Madras High Court
M/S. Sugesan And Co., Pvt. Ltd. vs Pachaiyappa'S Trust And Scheduled ... on 30 September, 1997
Equivalent citations: 1998(2)CTC572
ORDER Judgement pronounced by Shivaraj Pati, J.
1. These two appeals arise against the same judgment and decree dated 28.1.1992 passed in C.S.No.261 of 1983. O.S.A.No.39 of 1992 is filed by the defendant in the said suit, and O.S.A.No.217 of 1993 is filed by the plaintiff in the same suit. For convenience the parties will be referred to in this judgment as they were arrayed in the suit itself.
2. Briefly stated, the facts leading to the filing of the appeals, can be stated thus:
The defendant M/s. Sugesan and Company became a tenant of the plaintiff in respect of the suit premises bearing door No.38, Rajaji Salai, Madras in 1963. The last lease agreement was for a period of five years from 1.12.1977 to 30.11.1982 on a rent of Rs.4,000 per month from 1.12.1977 to 31.3.1978 and at Rs.7,000 per month for remaining period of the lease. The said lease was terminated by notice dated 6.11.1982. There was no agreement between the parties for extension of lease, as the defendant was not agreeable to pay future rent atleast at the rate of Rs.2 per sq.ft. Hence the defendant became liable to pay damages for use and occupation of the premises at the rate of Rs.48,080 per month from the date of termination of the lease, but the plaintiff restricted its claim only to Rs.24,000 per mensem. This suit was filed for a decree directing the defendant to deliver vacant possession of the premises and for recovery of Rs.68,000 being the arrears in respect of damages for the period between 1.12.1982 to 31.3.1983 and damages of Rs.24,000 per month from 1.4.1983 till date of delivery.
3. The defendant in his written statement, admitted that be became a tenant of the suit premises even prior to the lease deed. He pleaded that the defendant proposed for renewal of the lease for a further period of five years as stipulated in the agreement offering to pay enhanced rent. The plaintiff was bound to grant renewal of the lease subject to the Court fixing a reasonable rent, the suit filed by the plaintiff as a charitable trust as having been exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, was not maintainable as the notification granting exemption was violation of Article 14 of the Constitution of India. Since the plaintiff stood up and allowed the defendant to carry out various works of repairs to the building it was estopped from complaining about the same and the defendant was entitled to claim from the plaintiff the expenses for the improvement done to the building no notice of termination dated 6.11.1982 terminating the tenancy of the defendant had been received by the defendant; and the provisions of Section 106 of the Transfer of Property Act had not been complied with.
4. In the additional written statement the defendant averred that the suit instituted at the instance of Pachaiyappa's Trust, represented by its Secretary is not maintainable; the Government of Tamil. Nadu had taken over the said trust in 1981; the suit property belonged to P.T. Lee Chengalvaraya Naicker Trust (for short Chengalvaraya Trust) the suit was not maintainable as it was not filed on behalf of Chengalvaraya Trust; there was vacuum in the office of the trustees of Chengalvaraya Trust and hence neither the committee of management referred to in the Pachaiyappa's Trust (Takingover of Management) Act 11 of 1991, nor the Secretary of the Pachaiyappa's Trust could file the suit against the defendant.
5. In the rejoinder filed by the plaintiffs it was stated that the defect if any in regard to the frame of the suit had been cured by reasons of the application for amendment of the plaint as ordered in Application No. 140 of 1989; a Division Bench of this Court held that the provisions of Tamil Nadu Act 11, of 1981 aforementioned did not apply to Chengalvaraya Trust; subsequently the said Act was suitably amended with retrospect effect; besides, the Supreme Court by its order dated 19.11.1987 is S.L.P.No.11562-65 of 1987 had appointed there additional members of the Pachaiyappa's trust to the existing committee of management of Chengalvaraya Trust; thus three were eight members of the Committee of management administrating the plaintiff trust. Since there had been a misdescription of the plaintiff in the plaint as originally filed, and there was a change in the composition of the management of the trust, the plaint was amended giving correct description. Such an amendment dates back to the date of presentation of the plaint. So the objectives of the defendant as to the maintainability of the suit was untenable. No improvements had been effected by the defendant to the suit property and the alleged improvements were unauthorised. The defendant was not entitled to the value of the said improvements. At any rate the defendant has not filed any counter claim or pleaded set off in that regard. As the period of lease was determined, by efflux of time, no notice of termination was necessary.
