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2012 DIGILAW 4904 (MAD)

C. Rajasekharan v. V. Sridharan

2012-12-05

P.R.SHIVAKUMAR

body2012
JUDGMENT 1. The second defendant in the original suit is the appellant in the second appeal. The first respondent V.Sridharan, as plaintiff, filed the original suit O.S. No. 93 of 1992 against the second respondent Dr.I.C.Vyas, the appellant Dr.C.Rajasekharan and the third respondent G. Rathinam for eviction, recovery of arrears of rent and for recovery of damages for use and occupation. The suit was decreed by the trial Court. On appeal preferred by the appellant herein/second defendant, the same was confirmed by the appellate Court. As against the judgment and decree of the appellate Court by which the decree passed by the trial Court stands confirmed, the present second appeal has been filed. For the sake of convenience, the parties are referred to in accordance with their ranks in the suit. 2. The plaintiff’s case is as follows: Plaintiff is the absolute owner of the suit property having got it under a registered settlement deed dated 2.6.1976. Since he was a minor, his mother leased out the property to the first defendant Dr. I.C. Vyas under a lease deed dated 14.9.1983 for a monthly rent of Rs. 325/-. On his attaining majority, the plaintiff started administering his property and the first defendant Dr. Vyas attorned the tenancy in favour of the plaintiff. Even after expiry of the period of three years covered by the lease deed, the first defendant continued as a tenant by holding over and was paying the monthly rents to the plaintiff. The rent for the period commencing from June 1988 remained unpaid and the first defendant also sub-leased a portion of the property to the second defendant, the appellant herein, for running a clinic and another portion to the third defendant for running a lorry service. As such, the plaintiff filed a suit for eviction in O.S. No. 344 of 1989 after issuing a lawyer’s notice terminating the tenancy. However, the said suit was dismissed holding that the notice issued under Section 106 of the Transfer of Property Act was defective and was hence ineffective. After the dismissal of the said suit, the plaintiff issued a fresh notice on 7.3.1992 to all the three defendants terminating the tenancy with effect from midnight of 31.3.1992 and requesting delivery of vacant possession on 1.4.1992 and also demanding payment of rental arrears. After the dismissal of the said suit, the plaintiff issued a fresh notice on 7.3.1992 to all the three defendants terminating the tenancy with effect from midnight of 31.3.1992 and requesting delivery of vacant possession on 1.4.1992 and also demanding payment of rental arrears. Since the demand made in the notice was not complied with, the plaintiff was constrained to file the suit for the above said reliefs. 3. The first defendant Dr. I.C. Vyas remained ex parte. The third defendant filed a written statement stating that he had vacated the portion of the suit property which was in his possession and handed over possession of the same to the first defendant Dr. I.C. Vyas in 1991 itself and hence, he was not liable to pay any rent to the plaintiff. The second defendant was the only contesting party. In his written statement, after providing general denial of each and every allegation made in the plaint, he had made the following averments: Second defendant along with Dr. Vyas was running a clinic in the name of Meena Clinic in the suit premises. An advance of Rs. 4,500/- had been paid and a sum of Rs. 50,000/- was spent for renovating the building including the construction of a toilet and bathroom after obtaining oral permission from Sivaramulu Chettiar, who was the original owner of the suit property. On coming to know that the first defendant has gone to his native place to look after his personal work, the plaintiff has chosen to file the vexatious suit. Earlier one C.J. Vyas, father of the first defendant, was claimed to be the tenant under the plaintiff, but in the subsequent suit changing his version, plaintiff has contended that I.C. Vyas, the first defendant is his tenant. In view of the objection raised by the second defendant for the nuisance caused by the plaintiff by running a Cement and Fertilizer shop near the suit property, the plaintiff has chosen to file this suit. The second defendant paid the rents regularly. But, the plaintiff had not chosen to issue receipts from July 1988. Plaintiff is in the habit of giving receipts belatedly. The notice of termination of tenancy issued by the plaintiff is not in confirmity with the provisions of Transfer of Property Act . The tenancy has not been properly terminated. On the said ground, the suit is liable to be dismissed. Plaintiff is in the habit of giving receipts belatedly. The notice of termination of tenancy issued by the plaintiff is not in confirmity with the provisions of Transfer of Property Act . The tenancy has not been properly terminated. On the said ground, the suit is liable to be dismissed. The suit is also barred by res judicata. The suit is also bad for non-joinder of necessary parties. With the above said pleadings, the appellant herein/second defendant had pleaded for the dismissal of the suit with cost. 4. Based on the above said pleadings, the learned trial Judge framed six issues, which are as follows: 1) Whether the first defendant had spent Rs. 50,000/- by way of repairs and maintenance of the suit property? 