Madras High Court
Tmt.R.Swarnavalli vs H.H.The Prince Of Arcot Endowments on 16 March, 2009
Equivalent citations: 2009 (5) AKAR (NOC) 885 (MAD)
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.03.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1493 of 2008 and M.P.No.1 of 2008 Tmt.R.Swarnavalli .. Appellant vs. H.H.The Prince of Arcot Endowments rep.by its Agent Mr.U.Mohmmed Kheliullah Amir Mahal, Royapettah, Chennai 14 .. Respondent This second appeal is filed against the decree and judgment passed in A.S.No.73 of 2008 on the file of the 3rd Additional District Judge, Chennai dated 31.03.2008 confirming the decree and judgment passed in O.S.3009 of 2005 dated 3.4.2007 on the file of the learned 8th Assistant City Civil Judge, Chennai. For Appellant : No appearance For Respondent : No appearance J U D G M E N T
This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 31.03.2008 passed in A.S.No.73 of 2008 by the 3rd Additional District Judge, Chennai, confirming the judgement and decree of the trial Court, namely, 8th Assistant City Civil Judge, Chennai, in O.S.No.3009 of 2005. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.
2. The plaintiff filed the suit as against the defendant seeking the following reliefs on the ground that the defendant entered into occupation of the suit property as tenant on monthly rental basis:
"a) pass a decree in favour of the plaintiff directing vacant delivery of possession of the suit property namely the land comprised in No.45, Ellis Road, which belongs to the plaintiff;
b) to pass a decree against the defendant in a sum of Rs.8,784/- as damages for use and occupation from 30.04.2004 till the date of filing of the above suit;
c) to grant further damages at Re.1/- per sq.ft. from the date of plaint till the delivery of possession is made to the plaintiff;
d) to grant a permanent injunction restraining the defendant or agents, men or contractors from putting up any construction in the suit property till the delivery of the vacant possession of the suit property; and
e) order for costs of the suit incurred by plaintiff to be paid by the defendant and for such other relief or reliefs or direction of this Honourable Court may deem fit to pass in the circumstances of the case."
Subsequently, the plaintiff issued notice under Section 106 of the Transfer of Property Act terminating the lease. Despite such termination, the defendant did not vacate the suit property, hence the suit.
3. Per contra, denying and refuting, remonstrating the impugning the averments/allegations in the plaint, the defendant filed the written statement raising various pleas including the one that the land alone was leased on rent and the superstructure was put up thereon by the tenant concerned; the plaintiff had no right to file the suit for eviction; he is running a shop in the premises that the termination notice is not valid, and as such, the defendant is having right to continue in possession.
4. The lower Court framed the relevant issues. During trial, on the side of the plaintiff, Uma Shankar was examined as P.W.1 and Exs.A1 to A6 were marked. On the side of the defendant, the defendant examined herself as D.W.1 and Exs.D1 to D9 were marked. Exs.C1 and C2 were marked as Court documents.
5. Ultimately, the lower Court dismissed the suit, as against which the first appeal was filed, for nothing but to be dismissed, confirming the judgment and decree of the lower Court. Being disconcerted and aggrieved by the judgment and decree of both the Courts below, this Second Appeal has been focussed on various grounds and also by suggesting the following alleged substantial questions of law:
"1. Whether the first appellate court is correct in dismissing the appeal without giving opportunity for the appellant to advance their arguments?
2) Whether the appellate court is correct in dismissing the appeal as if it heard the arguments of appellant?
3) Whether the appellant is entitled to purchase the suit property as per Section 9 of City Tenants Protection Act?
4) Whether the notice sent under Section 106 of T.P.Act by the respondent is valid in eyes of law?
5) Whether the respondent is entitled for damages as claimed by the respondent?
6) Whether the sale deed executed in favour of this appellant on 11.7.1985 has got any validity in eyes of law?
7) Whether the suit is maintainable when admittedly the superstructure is constructed by this appellant in the suit property and the vacant land only is belonged to the respondent?"
6. Despite printing the names concerned, none appeared.
7. On perusal of the records, I am of the opinion that at the admission stage itself the matter could be disposed of.
8. A plain poring over and perusal of the typed set of papers including the copy of the judgment of the Courts below would demonstrate and display that the plaintiff is the absolute owner of the suit property and the defendant was a tenant under the plaintiff. The plaintiff also issued notice under Section 106 of the T.P. Act terminating the tenancy of the defendant, and calling upon him to hand over vacant possession. Both the Courts below discussed and appreciated the relevant facts and ordered eviction.
9. At this juncture my mind is redolent and reminiscent of the of the following decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from it would run thus:-
"17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. ...
18. ... It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. ...
21. ... However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing 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 v. Ram Ditta 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 Sir Chunilal case 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(Sir Chunilal case, SCR p.557) "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 the particular fact of the case it would not be a substantial question of law."
This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "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 call 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."
23. 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 his 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).
24. . . .
(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
(ii) One other decision of the Hon'ble Apex Court could also be cited as under:
2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, an excerpt from it would run thus-
9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962 SC 1314) held that:
"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."
As such, in the absence of any question of law, much less substantial question of law, the probability of entertaining the Second Appeal does not arise.