6. On the basis of these pleadings of the parties, the learned single judge framed the following issues :-
(1) Whether the plaintiff is bound to grant the renewal of the lease for a period of 5 years from 1.12.1982.
(2) Whether this Court has to fix a reasonable rent for the said renewal period.
(3) Whether the suit in ejectment based oh the notification granting exemption is not maintainable?
(4) Whether the defendant is liable to pay any damages for use and occupation?
(5) Whether the provisions of Section 106 of the Transfer of Property Act have not been complied with?
(6) Whether the suit instituted at the instance of Pachaiyappa's Trust repre-sented by its Secretary is not maintainable?
(7) Whether the defendant is entitled to claim from the plaintiff the expenses for improvements if any done to the building?
(8) Whether the claim for damages for use and occupation is not in time?
(9) To what relief?
7. The learned single judge, on the basis of the evidence, both oral and documentary placed before him, and considering the submissions made by the learned counsel for the parties relating to the issues framed, recorded a finding in favour of the plaintiff's and granted reliefs, decreeing the suit for recovery of possession of the premises as prayed for, and for Rs.1,95,000 towards damages for use and occupation of the premises till the end of November, 1991, and damages at the rate of Rs.1,000 per month from 1.12.1991 till the date of realisation, with costs. The calculation memo filed by the plaintiff on 6.12.1991 was also made part of the decree.
8. As already stated above, the defendant has filed O.S.A.No.39 of 1992 challenging the Judgment and decree passed by the learned single judge and the plaintiffs have filed O.S.A.No.2317 of 1993 to the extent of refusing the relief claiming arrears of damages amounting to Rs.68,000 being the difference in the damages for the use and occupation from 1.12.1982 to 31.3.1983 and awarding damages only at the rate of Rs.12,000 per month from 1.12.1982 as against the claim of the plaintiff at the rate of Rs.24,000 per month.
9. C.M.P.No.2732 of 1997 is filed by the plaintiff in O.S.A.No.217 of 1993 seeking amendment of the cause title, from Pachaiyappa's Trust and Scheduled Public Trusts and Endowments represented by the Committee of management consisting of eight members, as P.T. Lee Chengalvaraya Naicker Trust, represented by interim committee of three members.
10. We have heard the learned counsel for the parties on the merits of the appeals as well as on the abovesaid amendment application.
11. Shri T.R. Mani, learned senior counsel for the defendant, fairly submitted that the findings on issue Nos. 1 and 2 are not seriously disputed. He submitted that issue No.3 cannot be pressed in view of the validity of the Notification granting exemption to the plaintiffs from the provisions of the Tamil Nadu Building (Lease and Rent Control) Act, by the Apex Court. The learned senior counsel made submissions elaborately on issues 5 to 7 with particular emphasis assailing the finding of the learned single judge on issue No.6.
12. The learned Senior Counsel contended that the suit instituted at the instance of Pachaiyappa's Trust represented by its secretary was not at all maintainable; the suit property belongs to Chengalvaraya Trust; it being a trust property, all the trustees should have represented the trust in the suit; although the plaint was amended twice, it was not verified by the competent persons who represented the trust; the original verification of the plaint made by the Secretary of Pachaiyappa's trust remained as it was; now one more application for amendment of plaint is filed in this appeal to make Chengalvaraya Trust as the plaintiff to take advantage of the decree; though the rejoinder was verified by eight members who represented the plaintiff after amendment, the plaint was not verified; though the amendment of short cause title is sought, the other averments in the plaint stand as no other amendment to the averments in the plaint. He also contended that the provisions of section 106 of the Transfer of Property Act had not at all been complied with before filing the suit, and on that account also the suit was not maintainable. He further submitted that the defendant was entitled to claim from the plaintiff the expenses for the improvements made to the buildings, and the claim of the plaintiff ought not have been allowed as sought by the plaintiff having regard to Section 21 of the Limitation Act.
