Madras High Court
A.Dharmaraj vs V.Parthasarathy on 7 December, 2011
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.12.2011 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR S.A.Nos.1257 and 1258 of 2005 A.Dharmaraj ... Appellant in both appeals vs. 1.V.Parthasarathy 2.P.Bakkiam ... Respondents in both appeals Prayer: Second Appeals filed under Section 100 CPC against the judgment and decree dated 15.12.2004 made in A.S.No.152 of 2002, on the file of the Additional District Judge, Fast Track Court-V, Chennai, confirming the judgment and decree made in O.S.No.3856 of 1997, dated 24.04.2001, made by the V Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.R.Ponnusamy For Respondents : Mr.A.Seshadiri for Mr.P.Veeraraghavan JUDGMENT
The tenant is the appellant in the second appeal. For sake of convenience, the parties are addressed, as per the litigative status before this Court.
2. Suit in O.S.No.7361 of 1992, has been filed by the appellant-tenant for a permanent injunction, restraining the respondents or their agents from in any manner interfering with the peaceful possession and enjoyment of the appellant in respect of the premises No.14, Parthasarathy Street, Ayyavoo Naidu Colony, without due process of law. In O.S.No.3856 of 1997, the respondents have prayed for eviction and damages.
3. Plaint averments in O.S.No.3856 of 1992, are as follows:
The respondents are the absolute owners of the suit property. The appellant is the tenant under the respondents. The appellant-tenant executed an agreement, dated 30.06.1987, in favour of the first respondent, for running a mechanic shed. He occupied the suit property, on a monthly rent of Rs.400/- and agreed to put up a temporary structure covered with asbestos sheets. He has further agreed to remove the superstructure, that would be put up by him in the schedule mentioned land, while handing over the vacant possession of the said land, on the expiry of the lease period of five years, commencing from 30.06.1987. A security deposit of Rs.10,000/- has been paid by the appellant, which is retained by the respondents as an advance. The rent was subsequently increased to Rs.500/- per month and that the defendant, who paid rent till May, 1992, has failed and neglected to pay the rent at the rate of Rs.500/- from June' 1992. Masonry structures put up by the appellant was contrary to the terms of the agreement. The appellant has also constructed a compound wall. On the expiry of five years' period, the respondents-owners have requested the appellant to handover vacant possession. But the appellant did not deliver vacant possession. The appellant is liable to pay monthly rent of Rs.500/- to the respondents-owners from June' 1992. Therefore, on 14.09.1992, a lawyer's notice, terminating the tenancy, in respect of the suit property, was sent, calling upon the appellant-tenant to vacate the suit property. In response to the same, a reply, dated 16.10.1992, stating that he had spent huge money on the construction and it was done with the permission of the respondents-owners. A sum of Rs.2,000/- has been sent along with the reply. A re-joinder has been sent, denying the allegation set out in the reply notice, dated 16.10.1992 and that the respondent has returned the cheque, dated 15.10.1992, for Rs.2,000/- to the appellant-tenant.
4. The plaint averments in O.S.No.7361 of 1992, instituted by the appellant-tenant are as follows: The first respondent has executed a lease agreement, in favour of the appellant-defendant on 30.06.1987, in respect of the suit property, on a monthly rent of Rs.400/-. The lease agreement is for a period of five years. As per the terms of lease agreement, the appellant-tenant is entitled to put up a temporary structure on the said vacant land with concrete poles or pipes, covering with Asbestos sheets or light roofing sheet, for the purpose of running a Mechanic shed and accordingly, the appellant-tenant has put up a superstructure and carrying on business in the said premises, under the name and style of "Southern Freight Carriers" for five years. The appellant-tenant has further submitted that since the respondents are the owners of the suit property and the second respondent gave a consent letter to the Superintending Engineer, Tamil Nadu Electricity System, for installing electrical services in the suit property, by the appellant-tenant, the electrical connection has been given to the suit property in the name of the appellant-tenant. The appellant is also paying electricity consumption charges. He has availed the facility of external Telephone connection.
