Madras High Court
R.M.S. Mahendra Gupta vs Mrs. Shri Chinni Subbiah Chetty ... on 24 May, 2004
Equivalent citations: (2005)3MLJ345
ORDER S. Sardar Zackria Hussain, J.
1. The revision petitioner is the defendant in O.S. No. 6740 of 2001 on the file of the V Assistant Judge, City Civil Court, Chennai. The revision is directed against the dismissal of the petition I.A. No. 1678 of 2004 filed by the revision petitioner under Section 7 Rule 11(a) and (d) of C.P.C., as per order dated 30.4.2004.
2. The respondent trust as plaintiff filed the ejectment suit against the revision petitioner for vacant possession of the suit property, arrears of rent and past and future damages. The two items of suit properties are in Villivakkam, Chennai. It is claimed that the plaintiff trust is the owner of the suit properties and which trust has been formulated as per the registered Will dated 22.12.1894. The suit properties had been leased to one R.M. Subramania Chetty as per registered lease deed dated 31.3.1968 for running business of kerosene bunk, in which he erected the kerosene bunk with underground tank, pumping machine with a small shed for about 40 square feet being the superstructure. The lessee Subramania Chetty died in 1992 or so and on his death, his son, the defendant constituted a partnership firm in the name of R.M. Subramania Chetty and firm. The defendant encroached in the open space of land approximately an area of about 130 square feet from and out of the total extent of 882 square feet or so reserved for the user of the plaintiff's trust. After exchange of several notices and correspondence between the parties, the plaintiff trust fixed the rent to the suit properties. The defendant committed default in payment of rent and also committed acts of waste and acted against the interest of the plaintiff trust and its properties. The plaintiff caused lawyer notice dated 21.8.2001 terminating the tenancy with effect from 30.9.2001 and since the defendant has not vacated and handed over the possession of the suit properties, the suit has been filed on 15.11.2001.
3. The suit was resisted in the written statement filed by the defendant in October, 2003 admitting that the suit properties are the vacant properties measuring about 4 grounds and 930 square feet surrounded by several shops and that the defendant's father Subramania Chetty entered into registered lease with the plaintiff's trust in respect of the suit properties as per the registered lease deed dated 31.3.1968 and denying that the plaintiff trust retained a small portion of property to an extent of 882 square feet with a right of access to the open well and also denying that the defendant has encroached upon open space of an area 130 square feet from and out of the above 882 square feet retained by the plaintiff trust. It is further claimed that the defendant's father after entering into lease with the plaintiff's trust constructed underground tank meant for storage of kerosene and a pump and also constructed pucca building for the office and structures meant for his business. The building also assessed for property tax in the name of the defendant's father. The defendant is a dealer in Indian Oil Corporation from whom the kerosene is being transported and stored in the underground tank at the suit premises and as such, entire extent of land nearly 5 grounds of land was taken on lease by the defendant's father and therefore, the defendant has not encroached the land on the northern side as claimed by the plaintiff. The maintainability of the suit is also challenged, since the plaintiff trust is only a private charity and not exempted in the application of the Rent Control Act and also it is stated that though it is claimed that the plaintiff trust is a public trust, the Court fee has been paid under Section 43 of the Court Fees Act on the annual rent, in that the plaintiff trust is only a private charity.
4. The defendant filed petition I.A. No. 1678 of 2004 under Section 7 Rule 11(a) and (d) C.P.C. on 12.1.2004, subject matter of this revision for rejecting the plaint of the suit. The defendant also filed I.A. No. 16239 of 2002 on 15.7.2002 under Section 9(1)(a)(i) of Tamilnadu City Tenants' Protection Act and seeking to direct the plaintiff trust to sell the entire suit land measuring 4 grounds and 930 square feet, which is in possession and enjoyment of the defendant, bearing door No. 51A, Bazaar Street, Villivakkam, Chennai-49 for the value fixed by the trial Court.
5. Both the above said petitions were tried together and dismissed as per order dated 30.4.2004 considering Exs.P-1 to P-18 marked on the side of the defendant and Exs.R-1 to R-25 marked on the side of the plaintiff trust. This revision is filed by the defendant challenging the dismissal of I.A. No. 1678 of 2004.
6. Heard the learned counsel for the revision petitioner/defendant and the learned counsel for the respondent/plaintiff.
7. The learned counsel for the revision petitioner/defendant vehemently contended that the finding of the trial Court that the plaintiff charity is a public charity, is not proper, in that the charity is not performing any religious charities and therefore, the finding recorded by the trial Court that the defendant is not entitled to invoke the provisions of the City Tenants' Protection Act, is incorrect. In this regard, the learned counsel further submitted that no evidence was adduced by the plaintiff trust that the charity is associated with performing of religious utsavams and the audit report from Hindu Religious and Charitable Endowment Board filed before the trial Court with regard to the performance of religious Utsavam, relates to 25 years before. The learned counsel also argued that inasmuch as admittedly, the defendant is a lessee of the suit properties and also the owner of the superstructure and as such, he is entitled to protection under the City Tenants' Protection Act and since the tenancy has not been terminated under Section 11 of the City Tenants' Protection Act by giving three months' prior notice, the suit itself is not maintainable.
