Madras High Court
Chandru Lakshmandas Raheja vs Alliance Ministries(A.Public on 9 March, 2022
Author: R.Subramanian
Bench: R.Subramanian, N.Sathish Kumar
A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2022
(Reserved on 24.02.2022)
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.No.518 of 1996 and TR.A.S.Nos.1178 & 1179 of 2004 and
CMP.Nos.8885 of 1996 & 1499 of 2005 and
M.P.No.1 of 2006
A.S.No.518 of 1996:-
1.Chandru Lakshmandas Raheja
2.Karlton Hotel
Kodaikanal,
Tamilnadu Anna District.
3.M/s.Ferani Hotels Limited,
Kodaikanal,
Tamil Nadu Anna District.
4.M/s. K.Rajeja Constructions Limited,
Car, 24th Road,
Construction House 'A',
Bombay-400 052. ... Appellants
vs.
Alliance Ministries(A.Public
Religious Charitable Trust)
Rep. by its Trustee
Field Director Mr.Rev.Edgar
H.Lewellen,
No.3Madam Kamba Road,
3.Peekan Buildings,
Bombay-400 021. ... Respondent
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A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004
Appeal filed under Section 96 of the Civil Procedure Code,
against the judgment and decree dated 20.02.1996 made in O.S.No.
215/93 on the file of the Principal Subordinate Judge of Dindigul.
TR.A.S.No.1178 of 2004:-
1.Carlton Hotel owned by
Ferani Hotels Limited.
2.Mr.Chandru Lakshmandas Raheja ... Appellants
vs.
Messrs Alliance Ministries Trust
through its Power of Attorney
Mr.J.K.Chedda of K.C.Shedda & Company ... Respondent
Appeal filed under Section 96 and Order 41 Rules 1 and 2 of the
Civil Procedure Code, against the decree and judgment passed in O.S.
No.211/93 by the Subordinate Judge of Dindigul, on 20.02.1996.
TR.A.S.No.1179 of 2004:-
1.K.Raheja Constructions Ltd.,
a company incorporated under
the Companies Act, having its
Registered Office at Bombay.
2.Mr.Chandru Lakshmandas Raheja
Both represented herein by their
Constituted Attorney
Sri Ajit Oberoi. ... Appellants
vs.
1.Alliance Ministries, a registered
Public Trust having its office at
Bombay.
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A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004
2.Mr.Edgar H Lewellen
3.Ms.Ferne A Gerrie
4.M/s.K.C. Chedda & Company, a
Partnership firm having its
registered office at Bombay.
5.The Charity Commissioner, Bombay. ... Respondents
Appeal filed under Section 96 and Order 41 Rules 1 and 2 of the
Civil Procedure Code, against the decree and judgment passed in O.S.
No.213/93 by the Subordinate Judge of Dindigul, on 20.02.1996.
For Appellants : Mr.S.Parthasarathy, Senior Counsel for
Mr.K.Govindarajan
For Respondents : Mr.S.Krishnakumar
COMMON JUDGMENT
R.SUBRAMANIAN, J.
AND N.SATHISH KUMAR, J.
Challenge in these three appeals is to the judgment and decree passed in O.S.Nos.211/1993, 213/1993 and 215/1993 on the file of the Principal Sub Court, Dindigul. The appellants were the defendants in O.S.Nos.211/1993 and 215/1993 and plaintiffs in O.S.No.213/1993. All the three suits came to be disposed of by way of a common judgment, since the property involved in the suits and the parties were also substantially the same. The appeals in Page 3/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 Transferred A.S.Nos.1178 and 1179/2004 were originally filed before the District Court and were transferred to this Court for being heard along with the appeal in A.S.No.518/1996.
