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[Cites 27, Cited by 2]

Madras High Court

P.R.Aithala Alias vs Hindusthan Petroleum Corporation on 9 October, 2006

Author: V.Dhanapalan

Bench: V.Dhanapalan

       

  

  

 
 
 In the High Court of Judicature at Madras

Dated:  09.10.2006

Coram

The Honourable Mr.JUSTICE R.BALASUBRAMANIAN
and
The Honourable Mr.JUSTICE V.DHANAPALAN

A.S.No.113/1991, C.M.P.No.14303/2005 
and
C.M.A.No.336/1987


P.R.Aithala alias 
P.Ramakrishna Aithala			....  Appellant in both the appeals

				Vs.
	
Hindusthan Petroleum Corporation
Limited, 24, Pantheon Road,
Egmore, Madras  8.			....  Respondent in both the appeals

A.S.No.113 of 1991:

	APPEAL under Section 96 of the Code of Civil Procedure against the judgment and decree dated 21.12.1983 made in O.S.No.3590 of 1982 on the file of II Additional City Civil Judge, Madras.

C.M.A.No.336 of 1987:

	APPEAL under Section 9 (A) of the Tamilnadu City Tenants Protection Act III of 1922 against the order and decree dated 21.12.1983 made in I.A.No.12457 of 1982 in O.S.No.3590 of 1982 on the file of II Additional City Civil Judge, Madras.

		For Appellant   :  Mr. N.R.Chandran, S.C.
				        for Mr.R.Bharanidharan		

		For Respondent:  Mr.G.Masilamani, S.C.
					For M/s. King & Patridge


C O M M O N  J U D G M E N T

(Judgment of the court was delivered by Justice R.Balasubramanian) The regular first appeal arises out of the judgment and decree dated 21.12.1983 in O.S.No.3590 of 1982 on the file of the Second Additional City Civil Court declaring that the defendant in the suit is entitled to buy the property forming the subject matter of the suit under Section 9 of the Tamilnadu City Tenants' Protection Act, failing which the defendant should deliver vacant possession to the plaintiff and the defendant to pay a sum of Rs.812.50 per month to the plaintiff till the defendant gets the sale deed in it's name. Hence, the plaintiff in that suit is before this Court in this appeal. Pending appeal, the plaintiff filed C.M.P.No.14303 of 2005 under Order 41 Rule 27 of the Code of Civil Procedure to receive additional evidence. The defendant in that suit filed I.A.No.12457/1982 under section 9 of the Tamil Nadu City Tenants' Protection Act. It was ordered as prayed for by order and decreetal order dated 21.12.1983 by the II Additional City Civil Court. Therefore the plaintiff in the suit is before us in the Civil Miscellaneous Appeal. In both the proceedings, the defendant in the suit and the petitioner in the application filed under Section 9 of the Tamilnadu City Tenants Protection Act is the respondent. In this common judgment, for convenience sake, we refer the parties as the plaintiff and the defendant. Heard Mr.N.R.Chandran, learned senior counsel appearing for the plaintiff and Mr.G.Masilamani, learned senior counsel appearing for the defendant.

2. We summarise the plaint allegation in O.S.No.3590 of 1982 as here under:

"The plaintiff is the owner of the land forming the subject matter of the suit. It was leased out under a registered lease deed dated 26.2.1962 to Standard Vaccum Oil Company. The lease was for a period of ten years on a monthly rent of Rs.650/-. The lease deed contains a renewal clause for a further period of ten years from the expiry of the first period of ten years on a rent to be fixed by the plaintiff. On the expiry of the first period of lease, the plaintiff filed O.S.No.4400 of 1972 for recovery of possession against the defendant in the present suit and another who are the successors-in-interest of Standard Vaccum Oil Company. The suit was dismissed and the appeal filed against that judgment and decree was also dismissed. The second appeal filed against those judgments is pending before this Court (we add that the second appeal was dismissed as withdrawn at a later stage). The plaintiff filed O.S.No.7553 of 1980 claiming arrears of damages quantified at Rs.33,475/- till 10.2.1980. That suit is also pending disposal. The defendant had not delivered vacant possession of the property even after the expiry of the second period of ten years, which came to an end on 10.2.1982. The property is situated in a posh area and therefore would fetch atleast Rs.3,000/- per month as rent. Therefore, the defendant is liable to pay a sum of Rs.3,000/- per month as damages for use and occupation. The plaintiff by his letter dated 1.2.1982 called upon the defendant to quit and deliver vacant possession of the property on the expiry of 10.2.1982. The defendant received the notice. But failed to comply with the demand. The defendant has no authority to stay in the suit property. The cause of action arose on the expiry of ten year period after the first period under the lease deed was over....."

On the above allegations, the plaintiff wanted delivery of possession of the property and for a sum of Rs.3,000/- per month as damages for use and occupation from the date of the plaint till the date of delivery of possession.

