Madras High Court
M/S. Tourist Home Pvt Ltd vs Mr.A.Muthukrishnan on 16 April, 2008
Equivalent citations: AIR 2008 (NOC) 2587 (MAD.)
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 16-04-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.439 of 2005 1.M/s. Tourist Home Pvt Ltd., Rep. By its Managing Director, Mr.P.S.Ramdas No.6-C, Madhuban Apartments, 23/39, Ritherdon Road, Vepery, Chennai-600007. 2. P.S.Meenakshi 3.Mr.P.S.Ramdas .. Appellants. Versus 1.Mr.A.Muthukrishnan 2.M/s.Tourist Home Hotel rep. By its Partnership Smt.Meenakshi Mani T.K.Saraswathi P.G.Balakrishnan P.G.Radhalakshmi No.6-C, Madhuban Apartments, 25/39, Ritherdon Road, Vepery, Chennai-600 007. .. Respondents. PRAYER: Appeal against the judgment and decree, dated 02.12.2004, made in A.S.No.223 of 2002, on the file of the II Additional Judge (Incharge of III Addl. Judge) City Civil Court at Chennai, reversing the judgment and decree, dated 30.04.2002, made in O.S.No.9046 of 1995, on the file of the VIII Assistant Judge, City Civil Court, Chennai. For Appellants : Mr.A.Muthukumarasamy Senior Advocate for Mr.B.Raviraja For Respondents : Mr.T.R.Rajagopalan Senior Advocate for Mr.James (R1) Mr.K.Lakshmi Narayanan (R2) J U D G E M E N T
This second appeal has been filed against the judgment and decree, dated 02.12.2004, made in A.S.No.223 of 2002, on the file of the II Additional Judge (Incharge of III Addl. Judge) City Civil Court at Chennai, reversing the judgment and decree, dated 30.04.2002, made in O.S.No.9046 of 1995, on the file of the VIII Assistant Judge, City Civil Court, Chennai.
2. For the sake of convenience the parties in the appeal are referred to as they have been arrayed in the suit in O.S.No.9046 of 1995.
3. The plaintiffs in the suit O.S.No.9046 of 1995 are the appellants in the present second appeal. The plaintiffs had filed the suit before the VIII Assistant Judge, City Civil Court, Chennai, praying for a judgment and decree, for delivery of possession of the property mentioned in the schedule forming part of the plaint and for costs.
4. The brief facts of the case, as stated in the plaint, are as follows:
4.1) Originally, one P.G.S.Mani was the Managing Director of the first plaintiff firm, namely, M/s. Tourist Home Private Limited. During the course of the proceedings, since the said P.G.S.Mani had died, his son P.S.Ramadas and his wife P.S.Meenakshi were brought on record as his legal representatives.
4.2) The first plaintiff M/s.Tourist Home Private Limited is a Private Limited Company, registered under the Indian Companies Act. Both the plaintiffs were carrying on business of running a boarding and lodging house at New No.21/1 (Old No.21), Gandhi Irwin Road, Egmore, Madras.
4.3) The first defendant, M/s.Tourist Home Hotel, which is a partnership firm, represented by its partners, 1) Meenakshi Mani, 2) T.K.Sarswathi, 3) P.G.Balakrishnan and 4) P.G.Radhalakshmi, having its office at No.6-C, 2nd Block, Madhuban Apartments, No.25/39, Ritherdon Road, Vepery, Chennai. The second defendant A.Muthukrishnan is the proprietor of Vasantha Bhavan, carrying on business at No.24, N.S.C Bose Road, Tiruchirappalli.