10. Here the proposed substantial question of law Nos.1 and 2 are to the effect that the first appellate Court did not hear the appellant at all before passing the judgment. A plain reading of the relevant judgment of the first appellate Court would display and evince that the respondent therein filed the written submissions, whereas on behalf of the appellant/defendant, even though Advocates were on record, none appeared and the lower court based on the records rendered its judgment. Had really the appellant/defendant before the First Appellate Court was aggrieved by such judgment, he ought to have filed I.A. for recalling the said order or get the said order set aside on the ground that the said judgment was passed without hearing the appellant and for reasons to be recorded, the First Appellate Court would have the jurisdiction to recall or set aside the order passed by it, by way of giving one more opportunity of hearing. But in this case, the appellant/defendant before the First Appellant Court had not chosen to do so, but straightaway presented the Second Appeal. As such, the approach of the defendant herein in filing the Second Appeal is not tenable. Accordingly, the proposed substantial question of law Nos.1 and 2 are answered.
11. The proposed substantial question of law No.3 is relating to Section 3 of the Madras City Tenants' Protection Act, 1921. By virtue of Tamil Nadu Amending Act 2 of 1996, clause (f) was inserted under the said Section in the Act and it runs as under:
"S.1(3) This Act shall apply:-
(a) ...
(b) ...
[Provided that nothing contained in this Act shall apply to tenancies of land owned -
(a) ...
...
(f) by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion."
It is therefore crystal clear that the defendant cannot try to claim any benefit under the Madras City Tenants' Protection Act, 1921. As such, the substantial question of law No.3 is a misconceived one.
12. The proposed substantial question of law No.4 is relating to validity of the notice issued by the plaintiff under Section 106 of Transfer of Property Act. The lower Court correctly gave a finding of fact that proper, notice under Section 106 of Transfer of Property Act was issued by the plaintiff terminating the tenancy of the defendant. There is nothing to highlight in the written statement or in the evidence as to how the said notice under Section 106 is untenable in the eye of law. What are all contemplated under Section 106 of T.P. Act is that, in matters of this nature where the tenancy is for running business or for residential purpose, there should be 15 days notice terminating the tenancy. Here, the tenancy itself as per the defendant was for the business purpose. The reason for termination of notice under Section 106 of T.P.Act is not at all germane as correctly understood and pointed out by the lower Court in its judgment. In view of the fact that in the written statement itself there is no specific plea challenging the validity of Section 106 of the Transfer of Property Act, it amounts to waiver and in the Second Appeal he cannot raise such a plea also. Even otherwise, the lower Court correctly scrutinised Ex.A2 dated 07.07.2004, the termination notice issued under Section 106 of T.P. Act and held that the notice was correctly issued.
13. At this juncture, I would call up and recollect the following decisions:
(i) 2006(3) S.C.C. 216 [Dharam Pal v. Harbans Singh]
(ii) AIR 2003 S.C.3995 [Parwati Bas v. Radhika] As such, it is crystal clear that the defendant without specifically raising a plea in the written statement or by giving a reply notice to that specific effect cannot raise such a plea. As such, I could see no merit in the proposed substantial question of law No.4.
14. Regarding finding of fact relating to claiming damages, I could see no substantial question of law involved. The lower Court awarded damages for use and occupation in a sum of Rs.8,784/- for the period, between 30.04.2004 and the date of filing of the suit at the same rate of rent which prevailed earlier and from the date of plaint, damages for use and occupation was awarded at the rate of Re.1 per sq.ft. I could see no question of law, much less substantial question of law involved in awarding such damages for use and occupation. As such, the suggested substantial question of law No.5 warrants no interference by this Court.
15. The proposed substantial question of law No.6 is relating to sale deed dated 11.07.1985 executed by one Mir Usif Ali in favour of the appellant. I am at a loss to understand as to how the superstructure purchased by the defendant as per the sale deed would in any way be an embargo for the landlord, the plaintiff herein to evict the defendant herein and obtain vacant possession of the land.
16. The lower Court correctly gave a finding to the effect that the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is not applicable to this case, because the property belongs to the plaintiff, which is a Public Religious and Charitable Institution. At this juncture, I would call up and recollect the publication in Part II - Section 2 of the Tamil Nadu Government Gazette, dated the 21st November 1974 effected under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 exempting all the buildings owned by Hindu, Christian and Muslim religious trusts and charitable institutions from all the provisions of the said Act. As such, impliedly or expressly, the concept as contemplated under the said Act cannot be pressed into service by the defendant. Accordingly, there is no merit in the proposed substantial question of law No.6 as put forth before this Court.
17. The proposed substantial question of law No.7 is totally antithetical to the very written statement filed by the plaintiff himself and the plaintiff herein prayed only for vacant possession of the suit property and since it happens to be the Trust, there is no embargo for such Trust to seek vacant possession of the suit property free from superstructure. Accordingly, there is no merit in the proposed substantial question of law No.7.
18. What I could understand from the whole kit and caboodle of facts and figures placed on the side of the defendant, is that he might find it difficult for vacating the premises all of a sudden; hence considering the circumstances, the trial Court itself granted two months' time for eviction and thereafter, much water has flown under the bridge and for years together the defendant is continuously occupying it. Nonetheless, in the interest of justice, I would grant three months' time from this date for evicting and handing over possession of the suit property by the defendant in favour of the plaintiff.
Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is also closed.
gms 16.03.2009
Index : Yes/No
Internet: Yes/No
To
1. 3rd Additional District Judge, Chennai
2. 8th Assistant City Civil Judge, Chennai.
G.RAJASURIA,J.
gms
S.A.No.1493 of 2008
16.03.2009