13. Shri T.V. Ramanujan, learned senior counsel for the plaintiff submitted that the judgment and decree under appeal are unassailable except to the extent that the damages for use and occupation of the building awarded was on lesser side, having regard to the prevailing rent in the area, damages ought to have been awarded at the rate of Rs.24,000 per mensem. He submitted that the defendant took lease of the building under Ex.P.l which was executed by the Secretary of the Trust; if the argument of the defendant is to be accepted that the secretary was not competent to file the suit, the defendant became a trespasser over the property right from the beginning; if the defendant was entitled for renewal of lease he ought to have filed a suit for specific performance of the agreement; that having not been done it was not open to the defendant to contend that it was entitled for renewal of lease; even otherwise the learned single judge, on the basis of the materials available on record, has held that the plaintiff was not bound to grant renewal of the lease for a period of five years from 1.12.1982; the defendant having occupied the building as a lessee cannot deny the title of the landlord; by denying the title he entails forfeiture of his rights as a lessee.
14. As regards the amendments sought to the plaintiff twice earlier in the suit, and for the third time in this appeal, the learned counsel submitted that such amendments became necessary because of the subsequent developments, by operation of law, and by the direction of the Supreme Court. The learned counsel further submitted that admittedly the building belongs to Chengalvaraya Trust and the defendant was a lessee; there was no change of the plaintiff the amendments were intended so as to represent the plaintiff by describing the persons properly representing it; assuming that there was any defect in the verification of plaint, that was not fatal and it cannot be stretched to the extent of saying that the suit itself was not maintainable on that account.
15. We have carefully considered the submission made by the learned counsel for the parties. The following points arise for determination in these appeals;-
(i) Whether the suit filed by the plaintiff was maintainable?
(ii) Whether the provisions of Section 106 of the Transfer of Property Act were complied with?
(iii) Whether the award of damages at the rate of Rs.12,000 per month is inadequate?
(iv) If the suit is held maintainable to what relief the parties are entitled to ?
16. The suit was filed on 28.4.1983 for ejectment of the defendant by Pachaiyappa's Trust represented by its Secretary as the plaintiff. In the additional written statement filed by the defendant on 13.12.1988 the defendant raised a contention that the suit filed at the instance of Pachaiyappa's Trust represented by its Secretary was not maintainable as the management of Pachaiyappa's Trust had been taken over by the Government of Tamil Nadu under the Pachaiyappa's Trust (Takingover of Management) Act, 11 of 1981. Hence application No.140 of 1989 was filed by the plaintiff for amendment, for substituting the words "Pachaiyappa's Trust and allied Public Trusts and Endowments, represented by the Committee of Management, consisting of eight persons, which application was allowed on 19.1.1989. Later on, as per the order dated 2.11.1989 passed by the learned single Judge in Application No.4739 of 1989, the word "allied" was deleted, and in its place the word "scheduled" was substituted. In the result, the plaintiff was described as "Pachaiyappa's Trust and Scheduled Public Trusts and Endowments comprising of the Chairman and 7 members. The names of the eight persons were also specified in the cause title.
17. It may be mentioned here that as per the scheme the trustees of the Pachaiyappa's trust were to manage Chengalvaraya Trust as its Ex-Officio trustees. As already stated above, because of the taking over the management of Pachaiyappa's trust under Act 11 of 1981 and subsequent orders passed in S.L.P. No. 11562-65/87 dated 19.11.1987, Application No.140 of 1989 dated 19.1.1989 and Application No.4739 of 1989 dated 2.11.1989 the amendments became necessary and they were allowed.