2. The suit in O.S.No.211/1993 was filed by the sole respondent in A.S.No.518/1996 seeking recovery of possession of the suit property upon termination of permission licence. The same plaintiff/1st respondent in Transferred A.S.No.1178/2004 had filed a suit in O.S.No.215/1993 seeking damages for use and occupation and for the loss caused by the action of the defendants in not completing the sale transaction. The 2nd defendant in O.S.No.211/1993 and the 4th defendant in O.S.No.215/1993 joined together and filed O.S.No. 213/1993 seeking injunction restraining alienation of the suit property, subject matter of the other two suits, till a sale deed is executed in favour of the plaintiffs in the said suit. The suits were originally filed at Sub Court, Periyakulam, as O.S.No.8/1985 (O.S.No.211/1993), O.S.No.323/1988 (O.S.No.215/1993) and O.S.No.251/1987 (O.S.No. 213/1993). Upon transfer to the file of the Sub Court, Dindigul, they were re-numbered as above.
3. The case of the plaintiff in O.S.No.211/1993, the earliest suit for possession, is that the suit property belonged to the plaintiff. Page 4/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 The defendants 1 and 2 entered into an agreement on 21.06.1986 under which, it was agreed that the defendants would be put in possession of the property for a period of 12 months or until the sale of the property is completed(whichever is earlier). If the sale is not completed within a period of 12 months, the defendants would have to surrender possession on 19th June 1987, upon the expiry of the 12 months period. It was also provided that the agreement can be terminated by either party, by giving a month's notice. It is the claim of the plaintiff that a larger extent of property was put up for sale by inviting public tenders and the defendants were the highest bidders at Rs.65,00,000/-. It was agreed that the plaintiff would convey the property upon the purchasers obtaining sanction from the Charity Commissioner under the provisions of the Bombay Public Trust Act, 1950. Since the defendants did not complete the sale transaction within the period prescribed, the plaintiff by its notice dated 18.05.1987, terminated the agreement and called upon the 2nd defendant to hand over possession of the suit property on or before 20.06.1987. The defendants failed and neglected to comply with the demand in the said notice. Another notice was sent on 17.09.1987 calling upon the defendants to vacate and hand over possession of the suit premises. Since the defendants did not comply with the demand made in the suit notice, the plaintiff terming the permission to occupy Page 5/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 as a licence, came up with the above suit for recovery of possession. It was also pleaded that there was no intention to create a permanent tenancy or right of occupancy in favour of the defendants beyond 20.06.1987. On the above contentions, the plaintiff sought for recovery of possession.
4. The defendants resisted the said suit, contending that the relationship created under the agreement dated 21.06.1986 is one of landlord and tenant and therefore, the suit is barred under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It was the further contention of the defendants that the plaintiff being a registered Trust under the provisions of the Bombay Public Trust Act, 1950, all the trustees of the Trust should have been joined as plaintiffs. It was also contended that as per the Memorandum of Association of the plaintiff, it is the Field Director who has to file the suit and he cannot authorise another person to sue on behalf of the plaintiff. The status of the plaintiff as a Public Trust was also denied and it was claimed that G.O.Ms.No.2000, dated 16.08.1976, would not apply to the plaintiff and hence, the suit as framed is not maintainable. An additional written statement was filed by the defendants contending that the plaintiff had executed a sale deed in favour of one L.V.R.Holiday Resorts and hence the suit is not maintainable. Page 6/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004
5. On the above pleadings, the learned subordinate Judge framed the following issues for consideration in the said suit:-
''1. ,t;tof;fpid tprhuiz nra;tjw;F ,e;ePjpkd;wj;jpw;F mjpfhuk; ,y;iyah?
2. jkpo;ehL fl;blq;fs; Fj;jif kw;Wk;
thliff; fl;Lg;ghL rl;lj;jpd; fPo; vjph;thjpfs; thlifjhuh;fsh kw;Wk; me;j rl;lj;jpd; gyd;fs; vjph;thjpfSf;F fpilf;fj;jf;fitah?
3. mtrpakhd fl;rpf;fhuh;fis Nrh;f;fhj Fiwf;F ,t;tof;F Mshfpwhuh?