2) Whether the notice of termination of tenancy in this suit is valid in law? 3) Whether the defendants are liable to be vacated from the suit property? 4) Whether the plaintiff is entitled for arrears of rent and mesne profits? If so what is the quantum? 5) Whether the plaintiff is entitled for decree of possession? 6) To what relief? 5. In the trial, the plaintiff was examined as P.W.1 and Exhibits A-1 to A-8 were marked. The second defendant figured as D.W.1 and no document was marked on the side of the defendants. At the conclusion of trial, the learned trial Judge, on an appreciation of evidence on the basis of the points raised in the arguments advance don both sides, accepted the case of the plaintiff in all respects and also decided Issue No. 1 against the second defendant and in favour of the plaintiff and ultimately decreed the suit as prayed for with costs. By the decree, the trial Court directed the defendants to vacate the suit property and hand over possession of the same to the plaintiff, to jointly and severally pay a sum of Rs. 14,950/- towards arrears of rent, to pay a sum of Rs. 11,158/- being the damages for use and occupation at the rate of Rs. 325/- per month from the date of plaint till the date of decree and also to pay damages for future use and occupation at the same rate from the date of decree till they hand over vacant possession of the suit property to the plaintiff. 6. 11,158/- being the damages for use and occupation at the rate of Rs. 325/- per month from the date of plaint till the date of decree and also to pay damages for future use and occupation at the same rate from the date of decree till they hand over vacant possession of the suit property to the plaintiff. 6. The correctness of the said decree passed by the trial Court was unsuccessfully challenged before the lower appellate Court, namely the Court of the Second Additional District Judge, Puducherry in A.S. No. 91 of 2006. The learned lower appellate Judge, after hearing, dismissed the appeal confirming the judgment and decree of the trial Court in all respects. The said decree of the appellate Court is challenged in the present second appeal. 7. This Court, by order dated 2.12.2010, admitted the second appeal identifying the following to be the substantial questions of law involved in the second appeal: 1. Will it not amount to error in law to give a finding without framing a issue relating to principles of res judicata by the trial Court? 2. Will it not amount to error of law to give a finding toward improvement made by the appellant to the tune of Rs. 50,000/- without framing a specific issue by the trial Court? 3. Whether the lower appellate Court committed error of law without following the mandatory procedure laid down under Order 41 Rule 31 of CPC at the time of determination of the appeal and thereby caused miscarriage of justice to the appellants? 8. The arguments advanced by Mr. V. Stalin, learned counsel appearing for the appellant and by Ms. D. Chitra Maragatham, learned counsel appearing on behalf of the first respondent were heard. The materials available on record were also perused. 9. Learned counsel for the appellant made the following submissions: (a) The suit of plaintiff was resisted on the specific plea of res judicata. When such a plea of res judicata had been raised, the trial Court ought to have framed an issue relating to the plea of res judicata. However, the learned trial Judge, without framing a specific issue regarding the plea of res judicata, chose to decide the said plea on merits. When such a plea of res judicata had been raised, the trial Court ought to have framed an issue relating to the plea of res judicata. However, the learned trial Judge, without framing a specific issue regarding the plea of res judicata, chose to decide the said plea on merits. The same shall be an error committed by the trial Court in law, which is capable of being interfered with and corrected by the High Court in the Second appeal. (b) The lower appellate Court also chose to decide the question of res judicata against the appellant/second defendant without framing a specific point for determination. The failure on the part of the appellate Court to frame such a necessary issue would amount to non-compliance with the requirement of Order 41 Rule 31 C.P.C which prescribes the necessary ingredients to be incorporated in the judgment of the appellate Court. (c) The Courts below have also committed an error in law in rendering a finding negativing the claim of the appellant/second defendant to have spent a sum of Rs. 50,000/- without framing a specific issue. 