Madras High Court
K.P.N.Palania Pillai vs R.Bhagyalakshmi on 28 November, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/11/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.(MD) No.732 of 2011 and M.P.(MD) No.2 of 2011 K.P.N.Palania Pillai ... Appellant/Defendant Vs. R.Bhagyalakshmi ... Respondent/Plaintiff Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned Subordinate Judge, Ambasamudram dated 24.11.2010 in A.S.No.39 of 2007 partly confirming the judgment and decree of the learned Principal District Munsif, Ambasamudram dated 30.03.2007 in O.S.No.555 of 2004. !For Appellant ... Mr.M.Ramasamy ^For Respondent ... Mr.V.Meenakshisundaram for Mr.M.Vallinayagam * * * * * :JUDGMENT
This Second Appeal is focussed by the original defendant animadverting upon the judgment and decree dated 24.11.2010, passed in A.S.No.39 of 2007 by the learned Subordinate Judge, Ambasamudram in partly confirming the judgment and decree dated 30.03.2007, passed in O.S.No.555 of 2004 by the learned Principal District Munsif, Ambasamudram.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Avoiding discursive delineation, a summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of the Second Appeal would run thus:
The plaintiff, filed the suit for recovery of possession of the suit property on the ground that she purchased the suit property from the defendant as per Ex.A.1 - the Sale Deed dated 16.10.2002, however, soon after the execution of the sale deed the property was not handed over to her by the defendant; on the other hand, the defendant agreed to occupy the suit property for a monthly rent of Rs.600/- (Rupees Six Hundred only) for some time and thereafter, vacate and hand over it to her. Subsequently, in as much as the defendant resiled from his commitment, the plaintiff after issuing pre-suit notice and getting reply from him filed the suit.
4. The defendant resisted the suit by filing the written statement on the grounds that the said sale deed was executed only for selling the same for higher price and to pay the higher price by the plaintiff and to pass on the same to the defendant. As such, the question of sale did not arise at all. There is no landlady - tenant relationship emerged between the plaintiff and the defendant as alleged in the plaint.
5. Whereupon, the relevant issues were framed by the trial Court.
6. During trial, the plaintiff examined herself as P.W.1 along with P.W.2 and marked Exs.A.1 to A.8 on her side. On the side of the defendant, the defendant examined himself as D.W.1 along with D.W.2 and marked Exs.B.1 and B.2.
7. Ultimately, the suit was decreed by the trial Court, as against which the appeal was filed by the defendant, whereupon the first appellate Court partly allowed the appeal by setting aside the direction of the trial Court in mandating the defendant to pay arrears of rent but confirmed the relief of recovery of possession granted by it.
8. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, the defendant preferred this Second Appeal on various grounds, suggesting the following substantial questions of law:
"(i) When admittedly one co-owner has executed the document can the claimant file a suit for eviction without impleading the other co-owners.
(ii) Whether the execution of one co-owner passes absolute title in the absnece of other co-owners.
(iii) Whether the defendant is liable to be evicted in the absence of the other coowners who are challenging the title of the respondent.
(iv) When the relationship of landlord and tenant is disputed, payment of court fee under section 43 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 is proper."
(Extracted as such)
9. The principles as found enunciated and enshrined in the following decisions of the Honourable Apex Court:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE
300.
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1, would be to the effect that unless any substantial question of law is involved, the question of entertaining a Second Appeal would not arise. As such, with that dictum in mind, I heard both sides.
10. The learned counsel for the appellant/ defendant would put forth and set forth his arguments, which could tersely and briefly be set out thus:
The plaintiff filed the suit for ejectment and it is not a suit for recovery of possession based on title and the Court fee paid was under Section 43 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. Whereas the first appellate Court having held that the suit should be one for recovery of possession based on title, granted the relief without realising that the cause of action was not based on title but based on Landlady - Tenant relationship, allegedly emerged between the plaintiff and the defendant. If Sections 25 or 30 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 is applied, the valuation of the suit would exceed the pecuniary jurisdiction of the Munsif Court. The first appellate Court cannot blow hot and cold. So arguing, the learned counsel for the appellant/defendant prayed for setting aside the judgment and decree of the Courts below and for dismissing the original suit.