5. The appellant-tenant has further submitted that he has put up five rooms, measuring 753 Sq.fts., and an Asbestos Shed. He has raised a big compound wall, around the suit property. The appellant-tenant has constructed a superstructure over the suit property, to an extent of 2500 Sq.fts. As per the terms of the lease agreement, he is liable to pay only Rs.400/- per month and since the respondents have allowed the appellant-tenant to raise a pucca construction over the suit property for the purpose of running a mechanic shed and demanded Rs.500/- per month, as rent, to the suit property, he has accepted and paid the same. According to him, the 1st respondent has acknowledged Rs.500/- as rent for very month and assured him that in the event of the suit property, being sold, it would only be sold to him. Though, after the expiry of five years' lease period, the appellant-tenant has orally requested the respondents-owners to renew the lease agreement, for a further period of five years, on several occasions, the respondents have also accepted the plaintiff's request.
6. According to the appellant-tenant, only on the assurance given by the respondents, he has made a pucca superstructure and that the respondents are trying to dispossess him, in a manner not known to law. As he has put a superstructure over the suit property, he is entitled to seek protection under the Tamil Nadu City Tenants Protection Act. It is his further contention that rowdy elements have entered into the suit premises and threatened him. Though the appellant has reported the matter to the Police, no action was taken, stating that the matter is of the civil nature.
7. It is the case of the appellant-tenant that he is the statutory tenant, not only in respect of vacant land, but an absolute owner of the superstructure put up thereon. When he sent a reply on 16.10.1992, with a Cheque to the tune of Rs.2,000/-, being the rent due from June' 1992, the plaintiffs refused to receive and returned it with a rejoinder, dated 18.11.1992. The appellant-Tenant filed I.A.No.15696 of 1992 in O.S.No.7361 of 1992 and obtained an order of temporary injunction, against the plaintiffs. Since he is the statutory tenent, protected under the Tamil nadu City Tenants Protection Act, he is entitled to compensation for the superstructure put up by him, over the suit land.
8. The appellant-tenant has further contended that he has paid token advance of Rs.1,001/-in March' 1991, in pursuance of the oral agreement, that was entered into between the contesting parties, in the presence of one Mr.Madhusudanan and Mr.T.Ramanujam. In the oral agreement, the plaintiffs have agreed to complete the transaction within six months and execute a written agreement, within two months thereafter. Therefore, the plaintiffs are entitled only for adjustment of arrears of rent in the advance paid by him. Hence, he has prayed for dismissal of the suit filed for eviction and damages.
9. Since both the suits pertain only to the same parties, pleadings being the same, with reference to the suit schedule properties and as common evidence was let in, the trial Court has framed separate issues in the suits. In O.S.No.3856 of 1997, the issues framed are (1) Whether the plaintiff is entitled to have vacant possession of the suit property, after removal of superstructure?
(2) Whether the defendant is liable to pay Rs.18,000/- towards past profits upto January' 1997 to the plaintiff?
(3) Whether the defendant is liable to pay future profits at Rs.500/- p.m., upto the date of delivery of possession of the suit property?
(4) Whether the defendant is entitled to the benefits, under Tamil nadu City Tenants Protection Act?
(5) To what relief?
In O.S.No.7361 of 1992, following issues were framed, (1) Whether the plaintiff is entitled to permanent injunction against the defendants?
(2) Is the plaintiff entitled to the benefits of the Tamil nadu City Tenants Protection Act?
(3) Whether the ejectment proceedings taken against the plaintiff is true?
(4) To what relief, the plaintiff is entitled to?
10. Before the lower Court, the land owner, P.Backiam Ammal, examined herself as PW.1 and marked Exs.A1 to A9. The defendant himself examined as DW.1 and marked Form 22, dated 22.11.1989 given to the defendant by TNEB, as Ex.B1. The trial Court, after hearing the submissions and considering the evidence, decreed the suit in O.S.No.3856 of 1997, filed for eviction and damages and dismissed the suit in O.S.No.7361 of 1992 filed for permanent injunction.
11. Being aggrieved by the common judgment and decree made in O.S.No.7361 of 1992 and 3856 of 1997, dated 24.04.2001, the tenant has preferred two appeals in A.S.Nos.152 and 153 of 2002 before the Additional District Judge, Fast Track Court-V, Chennai. Upon considering the memorandum of grounds and the argument, the lower appellate Court has framed the following points for consideration, (1) Whether the tenant/appellant in A.S.No.152 of 2002 is entitled to the relief under the Tamil Nadu City Tenants Protection Act, 1921 as amended by Act II of 1980?
(2) Is the tenant/appellant in A.S.No.152 of 2002 liable to be evicted from the suit property?