3. The defendant contended as here under:

"The lease deed dated 26.6.1962 in favour of the predecessors-in-interest of the defendant is true and the terms of the lease is also true. After the expiry of the first period of ten years, renewal of the lease for a further period of ten years was claimed. The plaintiff refused to renew the lease and filed O.S.No.4400 of 1972 in the City Civil Court, Chennai seeking recovery of possession. That suit was dismissed. The appeal arising there from, namely, A.S.No.377 of 1979 was also dismissed. Second Appeal No.2257 of 1981 further arising there from is pending. The defendant is the successor-in-interest of the original tenant, namely, Standard Vaccum Oil Company and therefore it is a tenant within the meaning of the Tamilnadu City Tenants Protection Act. The defendant filed I.A.No.12457 of 1982 under Section 9 of the Tamilnadu City Tenants Protection Act. As the defendant is a statutory tenant, claim for damages is not maintainable. A sum of Rs.3,000/- estimated as damages per month is arbitrary and excessive. The claim must therefore be rejected."

4. On the above pleadings, the trial Court framed the following issues:

a) Is not the defendant entitled to the benefits flowing out of Section 9 of the Tamilnadu City Tenants' Protection Act?
b) Is the defendant liable to pay damages to the plaintiff?
c) Whether as a rent or damages, what would be the amount the plaintiff would be entitled to?
d) To what are the relief the parties are entitled to?

5. It must be noticed that O.S.No.3590 of 1982 along with I.A.No.12457 of 1982 and O.S.No.7553 of 1980  suit for arrears of damages, came to be disposed of by a common judgment. The defendant filed I.A.No.12457 of 1982 under Section 9 of the City Tenants Protection Act. The pleading in support of the application is as here under:

"2. The Plaintiffs have filed the above suit against the defendant in this Hon'ble Court for recovery of possession of a piece of vacant land admeasuring 10,000 square feet and for recovery of damages for use and occupation at the rate of Rs.3,000/- per month. The suit summons was served on the Defendant only on 1.7.1982. A large extent of land admeasuring 10,000 square feet in Door No.242, Royapettah High Road, Madras  600 014 was leased by the plaintiffs to Standard Vaccum Oil Company, by a Registered Deed of Lease dated 22.6.1962, on a monthly rental of Rs.650/- for a period of 10 years. Standard Vaccum Oil Company merged with another foreign company called Esso Standard Eastern Incorporation. In the year 1974 the Government of India took over the said Esso Standard Eastern Incorporation by an Act of Parliament Act 4 of 1974 and vested the same in the new Government Company called the Hindustan Petroleum Corporation Limited, the present Defendant herein. It is not disputed that ever since 22.6.1962 Standard Vaccum Oil Company and its successors in interest companies have been in continuous possession of the suit site. The tenancy of the successor companies have been recognised by the plaintiffs and the plaintiffs have been receiving rents from the defendant till recently.
3. The defendant states that it is a successor in interest to the erstwhile Standard Vaccum Oil Company and the Esso Standard Eastern Incorporation and hence is a tenant within the meaning of Section 2(4) of the Madras City Tenants Protection Act of 1921 as amended upto date. The defendant therefore states that as a tenant it is entitled to purchase the suit site from the plaintiffs under Section 9 of the said Act at a market price to be fixed by this Hon'ble Court. This petition is therefore filed for an order for the purchase of the said land.
4. The defendant therefore prays that this Hon'ble Court may be pleased to direct the Plaintiffs/Respondents to sell the suit land to the Defendant/Petitioner at a market price to be fixed by this Hon'ble Court."

The plaintiff filed a counter contending, among other things, as here under:

"I submit that the application filed by the petitioner under Section 9 of the Act is not maintainable in law on the ground that the petitioner do not come under the definition of tenant as per Section 2 (4) of the Act."

Ultimately the suit in O.S.No.3590 of 1982 came to be disposed by judgment and decree dated 21.12.1983 on the following lines:

"The defendant is entitled to the protection under Section 9 of the Tamilnadu City Tenants Protection Act and an order accordingly in I.A.No.12457 of 1982 is passed; in case the defendant did not buy the property as ordered, then the defendant must deliver vacant possession of the property to the plaintiff; when the plaintiff files execution petition for recovery of possession, then the final order in I.A.No.12457 of 1982 must be filed and on the basis of which only the relief could be granted; the defendant should pay a sum of Rs.812.50 per month to the plaintiff; such payment will be upto the date on which the sale is to take place and the defendant has to bear half the cost."

In the suit filed by the plaintiff one witness as P.W.1 was examined besides marking Exs. A.1 to A.5. Neither oral nor documentary evidence was brought before Court at the instance of the defendant. By the same judgment dated 21.12.1983 I.A.No.12457 of 1982 in O.S.No.3590 of 1982 was allowed. As noted earlier, it is the decree in O.S.No.3590 of 1982 and the order in I.A.No.12457 of 1982 are in challenge in this regular First Appeal and the Civil Miscellaneous Appeal.