4. tof;Fr;nrhj;jpid 2tJ vjph;thjpf;F tpw;gjhf thjp xg;Gf; nfhz;lhuh? kw;Wk; thjpf;Fk;> 2tJ vjph;thjpf;Fk; ,ilapy; xU Kbthd fpiua xg;ge;jk; Vw;gl;Ls;sjh?
5. Fj;jif xg;ge;jj;jpid thjp uj;J nra;jJ rhpahdjpy;iyah kw;Wk; Kiwahdjpy;iyah?
6. thjp Nfl;Ls;s clik xg;gilg;G ghpfhuk;
thjpf;F fpilf;fj;jf;fjh?
7. thjpf;F fpilf;fj;jf;f ghpfhuk; vd;d?'' Page 7/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004
6. The second suit namely, the suit in O.S.No.215/1993 was filed by the plaintiff in O.S.No.211/1993 seeking damages for use and occupation and for causing loss to the plaintiff by not complying with the agreement dated 21.06.1986. According to the plaintiff, because of the failure on the part of the defendants to honour the agreement dated 21.06.1986, the plaintiff has suffered a damages of Rs. 6,50,000/- being the loss of income from the property for the period from 21.06.1987 to 19.06.1988. Future damages were also claimed at Rs.55,000/- per month. This suit was resisted by the defendants contending that the suit is barred under Order II Rule 2 of the Code of Civil Procedure, as the relief of damages was available to the plaintiff even when the plaintiff chose to file the suit for possession in O.S.No. 211/1993. It was also contended that the quantum of damages claimed is imaginary and highly excessive. It was the further contention that if at all the defendants are liable to pay any damages, it is only the sum agreed to in the agreement dated 21.06.1986 and nothing more.
7. On the above pleadings, the learned Subordinate Judge framed the following issues in the said suit:-
''1. thjp jug;gpy; Nfl;Ls;s e\;l<L
fpilf;fj;jf;fjh?
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2. gpuhjpy; Nfl;Ls;sgb thjpf;F khjk; NjhWk;
e\;l<L fpilf;fj;jf;fjh?
3. vjph;thjpfs; $wpAs;s fhuzq;fSf;fhf ,e;j tof;F epiyf;fj;jf;fjh?
4. thjpf;F fpilf;fj;jf;f ghpfhuk; vd;d?''
8. The third suit namely, O.S.No.213/1993 was filed by the 2nd defendant in O.S.No.211/1993 and the 4th defendant in O.S.No. 215/1993, seeking a very peculiar relief of permanent injunction restraining the defendants from alienating or encumbering the properties, subject matter of the suit, except in pursuance of the offer of the 1st plaintiff made pursuant to the publication of the defendants and for a permanent injunction restraining the defendants from disturbing the possession of the plaintiffs except under due process of law. This suit was resisted by the defendants therein, contending that the very suit is not maintainable. Since the plaintiffs have not acted in terms of the agreement dated 21.06.1986 and had not obtained permission of the Charity Commissioner at Bombay, they cannot seek any injunction. In fact, the plaintiffs had filed a suit in S.C.Suit No. 4531/1987 on the file of the City Civil Court, Bombay, seeking a similar injunction. Though an interim order of injunction was granted, Page 9/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 the same was vacated by order dated 21.07.1987. It was also contended that the suit as framed is not maintainable. As regards the relief for injunction restraining interference with possession, the defendants pointed out that a suit for possession has already been initiated and hence, the very relief claimed is redundant.
9. On the above pleadings, the learned Subordinate Judge framed the following issues in the said suit:-
''1. thjpf;Fk;> vjph;thjpf;Fk; ,ilNa Kbthd fpiua xg;ge;jk; Vw;gl;Ls;sjh?
2. thjpfs; Nfl;Ls;s epue;ju jil cWj;Jf;
fl;lis ghpfhuk; fpilf;fj;jf;fjh?
3. jtwhd fl;rpf;fhuh;fis Nrh;j;j Fiwf;F ,t;tof;F Mshfpwjh?