(3) Is the tenant/appellant in A.S.No.153 of 2002 entitled to injunction restraining the landlord/respondent from interfering with his possession?
(4) To what relief?
12. Upon perusal of the materials on record and the rival submissions, the lower appellate Court found that there is no manifest illegality in the findings of fact and law, by the lower Court and by a common judgment and decree, dated 15.12.2004, dismissed the appeals.
13. Being aggrieved by the concurrent judgments and decrees of the lower Courts, on the findings that the tenant is not entitled to the protection under the Chennai City Tenants Protection Act, 1921, the tenant has preferred the present second appeals, which have been entertained on the following substantial questions of law,
(a) Had the Lower Appellate Court committed error in considering the right of the Appellant under the City Tenants Protection Act, 1921, as amended by Act II of 1980.
(b) Had the Lower Appellate Court erred in holding that the notice issued by the respondent to terminate the tenancy of the appellant without three months notice under the Tamil Nadu City Tenants Protection Act, 1921.
14. Seeking for reversal of the judgments and decrees of the Courts below on the substantial question of law and referring to plaint averments made in O.S.No.3856 of 1992, filed by the owner of the land, learned counsel for the appellant-tenant submitted that it is an admitted case of the owners of the land that the appellant-tenant had put up masonry constructions and also a compound wall in the suit premises and carrying on business, in the name and style of "Southern Freight Carriers". However, it is the case of the respondents/owners of the land that the abovesaid superstructure and construction of compound wall were not with her sanction and it was unauthorised.
15. It is the further case of the appellant that the admission of the landlord, was only with reference to the vacant plot, but quite contrary to the same, the owner of the plot had let in evidence, that there was a construction in the suit property with shed covered with Asbestas sheet and thus, the said statement is only to defeat the claim of the tenant, seeking for appropriate relief under Section 9 of the Tamil nadu City Tenants Protection Act. He further submitted that once the owner of the land has recognised the appellant as a tenant, with reference to the plot and if any superstructure is put up, the tenant is entitled to either seek for compensation or purchase the land, upon which, superstructure has been permitted to be put up.
16. Learned counsel further submitted that there was no objection to the raising of the construction during the period of lease and in the abovesaid circumstances, the Courts below ought to have held that the tenant is entitled to protection under the provisions of the Tamil Nadu City Tenants Protection Act. He also submitted that if the provisions of the abovesaid enactment are to be extended to a tenant, then, the only mode of termination of tenancy, is by issuance of a notice under section 11 of the Act, which states, that no suit in ejectment or applications under section 41 of the Presidency Small Cause Courts Act, 1882 (Central Act XV of 1882) shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him, requiring him to surrender possession of the land and building, and by offering to pay compensation for the building and trees, if any, and stating the amount thereof. In support of the above contention, he relied on a decision in S.A.Ramachandran v. S.Neelavathy reported in AIR 1997 SC 1735. Placing reliance on a decision in Palani Ammal v. Viswanatha Chettiar reported in AIR 1998 SC 1309, he submitted that once the provision of the Tamil Nadu City Tenants Protection Act, is applicable, notice is mandatory.
17. Per contra, inviting the attention of this Court to the very applicability of the abovesaid Act, learned counsel for the respondents-owners of the property, submitted that the Tamil Nadu City Tenants Protection Act, as amended, will apply only to a tenancy, created before the date of publication in the official gazette, i.e., 03.03.1980 and that having regard to the admitted case of the parties that the tenant was put in possession, by virtue of the lease agreement, dated 30.06.1987, on a monthly rent of Rs.400/- for the period of five years and since the lease was not in existence, prior to 30.03.1980, the provisions of the Act would not confer any benefit to the tenant, in the case on hand, under the abovesaid provisions, either to insist for issuance of the notice of three months, as per section 11 of the Act or to enable the tenant to seek for a direction under section 9(1)(a)(i) of the Act, to sell the land or claim compensation under section 3 of the Act.
18. Placing reliance on decisions in R.M.S.Mahendra Gupta v. Mrs.Shri Chini Subbiah Chetty Charities reported in 2005 (3) MLJ 345 and M/s.Hindustan Petroleum Corporation Ltd., v. Gnanamani Ammal Chatram & Others reported in 2009 (5) LW 474, learned counsel for the respondents/owners of the plot submitted that in view of the admitted position of the date of commencement of the tenancy, ie., 30.06.1987, the appellant-tenant is not entitled to any protection under the abovesaid Act. He further submitted during the pendency of the proceedings for eviction and permanent injunction instituted by the parties respectively, the appellant-tenant has filed an application in I.A.No.3250 of 1988 in O.S.No.3856 of 1997, under section 9 of the abovesaid Act and that the said application was also dismissed, as not pressed on 20.10.2000.