6. C.M.P.No.14303 of 2005 is filed by the plaintiff to receive the judgment and decree dated 6.3.1979 in O.S.No.4400 of 1972 and the judgment and decree dated 1.8.1980 in A.S.No.377 of 1979 arising there from as additional evidence. In support of the petition, an affidavit is filed sworn to by the petitioner himself. In paragraph 10 and 11 of the affidavit filed in support of the application alone the following averments have been made for receiving the additional documents:

"The issue in the present suit essentially involves the fact as to whether the respondent herein is entitled for relief under the Madras City Tenants Protection Act. The question of granting relief under Section 9 of the Madras City Tenants Protection Act would not arise dur to fact that the respondent ceased to be in possession by virtue of subletting which has been documented in judgments rendered in O.S.No.4400 of 1972 and A.S.No.337 of 1979. Hence, it is just and necessary that the judgment and decree passed in O.S.No.4400 of 1972 and A.S.No.337 of 1979 are taken on record and marked as additional documents.
Petitioner most humbly submits that due to his age and health he could not effectively follow the suit and other proceedings in respect of the suit schedule property. The petitioner herein only recently upon consulting his counsel came to know about the technicalities and the need to mark the judgment of the earlier proceedings in the present suit. Hence the present application. Serious prejudice and hardship would be caused to the petitioner if the application is not ordered as prayed for. On the contrary no prejudice would be caused to the respondent as the documents, which are sought to be marked are judgement and inter-parties which is admissible in evidence. Moreover the existence of the document cannot be disputed as the same forms part of the record of this Hon'ble Court in S.A.No.2258 of 1981. Valuable rights of the petitioner would be seriously prejudiced if the application is not allowed."

The defendant filed a counter to this application opposing that essential ingredients of Order 41 Rule 27 of the Code of Civil Procedure are not established. According to the defendant, the reason attributed for the non-production of the document on the face of it is incorrect and unacceptable. The plaintiff is guilty of laches and there is an inordinate deliberate delay in producing the documents. According to the defendant no new documents could be allowed to be brought as additional evidence to fill up the lacuna. The further objection is the affidavit filed in support of the application to receive additional documents do not set out the circumstances and facts warranting reception of additional evidence and that the present application is only intended to delay and defeat the defendant's statutory right.

7. Mr.N.R.Chandran, learned senior counsel appearing for the plaintiff would submit that the defendant is not entitled to the protection under Section 9 of the City Tenants Protection Act, since the defendant is not in actual physical possession of the property demised to him and the building standing thereon. To show that the defendant did not continue in actual physical possession of the land and the building, additional documents produced before this Court would throw enough light. Though there is delay in filing the additional documents, yet this Court, in order to do complete justice between the parties, can receive additional evidence. Since no prejudice at all would be caused to the defendant, additional evidence can be received. The additional documents will not take the defendant by any surprise since they are parties to it and they are nothing but the printed copy of the judgment in an earlier suit to which the plaintiff and the defendant are parties. The learned trial Judge had committed an error in law in granting the relief to the defendant under Section 9 of the Tamilnadu City Tenants Protection Act since it is not shown to be the tenant at all and if that order is set aside, the plaintiff would be entitled to the relief of possession prayed for by him in the suit. It is further argued by the learned senior counsel that the defendant had a right to file an application under Section 9 of the Tamilnadu City Tenants Protection Act in O.S.No.4400 of 1972 and yet, the defendant did not claim any such benefit in those proceedings. Even assuming that on the date when the suit in O.S.No.4400 of 1972 was filed, the defendant had no subsisting right, yet when the second appeal was pending, which is a continuation of the suit, such a right accrued to the defendant and he ought to have at least asked for the relief at that stage. Therefore on the principle of Resjudicata the defendant is prevented from claiming such right once again in the present proceedings or he is deemed to have waived his right. Mr.G.Masilamani, learned senior counsel appearing for the defendant would contend that the plaintiff had not pleaded in the plaint filed in O.S.No.3590 of 1982 or in the counter filed by him to I.A.No.12457 of 1982 that the defendant did not continue in actual physical possession of the property. Even in the grounds of appeals filed before this court, namely, either in the first appeal or in the civil miscellaneous appeal, no ground is taken that the defendant does not continue in actual physical possession of the property. Whether the defendant continues in actual physical possession or not of the property is a question of fact and therefore when the plaintiff had not pleaded to that effect at any stage, then to allow such a plea raised for the first time now by producing additional evidence would cause considerable prejudice to the defendant. Bringing to our notice case law on the requirement of pleadings and the effect of failure to plead, learned senior counsel for the defendant would contend that the plaintiff is not entitled to any relief at all in both the proceedings filed by him before this Court. Learned senior counsel would contend that the defendant had never lost possession of the property and there is no finding whatsoever in the earlier proceedings that the defendant lost possession. Learned senior counsel would further contend that if at all the defendant had any right accrued to him under Section 9 of the Tamilnadu City Tenants' Protection Act, it accrued to him for the first time only on Tamil Nadu Act 2/80 coming into force. Therefore in the pending when Second Appeal No. 2257 of 1981, the defendant could have filed an application under section 9 of the Act. But however, the present suit had come to be filed within a short time after the withdrawal of the second appeal "as not pressed" and in the present suit the defendant filed the application under Section 9 of the Act. Therefore neither on the principle of res judicata nor on the plea of waiver the defendant can be non-suited.

