Madras High Court
Palayammal vs I.Dhanamma on 5 October, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.10.2012 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.No.87 of 2012 & M.P.No.1 of 2012 Palayammal .. Appellant -Vs- 1.I.Dhanamma 2.Jaya 3.Anitha 4.Muthammal 5.Arul 6.Parasuraman 7.Alli 8.Kalavathi 9.Navaneethan .. Respondents Prayer: Second Appeal filed under section 100 of C.P.C against the judgment and decree dated 15.10.2009 passed in A.S.No.631 of 2006 by the learned Additional Judge, Fast Track Court No.II, City Civil Cout at Chennai confirming the judgment and decree dated 04.07.2006 passed in O.S.No.8663 of 1994, by the learned V Assistant Judge, City Civil Court, Chennai. For appellant : Mr.S.Parthasarathy Senior counsel for Mr.R.Murugan For Respondents : Mr.P.B.Ramanujam ----- JUDGMENT
The fourth defendant in the original suit is the appellant in the second appeal. The suit was originally filed by the deceased first plaintiff Jacob for recovery of possession and damages for use and occupation in respect of the suit property, namely the building bearing Door No.20/1, Perumal Koil Garden, 6th Lane, Sowcarpet, Madras 600 079 comprised in Old S.No.3668 and ReS.No.7854. The suit was filed against all the 7 respondents arraying them as Defendants 1 to 7. The first respondent/first defendant Muthammal is the mother of the other respondents, namely Defendants 2 to 7. Contending that Muthammal was the tenant in respect of the suit property and other defendants being members of the same family were residing together with the first defendant Muthammal; that following due process of law, the deceased first plaintiff Jacob filed a Rent Control Original petition before the Rent Controller, got an order of eviction, executed the eviction order and thus got delivery of possession of the suit property on 04.05.1994 and that within a day thereafter, namely on 05.05.1994, the defendants trespassed into the property, the deceased first plaintiff Jacob filed the suit in O.S.No.8663 of 1994 for recovery of possession and also for recovery of damages for use and occupation at the rate of Rs.50/- per day.
2. After the filing of the suit and before its disposal, the original plaintiff Jacob died and his legal representatives Dhanamma, Jaya, Anitha and Prabhakaran got impleaded as plaintiffs 2 to 5. Subsequently Prabhakaran died and the surviving plaintiffs being his legal heirs perused the remedy sought for in the suit by the original plaintiff. Among the seven defendants, the present appellant, who figured as fourth defendant, alone contested the suit and rest of the defendants remained exparte. The appellant, who happened to be the only contesting defendant, filed a very short written statement contending that the other defendants, namely defendants 1 to 3 and 5 to 7 were not necessary parties; that the suit was barred under Section 47 and 144 of the Civil Procedure Code; that the trial Court did not have the jurisdiction to grant the relief of damages; that regarding the very same property, two previous suits, namely O.S.No.3823 of 1994 and O.S.no.5594 of 1994 had been filed by the 4th defendant and that the present suit, being a vexatious and frivolous one, was liable to be dismissed with exemplary cost.
3. Based on the above said pleadings, the trial Judge framed four issues which are as follows:
1. Whether it is true that the respondents have trespassed into the suit property and are in possession of the same?
2.Whether the respondents are bound to vacate and hand over vacant possession of the suit property to the plaintiff as prayed for in the plaint?
3.Whether the plaintiff is entitled to claim damages?
4. To what relief the plaintiff is entitled?
4. In the trial that was conducted before the trial Court, the second plaintiff figured as the sole witness (PW1) and six documents were marked as Exs.A1 to A6 on the side of the plaintiffs. The appellant/4th defendant figured as the sole witness (DW1) and produced 5 documents as Exs.B1 to B5 on her side.
5. The learned trial Judge, at the conclusion of trial, considered the evidence, both oral and documentary, in the light of the points convassed on both sides by the respective counsel in their arguments and upon such consideration, answered the Issues 1 and 2 in favour of the plaintiffs. So far as the third issue is concerned, the learned trial Judge held that the defendants were liable pay damages for use and occupation, but however chose to award damages for use and occupation only the period subsequent to the date of decree at the rate of Rs.40/- per month as against Rs.50/- per day claimed by the plaintiffs.
