madras.74 I.A. 223: AIR 1947 P.C.197 in which it was held that the requirement of a notice under Section 80 C.P.C. before instituting a suit against the Government can be waived by the Government. A similar view was also taken by the Madras High Court in Mohamed Hussain Rowther v. Tirupathi Chettiar (1966) 1 M.L.J. 206 . In Ranganatham v. Mariappa, 1942 (1) M.L.J.92 : A.I.R. 1942 Madras 334, it was held by Patanjali Sastri, J. (as he then was) that Section 11 was mandatory and imposed an unqualified obligation upon the court not to entertain a suit for ejectment in the absence of compliance with its provisions. These decisions as also a few others were considered by a Division Bench of the Madras High Court in Sri Agatheeswarar Prasanna Venkatesa Perumal Devasthanam by its hereditary Trustee P. Valliammal v. M.Narasimhan, ( 1982 (2) M.L.J. 70 ) and it was laid down that although the provisions of Section 11 were mandatory and the suit for ejectment of the tenant could not be instituted without a prior notice, the requirement of notice could be waived by the tenant expressly or impliedly by his conduct. 14. 14. We are of the view that since the requirement under Section 11 are in the nature of conditions precedent which had to be complied with before instituting a suit in a court, the non-compliance would be fatal and such suit would be liable to be dismissed at the threshold. The requirement under Section 11 cannot be compared with the requirements under Section 80 C.P.C. The right of a tenant who may, if not always, be a poor tenant, cannot be compared with the mighty Governments regarding whom it has been observed times out of number by the courts that they should not litigate with their citizens on technicalities and should not endeavour to defeat the suit by pleading the technical questions, as for example, want of notice under Section 80 C.P.C. or limitation in case which are eminently just, proper and equitable. The Act essentially is for the protection of the tenants whereas no such protection for the Government is contemplated by Section 80 of the Code of Civil Procedure. But without entering into this controversy any further and leaving the question of waiver open, we may, in this case, observe that on facts there is no waiver. 15. The appellant, in the instant case, at no stage, was allowed to invoke the provisions of Section 9 of the Act as he had filed an application under that Section beyond time. His application for condonation of delay was rejected not only by the trial court but also by the High Court in Revision. The occasion to invoke the provisions of Section 9, therefore, did not come. In the meantime, the appellant filed the additional written statement and pleaded that the suit was liable to be dismissed for want of notice under Section 11 of the Act. Since the application filed by the appellant was beyond time and was rejected, the appellant cannot be said to have taken advantage of Section 9 of the Act and consequently, it cannot be said that by filing an application under Section 9, he waived his right to object to the irregularity or illegality in the institution of the suit." 12. Since the application filed by the appellant was beyond time and was rejected, the appellant cannot be said to have taken advantage of Section 9 of the Act and consequently, it cannot be said that by filing an application under Section 9, he waived his right to object to the irregularity or illegality in the institution of the suit." 12. As submitted by the learned counsel for the respondent, in the present case, we are not concerned about the validity or otherwise of the suit, especially when the petitioner has approached the civil Court under section 9 of the Tamil Nadu City Tenants Protection Act, 1922 after the respondent filed the above said suit and it is not as if he has lost his right to raise his objections under section 11 of the Act. 13. It was also held in Mohammed Haneef vs. Haleel Basha [ 1996(2) MLJ 301 ] that the application filed under section 9 is only an interlocutory application and the dismissal of the interlocutory application in a suit will not bar any remedy that may be available to the tenant. The operative portion of the judgment is as follows: "10. The said reasoning also cannot be accepted. The application under Section 9 of the said Act is filed only in a pending suit. The only condition is that the application should be filed within the statutory time fixed by the statute. If such an application is filed, evidence is taken and it will be decided whether the person who wanted the benefit under that section is entitled to purchase the property. But, when an application is filed in a suit, naturally, it can only be an interlocutory application therein. The dismissal of the interlocutory application in a suit will not bar the remedy." 14. It was held by the Supreme Court in Bharat Petroleum Corporation Ltd., vs. N.R. Vairamani and another [2004(5) CTC 74(SC)] that the right of a tenant under section 9 of the Act is not only a privilege on the tenant, but also an additional statutory right against whom a suit for ejectment has been filed and such right is not a vested right in the property and it is a privilege granted to him by a statute which is equitable in nature. The operative portion of the judgment is as follows: "15. The operative portion of the judgment is as follows: "15. Section 9 confers a privilege on a tenant against whom a suit for eviction has been filed by the landlord but that privilege is not absolute. Section 9 itself imposes restriction on the tenants right to secure conveyance of only such portion of the holding as would be necessary for his convenient enjoyment. It creates a statutory right