Madras High Court
J.Nagendran vs M/S.Bharat Petroleum Corporation Ltd on 19 November, 2008
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19.11.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD) No.3698 of 2007 and M.P.1 of 2007
J.Nagendran ... Petitioner
Vs.
M/s.Bharat Petroleum Corporation Ltd.,
No.1, Ranganathan Gardens,
11th Main Road,
Anna Nagar,
Chennai 600 040. ... Respondent
This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 22.10.2007 passed in I.A.No.843 of 2006 in O.S.No.334 of 2006 on the file of the Additional District Judge, Fast Track Court No.II, Coimbatore.
For Petitioner : Mr.Muthukumaraswamy
Senior counsel for
Mr.A.Jenasenan
For Respondent : Mr.Krishna Srinivasan for
M/s.S.Ramasubramanian Associates
*****
O R D E R
This Civil Revision Petition has been filed against the order dated 22.10.2007 passed in I.A.No.843 of 2006 in O.S.No.334 of 2006 on the file of the Additional District Judge, Fast Track Court No.II, Coimbatore.
2. This Civil Revision petition has been filed by the plaintiff in O.S.No.334 of 2006 on the file of the Additional District Judge, Fast Track Court No.II, Coimbatore. He is aggrieved by the order of the trial court dated 22.10.2007 made in I.A.No.843 of 2006, wherein the application filed by him to try the suit as well as IA.No.576 of 2006 filed by the defendant in the suit together and also by allowing both sides to adduce evidence in common under Sec.94 and 151 of C.P.C. was dismissed by the trial court.
3. The facts which are necessary for the disposal of the above Civil Revision petition are as follows:
The plaintiff has filed O.S.No.334 of 2006 against the respondent herein to pass a decree directing the respondent/defendant to deliver possession of the suit properties. The plaintiff is the owner of the vacant land bearing T.S.No.8/104 1/2, Mettupalayam Road, Coimbatore City with an extent of 10,400 sq.ft. On 18.4.1958, a registered Deed of Lease of the suit vacant site came into between the father of G.E. Maruthachalam and M/s.Burma Shell Oil Storage and Distributing company of India. The period of lease was 20 years commencing from 1.1.1957 and ending with 31.12.1976. An option was provided in the Lease Deed to the Burma Shell Co. to renew the deed for a further period of 20 years. On 24.01.1976, the Burma Shell (Acquisition of Undertaking in India) Act namely Act-2 of 1976 came into force and pursuant to the Act, the respondent herein, ie., M/s.Bharat Petroleum Corporation Ltd. became the tenant of G.E.Maruthachalam who is the son of the original landlord. Subsequently, Dr.Saroja Ramanathan stepped into the shoes of the Vendor with effect from the date of her purchase. On 20.04.2006, the revision petitioner/ plaintiff issued a notice to the respondent/ defendant, calling upon them to deliver vacant possession of the suit properties and to pay the mesne profit at the rate of Rs.1,90,000/- per month till the date of delivery of possession. Instead of delivering the vacant possession and paying the mesne profits as claimed, the respondent/defendant is squatting on the suit property. Further, the plaintiff herein refused to recognise the respondent/defendant as his tenant and according to the revision petitioner/plaintiff, the respondent/defendant is a trespasser. Hence, he filed O.S.No.334 of 2006 for the aforesaid relief.
4. Written statement has been filed by the respondent/defendant and the suit is being contested. It is contended by the respondent/defendant that they have the right upon the expiry of tenure of lease on 31.12.1976, to renew the lease upon the same terms and conditions. On expiry of the original tenure of the lease for 20 years, on 31.12.1976, the respondent/ defendant exercised their statutory right under Act-2 of 1976 and renewed the lease. They have also exercised their further right of renewal of lease for a period of 20 years with effect from 1.1.1997. Therefore, according to the defendant the tenure of the lease has not expired. Hence, they prayed for the dismissal of the suit.