11. In a bid to mince meat and shoot down, torpedo and pulverise the arguments as put forth and set forth on the side of the defendant, the learned Counsel for the plaintiff would advance his arguments, which could pithily and precisely be portrayed thus:
The defendant having chosen to sell the suit property along with other properties validly and that too, after receiving sufficient sale consideration is not at all justified in veering round and taking a stand quite antithetical to what had committed himself in black and white. The trial Court taking into account the preponderance of probabilities as well as the deposition of P.W.1 and the various plausible circumstances held that after the emergence of the sale deed in favour of the plaintiff at the instance of the defendant, there was an oral commitment on the part of the latter in paying rent to the former till he vacates the suit property and that was appositely and correctly believed by the trial Court and accordingly, it decreed the suit. However, the first appellate Court rejected the awarding of arrears of rent in favour of the plaintiff payable by the defendant, but it did not reverse the findings of the trial Court concerning the landlady - tenant relationship. In such a case, there is no question of holding that the trial Court had no pecuniary jurisdiction to deal with the matter. In the written statement, nowhere, it is found whispered that the District Munsif had no pecuniary jurisdiction to deal with the matter. Simply because Section 25 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 is found referred to in the written statement, there cannot be any presumption that the defendant also challenged the pecuniary jurisdiction of the District Munsif Court in entertaining the suit. Accordingly, he prayed for dismissal of the Second Appeal.
12. A mere poring over and perusal of the pleadings would display and connote that in the plaint, there is sufficient narration as to how the plaintiff acquired title over the suit property by virtue of the sale deed - Ex.A.1 executed by the defendant. However, the Court fee was paid invoking Section 43 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. The trial Court taking into account the fact that even in the reply notice Ex.A8 dated 29.09.2004 issued by the defendant to the pre-suit notice - Ex.A.6 dated 09.09.2004, issued by the plaintiff, the defendant did not dispute the landlady
- tenant relationship, and believing the versions as well as the documents produced on the plaintiff suit, decreed the suit in toto.
13. What I would like to point out is that this is ex-facie and prima- facie, a peculiar case, in which the plaintiff after the execution of the sale deed - Ex.A.1 went to the extent of disputing the sale deed as the one which was intended not to sell but to authorise the plaintiff to sell the suit property for higher price and pass on the same to the defendant. In my considered opinion, such a contention on the part of the defendant is hit by Section 92 of the Indian Evidence Act. It is one thing to contend that the deed was not actually intended to be acted upon, but it is entirely a different thing to put forth and set forth a modified version of Ex.A.1. Here, the plea of the plaintiff was not clear on that aspect. Be that as it may, it has to be seen as to whether the pecuniary jurisdiction issue was raised in this case.
14. I recollect and call up Section 21 of the Code of Civil Procedure. Sub-Section (2) of Section 21 of the Code of Civil Procedure is, extracted hereunder for ready reference.
"21(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement and unless there has been a consequent failure of justice."
15. Challenge as to the pecuniary jurisdiction of the Court should be made at the earliest point of time, but in this case, it is quite obvious and axiomatic that such a specific plea was not even taken at any stage of the proceedings. Simply by challenging the method and manner of having calculated the Court fee by the plaintiff, it cannot be presumed that the defendant challenged the pecuniary jurisdiction of the Munsif Court in entertaining the matter.
16. As per Order XLI Rule 31 of the Code of Civil Procedure, it is the duty of the first appellate Court to give valid reasons for reversing the finding of the trial Court, if at all it chooses to do so. In paragraph Nos.20 and 21 of the judgment of the first appellate Court, it discussed the relevant facts and held that even though the suit is one based on the Court fee paid under Section 43(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, there is no embargo for decreeing the suit in favour of the plaintiff based on her title and that too on finding that the plaintiff's title is established. Such a finding was given in response to the precedent cited by the defendant. In fact, the defendant cited the decision of this court in Vanjoor Madhar Sahib Trust, rep. by its Trustee M.Mohammed Gouse and another v. Panchaiyappan (died) and another reported in 1994-II-L.W. 339. In response to the said decision alone, such a remark was passed by the first appellate Court. However, by way of giving some bonanza, the first appellate Court relieved the defendant of his liability to pay arrears of rent. Nowhere, in the judgment of the first appellate Court it could be seen that the finding of the trial Court that after the execution of the sale deed, the defendant agreed to pay rent to the plaintiff was set aside. Hence, I am of the considered view that there need not be actually any proof relating to payment of rent by the defendant to the plaintiff and it would be sufficient if the preponderance of probabilities are to the effect that the defendant would have made some undertaking to pay rent to the plaintiff till he vacates the suit property. The trial Court considering the pros and cons of the matter, so to say the pro et contra held that such an oral understanding emerged between the plaintiff and the defendant and in the absence of any clear reasons given by the first appellate Court, this Court in Second Appeal cannot simply hold that the Courts below were not justified in ordering delivery of possession by the defendant to the plaintiff.
