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2013 DIGILAW 206 (MAD)

Farwood Industries Ltd v. D. Harikrishnan

2013-01-09

P.R.SHIVAKUMAR

body2013
JUDGMENT 1. The defendant in the original suit O.S.No.1620 of 2009 on the file of III Assistant Judge, City Civil Court, Chennai is the appellant herein. The respondent herein is the owner of the building shown as the suit property. Admittedly, the suit property was taken for rent by the appellant herein from the respondent for a monthly rent of Rs.60,000/-from 01.11.2005. Contending that since the building was less than 5 years old it is exempted from the application of the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the respondent herein (landlord) chose to issue a lawyer's notice dated 22.09.2008 terminating the tenancy purportedly under Section 106 of the Transfer of Property Act requiring the appellant herein/defendant to quit and hand over possession of the suit property to the respondent herein/plaintiff giving three months time from the date of receipt of the said notice. As the appellant/defendant did not vacate and hand over possession as demanded in the said notice, the respondent/plaintiff had to file the suit for the above said relief. 2. In the plaint, the respondent/plaintiff has also stated that a sum of Rs.5,00,000/-paid as advance was available with him and the appellant/defendant had paid the rent upto September 2008 and that he was ready and willing to refund the advance amount on possession being surrendered by the appellant/defendant. The respondent/plaintiff has also averred that the agreed rent for the initial period of 11 months was Rs.60,000/- per month and for the next 11 months, there would be an increase of 5% and after expiry of the second period of 11 months, there would be a further increase of 5%. Though the respondent/plaintiff has chosen to incorporate an averment in the plaint that the appellant/defendant was guilty of willful default in payment of rent, the suit was laid solely on the basis of termination of the lease by issuing a notice to quit under Section 106 of the Transfer of Property Act. 3. The appellant/defendant, who contested the suit by filing a written statement, admitted the fact that he became a tenant in respect of the suit property on a monthly rent of Rs.60,000/-. However, he has contended that there was no agreement for increase in the rent after the lapse of 11 months from the inception of tenancy and a further increase after a lapse of the second period of 11 months. However, he has contended that there was no agreement for increase in the rent after the lapse of 11 months from the inception of tenancy and a further increase after a lapse of the second period of 11 months. Besides denying the plaint averment that he had committed default in payment of rent, he has contended that the building was not less than 5 years old and that hence the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 would be applicable to the same. Based on the said averments, the appellant/defendant has contended that the suit is not maintainable in the Civil Court. 4. Based on the above pleadings, the learned trial Judge framed two issues, one regarding the maintainability of the suit and the other regarding the reliefs to which the plaintiff was entitled. In the trial, PW1 was examined and Exs.A1 to A21 were marked on the side of the respondent/plaintiff, whereas DW1 was examined and Ex.B1 was marked on the side of the appellant/defendant. 5. The learned trial Judge, on an appreciation of evidence, gave a finding that the building was proved to be less than 5 years old and hence, the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 regarding eviction of tenant were not applicable to the suit property. The learned trial Judge also came to be conclusion that the lease was properly terminated and the respondent/plaintiff was entitled to the relief of recovery of possession. 6. The said judgment and decree of the trial Court dated 30.06.2011 was challenged before the II Additional Judge, City Civil Court, Chennai in A.S.No.394 of 2011. The lower appellate Judge, after hearing, concurred with the findings of the trial Court and dismissed the appeal confirming the decree passed by the trial Court. However, the learned lower appellate Judge chose to grant two months time to the appellant herein/defendant to vacate and hand over possession of the property. The said judgment and decree of the lower appellate Court dated 17.09.2012 are impugned in this second appeal on various grounds set out in the grounds of the second appeal. 7. As against an appellate decree passed in an appeal by a Court subordinate to the High Court, a further appeal shall lie to the High Court under Section 100 of the Code of Civil Procedure only on a substantial question of law. 7. As against an appellate decree passed in an appeal by a Court subordinate to the High Court, a further appeal shall lie to the High Court under Section 100 of the Code of Civil Procedure only on a substantial question of law. The party filing the second appeal shall precisely formulate the substantial questions of law involved in the second appeal and incorporate the same in the grounds of second appeal. If the High Court, at the time of hearing the appeal for admission, is satisfied that such a substantial question of law is involved in the second appeal, it will admit the second appeal and formulate and record the substantial question of law on which the second appeal is admitted. In case the Court comes to the conclusion that no substantial question of law is involved in the second appeal, the appeal deserves dismissal at the stage of admission itself. In this case, the appellant/defendant has projected the following questions as substantial questions of law involved in the second appeal: 1) Whether, the Civil Court had jurisdiction to try this case for possession when there is special enactment for eviction of tenants from a building? 