5. Pending suit, the respondent/defendant filed I.A.No.576 of 2006 under Sec.9 of Tamilnadu City Tenants Protection Act to direct the revision petitioner/ plaintiff to sell the suit schedule property to the respondent/defendant for a price fixed by the trial court by appointment of an advocate Commissioner. This application was resisted by the revision petitioner/ plaintiff by contending that the respondent/ defendant is not a tenant under Sec.2(4)(ii)(b) of the Tamil Nadu City Tenants Protection Act and therefore, they are not entitled to any right of purchase under sec.9 of the Act. When this I.A.No.576 of 2006 is pending, the revision petitioner/plaintiff filed I.A.No.843 of 2006 under Sec.94 of C.P.C. to try the suit and the petition in I.A.No.576 of 2006 together by allowing both the sides adduce evidence in common. In support of this application, the revision petitioner/plaintiff submitted that, the issues framed by the trial court would be tried only by way of adducing common evidence as the property in the suit and the property in the Sec.9 Application is one and the same. The common question that arises for consideration in both the suit and the application is that, whether the respondent/defendant is a tenant under the revision petitioner/plaintiff. Hence, to prove this question, common evidence has to be recorded. Otherwise, any decision given in the Sec.9 application will directly affect the decisions in the suit. This application was resisted by the respondent/defendant by filing a counter statement. They contended that whenever an application under sec.9 of the Tamilnadu City Tenant Protection Act is filed, the said application is to be decided first and that there will be no necessity at all to try the suit in the event of the application under sec.9 culminating into orders being passed for sale of land to the tenant.
6. The trial court by order dated 22.10.2007 dismissed I.A.No.843 of 2006 and aggrieved by the same, the plaintiff in the suit has filed the above revision petition.
7. I have heard Mr.Muthukumaraswamy, the learned Senior counsel for the revision petitioner and the learned counsel for the respondents. I have also gone through the documents and the judgments filed by them in support of their submissions.
8. The learned Senior counsel for the petitioner submits that the court below ought to have allowed the application as the controversy between the parties boils down to the basic question as to whether the respondent/defendant is a tenant or not. The learned Senior counsel further adds that only a recognised tenant can file an application under sec.9 of the Tamilnadu City Tenant Protection Act and all issues to that effect have already been framed by the trial court. If sec.9 application is decided first, it will have a bearing in the decision of the suit also and therefore, to avoid unnecessary complications, the trial court ought to have allowed the application filed by the revision petitioner in I.A.No.843 of 2006. In support of his submissions, the learned Senior counsel relied on the following decisions:
1. 93 L.W. 392 (Sri. S.P.Narasimhalu Naidu's Estate Trust, Coimbatore, by the Manager and Executor, C.M. Abbai Naidu represented by the Secretary, B.Ramamoorthi, Advocate, Coimbatore and others)
2. 1989 (2) M.L.J. 530 (Bharat Petroleum Corporation Limited, Madras represented by its Area Accountant)
3. 1997 1 C.T.C. 102 (V.M.Subramanian Mudaliar & Sons a Joint Family partnership by its Managing Partner and two others Vs Sri Bhavasarakshriya Seva Samaj rep. by its Managing Trustee Rejamant Rao)
4. 1988 (1) L.W. 187 (Pudukkulam alias Kuttikulam Vahayara Trust, Pattukottai by its Mg. Trustee C.Veerasami Chettiar)
5. 2001 (1) C.T.C. 10 (G.Mohamed Thajf and another Vs The Bharath Petroleum Corpn. Ltd. Chennai 40 and another)
6. 2004 (1) C.T.C. 781 (R.Sundara Naicker Vs S.Chinnamal and others)
9. Per contra, the learned counsel for the respondent/defendant, relying on a decision of the Hon'ble Supreme Court reported in 2004(5) C.T.C . 74 (Bharat Petroleum Corporation Ltd. and another Vs N.R.Vairamani and another) submitted that when the tenant made an application under Sec.9, the court is under mandatory duty to first decide the minimum extent of land which may be necessary for convenient enjoyment by the tenant and to fix a price.
10. I have considered the rival submissions carefully with regard to facts and citations.
11. The only question that arises for consideration is, when the tenancy is not admitted by the landlord and when the tenant files an application under Sec.9 of the Act, whether that application is to be proceeded with first or both the suits and the application are to be taken up together as the question of tenancy is in controversy ?