to purchase land through the medium of Court on the fulfilment of conditions specified in Section 9 of the Tenants Act. It is not an absolute right, as the Court has discretion to grant or refuse the relief for the purchase of the land. In Swami Motor Transport (p) Ltd. v. Sri Sankaraswamigal Mull, (1963 Supp (1) SCR 282), this Court considered the question whether the right of a tenant to apply to a Court for an order directing the landlord to sell the land to him for a price to be fixed by it under Section 9 of the Tenants Act is a property right. The Court held, that the law of India does not recognize equitable estates, a statutory right to purchase land does not confer any right or interest in the property. The right conferred by Section 9 is a statutory right to purchase land and it does not create any interest or right to the property. The tenants right to secure only such portion of the holding as may be necessary for his convenient enjoyment is equitable in nature. Under the common law a tenant is liable to eviction and he has no right to purchase the land demised to him at any price as well as under the Transfer of Property Act. The only right of a tenant who may have put up structure on the demised land is to remove the structure at the time of delivery of possession on the determination of the lease. Section 9 confers an additional statutory right to a tenant against whom suit for ejectment is filed to exercise an option to purchase the demised land to that extent only which he may require for convenient enjoyment of the property. The tenant has no vested right in the property instead; it is a privilege granted to him by the statute which is equitable in nature." 15. The tenant has no vested right in the property instead; it is a privilege granted to him by the statute which is equitable in nature." 15. On the merits of the case, it is the submission of the learned senior counsel for the petitioner that Exs.A-31 and A-32 are sufficient to hold that the petitioner has put up the superstructure. The said documents are notice and show cause notice issued by the Erode Municipality saying that the Municipality would take action against the unauthorized construction. On the other hand, as it has been analyzed by the learned trial Judge, even though the petitioner has relied upon Ex.A-30 which is dated 10. 1963 wherein the petitioner sought permission for the proposed alteration that was denied and thereafter by Ex.A-32 the Municipality proceeded to prosecute the petitioner, there is no evidence to show that the petitioner has in fact put up the construction. The trial Court has correctly found that there is no evidence to show that the petitioner has spent enormous amount for construction and that the petitioner cannot take advantage of an illegal activity and ultimately concluded that the petitioner is not entitled to compensation under section 3 of the Act and consequently, the right under section 9 of the Act which is discretionary and equitable right cannot be granted. In my considered view, there is absolutely nothing wrong in the decision arrived at by the learned trial Judge as confirmed by the learned appellate authority. 16. In my considered view, there is absolutely nothing wrong in the decision arrived at by the learned trial Judge as confirmed by the learned appellate authority. 16. It is also relevant to point out that Exs.B2 to B7 which are all rental receipts (certified copies) of the year 1958, 1959 and 1960 which are much earlier in point of time to the date of petition and the trial Court has found that the said exhibits contain the term, fl;olk;" (building) and the curious aspect is that the petitioner himself has filed those rental receipts in a suit filed by him for injunction against the respondent/landlord in O.S.No.485 of 1999 and suppressing that, the petitioner has attempted to file some of rental receipts in which the term, ",lj;jpw;F/fhypaplk;" has been mentioned without striking out either of them and it is only after the respondent filed Exs.B-2 to B-7 which are certified copies of the rental receipts filed by the petitioner in the earlier suit, it was revealed that the term, building is mentioned in the rental receipts and therefore, my view is that the learned trial Judge and the learned appellate Judge have rightly concluded that the petitioner has not come to the Court with clean hands and this fact relating to the rental receipts has been explained in detail by the learned appellate Judge along with the evidence of P.W.1 and the learned appellate Judge has also concluded that there are evidence to show that P.W.1 would have been born in the year 1952 and in the years 1958,1959 and 1960 he would have been only 6 to 8 years old child and in such circumstances, the evidence of P.W.1 that he was aware of the superstructure which was available in 1958 and 1959 is not acceptable. The appellate court has in fact found, placing reliance on Exs.B-2 to B-7 that what was let out at the earliest point of time was only a building with land and that in respect of that building and the land, the respondent has been paying property tax during the years 1978 to 1988, as it is seen in Exs.B-11 to B-22. In such circumstances, on the factual findings given by both the Courts below, there is absolutely no reason for this Court to hold that the findings of both the courts are either illegal or irregular. In such circumstances, on the factual findings given by both the Courts below, there is absolutely no reason for this Court to hold that the findings of both the courts are either illegal or irregular. In view of the same, the revision fails and the same is dismissed. No costs. Connected miscellaneous petition is closed.