4. thjpfSf;F fpilf;fj;jf;f ghpfhuk; vd;d?''
10. All the suits were taken up for a joint trial. The evidence was recorded in O.S.No.215/1993. The power agent Mr.Jagadish Chheda was examined as PW1 and Exs.A1 to A16 were marked on the side of the plaintiffs. Mr.ADI.H.Master was examined as DW1 and Exs.B1 to B17 were marked on the side of the defendants. Upon Page 10/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 consideration of the evidence on record, the learned trial Judge concluded that the plaintiff in O.S.Nos.211 and 215/1993 is entitled to a decree for possession and damages as prayed for in O.S.No. 215/1993. The suit in O.S.No.213/1993 was dismissed on the conclusion that the plaintiffs therein have not made out a case for grant of injunction. The trial Court also concluded that even assuming the relationship is that of landlord and tenant, the plaintiff being a Public Charitable Institution, it was exempt from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, under G.O.Ms.No.2000, dated 16.08.1976. On the question of damages, the learned trial Judge found that the plaintiff is entitled to future damages at Rs.30,000/- per month, apart from a sum of Rs.3,60,000/- as past damages. Aggrieved by the decree in O.S.Nos.211 and 215 of 1993 and the dismissal of O.S.No.213/1993, the defendants in the first two suits and the plaintiffs in the third suit, are on appeal.
11. We have heard Mr.S.Parthasarathy, learned Senior Counsel appearing for Mr.K.Govindarajan, learned counsel for the appellants and Mr.S.Krishna Kumar, learned counsel appearing for the respondents.
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12. Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellants would vehemently contend that the suit for possession in O.S.No.211/1993 is not maintainable, inasmuch as it has been instituted by a person who had no authority to file the suit. Taking us through the Memorandum of Association of the plaintiff in O.S.No. 211/1993, Mr.Parthasarathy, would contend that it is the Filed Director who is authorised to file the suit and he cannot further delegate his power to the agent appointed by him under the Powers of Attorney dated 10.09.1987 and 05.04.1993 marked as Exs.A4 and A5 respectively. Therefore, according to Mr.Parthasarathy, the suit as framed is not maintainable. Reliance is placed by the learned Senior Counsel on the provisions of the Memorandum of Association which require the Field Director to sue and be sued in connection with the affairs of the Society. Though the learned Senior Counsel would raise the issue relating to tenancy and the applicability of G.O.Ms.No.2000, dated 16.08.1976, he is unable to press hard with the said contention, in view of the repeal of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, by the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017.
13. On the claim for damages, the learned Senior Counsel would submit that the suit is barred under Order II Rule 2 of the Code Page 12/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 of Civil Procedure, inasmuch as the plaintiff had the right to sue for damages even when the suit for possession in O.S.No.211/1993 was instituted. He would also contend that the quantum of damages fixed by the trial Court is abnormally high and it has no nexus with the actual income from the property.
14. As regards the suit for injunction, the learned Senior Counsel would submit that inasmuch as the bid by the plaintiffs in the suit for injunction was the highest, the defendants were bound to sell the property to the plaintiffs and therefore, the suit for injunction seeking restraint on alienation is maintainable.
15. Countering the submissions of Mr.S.Parthasarathy, Mr.S.Krishna Kumar, learned counsel appearing for the respondents would submit that the relationship created under the agreement dated 21.06.1986 is not a relationship of landlord and tenant. According to him, the appellants were put in possession only as permissive occupants on payment of an annual licence fee. He would also contend that even assuming that the relationship is that of a tenancy, the plaintiff in O.S.No.211/1993 being a religious charitable organisation, is exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, in view of G.O.Ms.No. 2000, dated 16.08.1976.
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16. Arguing further, the learned counsel would submit that in any event, in view of the repeal of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, by Section 47 of the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017, the contention does not survive.