19. Learned counsel for the respondents/owners further submitted that before the lower appellate Court, the appellant-tenant has filed an application in C.M.P.No.10722 of 2002, under section 5 of the Limitation Act, for condoning the delay of 1675 days in filing section 9 of the abovesaid Act and that while testing the judgments and decrees of the lower Court, the lower appellate Court, by its judgment, dated 15.12.2004, dismissed both the appeals in A.S.Nos.152 and 153 of 2002, along with the applications filed in both the appeals. He therefore submitted that when the appellant-tenant did not press the application under section 9 of the Act before the lower Court and also suffered dismissal of the condone delay petition filed under section 5 of the Limitation Act, it is no longer open to him to contend that he is entitled to protection under the abovesaid Act.
20. Reiterating the contention that the amended Act is applicable only to the tenancy prior to 03.03.1980, learned counsel for the appellant-tenant submitted that there is absolutely no question of law involved in the second appeal, much less, any substantial question of law, warranting interference. According to him, the concurrent finding of fact and law, rendered by the lower Courts that the tenancy, in respect of the suit property, by an agreement, dated 30.06.1987, is not governed by the provisions of the Act, cannot be said to be a perverse finding on law, warranting any interference.
21. It is also his submission on the expiry of the lease period by five years on 01.06.1992, in the absence of any express intention for renewal or continuation of the tenancy and having regard to the fact that the respondents not having received any rent from the appellant-tenant, the occupation of the tenant has to be held only as a tenant by sufferance or tresspasser and therefore, the appellant is not entitled to seek for interference, with the well considered judgments and decrees of the lower Courts. In this context, he also relied on a decision of this Court in Ramaswamy v. Palaniandi reported in 2008 (8) MLJ 1181.
22. As to what substantial questions of law means and the duty of the Court, while dealing with the substantial questions of law, reliance was also placed on decisions in Santhosh Hazari v. Purushottam Tiwari reported in 2001 (3) LW 308 and Krishnan v. Backiam reported in 2007 (4) LW 779. As regards the applicability of provisions of the abovesaid Act and the necessity to issue a notice under section 11 of the Act, he has pressed into service the following decisions in S.A.Ramachandran v. S.Neelavathy reported in AIR 1997 SC 1735, Hamsa Patel v. S.Balakrishnan reported in 1997 (1) CTC 367 and M/s.Hindustan Petroleum Corporation Ltd., v. Gnanamani Ammal Chatram & Others reported in 2009 (5) LW 474. In sum and substance, he submitted that the tenant has not established his case under the provisions of the abovesaid Act, warranting any interference and prayed to sustain the impugned judgments.
Heard the learned counsel for the parties and perused the materials available on record.
23. Though the learned counsel for the tenant has made submissions that quite contrary to the tenancy agreement, the owner of the plot has let in evidence to the effect that the tenancy also included vacant land, shed with asbestos sheet, with an intention to defeat the tenant from claiming the benefit under the provisions of the Tamil Nadu City Tenant Protection Act, this Court is not inclined to advert to the concurrent findings of fact, recorded by the Courts below and proceed to adjudicate on the substantial question of law, raised by the tenant. At this juncture, it is relevant to consider the judgments relied on by the learned counsel for the appellant.
24. "What the phrase "substantial question of law" occurring in Section 100 of the Civil Procedure Code (before and after the amendment, 1976), as traced in Paragraphs 10 to 12 in Santosh Hazari v. Purushottam Tiwari reported in 2001 (3) SCC 179, as follows:
"10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on substantial question of law involved in the case. An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction.