18. The plaintiff has filed C.M.P.No.2732 of 1997 in the appeal having regard to the present position, seeking amendment of the cause title as P.T. Lee Chengalvaraya Naicker Trust rep. by Interim Committee by (i) Dr. M.A.M. Ramaswamy as Chairman and (ii) Shri S. Subramaniam, I.A.S. (Retd.) and (iii) Shri M. Manickvel, I.A.S. (Retd.) as members in the place of the existing cause title relating to the plaintiff. The suit filed is one for ejectment of the defendant and recovery of damages for use and occupation of the building. The suit property belongs to Chengalvaraya Trust. The defendant admittedly had taken the building on lease initially. It is also not shown as to how the case of the defendant would be prejudiced by allowing the amendment relating to cause title. Neither the cause of action changes nor the nature and character of the suit is varied by allowing the amendment. On the other hand, if the amendment application is not allowed, it may result in great hardship to the plaintiff and also driving the parties to multiplicity of judicial proceeding. Under the circumstances, in our opinion, it is appropriate to allow the amendment Application No.2732 of 1997 and it is ordered accordingly.
19. As already stated above, there is no dispute that the suit building belongs to Chengalvaraya Trust. In the letters Exs.P.5 and P.6 dated 10.12.1982 and 25.1.1983 addressed by the plaintiff to the defendant, it is stated that the suit property is the property belonging to Chengalvaraya Trust. The distinction between the two Trusts was made out in the decision of the Division Bench of this Court in O.S.A.Nos.114,123 and 126 of 1987. The common feature was that the trustees of Pachaiyappa's Trust became entitled to be trustees of Chengalvaraya Trust also by virtue of their being trustees of Pachaiyappa's Trust, that is to say, trustees of Pachaiyappa's Trust were ex-officio trustees of Chengalvaraya Trust.
20. In view of the vast properties of Pachaiyappa's trust and large estates of Chengalvaraya Trust, the Division Bench of this Court thought it is desirable that a separate set of persons manage the Chengalvaraya Trust. Hence, it appointed four persons with Dr. M.A.M. Ramaswamy, as its Chairman, as interim trustees as per the order dated 7.10.1987 made in O.S.A.Nos.114, 123 and 126 of 1987 and C.M.P.No.19860 of 1987. The Supreme Court in SLP Nos. 11562-65 of 1987 further directed to add three more persons as members of the Committee. Under the circumstances, as already stated, the two earlier amendment applications filed by plaintiff were allowed by the learned single judge, and we have also allowed the amendment application filed in C.M.P.No.2732 of 1997 in this appeal, as already stated above. Admittedly the suit property belongs to Chengalvaraya Trust, and the defendant entered the property as a lessee. The amendment application were only with regard to the persons representing the plaintiff. It is not a case of change of the plaintiff or the nature of the suit, or the change in the cause of action.
21. The contention of the learned counsel for the defendant is that even after the amendments, the plaint was not verified by all the persons representing the plaintiff. The original verification made by the Secretary of Pachaiyappa's Trust remained. We may mention here that the rejoinder was signed by all the persons representing the plaintiff. It is not a case where the plaint was not at all verified. On the date of institution of the suit the Secretary of Pachaiyappa's Trust was authorised to sign the plaint and file the suit. Even otherwise any defect in the verification of the plaint cannot defeat the claim of the plaintiff, particularly so when none of the persons representing the plaintiff at any time refused to prosecute the suit or took objection for continuation of the suit. At any rate the suit filed was for the benefit of the trust and served the interest of the trust. In this view the objection of the defendant that all the trustees have not joined in filing the suit or that the plaint was not properly verified is untenable.