8. The learned counsel for the respondent/plaintiff trust submitted that inasmuch as the plaintiff trust is a public charitable trust formulated under the registered Will dated 22.12.1894 and the religious function having been carried on by the plaintiff trust, evidence for which can be adduced only at the time of trial of the suit by letting in evidence and since there have been clinching evidence on the side of the plaintiff trust through the documents Exs.R-1 to R-18 marked on the side of the plaintiff to show that the plaintiff trust is a public charitable trust and as such, three months' notice as stipulated under Section 11 of the City Tenants' Protection Act is not called for and the suit filed after causing notice dated 21.8.2001 giving 15 days' time terminating the tenancy with effect from 30.9.2001 is maintainable. The learned counsel further argued that inasmuch as the tenant filed I.A. No. 16239 of 2002 claiming relief under Section 9(1)(a)(i) of the City Tenants' Protection Act, the defendant being the lessee is estopped from raising want of notice as contemplated under Section 11 of the City Tenants' Protection Act. In support of the contention that it is deemed to have waived of notice under Section 11 of the City Tenants' Protection Act, the learned counsel for the plaintiff trust has relied on the following decisions:-
(1) Natesa Naicker v. Vedagiri reported in 1975(1) M.L.J. 301, (2) N. Balasubramania Iyer v. S.P. & Muthukumaraswamy Devasthanam reported in 1983(1) M.L.J. 280 and (3) Hamsa Patel and two Ors. v. S. Balakrishnan and Anr. reported in 1997(1) C.T.C. 367.
In the later decision, a Division Bench of this Court held that the tenant exercising statutory right to purchase property under Tamil Nadu City Tenants' Protection Act cannot raise plea of want of notice under Section 11 of the City Tenants' Protection Act and that the tenant filed application under Section 9 of the Act to purchase property is estopped from raising issue of notice under Section 11 of the City Tenants' Protection Act.
9. I.A. No. 1678 of 2004 was filed for rejecting the plaint on the ground that as per the notice dated 21.8.2001 issued under Section 106 of the Transfer of Property Act, the required time of three months' was not given and no offer was also made to pay compensation for the superstructure. It appears, in the petition I.A. No. 16239 of 2002 filed under Section 9(1)(a)(i) of the Tamil Nadu City Tenants' Protection Act, the main ground attacked is that the plaintiff trust is not a public charity, that the termination of the tenancy is improper and that the defendant is entitled for the benefits under the City Tenants' Protection Act.
10. As per the materials borne out from the records, the plaintiff trust is governed by the scheme framed by this Court in C.S. No. 270 of 1939 and the trust was found for the benefit of the public and the object of the trust is to conduct festivals in Chennakesava Perumal and to contribute monetary help for aged and disabled people, to help students by contributing funds to their education and for conducting Brammotchavams for Damodara Perumal Temple at Villivakkam and the trust was formulated as per the Will dated 22.12.1894, photo copy of which has been marked as Ex.R-20.
11. The certified copy of scheme decree in C.S. No. 270 of 1939 on the file of this Court is marked as Ex.R-21. Pursuant to the Will of the testator, Ex.R-20 dated 22.12.1894, the plaintiff trust has been carrying on the charities as can be seen from the audit report Ex.R-22. The plaintiff trust have also been declared as public charitable trust, as per the judgment dated 9.4.1991 in O.S. No. 5103 of 1987 on the file of the 18th Assistant Judge, City Civil Court, Chennai, the printed copy of which has been marked as Ex.R-24. As per clause 13 of the scheme decree dated 3.4.1940 in C.S.270 of 1939(Ex.R-21), it is stated that "No one who is not a worshipper at Sri Chennakesavaperumal Temple shall be elected or appointed a Trustee." Even in Ex.P-3 dated 20.12.1984, Ex.P-5 dated 14.10.1988, and Ex.P-11 10.8.1998, it is admitted by the defendant that the plaintiff trust is a charitable trust. Only for the first time, in the reply notice Ex.P-18 dated 17.10.2001 to the lawyer notice Ex.P-17 dated 21.8.2001, it is stated that the plaintiff trust is a private charity. In the lawyer notice Ex.P-17, it is stated that the plaintiff trust is a charitable trust and is performing "Kainkaryam" in temples under the control of H.R. & C.E. Board. Therefore, it is very much clear that the plaintiff trust is a public charitable trust. As rightly observed by the trial Court, since the beneficiary is outside the family of the testator, certainly the plaintiff trust is a public charitable trust, which have been directed to perform various "kainkaryams" at various Hindu Religious Temples, as per the Will of the testator and which it appears is performed as can be seen from the audit report of H.R. & C.E. Board Ex.R-22.
12. The defendant also filed a petition claiming the right to purchase the property in I.A. No. 16239 of 2002 under Section 9(1)(a)(i) of the City Tenants' Protection Act and as such, it is not open to him to raise the plea of want of notice under Section 11 of the City Tenants' Protection Act and he is estopped from raising issue of notice under Section 11 of the City Tenants' Protection Act as held by the Division Bench of this Court in 1997(1) C.T.C. 367 (sited supra). The trial Court rightly decided that notice Ex.P-17 dated 21.8.2001 issued under Section 106 of Transfer of Property Act, as per which, the tenancy of the defendant has been terminated with effect from 30.9.2001 requiring to hand over vacant possession on 1.10.2001, is sufficient as per law. Therefore, the defendant has not made out any case to reject the plaint that three months' notice has not been given as per Ex.P-17 and no offer was also made to pay compensation for the superstructure and so, the order of the trial Court in dismissing the petition I.A. No. 1678 of 2004 subject matter of this revision, does not call for any interference.
13. In view of the discussions made above, the Civil Revision Petition is dismissed with costs. The order dated 30.4.2004 in I.A. No. 1678 of 2004 in O.S. No. 6740 of 2001 passed by the learned V Assistant Judge, City Civil Court, Chennai is confirmed.