10. According to the third submission made by the learned counsel for the appellant/second defendant, the said finding rendered by the trial Court stands vitiated as there is failure on the part of the trial Court to frame a specific issue in this regard. At this juncture, this Court wants to point out the fact that the above said contention of the appellant’s counsel is factually incorrect. By a factual misrepresentation alone, the appellant seems to have got the second substantial question of law formulated at the time of admission. The very first issue framed by the trial Court is regarding the sustainability of the plea that the defendants had spent Rs. 50,000/- by way of repairs and maintenance of the suit property. The first issue frame by the trial is extracted hereunder: “1. Whether the first defendant had spent Rs. 50,000/- by way of repairs and maintenance of the suit property?” Besides extracting the said issue framed by the trial Court, nothing more need be stated to show that the second question formulated as substantial question of law does not arise in this second appeal and the said question has been formulated as a substantial question of law only on a misrepresentation as if no issue was framed by the trial Court. 11. The Question Nos. 11. The Question Nos. 1 and 3 have been framed based on the contention that the trial Court failed to frame a necessary issue and the appellate Court also failed to frame the necessary points for determination. Both the questions are jointly dealt with. Of course, it is true that the appellant/second defendant had taken a plea that the present suit is bared by the principle of res judicata since an earlier suit, namely O.S. No. 344 of 1989 on the file of the I Additional District Munsif, Pondicherry had been dismissed on 28.9.1989 itself. When such a plea of res judicata had been taken by a defendant in the written statement, the trial Court ought to have framed an issue regarding the same. By mistake the trial Court seems to have omitted to frame an issue on the plea of res judicata. Similarly, the appellate Court has formulated the following to be the only point for determination: “Whether the judgment and decree of the trial Court is liable to be set aside?”. 12. As rightly pointed out by the learned counsel for the appellant, the same is not in consonance with Order 41 Rule 31 C.P.C. Hence, this Court has to accept the contention of the learned counsel for the appellant that the trial Court committed an error in not framing an issue regarding the plea of res judicata and similarly the appellate Court committed an error in not properly formulating the points for determination in the appeal. But, whether the said failure alone will justify an interference by the second appellate Court is the crucial question to be answered. 13. Of course, when the parties are at variance regarding a particular issue, unless an issue is framed, we cannot assume that the parties would lead evidence on such issue. But, time and again it has been held in a number of cases that the failure to formulate an issue per se will not be fatal to the decision of the Court if the parties knew what their respective stands were and they led evidence on the disputed question and the Court also decided the issue after discussing and evaluating the evidence. The irregularity in not framing the particular point as an issue will be only a formal defect and the same will not affect the decision of the Court which is otherwise sustainable. The irregularity in not framing the particular point as an issue will be only a formal defect and the same will not affect the decision of the Court which is otherwise sustainable. Similar is the position of law regarding the points for determination to be framed by the appellate Court. Though the appellate Court has chosen not to frame separate points for determination on various aspects of the case and on the other hand has chosen to consolidate every aspect into a single point for determination, the same shall also be a formal defect, provided the appellate Court decides all the relevant issues based pleadings and evidence and on re-appreciation of evidence. Hence, this Court comes to the conclusion that the defects pointed out by the counsel for the appellant which lead to the formulation of Question Nos. 1 and 3 as substantial questions of law are only formal and are of no consequence. This Court is able to find that the parties knowing fully well that the judgment in the previous suit, namely O.S. No. 344 of 1989 would constitute res judicata for the present suit and led evidence and that the trial Court considered the said plea and evidence and rendered a reasoned finding. Similarly, the lower appellate Court has also considered the evidence regarding the plea of res judicata based on the submissions made on both sides and rendered a finding assigning reasons for concurring with the finding of the trial Court. As such, this Court is of the view that the appellant/second defendant participated in the trial and led evidence and also conducted the appeal before the appellate Court knowing fully well what plea of defence had been taken by him. The failure to frame necessary issue and necessary points for consideration has not resulted in any miscarriage of justice. Therefore, both the questions are to be answered, accordingly against the appellant. 14. An attempt was made by the learned counsel for the appellant to contend that the finding of the Courts below regarding the plea of res judicata is perverse. The said attempt, according to the considered view of this Court, is a futile one. Therefore, both the questions are to be answered, accordingly against the appellant. 