4.4) The first defendant M/s.Tourist Home Hotel, which is a partnership firm, is a tenant under the plaintiffs in respect of the entire premises at No.20, Gandhi Irwin Road, Egmore, Madras, together with the ground floor and first floor of the building, located in south eastern corner of the premises bearing New No.21/1 (Old No.20), Gandhi Irwin Road, Egmore, Madras, on a monthly rent of Rs.12,500/-. The letting out was for running a boarding and lodging house and a restaurant, along with all licences, furniture, fittings, vessels, cooking equipments, gas connection, fixtures etc., 4.5) The first defendant had subsequently let out the entire ground floor of the suit premises at No.20, Gandhi Irwin Road, Egmore, Madras, together with the said ground floor and first floor of the rear side building forming part of New Door No.21/1, Gandhi Irwin Road, Egmore, Madras, on a monthly rent of Rs.23,000/-, along with all furniture, fittings, counters, fixtures, vessels, cooking equipments, gas connection, etc., belonging to the plaintiffs, as per the written agreement of lease of business with goodwill, which was being extended periodically. The first defendant is running the boarding and lodging house in the rest of the upper floors of the said premises at No.20, Gandhi Irwin Road, Madras.
4.6) Originally, the plaintiffs were running a restaurant under the name and style of 'Vega' restaurant in the ground floor of the premises at No.20, Gandhi Irwin Road, Egmore, Madras, and running a boarding and lodging house in the other floors in the rest of the property till the year 1970. Thereafter, the plaintiffs had let out the said running business with goodwill, furniture, fittings, fixtures, vessels, cooking utensils, gas connection, etc., together with the licences for running the said business, standing in the name of the second plaintiff.
4.7) In the year 1974, the first defendant let out the said restaurant, with the furniture, cooking equipments, fittings, counters, gas connection, etc., that was being run in the entire ground floor of Door No.20 and the ground floor and the first floor of the rear side of the building forming part of New Door No.21/1, to the second defendant.
4.8) The plaintiffs are running the boarding and lodging house in the rest of the property bearing New Door No.21/1 (Old No.20), Gandhi Irwin Road, Egmore, Madras. The restaurant being run by the second defendant, with the licences in the name of the second plaintiff, is catering food to the customers of the plaintiffs, including those who are availing the lodging facilities. The tenancy of the first defendant and the possession of the second defendant are not protected by any law in force and it is exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The plaintiffs wanted to get possession of the property including all furniture, fittings, fixtures, articles and machineries. Hence, they had issued a notice, dated 18.11.1994, terminating the tenancy of the first defendant from 31.12.1994 and calling upon the defendants to quit and deliver vacant possession of the schedule mentioned property to the plaintiffs on the expiry of the said date. Both the defendants had acknowledged the said notice sent by Registered Post, on 24.11.1994. Since the second defendant failed to vacate and deliver possession of the schedule mentioned property to the plaintiffs on the expiry of the date specified, the plaintiffs had filed the suit in O.S.No.9046 of 1995.
5. In the written statement filed on behalf of the first defendant, it has been stated that the first defendant had taken the suit property on lease for a monthly rent of Rs.12,500/- by a lease agreement, dated 01.04.1970. The lease agreement was for running the business of boarding and lodging and the restaurant with the necessary licences, furniture, buildings, cooking utensils and equipments, and gas connection etc. The licences are in the name of the second plaintiff. The first plaintiff firm had been established in the year 1970 for running a restaurant. According to the lease agreement, dated 01.04.1970, the restaurant had been given on lease to the first defendant. Since then the first defendant has been carrying on the business. With the permission and approval of the first plaintiff, the first defendant had entered into a lease agreement, with the second defendant, permitting the second defendant to run the restaurant. The second defendant had taken the suit property on lease with the running business, along with the actual furniture, equipments, etc. In the registered lease agreement between the first and second defendants, the second plaintiff has signed as a witness. Subsequently, the lease agreement between the first and second defendants had expired.
6. In the written statement filed on behalf of the second defendant, it was stated that the plaintiffs and the first defendant had colluded in filing the suit. For the reasons stated by the second defendant in his written statement, the suit is not maintainable in law. The suit had been filed stating incorrect facts in order to avoid the application of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. When the first defendant had entered into the lease agreement with the second defendant, it did not include the furniture, vessels, etc, necessary for running catering business. The lease agreement entered into by the second defendant, on 26.10.1974, had been renewed, on 19.10.1979, 4.10.1986 and, on 12.10.1989. These agreements do not show that the lease included, furniture, fittings, equipments, etc. Therefore, the plaintiffs are not entitled to the relief of recovery of possession as claimed by them in the suit. Further, there is no cause of action for the plaintiffs to file the suit. It was pointed out in the reply notice of the second defendant, dated 05.01.1994, that the plaintiffs have sought for the reliefs in the suit filed by them by stating misleading facts. Further, the suit is not maintainable due to the non payment of sufficient Court fees.