17. On the claim for damages, the learned counsel would submit that the bar under Order II Rule 2 of the Code of Civil Procedure, will not apply to the instant case, inasmuch as the cause of action for damages is wholly different from the cause of action for recovery of possession. He would also rely upon the judgment of the Hon'ble Supreme Court in Gurbux Singh vs. Bhooralal reported in AIR 1964 SC 1810, judgment of this Court in A.Subramanian vs. Muthukrishna Reddiar reported in 2004-4-L.W. 679 and the judgment in Kamalammal(dead) vs. Girija reported in 2010 (2) CTC 379 in support of his submissions. On the quantum of damages, the learned counsel would submit that the trial Court had given convincing reasons for fixing the damages at Rs.30,000/- per month and therefore, the decree of the trial Court should not be interfered with. On the suit for injunction, Mr.K.Krishna Kumar, would submit that the suit itself has become infructuous inasmuch as the property Page 14/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 has been sold to third parties and the sale documents have also been marked as Exhibits B14 to B17 by the defendants themselves.
18. We have considered the rival submissions.
19. On the arguments of the learned counsel for either side, the following points arise for determination in these appeals:-
(i) Whether the relationship between the parties created under the agreement dated 21.06.1986 is that of a landlord and tenant?
(ii) Whether the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, could be invoked by the appellants to defeat the suit for possession?
(iii) Whether the suit for possession could be said to be a properly instituted suit?
(iv) Whether the suit for damages is barred under Order II Rule 2 of the Code of Civil Procedure?
(v) Whether the quantum of damages fixed is reasonable?
(vi) Whether the suit for injunction survives as on date? Point Nos.(i) and (ii):-
20. The relationship between the parties would have to be culled out from the contents of the agreement between the parties Page 15/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 dated 21.06.1986. The said agreement has been marked as Ex.A1. It is an agreement under which the defendants were let into possession of the property for a period of 12 months or until the sale of the Bungalow is completed. If the sale is completed prior to the expiry of the 12 months period, the defendants shall vacate and hand over possession on the date of completion of the sale. It also provides that if the sale is not completed within a period of 12 months, the defendants would be entitled to occupy the property till 19.06.1987. Either party is given the option to terminate the agreement by a month's notice. A compensation of Rs.20,000/- is fixed for the entire period of 12 months. While it is the contention of the respondents that the agreement does not create a relationship of landlord and tenant, it is only a licence to occupy for a specific maximum period, the appellants would contend that the relationship is that of a landlord and tenant and therefore, the suit is barred under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It is admitted that the respondents had issued a notice terminating the relationship under Ex.A2 dated 18.05.1987 and the same has been followed up with the legal notice dated 20.06.1988 under Ex.A14. No doubt, the relationship of landlord and tenant could be created even orally and if there is evidence of payment of rent, a month-to-month lease could be presumed as laid down by this Court in Sengappan vs. Page 16/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 Arumbatha Veda Vinayagar Temple, rep. by its Heriditary Trustee, Arumbatha Vinayagam(died), Pondicherry and 10 others, reported in (2000) 1 LW 494.