11. Even under the old Section 100 of the Code (pre-1976 amendment), a pure finding of fact was not open to challenge before the High Court in second appeal. However the Law Commission noticed a plethora of conflicting judgments. It noted that in dealing with second appeals, the Courts were devising and successfully adopting several concepts such as, a mixed question of fact and law, a legal inference to be drawn from facts proved, and even the point that the case has not been properly approached by the Courts below. This was creating confusion in the minds of the public as to the legitimate scope of second appeal under S.100 and had burdened the High Courts with an unnecessarily large number of second appeals. Section 100 was, therefore, suggested to be amended so as to provide that the right of second appeal should be confined to cases where a question of law is involved and such question of law is a substantial one. (See Statement of Objects and Reasons). The Select Committee to which the Amendment Bill was referred felt that the scope of second appeals should be restricted so that litigations may not drag on for a long period. Reasons, of course, are not required to be stated for formulating any question of law under sub-section(4) of Section 100 of the Code; though such reasons are to be recorded under proviso to sub-section (5) while exercising power to hear on any other substantial question of law, other than the one formulated under sub- section(4).
12. The phrase substantial question of law, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law, means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
"..when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
25. Again, at Paragraph 14 of the reported judgment, the Supreme Court, held as follows:
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
26. In Krishnan v. Backiam reported in 2007 (4) LW 779, at Paragraph 11, held as follows:
11. It may be mentioned that the First Appellate Court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the First Appellate Court under Section 96 CPC. No doubt the findings of fact of the First Appellate Court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the finding of the First Appellate Court that Ramayee and Lakshmi are one and the same person, is a finding based on no evidence or is perverse. Hence the findings of the First Appellate Court that Ramayee and Lakshmi are one and the same person, could not have been interfered with by the High Court.
27. In Boodireddy Chandraiah v. Arigela Laxmi reported in 2007 (4) LW 821, is also a decision on Section 100 CPC, explaining the powers of the High Court, while considering the substantial question of law. At Paragraphs 8 to 12, this Court held as follows:
8. The phrase "substantial question of law", as occurring in the amended Section 100 of the CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the CPC or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC 172), the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sri Chunilal's case (supra), the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad. 969):
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to be particular facts of the case it would not be a substantial question of law."
9. This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
10. In Dy. Commnr. Hardoi v. Rama Krishna Narain (AIR 1953 SC 521) also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 of the CPC.
11. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See: Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [(2001) 3 SCC 179].
12. The principles relating to Section 100 CPC, relevant for this case, may be summerised thus:-
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
28. The substantial questions of law in these second appeals are that,
(a) Had the Lower Appellate Court committed error in considering the right of the Appellant under the City Tenants Protection Act, 1921, as amended by Act II of 1980.
(b) Had the Lower Appellate Court erred in holding that the notice issued by the respondent to terminate the tenancy of the appellant without three months notice under the Tamil Nadu City Tenants Protection Act, 1921.
29. On the settled principles of law, dealing with the powers of the Court to adjudicate the substantial questions of law, let me now consider, whether the tenant is a statutory tenant under the abovesaid Act. Tamil Nadu City Tenants Protection Act, 1921, is an Act to give protection to certain classes of tenants in Municipal Town and Townships and Adjoining areas in the State of Tamil Nadu. Section 1(3) of the Act, states that it shall apply in the areas in which this Act is in force on the date of publication of the Madras City Tenants Protection (Amendment) Act, 1979, in the Tamil Nadu Government Gazette, only to tenancies of land created before that date; and in any other area, only to tenancies of land created before the date with effect from which this Act is extended to such area by notification under clause (b) of sub-section (2).
30. Therefore, reading of the statutory provision makes it clear that only if the tenancy of the land is created before the specified date, provisions of the Tamil Nadu City Tenants Protection Act, 1929, as amended by Act II of 1980, would be applicable. Admittedly, in the case of hand, tenancy is from 30.06.1987, for a period of five years, on payment of rent of Rs.400/- per month. There was no tenancy, subsisting on the date of notification, to extended areas. As rightly pointed out by the lower appellate Court, originally, Aminjikarai, within whose jurisdiction, the suit property is situated, was not in the City of Madras, it was only a Panchayat. Only by virtue of the Act II of 1980, provision of the Act have been extended to Aminijikarai, from 03.03.1980. Thus, even by the admitted case of the tenant, he is not entitled to any relief under the provisions of the Tamil Nadu City Tenants Protection Act, 1979, as amended by the Act.
31. It is the admitted case of both the parties that tenancy for a period of five years from 30.06.1987, expired on 30.06.1992 and thereafter, there was no express intention on the part of the owner of the land to review or continue the lease. The advance amount had also been adjusted towards arrears of rent for a particular period. The benefits conferred under the abovesaid provisions for compensation or right to interfere with the claim of the owner of the plot, over which, the tenant had put up a construction or three months' notice as contemplated under Section 11 of the Act, cannot be accepted to any tenancy created after 03.03.1980. Therefore, the tenant is only a tenancy by sufferance. He cannot become the statutory tenant.
