Madras High Court
Mummalapedu Rathinavelu Chettiar And ... vs R. Balaraman on 13 March, 2007
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
ORDER S. Ashok Kumar, J.
1. This Civil Revision Petition is filed by the plaintiff in the suit against the order dated 14.10.2005, made in C.M.A. No. 116 of 2004 passed by the learned Judge, Fast Track Court No. V, Chennai, confirming the order passed in I.A.No. 11816 of 1997 in O.S.No: 14832 of 1996 passed by the Ist Assistant Judge, City Civil Court, Chennai.
2. The brief facts of the case are as follows:
The petitioner-landlord filed the suit praying for the reliefs if (a) to vacate and deliver vacant possession of the suit premises; (b) for recovery of arrears of rent and (c) for damages and for other consequential reliefs. In the said suit the respondent/defendant filed I.A.No. 11816 of 1997 under Section 9 of the Tamil Nadu City Tenants Protection Act contending that he is the tenant of the land alone and the owner of the superstructure and that he is not the tenant of land and superstructure as contended by the plaintiff. The Trial Court accepting the contention of the defendant allowed the said application by order dated 24.6.2004. Against the said order, the plaintiff filed CMA.No:116 of 2004 before the Fast Track Court and the learned Judge dismissed the appeal. Aggrieved of the same, the present CRP is filed. Pending the CRP, Miscellaneous Petition No:2 of 206 is field by the petitioner/plaintiff to receive the registered Trust Deed dated 20.12.1909 which reveals the character o the property as "Public, Religious and Charitable Trust" and that therefore the provision of Tamil Nadu City Tenants Protection Act as amended by the Act 2 of 1996 , would not apply and the learned Trial Judge had no jurisdiction to hold that the respondent/defendant was entitled to the benefits of the said Act.
3. Since the decision to be rendered in the Miscellaneous Petition as to the admissibility of the additional evidence in this Revision by which the plaintiff sought to claim that the character of the property is a Public, Religious and Charitable Trust, the result in the Miscellaneous Petition will have the bearing on the outcome of the main CRP.
4. Learned Senior Counsel appearing for the respondent however raised strong objections to receive the document as additional evidence as the same is not sustainable both in law and also of facts. According to the Learned Counsel the revisional jurisdiction is equivalent to appellate jurisdiction and the provisions of Order 47 Rule 27 is clear and unambiguous and the petitioner has not made out any case for reception of additional evidence. According to the learned senior counsel, the document sought to be adduced as additional evidence is only a device to tie up the property in the family. Further, the circumstances which clinchingly proved that from 1909 till 1989 no document was filed to prove the existence of public trust, or performance of public religious charities, on the contrary all the documents that were filed by the petitioner only shows that the individual members of the family were treating the property as their own, rent receipts were being issued in individual names and not in the name of the Trust etc.,
5. The learned Senior Counsel for the revision petitioner contended that in the counter filed by the respondent the genuineness of the Trust Deed is not disputed, instead only hyper technical objection is raised that a new document cannot be received in revisional jurisdiction. But the revisional jurisdiction is not an appellate jurisdiction and that too when the document sought to be marked as additional evidence goes to the root of the matter. The suit is filed to recover possession of the land and building against the respondent and the suit would not have been entertained by the civil court if the plaintiff was not a public religious charity. Further, this Court being the guardian of the public trusts is exercising a "parent Patriae" jurisdiction and as there is an element of public trust involved, the hyper technical objection of the respondent cannot stand in the face of the inherent jurisdiction vested under Section 151 CPC read with Order 41 Rule 27 CPC apart from the supervisory jurisdiction vested in this Court under Art. 227 of the Constitution of India.
6. The Learned Counsel for the revision petitioner relied on the judgements of this Court reported in Vol.72 L.W.129 and AIR 1970 SC 1 to hold that the jurisdiction of this Court under Section 115 is an appellate jurisdiction which is wider and larger. He also relied upon the judgements reported in AIR 1992 SC 700; 1996 II LW. 752 and 1999 (3) SCC 115 in support of his claim that additional evidence can be entertained in Revision.
7. Learned Counsel for the revision petitioner further contended that apart from the decision to be rendered in M.P.No:2 of 2006 even if the CRP is considered on merits, the impugned order of the court below is contrary to law. According to the Learned Counsel for the revision petitioner, the burden of proving that the respondent is only a tenant of land alone is on the respondent and will never shift to the petitioner. When the respondent claims that his father had taken the land on lease and constructed the superstructure, then it is for him to prove the same. The oral evidence of respondent as PW.1 and another neighbour as P.W.2 and the documentary evidence Exs.P.1 to P.3 would show that the superstructure was constructed long before the respondent was born and that he does not personally aware of the construction. So also P.W.2 would state that I do not have any personal knowledge of title to the property. In Ex.P.5 series, the rental receipts produced by the respondent, the recital is that it is for premises No. 35, Venkatesa Naicken Street, Royapuram, Chennai. If it is land rent, then it would have been mentioned as land rent. Further, the correspondence between the erstwhile trustee of M.K.Shanmugasundaram and late Ramasamy, father of the respondent, would show that it is specifically mentioned that the premises is rented for and the same is not disputed. The courts below have erroneously presumed that there must have been a lease deed when the same has not been produced at all and the burden is on the tenant who claims benefit under Section 9 of the Act.