21. Be that as it may, the very contention fades into insignificance as of today, in view of the subsequent developments. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, has been repealed and whatever protection that was available under the said Act, had been taken away in view of the enactment of the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act 2017 (hereinafter referred to as the ''New Act''). Section 47 of the New Act repeals the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 in full, only pending proceedings under the Act are saved. Even otherwise, there is no bar for institution of a civil suit by the landlord against the tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960. Section 10 which offers protection to tenants from eviction, only prohibits eviction of tenants in execution of a decree or otherwise, except in accordance with the provisions of this Section or Sections 14 to 16 of the Act. Therefore, a suit as such, is not barred. The landlord is prevented from executing a decree for eviction obtained by him. Now that the Act itself has been repealed and the prohibition against execution is removed, the Page 17/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 contention of the learned Senior Counsel for the appellants that the suit is barred in view of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, cannot be accepted. Hence, Point Nos.(i) and (ii) are answered in favour of the respondents. Point No.(iii):-
22. Adverting to the second limb of the argument of Mr.S.Parthasarathy, that the suit as framed is not maintainable, we may straightaway say that we are unable to accept the said submission of the learned Senior counsel for the following reasons:-
It does not appear from the judgment of the trial Court that this issue was even raised by the appellants. No issue has been framed on the maintainability of the suit on the basis of authorisation. No doubt, the Memorandum of Association of the respondent Society states that the Field Director will be responsible for carrying out the day-to-day activities of the Trust and he will be the sole trustee. The mere fact that a power to act on behalf of the Trust is conferred on an individual by designation, the same will not act as a bar for the individual to delegate the power. The mere fact that the memorandum provides that the suit has to be instituted through the Field Director, it cannot be said that the Field Director cannot authorise a person to file a suit on his behalf. The learned Senior Counsel seeks to base his contention Page 18/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 regarding the frame of the suit on Section 5 of Para 12 of the Memorandum of Association, which defines the Powers of the Field Director. Section 5 reads as follows:-
''The Field Director shall have power to appoint from among the members of the Society, Sub-committees to assist him in the carrying on of its work.'' We are unable to read Section 5 extracted above, in the manner suggested by the learned Senior Counsel as a prohibition restraining the Field Director from appointing an agent to carry out his functions. The powers of attorney have been filed into Court and they authorise the agent to file the suit.
23. The filing of the second suit for damages by the Field Director himself, is projected as a ground to conclude that the first suit for possession is not properly instituted. We are unable to agree with the said submission also. Merely because a Principal chooses to authorise another person to file a suit on his behalf and later chooses to sue by himself, it cannot be said that the earlier suit is not maintainable or the earlier suit is defective. The Memorandum of Association specifically states that the Field Director will be the sole Executive and Managing Trustee to look after the affairs of the Society in India. There is no prohibition against him from delegating his Page 19/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 functions. In fact, the Memorandum of Association itself enables him to form Sub-committees from among the members to carry out his functions. Unless there is a prohibition, it cannot be concluded that the suit as framed is not maintainable. Hence, Point No.(iii) is also answered against the plaintiff.
24. The reliance placed by the learned Senior Counsel on the judgment in S.Kesari Hanuman Goud vs. Anjum Jehan and others reported in (2013) 12 SCC 64, is wholly out of context, as it only prohibits a power of attorney from deposing on facts which had happened prior to the commencement of the agency. Considering the nature of the suits, on facts, we do not think that the prohibition or the disability that is cast upon the agent would matter much. We therefore, conclude that the decree in O.S.No.211/1993 has to be confirmed.
Point No.(iv):-
25. The main contention of the learned Senior Counsel with reference to the suit for damages is that the suit is barred under Order II Rule 2 of the Code of Civil Procedure. The learned Senior Counsel would rely upon the judgment of the Privy Council in Mohammad Khalil Khan and others vs. Mahbub Ali Mian and others reported Page 20/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 in AIR 1949 (PC) 78. In the said judgment, the Privy Council concluded that the cause of action for recovery of possession of two different sets of property being same, the plaintiffs not having sued for recovery of possession of one set of property, cannot file a second suit seeking recovery of possession. In order to invoke the bar under Order II Rule 2 of the Code of Civil Procedure, the following essential requirements will have to be satisfied:-
i. The cause of action in the former suit and latter suit shall be the same.
ii. The plaintiff should have omitted or intentionally relinquished any portion of his claim in the earlier suit and his failure to obtain leave of the Court for instituting the subsequent suit.
The third requirement namely, the production of pleadings may not strictly arises in the case on hand, inasmuch as the suits have been tried jointly.