8. In the light of the arguments advanced by learned senior counsel on either side and on the available pleadings, we are of the opinion that the following issues alone arise for consideration in these two appeals:

a) Is not the defendant entitled to protection under Section 9 of the Tamilnadu City Tenants Protection Act?
b) If not, whether the plaintiff is entitled to the relief of possession prayed for by him?
c) In the event of the plaintiff succeeding in the suit for possession, what is the quantum of damages for use and occupation which he is entitled to get?

9. In our considered opinion, any discussion on issue No.1 framed by us would be over lapping on issue No.2. Accordingly, we had decided to take up issue Nos. 1 and 2 for a common discussion. A tenant, if he is protected under the Tamil Nadu City Tenants' Protection Act, hereinafter referred to as the "Act", must file an application under section 9 of the Act to the court for an order directing the land owner to sell for a price to be fixed by the court, the whole or part of the extent of land specified in the application. Invariably, we find that every tenant/defendant always files an application for purchasing the entire extent of land demised to him and seldom we have come across any case where the tenant/defendant had expressed his readiness to purchase a smaller extent than the one demised to him. It is not as though once the defendant/tenant files an application to purchase the entire extent of land on the premises that he is entitled to the protection under the Act, the court is duty bound to pass an order directing sale of the entirety of the land. Under section 9(1)(b) of the Act, the court is called upon to first decide the minimum extent of land which may be necessary for the convenient enjoyment by the tenant. Once such an extent of land is arrived at by the court, then, the court shall fix the price for the said extent of land in the manner provided for in sub-section (b) to section 9(1) of the Act. The section also provides the course to be followed thereafter. These are the broad legal principles, which the court must have in deciding an application filed by the tenant/defendant under section 9 of the Act. It is only a "tenant", who alone is protected under the Act. "Tenant" is defined under section 2(4) of the Act. We extract hereunder the definition of "tenant" as is relevant for the purpose of deciding this case:

"(4) "Tenant" in relation to any land -
(i) means a person liable to pay rent in respect of such land, under a tenancy agreement express or implied, and
(ii) includes -
(a) any such person as is referred to in sub-clause (i) who continues in possession of the land after the determination of the tenancy agreement,
(b) any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under sub-section (3) of section 1 and who or any of his predecessors in interest had erected any building on such land and who continues in actual physical possession of such land and building, notwithstanding that - "

The entirety of clause (ii) of sub-section (4) of section 2 of the Act, as it stands today, was brought in by way of an amendment under section 2 of The Chennai City Tenants' Protection (Amendment) Act, 1973/ Tamil Nadu Act 24/73. Prior to this amendment, the substituted provision stood thus:

"(ii) includes -
(a) any such person as is referred to in sub-clause (i) who continues in possession of the land after the determination of the tenancy agreement, and
(b) the heirs of any such person as is referred to in sub-clause (i) or sub-clause (ii)(a): but does not include a sub-tenant or his heirs."

There is no dispute that the defendant in the suit was not in the picture at all in the year 1962 when the land in question was demised to Standard Vaccum Oil Company. Standard Vaccum Oil Company was succeeded by Esso Standard Eastern Incorporation and the defendant became the successor in interest of Esso Standard Eastern Incorporation by an Act of Parliament. From the arguments advanced by the learned senior counsel on either side, this court can safely conclude that the defendant's claim to buy the land  as ordered by the lower court, has to be decided on the basis of the definition of "tenant" as it stands defined today under section 2(4)(ii)(b) of the Act. Then came the Madras City Tenants' Protection (Amendment) Act, 1979, which was brought into force by Tamil Nadu Act 2/80, which received the assent of the President on 27.02.1980. This Act protects all tenancies created before the coming into force of this Act. But however, it is subject to the tenant/tenants claiming protection satisfying the definition of "tenant" as it stood on the day when the Act came into force and as it continues even as on date. There is no gain saying in stating that the right to buy the land forming the subject matter of the suit accrued to the defendant in the case on hand only for the first time after Tamil Nadu Act 2/80 came into force.