22. Ex.P.13 shows that the committee of management on 21.4.1982 resolved to authorise the Secretary of the Pachaiyappa's Trust for the time being, to represent the said committee to commence legal proceedings in that behalf, and also to subscribe and verify the pleadings. That authorisation also enabled the Secretary to appear for the said committee in any Court of law. As per Ex.P.15 the committee had delegated to the Secretary, the power to represent the committee of management of Chengalvaraya Trust, and to commence such action or proceedings deemed proper. It also ratified the action taken by the Secretary.
23. The learned single judge has referred to the case in M.C.S. Rajan and Company v. National Nail Industries, Tiruchirapalli and others, 1975 (2) MLJ 490. That was a case in which the plaint was verified by the manager of the plaintiff. The power of attorney had not been filed at the time of the trial. The defendant raised an issue that the suit was not maintainable since it was not signed by the plaintiff. Later the authority given to the Manager was produced. It was held that once the principal ratifies the action of the agent it follows that the act was performed by the Principal Even if there was any irregularity in the verification of the plaint at the time of filling of the suit, in view of the authorisation under Ex.P.l; in the case on hand, authorising the Secretary of the Trust to file the suit and verify the plaint, the defendant's objection cannot be sustained. As stated above, the rejoinder was signed by all persons representing the plaintiff as members of the committee. Thus in substance the rights of the plaintiff could not be affected so as to dismiss the suit on the ground that there was no proper verification of the plaint.
24. In the case of Karim Singh v. Ram Rachhpal Singh and others, , it is held that the requirement in Rules 14 and 15 of Order 6, C.P.C. that a plaint should be signed by the party and should be verified by him are purely matters of procedure and it is always open to such party to make good the deficiency at a later stage.
25. The Apex Court in the case of United Bank of India v. Naresh Kumar and others, A.I.R. 1977 S.C. 3 has held that in cases where suits are instituted or defended on behalf of public Corporations like bank, public interest should not be defeated on a mere technicality, procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause, and that a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. It is further held that in cases where pleadings have been signed by one of its Officers, a Corporation can ratify the said action of its officer in signing the pleadings; such ratification can be express or implied, and that would be regarded as a sufficient compliance with the provisos of Order 6, Rule 14, C.P.C.; the court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, came to the conclusion that there had been ratification of the act of signing of the pleadings by its Officer. Paragraph 12 of the said Judgment reads:
" The court below having come to a conclusion that money had been taken by respondent No.1 and that respondent No.1 and husband of respondent No.3 had stood as guarantors and that the claim of the appellant was justified, it will be a travesty of justice if the appellant is to be non-suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable.
26. Applying the ratio of the above judgment of the Apex Court to the facts and circumstances of the case on hand, we have no hesitation to reject the contention of the defendant that the plaint was not properly verified by the competent persons. The facts found and established in the case on hand are that the property belongs to Chengalvaraya Trust; the defendant entered it as a lessee; the suit is one filed for ejectment and recovery of money by way of damages for use and occupation; and amendments were made to the plaint from time to time having regard to the subsequent developments either due to the orders of the Court or by operation of law when there was change in the constitution of Committee of management or change in the trustees. The persons representing the plaint have continued the proceedings by filing rejoinder signed by all of them; even the C.M.P.No.2732 of 1997 filed now for amendment is by the persons representing the Chengalvaraya Trust; and one of them has filed the affidavit in support of the said petition. Thus even if there was any irregularity in verification of the plaint, that cannot go to the root of the matter. In this view we hold that the suit, as rightly held by the learned single judge is maintainable, and we do not find any good or valid ground to differ from the learned single judge on the finding recorded by him on issue No.6. The learned single judge has given elaborate reasons referring to both oral and documentary evidence in paragraph 7 to 30, in arriving at the conclusion on issue No.6.