17. In the following precedents the Hon'ble Apex Court spotlighted and indicated the aforesaid legal aspect as under:
(i) Parimal v. Veena reported in (2011) 3 SCC 545. An excerpt from it, would run thus:
"25. Order 41 Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance with the said provisions. The first appellate court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts."
(ii) B.V.Nagesh and another v. H.V.Sreenivasa Murthy reported in JT 2010 (10) SC 551. An excerpt from it, would run thus:
"4.1 The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re- hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put- forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari v. Purushottam Tiwari [JT 2001(2) SC 407 : 2001 (3) SCC 179] and Madhukar and Others v. Sangram and Others [2001(4) SCC 756].
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate Court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the Court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
18. A bare perusal of the above decision would clearly indicate and exemplify, denote and connote that in stricto sensu, the first appellate Court being the last Court of facts, should deal with the oral and documentary evidence in extenso once again and wherever the first appellate Court disagrees with the findings of the trial Court, valid reasons should be furnished.
19. The learned counsel for the defendant would repeatedly stress and canvass the point that once the nature of the suit was held by the first appellate Court to be different from the nature of the suit framed by the plaintiff, as a sequelae the first appellate Court should have dismissed the suit providing an opportunity to the plaintiff, if at all she was entitled to file a separate suit for recovery of possession before appropriate Court having pecuniary jurisdiction.
20. This is a singularly singular case. The first appellate Court, in so many terms did not reverse the finding of the trial Court, but on the other hand in response to the citation of the precedents by the defendant simply the Court remarked that based on title the recovery of possession in favour of the plaintiff could be ordered.
21. I wrapped my brain around the point of pecuniary jurisdiction, and ultimately got convinced that Section 21(2) of the Code of Civil Procedure would also be an embargo to raise such a plea in the second appeal stage touching upon the pecuniary jurisdiction by the defendant. The trial Court's finding cannot be viewed as a perverse one, because the trial Court as held supra cited reasons for arriving at its conclusion, which is far more plausible than any where near perversity.
22. There is also nothing to indicate and exemplify that in response to the pre-suit notice sent by the plaintiff to the defendant, the latter has not swung into action by instituting a suit for cancellation of Ex.A.1.
23. The learned counsel for the defendant would try to explain and expound unsatisfactorily that the inaction of the defendant was not fatal. By citing the reason that there were other co-sharers, along with the defendant having ownership in the suit property, he would try to justify the defendant's pococurante attitude in not filing a suit for getting cancelled Ex.A.1. According to him, Ex.A.1 should be treated as non-est in the eye of law and in such a case, there was no necessity for the defendant to seek cancellation of Ex.A.1 and straight away the defendant can ignore it.
24. I would like to point out that such an argument is not plausible for the reason that the defendant was very much a party to Ex.A.1 and it was he who executed the sale deed in favour of the plaintiff. Had he not been a party to Ex.A.1, but somebody was the executant, certainly it would be lie in the mouth of the defendant to raise such a plea that he could ignore Ex.A.1 but in this case, it was he who executed Ex.A.1 - the Sale deed in favour of the plaintiff. Understanding clearly the mind of the plaintiff in his pre-suit notice, the defendant should have pushed and geared himself forward to institute a suit to get the sale deed cancelled. Even after the filing of the suit by the plaintiff, in the written statement, the defendant did not choose to make any counter claim for cancellation of Ex.A.1 by paying appropriate Court fee. Had he felt that a counter claim not been tenable, he could have subsequently instituted a suit for cancellation of Ex.A.1, but even that was not done so. As such, it is crystal clear that the defendant was bent upon delaying the matter and postponing the delivery of the suit property in favour of the plaintiff. The learned counsel for the plaintiff also incidentally pointed out by referring to Section 55 of the Transfer of Property Act that it is the bounden duty of the vendor to hand over the subject matter of sale to the vendee, namely the plaintiff herein.
25. Considering the pro et contra, I am of the view that there is no question of law, much less a substantial question of law is involved in this matter; resultantly the Second Appeal deserves to be dismissed. However, considering the facts and circumstances of the case, I am of the view that sufficient time to wit six months could be given to the defendant for vacating the suit property and handing over possession of it in favour of the plaintiff on condition that the defendant should file an undertaking affidavit to vacate the suit property.
26. In the result, the Second Appeal is dismissed. No costs. Consequently, connected M.P.(MD) No.2 of 2011 is dismissed. The defendant is given six months' time to vacate the suit property and hand over possession of the same in favour of the plaintiff, on condition that the defendant should file an undertaking affidavit within 15 days from today to the effect that he will vacate the suit property within six months from today.
sj To
1.The Subordinate Judge, Ambasamudram.
2.The Principal District Munsif, Ambasamudram.