10. Section 2(4) of the Tamil Nadu City Tenants' Protection Act sets out the requirements to be fulfilled by a person, before ever he could be treated as a "tenant". Admittedly, the defendant herein was not the tenant at the inception and as noted earlier, he is only the successor in interest second in line of the tenant, who was put into possession initially. The period of lease at the inception was for 10 years commencing from the year 1962 and expiring with the year 1972. The tenant, at the inception, had an option for renewal for a further period of 10 years and accordingly, the tenant, who was inducted into possession originally, and the successors in interest had a right to be in possession for a total period of 20 years, made up of 10 years from 1962 to 1972 and 10 years from 1972 to 1982. There is no dispute that at the inception of tenancy only a vacant land, measuring 100/100 feet in R.S.No.1139/2-B in Royapettah High Road in the registration District of Mylapore, was leased. "Land" defined under section 2(2) of the Act excludes buildings. It must be shown, to get the benefit of the Act, that the predecessor in interest of the defendant had erected a building on the land demised originally. We have no doubt at all that assuming that the defendant is in possession of the land, yet in the absence of evidence showing that the defendant's predecessor in interest had put up the superstructure on the land, it would not entitle it to buy the land. The Act is a beneficial Legislation and therefore the provisions of the Legislation must be interpreted strictly in accordance with the expressed requirement of law. The opening words of sub section (4) of section 2 starts as "tenant" in relation to "any land". Since the defendant's claim is based only on section 2(4)(ii)(b) of the Act, we have decided to read the definition of "tenant" as hereunder:

"Tenant" in relation to any land -
includes -
any person who was a tenant in respect of such land .......... who or any of his predecessors in interest had erected any building on such land and who continues in actual physical possession of such land and building ........"

The manner in which we have read the definition of tenant vis-a-vis the defendant is well within the powers of the court since, in so doing, neither we have offended the section nor have we re-written the section. In other words, we have only divided the section into compartments so as to bring it more appropriate to the case of the defendant. The opening words used in sub section (4) of section 2 are any land and thereafter in all the other places, we find that the Legislature had used the expression such land. Therefore the expression such land is referable to any land mentioned in the opening sentence of sub-section (4) to section 2 of the Act. If we understand the expression any land and such land used in various portions of the section extracted above, it definitely means only one thing namely, the expression such land found mentioned in the rest of the section is referable only to the expression any land used in the opening sentence of the sub-section and any land is referable to the land demised to the tenant or his predecessor in interest. There cannot be any other meaning to the expressions  any land and such land used in sub-section (4) to section 2 of the Act. A reading of section 2(4)(ii)(b) of the Act unerringly shows that a tenant, besides establishing that he continues in actual physical possession of the land and building, must also establish that either he or any of his predecessors in interest had erected any building on such land. In this case, the defendant had not erected any building. Therefore it must be shown that his predecessor in interest had erected the building before the defendant can take advantage of it and claim the benefit under the Act. But that is not the all. The most important requirement enumerated in the above referred to section is the last one and that is, the tenant, who claims protection under the Act, continues in actual physical possession of such land and building. In other words, the section contemplates that the tenant, who claims protection under the Act, must continue in actual physical possession of such land and building, which ought to have been put by himself or his predecessor in interest. To put it more clearly, the sine-qua-non for a tenant to get a direction for the sale of the land is that, he continues in actual physical possession of such land and building, which ought to have been erected by himself or his predecessor in interest.

11. This court, in the judgment reported in Vol.92 L.W.Pg.259 (T.R.P.Raja Sekara Bhoopathy Vs. Navaneethammal) had held as follows:

"Therefore, the primordial requirement for a tenant to claim the benefits under the Act is that he should be in actual physical possession of such land and building."

In Vol.1998 L.W. Pg.99 (Hindustan Petroleum Corporation Ltd. Vs. Raja D.V.Appa Rao Bahadur), this court had held as follows:

"Besides under section 2(4)(ii)(b) of the Act, before a person can claim benefits as a tenant, he should have been a tenant of land under tenancy agreement prior to 12th September, 1955 and such person or his predecessors-in-interest should have erected the building on the land of such a person and have continued in actual physical possession of the land and the building."

In I.L.R.1996 (3) Madras Pg.671 (Hindustan Petroleum Corporation Ltd. Vs. K.M.Yakub), a learned Single Judge of this court held that a tenant, to claim benefit under the Act, should prove physical possession. The Hon'ble Supreme Court of India, in the judgment reported in 2003 (3) CTC Pg.488 (Radhakrishnan S.R. Vs. Neelamegam) had clearly held that, to get relief under section 9 of the Tamil Nadu City Tenants' Protection Act, the tenant should be in possession of the land. We extract paragraph No.14 in the said judgment.

"14. Our attention was invited to various decisions of the Madras High Court taking the same view i.e., actual physical possession of the demised premises is essential to maintain an application under section 9 of the Act. As a matter of fact the learned counsel for the appellant cited the case in Estate of T.P.Ramaswami Pillai Vs. Mohd. Yousuf and others, (1983 (2) MLJ 319) which takes the same view."

In 2003 (1) CTC Pg.199 (B.S.Nagarajan Vs. K.B.Sivasankaran) a Division Bench of this court also held that "tenants who are in actual physical possession alone can claim protection under Tenants Protection Act". It has also held in that judgment as hereunder:

"Of course, an attempt was made by the learned counsel for the appellant to show that still some portion of it is retained. The demarcation of the portion in his occupation was not done and there is no dispute that a major area of the superstructure is not in his possession."

Therefore, the long line of decisions referred to above clearly point out one thing and that is, if a tenant wants to get the benefit under section 9 of the Tamil Nadu Tenants' Protection Act, he must be in actual physical possession of the land and building and the tenant or his predecessors in interest ought to have erected that building.