7. The second defendant had also filed an additional written statement, in which it was stated that the plaintiffs and the first defendant had joined in filing the suit in order to evict the second defendant from the suit property. The second defendant, had become a tenant under Meenakshi Ammal wife of P.G.S.Mani, who was originally the plaintiff at the time of filing of the suit, by a lease agreement, dated 26.10.1974. The said agreement had been renewed on 12.10.1989. Since then the second defendant has been paying the rent to Meenakshi Ammal. The second plaintiff is not a party to the lease agreements, dated 26.10.1974 and 12.10.1989. It has not been explained in the plaint as to the status of the second plaintiff, based on which he had filed the suit. The notice issued by the second plaintiff terminating the lease of the second defendant is not maintainable.
8. Based on the submissions made in the plaint as well as in the written statements filed in O.S.No.9046 of 1995, the following issues were framed for consideration by the trial Court:
"a) Is it correct to state that the plaintiffs cannot approach the Civil Court?
b) Is it correct to state that proper Court fee is not paid?
c) Whether the plaintiffs are entitled to possession of the property as prayed for in the plaint?
d) To what relief the plaintiffs are entitled?"
9. Considering the contentions raised on behalf of the plaintiffs as well as the defendants and in view of the issues framed, the trial Court had decreed the suit as prayed for, holding that the subject matter in the suit consists of rooms in a hotel. Since such rooms in a hotel are not coming under the definition of `buildings' to come under the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, it was held that the said Act does not apply to the present case. Therefore, it was concluded that only a Civil Court has jurisdiction to order eviction of a tenant by terminating the lease. It was held that if the lease is a composite lease, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, would not be applicable. The trial Court had also held that since the suit is for ejectment of a tenant and a sub tenant, Section 43(2) of the Court Fees Act would be the relevant provision. Accordingly, the Court fee paid by the plaintiffs for filing the suit is correct and therefore, the suit filed by the plaintiffs, in O.S.No.9046 of 1995, is not defective. Based on such findings, the trial Court had decreed the suit granting the reliefs as prayed for therein.
10. Aggrieved by the judgment and decree of the trial Court, dated 30.04.2002, the second defendant had filed an appeal on the file of the II Additional Judge, City Civil Court, Chennai, in A.S.No.223 of 2002.
11. The appeal had been filed by the second defendant stating, interalia that the City Civil Court has no jurisdiction to try the suit, since the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, would be applicable to the case. The second defendant had taken on lease from the first defendant only the building for the business of running a restaurant without the furniture, equipments, utensils, etc. Therefore, the lease agreement between the first and the second defendants cannot be termed as a composite lease. It had also been stated by the second defendant that the necessary issues had not been framed to try the suit. Further, the reasons shown and the findings given by the trial Court are not supported by evidence. The suit being collusive in nature, is not maintainable.
12. The lower Appellate Court had allowed the appeal by its judgment and decree, dated 02.12.2004, setting aside the judgment and decree of the trial Court, dated 30.04.2002. Thus, the suit in O.S.No.9046 of 1995 had been dismissed, holding that the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, applies to the present case. Consequently, the Civil Courts do not have jurisdiction to entertain the suit. The lower Appellate Court had also held that the lease is not a composite lease. Though the business activities of the second defendant in running the restaurant is in the rooms belonging to the plaintiffs, such rooms would come within the definition of the buildings under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, since it caters to the outside customers as well.
13. Aggrieved by the judgment and decree of the First Appellate Court, dated 02.12.2004, made in A.S.No.223 of 2002, the present second appeal has been filed by the plaintiffs in the suit.