32. In R.M.S.Mahendra Gupta v. Mrs.Shri Chinni Subbiah Chetty Charities reported in 2005 (3) MLJ 345, the respondent-trust, as plaintiff therein, filed the ejectment suit, against the revision petitioner therein, for vacant possession of the suit property, arrears of rent and past and future damages. Besides, there was an averment of alleging encroachment also. The suit was resisted on the ground that there was no encroachment. The other ground for vacating the premises was also opposed. Pending disposal of the suit, the defendant filed an application under Section 7 Rule 11(a) and (d) CPC for rejecting the suit. He also filed another interim application under Section 9(1)(a)(i) of the Tamil nadu City Tenants' Protection Act and sought for a direction to the plaintiff-trust to sell the entire suit land, which was in his possession. The interim applications were dismissed. Challenging the order passed in the interim applications, seeking rejection of the plaint, a revision petition was also filed before this Court. Before the Revisional Court, it was inter alia contended that the finding of the trial Court, holding that the plaintiff therein was a public charity, is not proper and therefore, the defendant therein was entitled to invoke the provisions of the City Tenants' Protection Act. Exhibits were marked to prove that the plaintiff-trust is a public charitable trust and as such, three months' notice as stipulated under Section 11 of the City Tenants' Protection Act is not called for and that the suit filed after causing notice dated 21.8.2001 giving 15 days' time terminating the tenancy with effect from 30.9.2001 is maintainable. Another contention was also raised by the plaintiff-landlord that that inasmuch as the tenant filed I.A.No.16239 of 2002, claiming relief under Section 9(1)(a)(i) of the City Tenants' Protection Act, the defendant being the lessee is estopped from raising want of notice as contemplated under Section 11 of the City Tenants' Protection Act. Reliance was also placed on the decisions of this Court, (1) Natesa Naicker v. Vedagiri reported in 1975 (1) MLJ 301, N.Balasubramania Iyer v. S.P. and Muthukumaraswamy Devasthanam reported in 1983 (1) MLJ 280 and Hamsa Patel and two others v. S.Balakrishnan and another reported in 1997(1) CTC 367. Following the decisions stated supra, a learned single Judge of this Court held that once the defendant had filed application, claiming right to purchase the property, under Section 9(1)(a)(i) of the City Tenant's Protection Act, it is not open to him to raise such plea of want of notice under Section 11 of the said Act and that he is estopped from raising issue of notice under Section 11 of the Act.
33. In Hindustan Petroleum Corporation Ltd., v. Gnanamani Ammal Chatram reported in 2009 (5) LW 474, the plaintiffs therein filed a suit for recovery of possession and for past and future mesne profits. It was resisted by the defendants therein, contending inter alia, that they were enjoying the suit property as successor-in-interest and that therefore, no necessity has arisen to have an independent lease agreement, since the predecessor-in-interest of the first defendant therein, viz., ESSO had already entered into a lease agreement. In the additional written statements, the defendants therein have stated that the plaintiffs have not issued a statutory notice, as contemplated under section 11 of the City Tenants' Protection Act, 1921 and therefore, the suit is not maintainable. The defendants therein also filed a petition under Section 9 of the Tamil Nadu City Tenants Protection Act. Per contra, it was contended that as the property did not come within the purview of the abovesaid Act and that the lease had been terminated by notice, the plaintiffs therein were entitled to get the relief. While considering the rival plea, as to whether the defendants therein are entitled to get protection under the abovesaid Act on the ground that before instituting the suit, a notice under Section 11 of the abovesaid Act, has not been given and that therefore, the suit was not legally maintainable, this Court, after considering the nature of the property, a trust, held that the provisions of the abovesaid Act is not applicable. In addition to the above, the Court also considered, as to whether the suit was maintainable on the ground that the notice, under Section 11 of the said Act was not given. Following the judgment of the Division Bench in Hamsa Patel and two others v. S.Balakrishnan reported in 1997 (1) CTC 367, this Court dismissed the second appeal, as the defendants therein had filed an application under Section 9 of the Act and therefore, estopped from raising want of notice under Section 11 of the Act.