12. The question that next follows is, what is the "land" of which he must be in possession? The land is referable to the land demised at the inception namely, the entirety of the land demised at the inception of the tenancy. To put it more precisely, if a tenant wants to have the benefit of section 9 of the Tamil Nadu City Tenants' Protection Act, he must establish that he continues in actual physical possession of the entire extent of land demised to him or to his predecessor in interest. In addition to being in actual physical possession of the land, he must also be in actual physical possession of the building. The expression "actual physical possession" relates to both land and building. It is therefore clear from the above pronouncements that the defendant in the case on hand, to get an order directing the plaintiff to sell the land to him, should show that he continues in actual physical possession of the land demised to his predecessor in interest at the inception and the building which was put up by such predecessor in interest. We have already held, in interpreting section 2(4)(ii)(b) of the Act, that "any land" occurring in the opening words of that sub-section means the extent of land that was demised at the inception and the expression "such land", wherever it occurs in clause (b), is referable only to the land demised at the inception. The extent of land demised at the inception is shown to be 10000 sft. Ex.C.2 is the plan submitted by the Advocate Commissioner appointed by the lower court. Ex.C.1 is his report. Before the Commissioner, the defendant's Sales Officer by name Shri.S.Vishnu Ram was examined. His evidence is found to be noted in paragraph No.11 of the Commissioner's report (We do not find any separate notes of evidence). According to his evidence, the company is occupying the entire area consisting of sales building, service station, underground tank and well, besides a store-room and the entire extent of land under their occupation is absolutely necessary for their business. Under section 2(4)(ii)(b) of the Act, the requirement is that, the tenant or his predecessor in interest should have erected a building on such land and who continues in actual physical possession ...... From a reading of the section, it appears to us that, on the entire extent of land demised, there need not be any construction and it is enough the tenant or his predecessor in interest should have erected any building.

13. Mr.N.R.Chandran learned senior counsel appearing for the plaintiff contended that the expression "who continues" .......... should mean that such possession must be an uninterrupted possession. According to him, since it is found in the earlier proceedings that the defendant had lost possession in favour of a third party, it cannot be said that the defendant continues in actual physical possession ........ Mr.G.Masilamani learned senior counsel appearing for the defendant, by taking us through Concise Oxford Dictionary, 10th Edition, Page 308, would contend that the word "continue"/ "continues"/ "continued"/ "continuing" means, among other things, re-commence or resume. Therefore, according to the learned senior counsel, if a tenant continues in actual physical possession of the land and building on the day when the application is filed and his rights come to be decided, it is immaterial whether during the past he had lost possession. As rightly contended by the learned senior counsel, the expression "continues", among other things, gives the meaning as indicated above. For the present, we will examine the rights of the tenant from the angle namely, the defendant, who lost possession earlier, had regained it before the filing of the application under section 9 of the Act. Tenant getting into possession; losing possession for one reason or other and re-gaining possession, is a pure question of fact. Therefore there must be pleading and proof on this aspect. We find that it is totally wanting. There was an earlier suit in O.S.No.4400/1972 filed by the plaintiff herein against the defendant and it's predecessor in interest claiming the relief of possession. It was alleged in that plaint that "the defendant's predecessor in interest had sub-leased the property to M/s.M.R.K.Agency; the sub-lessee put up a pump and underground storage tank; the sub-lessee put up an additional super-structure without any right, wherein, a business by name Auto Enterprises is carried on and under the lease document, only the predecessor in interest alone can put up a superstructure".

The defendant's predecessor in interest defended that suit by denying, among other things, sub-letting, by stating that "under clause (a) of the lease agreement between the parties, liberty was given to him to underlet the demised premises or in part thereof to any local dealer or agent; accordingly, the defendant had granted a licence in favour of M/s.M.R.K.Agency and they have every right to put up a service station, underground storage, etc........".

The learned trial Judge, on that issue, found that there was no prohibition in the lease deed for sub-letting or underletting by the defendant's predecessor in interest. The suit was dismissed. The First Appellate Court in A.S.No.337/1979, recorded, after noting the finding of the trial court that the agreement of lease provides for sub-lease and consequently there has been no breach of the lease terms, that the plaintiff did not advance any argument whether there was any breach of the terms of the lease at all.