14. The second appeal has been admitted by this Court on the following substantial questions of law:
"1. Whether the demised property i.e. rooms in a hotel is a building under Section 2(2) of the Tamilnadu Act 18/60 even though expressly excluded from the definition of building because non-residents also are served even though the Supreme Court in the decision reported in AIR 1959 SC 1262 held otherwise?
2) Whether the finding that the lease is not a composite one is vitiated by misreading of Ex.A-8?"
15. The learned Senior counsel Mr.A.Muthukumarasamy appearing on behalf of the appellants had submitted that there is no dispute that the hotel run by the second defendant in the ground and first floors of the building, which is the subject matter of the suit, belonged to the plaintiffs. Further, there is no dispute about the fact that the first defendant had become a lessee under the plaintiff, on 1.4.1970. There is also no dispute about the fact that the second defendant had taken the premises on sub lease from the first defendant in the year 1974 and that the sub lease had been renewed with the consent of the Managing Director of the first plaintiff. It is also an admitted fact that the second defendant is running Vasantha Bhavan Hotel in the suit premises as a sub lessee.
16. The learned Senior Counsel had also submitted that the term `building', as defined in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, excludes `rooms in a hotel' from the purview of the Act. When the subject matter of the lease and the sub-lease is not a `building', within the meaning of Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, it follows that the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, would not be applicable. It has been categorically found by the trial Court that the subject matter of the lease are `rooms in a hotel' and therefore, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, would not be applicable to the facts and circumstances of the case. The said finding by the trial Court has not been challenged in the memorandum of appeal filed by the second defendant in A.S.No.223 of 2002.
17. The learned counsel had relied on the decision of the Supreme Court, Associated Hotels of India Ltd. V. R.N.Kapoor (AIR 1959 SC 1262), wherein it was held as follows:
"It would be doing violence to the context if the expression `room in a hotel' in S.2(b) is interpreted in a strictly literal sense. A room in a hotel must fulfil two conditions: (1) it must be part of a hotel in the physical sense and (2) its user must be connected with the general purpose of the hotel of which it is a part. A modern hotel provides many facilities to its residents like billiard rooms, post office and banking facilities by letting out rooms in the hotel for that purpose. A barber's shop within the hotel premises is no exception. The circumstance that people not resident in the hotel might also be served by the hair dresser does not alter the position; it is still an amenity for the residents in the hotel to have a hair dressing saloon within the hotel itself. Where the spaces in a cloak room in the hotel premises are let out for carrying on the business of a hair dresser and such a business was one of the amenities which a modern hotel provides, the rooms in question are rooms in a hotel within the meaning of S.2(b) and the tenant is not entitled to ask for fixation of fair or standard rent for the same."
18. It was also submitted by the learned counsel appearing on behalf of the appellants that Ex.A-8 can only prove the lease of the building. However, the lower appellate Court had misread Ex.A-8, even though it had not been sufficiently explained by the second defendant, to hold that the second defendant had signed the said document accepting its contents in the middle portion alone.
19. The lower appellate Court had failed to see that the first portion of the document relates to the terms of lease and the middle portion describes the subject matter of the lease. It was also contended that the lower Appellate Court had failed to see that the description `Vega Kitchen' and `Vega Restaurant' cannot mean just the building alone without the other accessories necessary for running a restaurant.
20. The learned counsel had also submitted that the lower Appellate Court was not right in holding that the suit property, though are `rooms in a hotel', are not excluded from the definition of `building' under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Even if outsiders, other than the residents of the hotel, are also using the restaurant, when it is found that the property taken on sub lease by the second defendant consists of `rooms in a hotel', they would automatically fall outside the purview of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, in accordance with the decision of the Supreme Court in Associated Hotels of India Ltd. V. R.N.Kapoor (AIR 1959 SC 1262).
21. It was also contended that once it is found that the suit property consists of 'rooms in a hotel' excluded from the purview of the Act, the second aspect of the matter relating to the question whether the lease of the suit property or the sub lease would come under the definition of composite lease need not be considered as it would be only academic in nature.