27. The next point that arises for consideration is whether there was compliance with the provisions of Section 106 of the Transfer of Property Act before filing the suit. From the records it is clear that Ex.P.3 notice dated 6.11.1982 was issued by the plaintiff to the defendant terminating the tenancy with the expiry of the month ending on 30.11.1982, calling upon the defendant to deliver vacant possession of the suit property. Ex.P.3(a) is the postal acknowledgment for receipt of the said notice. In the written statement the defendant denied receipt of the said notice, and on that basis it was contended that the provisions of Section 106 of the Transfer of Property Act had not been complied with; it was also contended that none identified the signature of the defendant in Ex.P.3(a) and as such there was no proof of service of the quit notice on the defendant.
28. P.W.1 Narasimhan has spoken about issuing of the notice and acknowledgement of receipt of the notice. In this regard there was no cross examination. There was not even a suggestion made to him repudiating the signature found in the postal acknowledgement Ex.P.3(a). Added to this Ex.P.9 is the reply of the defendant dated 20.11.1982 through Advocate as if it is the reply to the notice dated 29.10.1982 and that no notice dated 29.10.1982 had been sent to the defendant from the plaintiff, and that the date mentioned in Ex.P.9 was a mistake. Thus on the basis of evidence it was found that notice was issued to the defendant under Section 106 of the Transfer of Property Act and the same was received by the defendant. Further Ex.P.2 dated 29.11.1982 discloses that one of the Directors of the defendant viz, Gopalachari conceded that a notice of termination of tenancy was issued by Pachaiyappa's Trust and they had sent a reply to it.
29. The learned single judge has also referred to the decision on the case of Balgovind v. Bhargava Book Depot, in which it was held that under Section 106 of the Transfer of Property Act it is not necessary that a notice sent by registered post should be delivered personally to the lessee, or to one of his family members, or his servants; where such a notice is received by somebody who signed on behalf of the addressee-tenant, it is the duty of the tenant to prove that the person who signed was neither his servant nor agent nor a member of his family, and in the absence of such proof the presumption that the registered letter was delivered at the house in dispute could not be rebutted. Then there has been compliance with the provisos of Section 106 of the Transfer of Property Act.
30. It was also urged that when Ex.P.3 was issued on 6.11.1982 the committee of management had come into existence consequent upon the taking over of the management by the Government and that Pachaiyappa's Trust Board on behalf of which Ex.P.3 was issued was not in existence, and as such the said notice was issued by some one who was not the plaintiff. This argument is to be rejected for the simple reason that there was no change of the landlord and the demised property, and there was only change in the management. Yet another aspect to be seen that on the expiry on the lease period as mentioned in Ex.P.1 or after the termination of lease by virtue of Ex.P.l notice, what was the position of the defendant.
31. In Shanthi Devi v. Anil Kumar, A.I.R. 1981 S.C. 1550 it is laid down that where a lease is for a definite term, it expires by eflux of time under Section 111(a) of the Transfer of Property Act and as such service of notice under Section 106 of the Transfer of Property Act was not necessary for determination of lease; where the lease is for a period of fixed term, the Court cannot take the pleadings of the parties for determining the nature of the lease; the parties cannot alter the intrinsic character of lease by their pleadings; in the absence of allegation by the tenant that he was a tenant holding over within the meaning of Section 116 of the Transfer of Property Act, the matter is governed by Section 111(a) of the Act; and it was held that service of notice under Section 106 of the Transfer of Property Act was not necessary in that case.
32. Even in the case on hand, the lease period expired by eflux of time, and there is no allegation by the defendant that it was tenant holding over. Hence, the matter falls under Section 111(a) of the Transfer of Property Act. So after the expiry of the period mentioned in Ex.P.1 the defendant became a trespasser from 1.12.1992 and onwards. Hence there was no necessity of service of notice under Section 106 of the Transfer of Property Act. On the evidence placed on record it was clearly found that the lease was not renewed and the term of lease was not extended beyond 30.11.1982. The finding of the learned judge even on issue No.1 was against the defendant, in that, it was held that the plaintiff was not bound to grant renewal of lease in favour of the defendant for a period of five years from 1.12.1982. As already stated above, the finding of the learned single judge on issue Nos.1 to 3 were not challenged by the learned counsel for the defendant, and no argument was advanced on those issues.