12. In 93 L.W. 392 (cited supra), a Division Bench of this court held that the moment an application is filed by a tenant under Sec.9(1)(a) of the Act, the Court will have to first fix the minimum extent of the land which will be necessary for the convenient enjoyment of the tenant. After fixing the minimum extent of the land, the court will have to proceed to fix the price of the minimum extent of the land decided as above. The third stage is to pass an order directing the tenant to pay the price so fixed within a period to be determined by the court. Thereafter, if the tenant pays the amount, the final order will be passed directing the conveyance by the landlord to the tenant of the extent of the land, for which, the said price was fixed and at the same time directing the tenant to put the landlord into possession of the remaining extent of the land, if any.
13. But, the learned Senior counsel, on the basis of the above judgment, submitted that the steps contemplated while deciding an application under Sec.9 of the Act, could be gone into by the trial court first, only when the landlord admits the tenancy. He, further on the basis of the above judgment, submits that when a controversy arises, as between the landlord and the tenant, whether the tenant comes within the scope of the Act at all and therefore whether he is entitled to the benefits of the Act, the decision thereon will not be a decision under Sec.9(1)(b) of the Act. Such a question will be in the nature of a jurisdictional one and an effective decision will entitle the court to proceed under sec.9 and a negative decision will render the application not maintainable. Therefore, the learned counsel contends that instead of deciding the jurisdiction first in the Sec.9 application, it is better to decide the question in the suit itself. I am unable to accept the submissions made by the learned Senior counsel in this regard.
14. The Division Bench in the above judgment while dealing with this question of denial of the tenancy of the landlord has held that when a court decides the controversy whether a particular tenant is entitled to the benefit of the Act or not, it is not rendering a decision under Sec.9, but it is rendering a decision preliminary to the passing of the orders under Sec.9. The relevant portion of the judgment reads as under:
11. We shall now take up the decision of Ramaprasada Rao, J., as he then was. The learned Judge had considered the decision regarding the entitlement of the tenant to purchase the property from the land. We are of the opinion, the entitlement of the tenant to purchase the property from the landlord is not a question that arises on an application filed by the tenant under S.9 of the Act. In fact, we have already referred to the definition of the term "tenant". Once a tenant satisfies the requirements of the definition as contained in the Act, immediately, he becomes entitled to either of the two rights the right to get compensation under S.3 or the right for a direction to the landlord to sell the land to him under S.9. In fact, S.9 assumes that the person who files the application under S.9, is a person who is a tenant under the Act and who is entitled to compensation under S.3 of the Act, S.9(1)(b) uses the expression "on such application". Therefore, when a controversy arises as between the landlord and the tenant, whether the tenant comes within the scope of the Act at all and, therefore, whether he is entitled to the benefits of the Act, the decision thereon will not be a decision under S.9(1)(b) of the Act. Such a question will be in the nature of a jurisdictional one, an affirmative decision which will entitle the court to proceed under S.9 and a negative decision which will render the application not maintainable. Therefore, when a court decides a controversy whether a particular tenant is entitled to the benefits of the Act or not, it is not rendering a decision preliminary to the passing of the orders under S.9. Consequently, the date of such a decision cannot be relevant for the purpose of the disposal of the application under S.9. As a matter of fact, the expression "date of the order" occurring in the third and fourth sentences in S.9(1)(b), from the very nature of the case, cannot taken in an order determining whether the tenant is entitled to the benefits of the Act or not, and from what we have pointed out, correlating the use of the word "first" in the first sentence and the use of the word "then" in the second sentence with the third and fourth sentences in S.9(1)(b), such an order cannot fall within the scope of the orders to be passed by the Court under s.9(1)(b). From this point of view, we do not agree, with the decision of Ramaprasada Rao, J. as he then was.