22. Even though the decision of the Supreme Court reported in Associated Hotels of India Ltd. V. R.N.Kapoor (AIR 1959 SC 1262) had been cited before the courts below, the law laid down therein has not been clearly understood by the first Appellate Court. The said decision squarely applies to the facts of the present case.
23. Thus, the First Appellate Court had wrongly reversed the well considered decision of the trial Court by holding that though the restaurant run by the second defendant can be construed to be 'rooms in a hotel', since outsiders are using the restaurant, it would fall under the definition of `buildings' under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
24. Per contra, Mr.T.R.Rajagopalan, the learned Senior counsel appearing on behalf of the first respondent had submitted that there is no pleading or evidence on behalf of the plaintiffs to show that the demised premises are only 'rooms in a hotel'. The averments in the plaint are to the effect that the entire premises in Door No.20, Gandhi Irwin Road, had been leased out. The description of the property forming part of the plaint relates to "all the piece and parcel of the land" together with building bearing Door No.20, Gandhi Irwin Road, however, no oral evidence has been let in to show that the leased portions of the premises are only rooms. Further, the plaintiffs had proceeded with the suit on the basis that the lease in question is a composite lease and therefore, the restaurant run by the second defendant is exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, under Section 30 of the said Act. However, they have not been able to sufficiently prove by acceptable evidence that the lease is a composite lease. The Courts below had not framed an issue as to whether the demised premises are 'rooms in a hotel; or a mere 'building' as defined under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
25. The learned counsel had relied on the decision in Rajeshwari Devi V. S.M.Rabi and others (1982 (2) MLJ 263), wherein it was held that to find out whether a particular premises in a building comes within the definition of Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, various factors including the nature of the premises, the intention of the parties at the time of the granting of lease and the purpose for which, the premises was leased out are to be taken into consideration. Unless a specific issue was framed in that regard the issue cannot be decided on a substantial question of law at the stage of the second appeal, especially, when it has not been raised, either in the pleadings or in the evidence. In the absence of the pleadings, no amount of evidence can come to the aid of the plaintiffs to substantiate their contentions, as held by the Supreme Court in Prataprai N.Kothari Vs. John Braganza (1999 (4) SCC 403), Boodireddy Chandraiah and others Vs. Arigela Laxmi and another (2007 (8) 8 SCC 155).
26. The lease deed, dated 01.04.1970, marked as Ex.A-1, has been relied on by the plaintiffs to show that the lease is a composite lease. However, there is no provision in the lease deed to establish the said claim made on behalf of the plaintiffs. Ex.A-8, which was objected to at the time of its marking does not support the contentions raised on behalf of the plaintiffs. The second defendant had not admitted the signature in Ex.A-8 and the said document does not contain any signature at the end of the page. Since the premises in question is not exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the civil suit filed by the plaintiffs, for ejectment of the defendants from the suit premises, cannot be maintained.
27. When the main issue is relating to the character of the lease, the plaintiffs have not been in a position to show that the lease is a composite lease. It is not the case of the plaintiffs that the `business', had been transferred along with the furniture, fittings, utensils, accessories, etc, including the goodwill. It is only the building that was given on lease. If the initial lease is only in relation to the building, giving furniture, equipments, utensils, etc., thereafter, would not make the lease a composite lease. A composite lease has to be in one document. Unless, Ex.A-8 is a part of the original lease, it cannot be construed to be composite in nature. The signature of the first defendant is not found in Ex.A-8 and the second defendant's signature is found only in the 3rd part of the said document. There is also no schedule to the said document.
28. It was also contended that since the plaintiffs had not pleaded in the plaint, filed in O.S.No.9046 of 1995, that the building under lease is a room exempted from the definition of `building', under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, no issue relating to it had been framed either by the trial Court or by the appellate Court. Further, there were no discussions on the said issue.
29. On the other hand, the learned counsel appearing on behalf of the appellants had submitted that it has been specifically pleaded in paragraph-6 of the plaint that the tenancy of the first defendant and the possession of the second defendant are not protected by any law in force and it is exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Since the plaintiffs do not want the defendants to continue the business, the plaintiffs wanted to get possession of the suit property, including the furniture, fittings, equipments, articles, machineries, etc. Thus, it is clear that the suit premises is exempted from the definition of the building, under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Further, the lease is a composite lease including fittings, furniture and machineries.