33. The defendant claimed the expenses for improvements said to have been made to the suit building. In the written statement it is stated that the defendant has been maintaining the building in good order and condition, carrying out major works of repair ever since 1977 with the knowledge of the plaintiff, and the plaintiff having allowed the defendant to carry out various works of repairs, replacements, and reconstructions, it is estopped from claiming enhanced rent. It is to be seen that it is not the case of the defendant that the plaintiff is not entitled to possession unless the value of the alleged improvement is paid. There is nothing to show that the plaintiff authorised the defendant to carry out the improvements. The defendant has neither filed any counter claim nor pleade set off, nor has he paid necessary court-fees. No structural alterations, constructions or major changes could be made in the existing suit building without the written consent of the lessor.
34. The defendant has been the beneficiary, by use and occupation of the suit building, having a total area of 12020 Sq.ft in the ground and two floors for several years. There are no details in the written statement and evidence as to the nature of improvements or construction or alteration, and the amount spent on such improvements, and further whether they were real improvements with reference to the suit building. Under the circumstances the teamed single judge was right in holding that the defendant was not entitled for the expenses for the improvements said to have been made.
35. Now, the points remain to be considered are, whether the defendant is liable to pay damages for use and occupation, whether the claims for damages for use and occupation is not in time, and in case the plaintiff is entitled for damages, at what rate. In view of the findings recorded above, it is clear that there was no renewal of lease in respect of the building in favour of the defendant after 30.11.1982. In other words, it is in use and occupation of the building from 1.12.1982 as a trespasser and that being the position, he is liable to pay damages for use and occupation.
36. It was contended on behalf of the defendant that the claim for damages for use and occupation of the building prior to 2.11.1986 was barred by limitation on the ground that the plaint was ordered to be amended for the second time on 2.11.1989, hence the suit must be deemed to have been instituted only on 2.11.1989. The learned senior counsel for the defendant placed reliance on some decisions in support of his submissions in this regard referring to Section 21 and 22 of the Limitation Act. We are of the view that the said decision do not apply to the facts of the case on hand. These decisions apply to the cases wherever a new plaintiff or new defendant is substituted under Order 1, Rule 10(1) or (2). Whether a new plaintiff or defendant is added or substituted, the effect of Section 22 of the Limitation of Act would be that the suit must be deemed to have been instituted by the new plaintiff when he was made a party. In the present case there was no question of adding or substituting the new plaintiff. The suit is by and on behalf of the trust. There has been change only in the representation of the plaintiff either by trustees or by the members of the committee, as the case may be.
37. In the case of Andhra Pradesh State Electricity Board v. M/s. Patel and Patel, the facts were that the suit was originally filed against four officers of Andhra Pradesh State Electricity Board. Subsequently the cause title of the point was amended by addition of the words "A.P.State Electricity Board represented by...." It was held that the suit against the Electricity Board must be taken to have been instituted from the date when the suit was originally instituted and not from the date when the amendment was ordered by the Court. It is needless to state, in such matters the substance has to be looked into but not the form in which the pleadings are drafted. The Court is always competent to correct errors of description.
38. Coming to the present case, it is clear from the pleadings, and the facts and circumstances of the case that the suit was originally instituted by the correct plaintiff. By way of amendment, no new party has been added. Therefore, the suit must be taken to have been instituted from the date when the plaint was originally filed and not from the date when the amendment was ordered. Hence the contention of the defendant that the claim for damages for use and occupation was barred by time for the period prior to 2.11.1986 cannot be accepted.