2) Whether, the Court below was right in coming to a conclusion that, specific reason for possession need no have to be pleaded in the suit? 3) Whether, the plaintiff is entitled to possession in a Civil Court when the building is below 5 years according to the appellant? (The questions incorporated in the grounds of second appeal by the appellant has been reproduced above without any change and if any mistake is found in the said questions, the same shall be the mistakes committed by the appellant and not by the Court) 8. The simple case of the respondent/plaintiff is that since the demised building was less than 5 years old, it was exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 by virtue of exemption provided in Section 30(i) of the said Act. Section 30(i) reads as under: “30. Exemption in the case of certain buildings.- Nothing contained in this Act shall apply to - [(i) Any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned, or] 9. Section 30(i) reads as under: “30. Exemption in the case of certain buildings.- Nothing contained in this Act shall apply to - [(i) Any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned, or] 9. There is no quarrel over the proposition that provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 will not be applicable by virtue of the exemption provided under Section 30(i) if the demise building is less than 5 years old. That is the reason why the appellant/defendant has taken a stand that the above said exemption shall not apply to the suit building as it was not less than 5 years old on the date of filing of the suit. Based on the said contention, the appellant/defendant has taken a further stand that the respondent/plaintiff ought to have filed an eviction petition before the Rent Controller and the suit filed in the Civil Court is not maintainable. 10. Both the Courts below, on proper appreciation of evidence, rendered a concurrent finding that the suit building was less than 5 years old and hence, the other provisions of Tamil Nadu Buildings (Lease and Rent Control) Act 1960 are not applicable to it by virtue of the exemption clause found in Section 30(i) of the said Act. For arriving at such a conclusion, the Courts below have relied on Exs.A1 to A9 especially Exs.A3 to A9. Ex.A3 is the builders agreement dated 04.07.2005; Ex.A4 is the Encumbrance Certificate; Ex.A5 is the building permit granted by the Corporation of Chennai; Ex.A6 is the planning permit given by the Chennai Metropolitan Development authority; Ex.A7 is the permission granted for demolishing the then existing building; Ex.A8 is the tax Assessment Order and Ex.A9 is the tax calculation sheet. All these documents came into existence after 04.07.2005. The suit was filed on 11.03.2009. Therefore, it is abundantly clear that the old building came to be demolished after the purchase was made by the respondent/plaintiff in July 2005 and a new building was put up. Within 5 years thereafter, the suit came to be filed. Therefore, the Courts below have rightly held that the suit building was exempted under Section 30(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960. Within 5 years thereafter, the suit came to be filed. Therefore, the Courts below have rightly held that the suit building was exempted under Section 30(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960. When the building is exempted from the said Act, then the remedy in the civil Court is competent. This Court does not find any defect or infirmity in the finding of the Courts below that the suit is maintainable and the same is not barred by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960. 11. The suit filed by the respondent/plaintiff to quit and deliver possession was based on the termination of tenancy by issuing a notice dated 22.09.2008, a copy of which has been marked as Ex.A10 and the acknowledgment card in proof of service of such notice has been produced as Ex.A11. The appellant/defendant has not disputed the receipt of such a notice. On the other hand, it is contended by the appellant/defendant that since the demand made for enhanced rent was not accepted by the appellant/defendant, the suit came to be filed as a vexatious one. Having given a finding that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 are not applicable to the suit premises, as the suit building is exempted under Section 30(i) of the said Act, the Courts have taken a concurrent view that for seeking recovery of possession on termination of tenancy under the provisions of the Transfer of Property Act, no reason need be assigned. The contention of the appellant/defendant raised before the Courts below and to some extend even before this Court is that the respondent/plaintiff, having taken a plea that the appellant/defendant was in arrears of rent and was guilty of willful default in payment