14. At this stage, it has become necessary for this court to consider C.M.P.No.14303/2005. This is an application filed under Order 41 Rule 27 of the Code of Civil Procedure. Reception of additional evidence is hotly contested by the defendant stating that none of the requirements of Order 41 Rule 27(1) of the Code of Civil Procedure are satisfied. The two documents submitted as additional evidence are nothing but the printed copy of the judgment in O.S.No.4400/1972 on the file of the 4th Assistant City Civil Judge, to which, the plaintiff, the present defendant and his predecessor in interest are parties and the second document is the printed copy of the judgment in A.S.No.337/ 1979 arising from the judgment in that suit. At the risk of repetition, we state that the plaintiff and the defendant are parties to those two judgments. Strictly speaking, it is not possible to say that the plaintiff is not aware about the existence of these two judgments. It is not the case of the plaintiff that the trial court refused to admit such documents. If that is so, then the requirements of Order 41 Rule 27(1)(a) and (b) of the Code of Civil Procedure are not satisfied at all. Does it mean that such intra-party documents should not be admitted at all in evidence? For this purpose, we find that the second limb of Order 41 Rule 2 (1)(c) i.e., "for any other substantial cause" gives the answer. Under that second part, the appellate court can require additional evidence "for any other substantial cause". A Constitution Bench of the Supreme Court, in the judgment reported in AIR 1963 SC Pg.1526 (K.Venkataramiah Vs. Seetharama Reddy), while dealing with the power of the appellate court to receive additional evidence, had held as hereunder:

"(16) In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment." the requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R.27(1)(b) of the Code."
"(17) It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim Thakur Vs. Lal Mohar Thakur, 53 Ind App 254: (AIR 1931 PC 143) the Privy Council while discussing whether additional evidence can be admitted observed:
"It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent."
"(18) As the Privy Council proceeded to point out:
"It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands."

Mr.G.Masilamani, learned senior counsel, relying upon the judgment of the Supreme Court in the case reported in (2001) 1 SCC Pg.309 (Mahavir Singh Vs. Naresh Chandra) opposed the receipt of additional evidence. The Supreme Court, in that judgment had held as hereunder:

"Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order 41 Rule 27 CPC. The principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. However, section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly. (Para 5) Order 41 Rule 27 CPC envisages certain circumstances when additional evidence can be adduced:
(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

In the expression "to enable it to pronounce judgment" as used in Order 41 Rule 27(b) CPC the ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence. (Para 5) Syed Abdul Khader Vs. Rami Raddy, (1979) 2 SCC 601 : AIR 1979 SC 553; Municipal Corpn. Of Greater Bombay Vs. Lala Pancham, AIR 1965 SC 1008: (1965) 1 SCR 542, relied on But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words "or for any other substantial cause" must be read with the word "requires", which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply."

In the judgment relied upon by the learned senior counsel for the defendant, we find that the Supreme Court's view - emphasized portion - appears to be in line with the judgment of the Constitution Bench of the Supreme Court referred to supra.

15. Having regard to the crucial issue arising for consideration in the application filed under section 9 of theTamil Nadu City Tenants' Protection Act, we have no doubt at all that this court definitely requires the two documents produced before us by the plaintiff. In fact, the judgments in O.S.No.4400/1972 and A.S.No.337/1979 were challenged before this court in S.A.No.2257/1981 and it came to be dismissed "as not pressed" on 08.01.1992 by this court. Therefore even without an application from either party, this court, on it's own, could have sent for the records from this Registry in S.A.No.2257/1981 for consideration. Interest of justice also requires the production of the two documents referred to above before this court. Those two documents would safely guide this court to give a correct judgment and thereby avoiding any injustice to a litigant, who has a right to get justice. Therefore we receive the two documents filed along with C.M.P.No.14303/2005 as documents required by this court to pronounce the judgment and they stand exhibited as Court Exhibits i.e., C.1 and C.2.

16. The judgment in O.S.No.4400/1972 shows that the defendant therein had contended that sub-letting is permissible under the lease deed and there was no sub-letting but instead, there was only under letting. The judgment also shows that the defendant therein asserted the right of the person, to whom the property was underlet, to put up the construction. When the defendant in the suit on hand is facing so much of facts, then, he ought to have pleaded and proved that either the defendant or it's predecessors in interest had resumed possession from the person to whom the property was underlet. In this case, there is neither pleading nor proof. The argument advanced by the learned senior counsel for the defendant is though the plaintiff may contend that the defendant might have lost possession earlier due to underletting, yet, when he continues to be in actual physical possession of the land and building as on date, he should not be denied the relief under section 9 of the Act. In our considered opinion and on a careful reading of section 2(4)(ii)(b) of the Act, such an argument would not lie in the mouth of the defendant. To understand the true meaning of any provision of law, it must be read as a whole and the court should give, on such reading, the normal meaning which it explicitly conveys. Clause (b) of section 2(4)(ii) of the Act consists of three parts and they are as hereunder:

"any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under sub-section (3) of section 1"
"and who or any of his predecessor in interest had erected any building on such land"
"and who continues in actual physical possession of such land and building ......"