39. As per Ex.P-1 lease agreement dated 4.1.1979 the rent was fixed at Rs.4,000 per month from 1.12.1977 to 31.3.1978 and Rs.7,000 per mensem from 1.4.1978 till 30.11.1982. The period of tenancy expired by eflux of time on 30.11.1982. Negotiations between the parties were started towards the end of the lease period for renewal of lease as stated in the plaint. The property in the occupation of the defendant consists of three floors i.e., ground floor and two floors with a total area of 12020 Sq.ft. In the plaint it is further stated that the prevailing rent in Rajaji Salai where the suit building is located is Rs.5 per Sq.ft. and if the suit building was to be let out, as on the date of filing of the plaint to others, it could fetch rent at least Rs.60,100 per month, since the defendant has been a tenant for more than 30 years, during the negotiations, the plaintiff was agreeable to renew the lease for a period of five years at the rate of Rs.4 per sq.ft. but the defendant made final offer of Rs. 10,000 per month by its letter Ex.P-7 dated 23.2.1983. Further in the meeting held on 12.4.1983 the plaintiff was prepared to renew the lease at the rate of Rs.2 per sq.ft but the defendant was not agreeable to pay more than Rs.1 per sq.ft. Hence the plaintiff claims future damages for use and occupation at the rate of Rs.24,000 per month.
40. After the expiry of the lease period on 30.11.1982 the defendant continued to be in possession of the suit building; there were negotiations between the parties regarding the rate of rent which ultimately failed. Hence the defendant is liable to pay reasonable amount for use and occupation of the building, and the Court has to fix it. In the cross examination of P.W.1 it was suggested that the total rent agreed to be payable by the defendant was Rs.12,000 per month. The learned single judge has noticed that in the calculation memo filed by the learned counsel for the plaintiff on 6.12.1991 the damages for use and occupation payable was calculated at Rs.12,000 per month up to the end of November, 1991. The learned single judge, having regard to all aspects, granted decree for recovery of possession as prayed for by the plaintiff, and for recovery of Rs.1,95,000 as damages for use and occupation till the end of November, 1991, and damages at the rate of Rs.12,000 per month from 1.12.1991 till the date of realisation, and for costs. Two months time was granted for eviction. We do not find any good or valid reason to differ from the conclusions arrived at by the learned single judge even with regard to the quanturm fixed towards damages for use and occupation, particularly taking note of the memo of calculation filed by the learned counsel for the plaintiff.
41. In the result, for the reasons stated, we find no merit in O.S.A.No.39 of 1992. It is liable to be dismissed, and accordingly it is dismissed with costs, confirming the judgment and decree under appeal. Consequently we dismiss O.S.A.No.217 of 1993 also, but with no order as to costs.
42. Immediately after we pronounced the judgment the learned senior counsel for the appellant in O.S.A.No.39 of 1992 submitted that the appellant having been in possession of the property for about 35 years, it may be difficult for it to vacate the premises immediately, under the circumstances some reasonable time may be granted to vacate the premises. The learned senior counsel submitted that atleast one year's time may be granted. The learned counsel for the respondent-plaintiff submitted that the appellant has been in possession of the property even after the expiry of the period of lessee as early as in 1982, and the appellant has been dragging on the proceedings.
43. The learned single judge had granted only two months time to vacate. The learned counsel for the respondent/plaintiff submitted that only three months time may be granted at the most. Having regard to all aspect of the case, and in the circumstances, we think it just and appropriate to grant time to the appellant to vacate and deliver vacant possession of the premises in question on or before 31.3.1998, subject to the following conditions:-
(i) The appellant shall file an affidavit of undertaking that it shall vacate and deliver vacant possession of the suit property to the respondent on or before 31.3.1998 without driving the respondent to adopt recourse to execution proceedings.
(ii) The appellant shall pay the arrears of damages/rent if any, as per the decree passed by the learned single judge under appeal within a period of two weeks from today, and shall continue to pay damages at the rate of Rs.12,000 per month for use and occupation of the building, every month on or before 10th of each succeeding month; and
(iii) Such affidavit shall be filed within two weeks from today.