26. In Gurbux Singh vs. Bhooralal reported in AIR 1964 SC 1810, a Five Judge Bench of the Hon'ble Supreme Court, had while dealing with the bar under Order II Rule 2 of the Code of Civil Procedure, held as follows:-
''6. In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the Page 21/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 defendant who raises the plea must make out; (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule 2 of the Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the Page 22/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was not maintainable. Learned Counsel for the appellant, however, drew our attention to a passage in judgment of the learned Judge in the High Court which read:
“The plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two courts have, however, freely cited from the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court.” It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleadings in the earlier suit part of the record in the present suit. We are unable to agree with this interpretation of these observations. The statement of the learned Judge. “The two courts have, however, freely cited from the record of the earlier suit” is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under Order 2 Rule 2 of the Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under Order 41 Rule 27 of the Civil Procedure Code by consent of parties. There is nothing on the Page 23/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under Order 41 Rule 27 of the Civil Procedure Code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the present suit.''
27. The said position of law was reiterated by this Court in A.Subramanian vs. Muthukrishna Reddiar reported in 2004-4-
L.W. 679, wherein, this Court had held that the cause of action for recovery of mesne profits being distinct from the cause of action for recovery of possession, Order II Rule 2 of the Code of Civil Procedure, does not preclude filing of the suit for recovery of mesne profits accrued during the pendency of the earlier suit. Again, in Kamalammal(dead) vs. Girija reported in 2010 (2) CTC 379, a learned single Judge of this Court had considered the law relating to bar under Order II Rule 2 of the Code of Civil Procedure, in an exhaustive manner and held that one of the essential ingredients is that the cause of action in both the suits should be one and the same. Sub Rule 3 of Rule 2 of Order II of the Code of Civil Procedure bars the subsequent suit only when the plaintiff who is entitled to several reliefs on the same cause of action, omits to sue for one of the reliefs. Therefore, the essential requirement is that the reliefs sought for Page 24/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 should form part of the same cause of action. The fact whether the plaintiff was entitled to sue for damages on the date when the plaintiff chose to sue for possession would not by itself bar a suit for damages, if the suit for damages is based on a different cause of action.
28. A reading of the plaint in the suit for damages namely, O.S.No.215/1993 would show that the plaintiff has sought for a sum of Rs.6,50,000/- being the loss of income for the period from 21.06.1987 till 19.06.1988. The basis on which the damages is claimed, is the failure on the part of the defendants to vacate and hand over possession. The subsequent damages is sought for from the date of suit. The relief sought for in the suit for damages namely, O.S.No. 215/1993 cannot be said to form part of the same cause of action as in the suit for possession. The cause of action for damages being wrongful occupation after termination, is essentially different from the cause of action for a suit for possession, which is the termination itself. The Hon'ble Supreme Court as well as this Court have held that the bar under Sub Rule 3 of Rule 2 of Order II of the Code of Civil Procedure, could be invoked only when the reliefs are based on the same cause of action. We are therefore, unable to countenance the submissions of the learned Senior Counsel for the appellants that the suit for damages is barred under Order II Rule 2 of the Code of Civil Procedure. Hence, Point No.(iv) is answered against the appellants. Page 25/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 Point No.(v):-
29. Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellants would vehemently contend that the quantum of damages arrived at is exorbitantly high and there is no evidence in support of the claim. The only evidence that is adverted to by the learned Judge is an admission by the defendants that a Room in Hotel Carlton would fetch Rs.2,500/- per day. According to the learned counsel, the said admission cannot form the basis of determination of damages for an old Bungalow. Pointing out that Hotel Carlton is a Star Hotel situate in the heart of Kodaikanal, a hill station, the learned Senior Counsel would submit that the claim of Rs.55,000/- per month as damages and the award of Rs.30,000/- per month as damages, is wholly unreasonable. He would also point out that even under Ex.A1 agreement, the parties had agreed for payment of Rs.20,000/- as annual fee for occupation.