30. It has also been submitted that appropriate issues had been framed by the trial Court while deciding whether the plaintiffs were entitled to maintain a civil suit for ejectment of the defendants, who were admittedly, lessees in the suit premises. It was also submitted that only two documents would be of relevance to decide the issues arising in the suit, namely, Ex.A-1, which is the first lease deed, dated 1.4.1970, and Ex.B-10 lease deed, dated 12.10.1989.
31. It was also contended that the first defendant had filed the written statement admitting the claims of the plaintiffs. However, the second defendant had filed a written statement, saying, interalia, that the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, would apply to the present case and therefore, no suit would lie.
32. Accepting the contentions raised on behalf of the plaintiffs, the trial Court had held that the suit premises were `rooms in the hotel' and therefore, they were exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The trial Court had further held that the lease is with regard to the business and therefore, it is composite in nature. In the appeal filed by the second defendant, the first Appellate Court did not disagree with the trial Court with regard to the finding that the lease relates to the `rooms in the hotel'. However, since the restaurant caters also to outside persons, who were not lodged in the hotel, the exemption, granted by the Act, would not be applicable to them. It was also found that the lease was not a composite lease to fall under the exemption provided, under Section 30(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
33. The learned counsel for the appellants had submitted that the character and nature of the `rooms' do not change due to the fact that outsiders had access to the restaurant run in the said rooms. The decision of the Supreme Court reported in Associated Hotels of India Ltd. V. R.N.Kapoor (AIR 1959 SC 1262), would clearly apply to the present case.
34. The Appellate Court had not set aside the finding of the trial Court that the suit premises were `rooms in the hotel'. The contentions raised on behalf of the second defendant were mainly relating to the nature of the lease. Therefore, there is no sufficient explanation given by the second defendant to support the reasons given by the first Appellate Court to hold that the rooms in the hotel, which are the subject matter of the suit, cannot be qualified for the exemption, granted under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
35. On analysing the contentions raised by the learned counsels appearing on behalf of the parties concerned and on analysing the evidence available on record, it is clear that the first Appellate Court had misdirected itself by setting aside the judgment and decree of the trial Court, dated 30.4.2002, made in O.S.No.9046 of 1995.
36. Even though the first Appellate Court had held that the suit premises were `rooms in the hotel, no sufficient cause or reason is shown to come to the conclusion that such rooms would not fall under the exemption granted under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
37. The first Appellate Court cannot be said to be right in concluding that the exemption granted under the Act would not be applicable to the suit premises only for the reason that outsiders were having access to the restaurant run in the said premises. Though it may be said that the plaintiffs could not clearly prove, by acceptable evidence, that the lease in question was a composite lease it would not make any difference to the present case since it is clear that the suit premises are `rooms in the hotel', exempted under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Only for the reason that outsiders are having access to the restaurant run in the suit premises, the nature and character of the rooms would not change. Since, the first defendant had accepted the claims made by the plaintiffs in the written statement, filed on behalf of the first defendant in the suit in O.S.No.9046 of 1995, the onus of proof was weighing heavily on the second defendant to clearly prove that the suit premises are not exempted from the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as claimed by the plaintiffs and that the lease is not a composite lease.
38. In such circumstances, this Court is of the considered view that the second defendant has not shown sufficient cause or reason in support of his claims. Further, the first Appellate Court has not given proper reasons for coming to its conclusion that the suit premises was not exempted under Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Therefore, the judgment and decree of the first Appellate Court, dated 02.12.2004, made in A.S.No.223 of 2002 is set aside, restoring the judgment and decree of the trial Court, dated 30.04.2002, made in O.S.No.9046 of 1995. Accordingly, the second appeal stands allowed. No costs.
Index:Yes/No 16-04-2008 Internet:Yes/No csh M.JAICHANDREN,J csh S.A.No.439 of 2005 16-04-2008