12. From the above conclusion of ours on the interpretations and scope of S.9, the following consequence will follows:
(1) If a controversy arises whether a particular tenant is entitled to the benefit of the Act or not, in the sense that he is a tenant complying with the definition of the term "tenant" in S.2(4), that question has necessarily to be considered by the court, because, an affirmative decision in favour of the tenant alone will enable the Court to proceed further with the application made under S.9(1)(a) of the Act and a negative decision against the tenant will render any application filed by the tenant, under S.9(1)(a) as not maintainable and such an order is not an order under S.9 and the date of that order has no relevancy to the fixation of the price of the land to be sold by the landlord to the tenant;
(2) When once the Court has decided that the tenant is entitled to the benefit of the Act or there is no controversy that the tenant is entitled to the benefits of the Act, the Court, will have to dispose of the application filed by the tenant under S.9(1)(a);
(3) For the purpose of disposing of this application, the court must first decide upon the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. Any such decision of the Court, from the very nature of the case, can only be by means of an order and the date of that order will be the relevant date for the purpose of fixing the price mentioned in the third sentence in S.9(1)(b). If the decision of the Court on the minimum extent is taken up further by way of appeal or revision and that decision is either affirmed or modified and if there had been a stay of further proceedings during the pendency of such appeal or revision, naturally, the date of the order contemplated in the third sentence in S.9(1)(b) will be the date of the order of the appellate or revisional Court;
(4) After having determined the minimum extent of the land or if such determination had been the subject matter of further proceedings and those proceedings have concluded, the Court will then proceed to fix the price of the land;
(5) For the purpose of deciding upon the minimum extent of the land or for the purpose of fixing the price of the land, certainly it is open to the court to appoint a Commissioner to record evidence and submit a report to the Court;
(6) After the price to be paid by the tenant to the landlord for the purchase of the land has been determined, the court will have to pass an order directing the tenant, within a period to be determined by the Court, not being less than three months and not more than three years from the date of such order, to pay into court or otherwise as directed by it, the price so fixed in one or more instalments with or without interest;
(7) if the tenant complies with such a direction, then the court will pass a final order under S.9(3)(a) of the Act directing the landlord to convey the extent of the land decided to the tenant for the price so fixed and in the same order directing the tenant to put the landlord into possession of the remaining extent of the land, if any;
(8) If, on the other hand, the tenant commits default in the payment of the amount as directed and the court itself had not excused the delay by giving further opportunity, the application filed by the tenants under S.9(1)(a) shall stand dismissed; and (9) If the tenant has fulfilled the directions given by the Court and the Court has passed the order under S.9(3)(a), then the suit or proceeding shall stand dismissed and any decree or order in ejectment that might have been passed therein but which has not been executed shall be vacated. If, on the other hand, the tenant committed default and the application filed by him under s.9(1)(a) stands dismissed under S.9(2), then the suit or proceedings will proceed or any decree or order in ejectment that may have been passed therein shall stand."
15. In 1989(2) M.L.J. 530 (cited supra), a learned Judge of this court dealt with a Second Appeal and Civil Revision petition, wherein the trial court by a common judgment disposed of both the suits as well as the sec.9 application filed by the defendant in that suit. This decision is not at all useful to the revision petitioner herein as it is not an authority for the proposition that as the same and common question is to be decided in the suit as well as the Sec.9 application, both should be tried together.
16. In 1988(1) L.W. 187 (cited supra), a learned Single Judge of this Court held that the suit should be kept pending till the disposal of the application under Sec.9 completely. The learned Judge followed the decision of the Division Bench reported in 93 L.W. 392 (cited supra).
17. In 1997(1) C.T.C. 102 (cited supra) another learned Single Judge of this court following the very same judgment of the Division Bench (93 L.W. 392 (cited supra), held that the suit should be kept pending till the disposal of the application under Sec.9.
18. In 2001(1) C.T.C. 10 (cited supra), this court held as under:
"19. As per the above provision, the tenant is a person, who is liable to pay the rent under tenancy agreement expressed 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 the option for renewal and they have to vacate the premises. They are rank trespassers".
19. In 2004(1) C.T.C. 781 (cited supra), a Division Bench of this Court held as under:
"8. The last point that was argued on behalf of the appellant herein/plaintiff is that there was no relationship of landlord and tenants between the parties.
9.Learned counsel for the respondents pointed out that they have mentioned so in paragraph 3 of the applications filed under Section 9 of the said Act.
10. We are actually concerned with the material factor as to whether the respondents herein are entitled to file the applications under Section 9 of the said Act in a suit filed for recovery of possession. In this connection, we have to see what Section 9 of the said Act provides, Section 9 of the said Act runs as follows:
"9. Application to Court for directing the landlord to sell the land:
(1)(a)(i) any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Cause Corts Act, 1882, taken by the landlord, may, within one month of the date of the publication of Madras City Tenants' Protection (Amendment) Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town township or village in which the land is situate or within one month after the service on him of summons apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of land specified in the application.