30. We see some force in the submission of the learned Senior Counsel on the quantum of damages. No doubt, Kodaikanal is a famous Hill Station in this part of the country, but the room rent in a Star Hotel cannot form the basis for fixation of damages for use and occupation for an old Bungalow. The learned trial Judge had concluded that Rs.30,000/- would be a reasonable sum on the basis of the annual Page 26/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 value reflected in the Property Tax Register. The annual rental value reflected in the Property Tax Register which has been marked as Ex.A12 is Rs.24,000/-. We are aware of the fact that the said assessment cannot also form the actual basis for fixation of damages for use and occupation. Except the so-called admission by DW1, there is no other evidence available to show the actual income from the property. It is also seen that the property is situated in a restricted development zone and the same cannot be commercially exploited. Taking note of the overall circumstances, we find that a sum of Rs.15,000/- per month, would be a reasonable sum payable as damages for use and occupation. Point No.(v) is therefore partly decided in favour of the appellants and the quantum of future damages is fixed at Rs.15,000/- per month, instead of Rs.30,000/- per month fixed by the trial Court. The decree for payment of Rs.3,60,000/- as past damages is modified and reduced to Rs.1,80,000/-. Point No.(vi):-
31. Adverting to the suit for injunction, it is an admitted fact that the property has been sold after the initiation of the suit. Therefore, the first relief sought for in the suit in O.S.No.213/1993 has become infructuous. As far as the second relief is concerned, the respondents have already instituted the suit in O.S.No.211/1993 Page 27/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 seeking recovery of possession and therefore, the second relief which is for an injunction restraining the defendants from interfering with the plaintiff's possession except under due process of law, has also become infructuous. We must also point out that the attempt made by the plaintiffs in O.S.No.213/1993 to convert the said suit into one for specific performance of the agreement dated 21.06.1986 also failed and the application for amendment was dismissed by the Court. The said dismissal was confirmed by the Hon'ble Supreme Court also in K.Raheja Constructions Ltd., and another vs. Alliance Ministries and others reported in AIR 1995 SC 1768. Hence, we have no hesitation in concluding that the dismissal of the suit for injunction has to be necessarily affirmed.
32. In view of our answers to the points raised in these appeals, the following results emerge:-
i. The appeals in Tr.A.S.Nos.1178 and 1179 of 2004 will stand dismissed confirming the judgment and decree in O.S.Nos.211 and 213 of 1993.
ii. The appeal in A.S.No.518 of 1996 is partly allowed and the damages for use and occupation is fixed at Rs.15,000/- per month payable from the date of suit till the date of handing over possession. It is stated that pursuant to the interim order, the appellants have Page 28/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 been depositing a sum of Rs.10,000/- per month towards damages for use and occupation and the same shall be given credit to.
iii. The award of damages at Rs.3,60,000/- as loss of income, is modified and reduced to Rs.1,80,000/-.
iv. The respondents will be at liberty to withdraw the monies lying to the credit of the suit, deposited pursuant to the interim orders of this Court along with accrued interest, in view of the judgment in M.Elumalai vs Devi @ Perundevi and others reported in (1992) 1 MLJ 113.
The parties shall bear their own costs in these appeals.
(R.S.M., J.) (N.S.K., J.)
09.03.2022
Index : Yes / No
Internet : Yes / No
bala
Note to Registry:-
The decree in A.S.No.518 of 1996 to be drafted as follows:-
(a) The appeal is partly allowed.
(b) The suit is decreed in part granting a sum of Rs.1,80,000/-
towards past damages for use and occupation and future damages at Rs.15,000/- per month from the date of suit till the date of handing over possession. The award of costs by the trial Court is confirmed. In other respects, the suit will stand dismissed. Page 29/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 To The Principal Subordinate Judge, Dindigul.
Page 30/31 https://www.mhc.tn.gov.in/judis A.S.No.518/1996 & TR.A.S.No.1178 & 1179/2004 R.SUBRAMANIAN, J.
AND N.SATHISH KUMAR, J.
bala PRE-DELIVERY COMMON JUDGMENT MADE IN A.S.No.518/1996 & Tr.A.S.Nos.1178 & 1179/2004 DATED : 09.03.2022 Page 31/31 https://www.mhc.tn.gov.in/judis