6. Aggrieved by and challenging the decree passed by the trial Court directing delivery of vacant possession and also payment of damages for use and occupation, the appellant herein/4th defendant preferred an appeal on the file of the lower appellate Court as A.S.No.631 of 2006. Along with the first appeal field before the lower appellate Court, the appellant also filed an interlocutory application in I.A.No.8 of 2009 for reception of additional evidence. As per the contemplated procedure learned first appellate Judge considered the said application along with the appeal and dismissed the same holding that the appellant had not made out a case for reception of additional evidence in the appellate stage. The first appellate Judge, after hearing both sides and on a reappreciation of evidence, concurred with all the findings of the trial Court and dismissed the appeal confirming the decree passed by the trial Court. The said judgment and decree of the lower appellate Court made in A.S.No.631 of 2006 is sought to be challenged in the present second appeal.
7. An appeal against an appellate decree of a Court Subordinate to the High Court shall lie to the High Court under Section 100 C.P.C only on a substantial question of law. Hence, a person who knocks at the doors of the High Court with a second appeal has to precisely formulate the questions of law, which are substantial according to him, and incorporate the same in the grounds of second appeal. If the High Court is satisfied that such substantial question of law or even any other substantial question of law, which has not been incorporated in the grounds of appeal, but is convassed in the High Court when the matter is taken up for hearing, is involved in the second appeal, then the Court shall formulate and record that question of law and admit the appeal. Thereafter, the respondent shall have a right to contend at the time of final hearing of the appeal that no such substantial question of law is involved or that the question of law projected as substantial of law is not at all a substantial question of law.
8. The appellant seems to have formulated as many as five questions and incorporated the same in the grounds of appeal as substantial questions of law. They are as follows:
"1. Whether the learned lower Courts erred in overlooking that the suit itself was not maintainable as the respondents had allegedly earlier taken possession of the suit property by initiating execution proceedings?
2.Whether the learned Lower Appellate Court Judge erred in overlooking that the respondents should have initiated further action in the execution petition already filed and ought not to have filed a fresh suit?
3.Whether the learned lower appellate Court Judge erred in dismissing the petition filed by the appellant praying the additional documentary evidence be let in?
4.Whether the learned lower appellate Court Judge erred in overlooking that the documents sought to be filed as additional evidence went to the very root of the appellant's case and ought to have been received on file?
5. Whether the learned Lower appellate Court Judge was right in relying on the Judgment reported in 2000 III CTC Page 193?"
9. Upon hearing the arguments advanced on behalf of the appellant and after perusing the judgments of the Courts below and also the records of the case, which have been sent for from the trial Court, this Court is of the view that the following alone can be projected as substantial questions of law:
1) Whether a dispossession alleged after delivery of possession in an execution proceedings can be the cause of action for a suit rather than approaching the execution Court itself for restoration?
2) Whether the pendency of the previous suits filed by the appellant/4th defendant was a bar for the present suit?
10. The first contention raised on behalf of the appellant is that when it is alleged that possession was delivered in the execution proceedings and it is alleged that the decree holder was again dispossessed, the remedy available to such decree holder is to approach the execution Court and not to approach the civil Court for recovery of possession. The said proposition made on behalf of the appellant, according to the view of this Court, is untenable and hence, the same deserves to be discountenanced. Of course, it is true that when execution was levied and after the execution of the decree or order, the decree holder's right is infringed, there is a scope for the decree holder to approach the executing Court and complain that the order of the executing Court was violated subsequent to the execution and hence, the same would amount to contempt. But such an opportunity will be available to the decree holder if such disposition is made before recording delivery (execution of the decree) and termination of the execution proceedings. Once the execution proceeding is terminated recording the execution of the decree, thereafter, it is doubtful whether the decree holder can file a second execution petition for the very same relief. But there cannot be any semblance of doubt that if any wrong is committed by the judgment debtor in respect of the subject matter of the decree after the execution of a decree or order that will give rise to a cause of action for a new suit. Therefore, the contention of the appellant that the suit is not maintainable and the remedy available to the plaintiff is to initiate execution proceedings for executing the eviction order passed by the rent controller has got to be rejected as untenable.