34. In G.Mohamed Thaif v. The Bharath Petroleum Corporation Ltd., reported in 2001 (1) MLJ 335, the petitioners therein sought for a Mandamus, directing the respondents therein to deliver possession of the property. They are the owners of the said property and originally, their father had leased out the site to Burma Shell Oil Storage and Distributing Company of India Limited for a period of twenty years. When the lease came to an end, the Central Government enacted Burma Shell Acquisition of Undertakings in India Act, (hereinafter referred to as the Act) and as per the notification under the Act, the rights of the Burma Shell Oil Storage and Distribution Company came to be vested with the first respondent therein, Bharath Petroleum Corporation Limited. As the period of lease expired by efflux of time, the petitioners' father filed a writ petition before this Court for the relief of recovery of possession in 1979. In the said writ petition, it was contended that as per Sections 5 and 7 of the Act, there can be only one renewal and the first respondent therein has failed to pay fair rent and therefore, they are liable to surrender possession. The writ petition was partly allowed, directing the Central Government to issue proper directions to the Central Public Works Department to determine the fair and reasonable rent. Against which, the first respondent therein preferred an appeal, which was also dismissed. In the mean while, renewal of lease for another twenty years granted to the first respondent therein came to an end and that therefore, the petitioners therein filed a writ petition for recovery of possession on the ground that the first respondent therein is not entitled for further renewal. On the contra, the first respondent therein-Bharath Petroleum Corporation Ltd., contended that the writ petition was not maintainable on the ground that in the earlier writ petition, they had already claimed the benefit of the City Tenants Protection Act and that the said question was left open, by giving liberty to them to claim such relief, as and when the petitioners therein, approach the civil court. The second respondent therein, a distributing agent entrusted with the site, has filed a counter affidavit, stating that they had expressed willingness for the renewal of lease and that the petitioners therein, as well as the representative of the first respondent have discussed the matter and arrived at an arrangement, for renewal of lease. Therefore, it was not open to the petitioners therein to ignore the same. While holding that the second writ petition as maintainable, this Court observed that there is no right for the first respondent-Bharath Petroleum Corporation Ltd., to seek for further renewal of licence. On the question as to whether the first respondent-Bharath Petroleum Corporation Ltd., is entitled to protection under the Tamil Nadu City Tenants Protection Act, this Court held that such protection can be granted only to a tenant, who is in possession of the land, pursuant to an agreement, expressed or implied. At Paragraphs 19 and 20, this Court held as follows:
19. As per the above provision, the tenant is a person, who is liable to pay the rent under tenancy agreement express or implied and continues to be in possession of the land after determination of the tenancy agreement. So, the entire provision makes it clear that the tenant must be in possession of the land pursuant to the agreement expressed or implied. In this case, there is no agreement expressed or implied, since the renewal is at the intervention of the statute. That is why the Division Bench of this Court in the writ appeal held that, "after issuance of notice of termination of lease, the respondent corporation has no right to exercise their option for renewal and they have to vacate the premises. They are rank trespassers".
20. The benefit of the City Tenants' Protection Act can be claimed only by the tenants, but not by the trespassers. Once it is held by the courts that after the expiry of the statutory lease period, the first respondent cannot be considered to be a tenant holding over and they are rank trespassers, this Court is of the opinion that the first respondent is not entitled for any benefit under the City Tenants' Protection Act. Hence the petitioners are entitled for the relief sought for in this writ petition.
35. Pleadings and material on record disclose that the owner of the land by notice has clearly informed the tenant, terminating tenancy on expiry of receipt of notice, as contemplated under the provisions of the Transfer of Property Act, for which, the tenant has also responded. There is no extension of lease. The provisions of the Tamil Nadu City Tenants Protection Act, is not applicable to the appellant. The said application has already been dismissed.
36. In view of the above, the substantial questions of law, is answered against the appellant. There is no manifest illegality in the judgments and decrees of the Courts below. Hence, both the judgments and decrees of the Court are sustained and the Second Appeals are dismissed. Time to vacate and surrender possession, three months from the date of receipt of a copy of this order. No costs.
07.12.2011 Index: Yes Internet: Yes skm To
1. The Additional District Judge, Fast Track Court-V, Chennai.
2. The V Assistant Judge, City Civil Court, Chennai.
S. MANIKUMAR, J.
skm S.A.Nos.1257 and 1258 of 2005 07.12.2011