8. On the limitation aspect, the Learned Counsel for the revision petitioner contended that the respondent was served with a copy of the plaint, affidavit and petition as per Ex.R.6, dated 27.11.2006. If Rule 6 is taken as service of summons, then the application should have been filed by 29.12.2006, whereas the application was filed only on 10.1.1997 with a delay of 12 days, for which there was no application to excuse the delay under Section 5 of the Limitation Act. It is also contended by him that there is no indication in the court records as to when the suit summons was served and it is the duty of the court to find out when summons was issued and served and not for the petitioner to establish. According to the learned senior counsel, the limitation starts when the defendant is put on notice regarding the suit by service of plaint copy.
9. A perusal of the plaint would show that the allegations in the plaint are that the petitioner-trust is the owner of both land and building, that the respondent/tenant is the tenant of both land and building on a monthly rent of Rs. 500/= that the respondent/tenant has willfully failed and neglected to pay the rent from 1.10.1991, that the tenancy has been terminated by notice dated 10.4.1996 and that therefore the petitioner/plaintiff trust is entitled to the relief of ejectment of the respondent/tenant from the suit property, that it is also entitled to past arrears of rent from 1.10.1991 to 31.5.1996 in a sum of Rs. 28,000/= at Rs. 500/= p.m., that it is further entitled to past damages for use and occupation from 1.6.1996 to 20.6.1996 and future damages from 21.6.1996 till date of delivery of possession.
10. It is also curious to point out that before filing the suit, the petitioner/plaintiff filed petition in RCOP.No. 2700 of 1993 for eviction of the respondent/tenant on the ground of willful default and admittedly the said RCOP was dismissed on the ground that the trust has not filed the revision but the same has been filed by an individual. There was no appeal against the said order in the RCOP, but after the dismissal of the RCOP, the petitioner purported to terminate the tenancy of the respondent by notice dated 1.4.1996 and file the present suit.
11. It is also seen from the proceedings that the defence of the respondent/tenant throughout, right from the time of exchange of notices, during the course of RCOP and in the course of the ejectment suit is that the trust is the owner of only the land and not the superstructure, that the lease in favour of the respondent's father originally was more than 30 years ago and not land and building, the respondent continued to be a tenant of the land subsequent to his father's death and on this basis the tenant filed I.A.No. 11816 of 197 under Section 9 of the Madras City Tenants Protection Act, 1921 for purchase of the land over which his father has built the superstructure.
12. Both the trial court and the first appellate court on a detailed consideration of the elaborate documentary and oral evidence concurrently found that the lease in favour of the tenant is only lease of site and not of both land and building and that therefore the tenant is entitled to purchase the land upon which his father had constructed the building. The attempt by the petitioner to seek to file an additional document as alleged trust deed dated 18.12.1909 and contend that the trust owns the suit property of which the respondent is a tenant is a public trust an that the property of a public trust is exempted from the purview of the Madras City Tenants Protection Act and that therefore the tenant is not entitled to invoke Section 9 of the said Act and purchase the land is taken for the first time before this Court. Even assuming without admitting that the petitioner is a public trust, the trust never came not being and was never intended to be acted upon and the alleged trust deed dated 18.12.1909 is only a devise to tie the property in the family and not executed with an intention to carry out charitable and religious objects or with the object of benefitting the public. Further, there is no evidence let in by the petitioner regarding the charitable and religious objects having been performed all along.
13. In the RCOP, when it was filed it was not stated that the property was a trust property, much less a property belonging to a public trust. Even the petitioner in the RCOP in his chief examination deposed that it is a private trust. If the property belong to a public rust, the eviction petition itself would not have been field by the public trust. In such event the property would have been exempted under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as per Section 29 of the said Act, read with G.O.Ms.No. 2000, Home, dated 16.8.1976. After the RCOP was dismissed as it has not been filed by the trust, the petitioner issued a notice to terminate the tenancy of the respondent. Admittedly, the plaint does not say either in the cause title or in the body of the plaint anywhere that it is a public trust. Even in the counter filed by the petitioner to I.A.No. 11816 of 1997, the petitioner does not say that it is a public trust and that therefore the provisions of Section 9 of the City Tenants Protection Act does not apply.
14. Under Section 115 CPC this Court has to call for the records of any case as has been decided b y any subordinate court for the purpose of finding out, whether the subordinate court has exercised a jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested in it or has acted in exercise of jurisdiction illegally or with material irregularity. The above aspects have to be seen only from the record submitted in the lower court and not on the foot of a record which is sought to be submitted for the first time before this Court in the revisional stage. The respondent was not called upon to meet a case based upon an alleged public trust. Therefore, the petitioner is also estopped in law from putting forward an new case for the first time before this Court in revision that the property belongs to a public trust and that therefore the City Tenants Protection Act does not apply.
15. In 2006 (4) MLJ (SC), the Hon'ble Supreme Court while allowing the appeal setting aside the order of the High Court which remitted the matter with liberty to produce documents in order to fill lacuna in the evidence, held that when the plaintiffs were given sufficient opportunity to produce the documents, the High Court should not have remanded the matter. Therefore, this would make it clear that in the present case as well, the petitioner even though had the opportunity to produce the trust deed of the year 1909, yet had not filed the same before the lower courts and has chosen to file only in the revisional stage which is not permissible considering the facts and circumstances of this case.
16. For the reasons stated above, the CRP and the connected MP.No. 2 to receive additional document are dismissed. Consequently, connected MP.No. 1 is also dismissed. No costs.