11. In order to apply Section 9 of the said Act, the following ingredients are necessary:
i. A suit for ejectment should have been instituted;
ii. That suit should have been filed against the tenants; and iii. The tenants should be entitled to a compensation under Section 3 of the Said Act.
12. The common fabric that spreads upon the above three ingredients is with the main thread of tenancy. Only if there is a tenancy, the ejectment suit should have been filed. Before ever we decide the existence of tenancy, if we find that the very nature of the suit filed by the plaintiff is for ejectment, then, it may pre-supposes the tenancy. But, in this case, the suit is for recovery of possession and not for ejectment.
13. A careful reading of the plaint would go to show that the possession was required on the footing that the respondents/defendants were unlawful trespassers into the suit property. When such specific plea is found in paragraph 7 of the plaint, we cannot even imagine that it was a suit for ejectment, which would naturally pre-supposes the tenancy in favour of the respondents/defendants. Since this the situation regarding the filing of the suit, it only enhances the burden of the respondents/defendants to prove that they were the tenants. The tenancy should be of the land by virtue of a lease, to which, a liability to pay the rent will arise. This liability of paying the rent will naturally denote the relationship of landlord and tenants.
14. Nowhere in the written statement filed by the respondents/ defendants there is any plea to repudiate the contention made in the plaint, especially the allegation made in paragraph 7 of the plaint that the defendants were occupying the land as unlawful trespassers. It has not been pleaded by the defendants that they were the tenants. Instead of that, what they have pleaded in the written statement was only to the effect that they were living in the suit property for more than four decades.
15. Further, the capacity to live has not been described, especially when the plaint allegation was that the defendants live there as unlawful trespassers. In as much as the written statement of the respondents/ defendants did not even plead that they were the tenants in the suit property, the reasoning found in the plaint that they were only trespassers is all the more probabilised that a suit for recovery of possession was rightly filed. There is every justification for the plaintiff for not having filed a suit for ejectment and to file the suit for recovery of possession with, of-course, declaration of title.
16. Thus, there is not at all a suit for ejectment and added to that no relationship of landlord and tenants is proved. So, consequentially, the respondents are not entitled to file the applications under Section 9 of the said Act in a suit filed for recovery of possession based upon the unlawful possession of the defendants. The said applications filed under Section 9 of the said Act are not maintainable and in limine, they are liable to be dismissed."
20. Relying on these judgments, the learned Senior counsel urged that when the tenancy is in controversy, Sec.9 application cannot be proceeded with first and the question of jurisdiction is to be decided along with the other issues in the suit.
21. As already observed by me, this contention is only to be rejected as the question as to whether the respondent/defendant is a tenant under the revision petitioner or not is also a question to be decided by the trial court while dealing with the application filed under Sec.9 of the Act. As observed by the Division Bench in the Arasan Chettiyar's case, there are three main steps involved while considering an application filed under the Act, when the tenancy is admitted. But, when the tenancy is not admitted, the question as to whether there is a tenancy or not, is also to be decided by the trial court in the very same application before going with the three steps as contemplated by the Division Bench. Therefore, I am of the considered view that whenever the tenancy is not admitted by the landlord, then, that question is also to be decided by the trial court while considering the Sec.9 application and just because the tenancy is not admitted, the Sec.9 application should be heard along with the suit is not correct.
22. In 2004(5) C.T.C. 74 (cited supra), the Hon'ble Supreme Court held that when a tenant makes an application under Sec.9 of the Act, the court is under mandatory duty to first decide the minimum extent of land which may be necessary for the convenient enjoyment by the tenant and to fix a price, as Sec.9 of the Act confers a privilege on tenant against whom a suit for eviction is filed by the landlord.
23. In the light of the above judgments, I am of the considered view that the trial court has rightly dismissed I.A.No.843 of 2006 and I do not find any illegality or infirmity warranting interference by this court.
24. Consequently, the above Civil Revision petition is dismissed. No costs. Connected miscellaneous petition is also dismissed.
25. Considering the fact that Sec.9 application has been filed by the respondent/defendant in the year 2006 itself, I direct the trial court to dispose of I.A.No.576 of 2006 within five months from the date of receipt of copy of this order.
vaan To The Additional District Judge, Fast Track Court No.II, Coimbatore