11. It is the further contention made on behalf of the appellant that when the appellant had filed suits in respect of the very same property for injunction and got temporary injunction, the present suit filed by the deceased first plaintiff for recovery of possession based on alleged trespass should have been dismissed as abuse of process of Court. The above said contention also deserves rejection as untenable. Simply because an alleged trespasser files a suit for injunction against the person claiming to be the owner and an injunction is granted not to disturb his possession otherwise than by due process of law, the same will not be a bar for the suit filed by the person claiming to be the owner based on the alleged trespass praying for recovery of possession and damages for use and occupation. In fact, there cannot be any valid injunction against a person from instituting a suit for recovery of possession of a property claimed by him to be his own against the alleged trespassor. No injunction can be granted against any person from seeking remedy in a Court of law by adopting due process of law.
12. Apart from that, though earlier suits were filed by the appellant for injunction contending that the first plaintiff was not the owner of the property and the property belonged to a temple and appellant herself put up the superstructure over the temple property, one of the said suits, namely O.S.No.3823 of 1994 was dismissed for non-prosecution as evidenced by Ex.A6. There is no document or evidence to show what happened to the other suit allegedly filed by the appellant. On the other hand, the plaintiffs have filed Ex.A1 and Ex.A3 notice received from the Corporation of Chennai to show that the deceased first plaintiff Jacob became the owner of the suit property by virtue of purchase made by him under Ex.A1 in 1985. Thereafter, the said Jacob filed proceedings in R.C.O.P.No.972 of 1990 for eviction of the first defendant Muthammal, the mother of the appellant and got an order of eviction. The husband of the first respondent and father of the other defendants was the original tenant and after death of the original tenant, the defendants were proceeded against in the R.C.O.P for eviction. From Ex.A4, it is obvious that the eviction order was executed and delivery was effected by the Ameen. If at all the appellant ventured to dispute factum of delivery recorded by the Ameen, she ought to have appeared before the executing Court and prayed for not recording delivery. Had it been done by her, then the executing Court would have again issued a warrant for delivery and any disobedience would have been viewed even as a contempt. Without doing it, the appellant seems to have chosen to file a civil suit as if she was in possession of the suit property on her own right and the property did not belong to the plaintiffs. She had chosen to contend that it belonged to perumal temple. Having suffered an order of eviction before the rent controller, the appellant again contend that the landlord in whose favour the eviction was passed was not the owner of the property. Moreover, the delivery recorded in the execution petition was not challenged.
13. As such, both the Courts below have arrived at a correct conclusion that the very next day after delivery was recorded in the execution proceedings initiated for executing the eviction order, the defendants taking the law in their own hands, forcibly reentered the property and thus, their possession from 05.05.1994 would be that of rank trespassers. The Courts below have also arrived at a correct conclusion that the plaintiffs were entitled to the relief of recovery of possession based on title and based on the proof of trespass. '
14.So far as the grant of damages for use and occupation is concerned, the Courts below seem to have shown leniency in adopting the monthly rent that was paid during the subsistence of tenancy as the quantum of damages for use and occupation as against the claim of Rs.50/- per day (approximately Rs.1500/- per month) and by awarding the damages only for the period subsequent to the date of decree and not from the date of trespass . Though the plaintiffs could have successfully filed an appeal or even a cross-objection regarding the disallowance of damages for use and occupation from the date of dispossession till the date of decree, they have not chosen to do so. This Court, after considering all the above said aspects comes to the conclusion that none of the questions convassed by the appellant can be accepted to be a substantial question of law involved in this case. No question of law shown to have been wrongly decided by the courts below No finding of fact rendered by the courts below has also been proved to be perverse. Thus, this Court arrives at the ultimate conclusion that the second appeal does not even merit admission and the same deserves to be dismissed.
Accordingly, the second appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
gpa To
1.The Additional Judge Fast Track Court No.II City Civil Cout, Chennai
2. V Assistant Judge, City Civil Court, Chennai