of rent, ought to have proved the same to prove his entitlement to get the relief sought for in the suit and that since the respondent/plaintiff has not pleaded the period of default, the respondent/plaintiff should have been non-suited for the relief sought for in the suit. This Court is not in a position to countenance the above said contention raised by the learned counsel for the appellant. This Court is not in a position to countenance the above said contention raised by the learned counsel for the appellant. Though it has been stated in the plaint that the appellant/defendant was irregular in payment of rent and was guilty of willful default in payment of rent, that was not the ground on which the relief was sought for in the suit and the relief sought for in the suit was solely on the basis of termination of lease as per the provisions of the Transfer of Property Act. As the termination notice is not challenged by the appellant/defendant as invalid, there will be no valid ground for the appellant/defendant to resist the claim of the plaintiff made in the suit for recovery of possession. 12. Though the plaint averment that there was an agreement for 5% increase in the rent after the expiry of 11 months from the date of inception of tenancy and a second increase after the lapse of a further period of 11 months was denied and disputed by the appellant/defendant, the same is not germane for the proceedings in the suit, because the respondent/plaintiff has not sought for any decree for the recovery of arrears of rent or for damages for use and occupation. Even then, this Court is able to find that the contention raised by the appellant/defendant is unfounded. It is admitted by the appellant/defendant that the rent fixed at the inception of tenancy was Rs.60,000/-per month. Admittedly upto September 2008, the appellant had paid the rent. For the subsequent period rent was sought to be paid by way of cheques and in fact cheques were issued for payment of rent and also maintenance charges separately. One such cheque was issued for a sum of Rs.54,611/-. It is brought to the notice of the Court that out of the total rent amount, 10% was deducted by the appellant/defendant as Tax Deducted at Source (TDS) and only for the balance amount, the said cheque came to be issued. 10% of Rs.60,000/- will come to Rs.6,000/-. If the said amount is deducted from Rs.60,000/-, we arrive at a figure Rs.54,000/-. If at all the rent for the subsequent period was sought to be paid by issuing a cheque for Rs.54,000/-, the contention of the appellant that there was no agreement for increase in rent can be countenanced. 10% of Rs.60,000/- will come to Rs.6,000/-. If the said amount is deducted from Rs.60,000/-, we arrive at a figure Rs.54,000/-. If at all the rent for the subsequent period was sought to be paid by issuing a cheque for Rs.54,000/-, the contention of the appellant that there was no agreement for increase in rent can be countenanced. On the other hand, Rs.611/- over and above Rs.54,000/-came to be paid by way of cheque. The same accounts for the 5% increase pleaded by the respondent/plaintiff. This Court makes it clear though it is not necessary for the disposal of the second appeal, the said observation is made to show that the appellant/defendant has taken an untenable stand as a defence in the suit. The Courts below have rightly held that the suit building was exempted by virtue of Section 30(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act and the suit was maintainable. There is no defect or infirmity in the said finding of the Courts below. Hence, while seeking the relief of recovery of possession based on termination of lease under the provisions of the Transfer of Property Act, no reasons need be assigned. As such, this Court comes to the conclusion that none of the questions projected by the appellant as substantial questions of law can be accepted to be a substantial question of law involved in the second appeal. Not even a question of law is proved to have been decided wrongly or erroneously by the courts below. No finding of fact has been proved to be perverse to elevate such a question to the position of a substantial question of law. Hence, this Court come to the conclusion that no substantial question of law is involved in the second appeal and the second appeal is bound to be dismissed at the stage of admission itself. 13. Before parting with the case, this Court wants to record the following observations: The learned trial Judge framed only two issues. But, discussions in the judgment were divided into two parts and the first part was titled "Issues 1 and 2" and the second part was titled "Issue No.4". The same shows the callousness on the part of the trial Judge. In the descriptive portion, the number of documents produced on the side of the plaintiff has been mentioned as 11 instead of 21. The same shows the callousness on the part of the trial Judge. In the descriptive portion, the number of documents produced on the side of the plaintiff has been mentioned as 11 instead of 21. Fortunately and perhaps taking a lenient view, the lower appellate Court has chosen to correct the said mistakes and make correct observation that only two issues were framed by the trial Court and 21 documents were marked on the side of the plaintiff. In the result, the second appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.