14. An attempt was made by the learned counsel for the appellant to contend that the finding of the Courts below regarding the plea of res judicata is perverse. The said attempt, according to the considered view of this Court, is a futile one. Learned counsel for the appellant contends that since the earlier suit for eviction was dismissed on the ground that the tenancy had not been terminated by issuing a proper and valid notice of termination under Section 106 of the Transfer of Property Act, further suit after issuing a fresh notice would not lie and any further suit for eviction filed even after issuing a fresh notice would attract the bar of res judicata. This Court is not in a position to accept the above said contention of the learned counsel for the appellant. The earlier suit was dismissed only on the ground that a suit for eviction would not be maintainable when the tenancy had not been terminated in accordance with law. The cause of action on which the previous suit was filed was the alleged termination of tenancy on the issue of notice under Section 106 of the Transfer of Property Act. The said notice was found to be defective and ineffective. Therefore, the plaintiff had to issue a fresh notice in accordance with the requirements of Section 106 of Transfer of Property Act and file a fresh suit. When the validity of the earlier notice purporting to terminate the tenancy held to be was not in accordance with law, he cannot be expected to pursue an appeal against the said judgment, in stead of creating a new cause of action by issuing a fresh notice to quit in accordance with the requirement of law and filing a fresh suit. Hence, the contention of the learned counsel for the appellant that the remedy for the plaintiff was to file an appeal against the decree passed in the earlier suit and that the present suit though filed based on a subsequent cause of action shall not be maintainable, is bound to be discountenanced. 15. Hence, the contention of the learned counsel for the appellant that the remedy for the plaintiff was to file an appeal against the decree passed in the earlier suit and that the present suit though filed based on a subsequent cause of action shall not be maintainable, is bound to be discountenanced. 15. Learned counsel for the appellant has made an attempt to contend that the contention of the appellant/second defendant that the plaintiff was not the owner of the suit property and hence, he could not maintain the suit for eviction, was not considered by the Court below in proper perspective and the finding rendered by the Courts below in this regard could be termed perverse. The said contention raised by the learned counsel for the appellant is also bound to be rejected as untenable. Learned counsel for the appellant wants to project that at no point of time the relationship of landlord and tenant had been admitted and at no point of time the second defendant/appellant accepted the plaintiff to be the owner of the suit property. This is factually incorrect. The appellant/second defendant himself has clearly admitted in his pleading that originally the father of first defendant was the tenant in respect of the suit property and later on he along with the first defendant was running a clinic in the suit property and that subsequently the first defendant left to Gujarat to look after the other personal works. Therefore, it is quite obvious that there is an inbuilt admission that the first defendant was a tenant in respect of the suit property. The appellant/second defendant would state that one Sriramulu let out the property originally. But, however, in the subsequent paragraph the appellant / second defendant himself admitted the attornment of tenancy in favour of the plaintiff. The relevant paragraph is Paragraph 8 of the written statement of the appellant/second defendant which reads as follows: “The defendant submits that the rent has been regularly paid, though the rents for the months of June and July of 1988, that the plaintiff has not chosen to issue receipts for the same. The plaintiff is in the habit of giving receipts belatedly for the receipts of rents. The defendant submits that the subsequent months rents sent by Money order were also refused by the plaintiff with an ulterior motive. The plaintiff is in the habit of giving receipts belatedly for the receipts of rents. The defendant submits that the subsequent months rents sent by Money order were also refused by the plaintiff with an ulterior motive. The defendant submits that he has not committed any default.” 16. A bare reading of the said plea will show that the appellant/second defendant admitted the plaintiff to be his landlord entitled to receive rent. It is pertinent to note that the first defendant who was the principal tenant did not contest the suit and the third defendant also pleaded that he vacated and surrendered possession to the first defendant. The above said facts will go to show that the second defendant, who became a subtenant under the first defendant, wants to squat on the property as long as possible, even after the tenancy was properly terminated. 17. For all the reasons stated above, this Court comes to the conclusion that no interference in the decree passed by the trial Court which was confirmed by the appellate Court is warranted and the second appeal is bound to be dismissed as there is no merit in it. Accordingly, the second appeal is dismissed. However, the parties are directed to bear their respective costs in this second appeal. Consequently, the connected miscellaneous petition is closed. Appeal dismissed.