From the above, it is seen that part 3 is telescoped into part 2 and which in turn is telescoped into part 1 by the use of the word "and" in two places, which means, the requirement contemplated under clause (b) of section 2(4)(ii) of the Act is one continuous act. As already noted, the Act is a beneficial Legislation and therefore if a person wants to have the benefit of the Act, he must strictly comply with the requirement of the said Act. If the argument of the learned senior counsel for the defendant is accepted, then, a tenant, who is inducted into possession of land, may sub-let, though with authority; lose possession; allow the person put into possession to put up a construction; resume possession of the land and building put up by the person inducted into possession at any time as he likes and then claim the benefit of the Act. In our considered opinion, that is not the intention of the Legislature. Learned senior counsel for the defendant strenuously contended that Exs.C.1 and C.2 may only show that the predecessor in interest of the defendant had only given a "licence" to M.R.K.Agency; "licence" is different from "lease"; in the case of "licence", the licensee do not get exclusive possession to deny access to the licensor and therefore it must be held that the defendant and it's predecessor in interest continued in actual physical possession of the land and building. Though such is the stand of the defendant in O.S.No.4400/1972, which judgment is before us now, yet, we do not get any finding at all on that point in that judgment. The court, in that case, proceeded to dismiss the suit on the ground that in the registered lease deed, there is an express provision for sub-letting and therefore it did not go into the nuance of lease/licence. The defendant's predecessor in interest had not placed any material at all in O.S.No.4400/1972 as to what is the nature of right they have given to M.R.K.Agency. "Licence" involves granting permission to use the property. In case of "licence", the lessor has the right of entry without the permission from the licencee. Even assuming that the predecessor in interest of the defendant had only given the "licence" to M.R.K.Agency, it definitely means that the predecessor in interest of the defendant could not have been in actual physical possession of the land and building. The Hon'ble Supreme Court of India in the case reported in (2002) 5 SCC Pg.361 (Corporation of Calicut Vs. K.Sreenivasan) had discussed what right flow out of a licence granted. We extract paragraph 16 in the said judgment as hereunder:

"It is true that a licensee does not acquire any interest in the property by virtue of grant of licence in his favour in relation to any immovable property, but once the authority to occupy and use the same is granted in his favour by way of licence, he continues to exercise that right so long the authority has not expired or has not been determined for any reason whatsoever, meaning thereby so long the period of licence has not expired or the same has not been determined on the grounds permissible under the contract of law. Occupation of the licensee is permissive by virtue of the grant of licence in his favour, though he does not acquire any right in the property and the property remains in possession and control of the grantor, but by virtue of such a grant, he acquires a right to remain in occupation so long the licence is not revoked and/or he is not evicted from its occupation either in accordance with law or otherwise."

Therefore, if the argument of the learned senior counsel for the defendant that it is enough if the defendant shows that it is in actual physical possession of the land and building on the day when the application was filed to grant benefits under the Act has to be accepted, then, there must be pleading and proof on that vital aspect. On a perusal of the pleadings, we find that the defendant had not pleaded at all and therefore, in the absence of pleading and proof, this argument cannot be sustained.

17. We are also not prepared to accept the argument advanced by the learned senior counsel for the defendant that continuous actual physical possession of such land and building with the defendant need not be established. We again go back to section 2(4)(ii)(b) of the Act. We split section 2(4)(ii)(b) of the Act as hereunder:

"any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under sub-section (3) of section 1";
"and who or any of his predecessors in interest had erected any building on such land";
"and who continues in actual physical possession of such land and building etc.,........."

If we read section 2(4)(ii)(b) of the Act, the expression "who" occurring in part 3 and part 2 as divided above is referable only to "any person" appearing as the opening words of part 1. It is therefore clear that it deals with the right of a person who is a tenant and such a tenant can take advantage of any building erected on such land, either by himself or by his predecessors in interest. Therefore we have no doubt at all that "actual physical possession" contemplated under section 2(4)(ii)(b) of the Act must be the actual physical possession of the person who was a tenant and nobody else. In other words, construction of section 2(4)(ii)(b) of the Act do not recognise actual physical possession of such land and building with any person other than the person referred to in that sub-section. If we examine the rights of the parties on the above basis, then, we have no doubt at all that the arguments advanced by Mr.N.R.Chandran learned senior counsel appearing for the plaintiff that uninterrupted possession of such land and building with the person claiming benefits under the Act must be established, deserves acceptance and accordingly accepting it, we reject the argument of Mr.G.Masilamani learned senior counsel appearing for the defendant pointing out the contra. Exs.C.1 and C.2 show that possession of the defendant and it's predecessor in interest had been interrupted. Under these circumstances, we have no hesitation at all to hold that even on this ground, the defendant must fail.

18. Learned senior counsel for the defendant seriously accused the plaintiff for not pleading that the defendant is out of possession and therefore he is not entitled to the relief under the Tamil Nadu City Tenants' Protection Act. In a suit for possession, the plaintiff has to only plead that the tenancy had come to an end and the tenancy had been terminated. The present suit is on the ground that the lease period namely, 10 + 10 years equivalent to 20 years had already expired and the defendant is to deliver possession of the property.

The plaintiff, in such a suit, need not allege anything else. The right under section 9 of the Tamil Nadu City Tenants' Protection Act is conferred only on the tenant/defendant in possession. It is for him to exercise his right under that section or give it up, since such a right is capable of being waived. Therefore it is clear to our mind that the plaintiff, in a simple suit for ejectment, need not plead as to why the defendant should not be given any relief under the Act referred to above and the initial burden is on the defendant to plead that he is entitled to the protection under the said Act. In the written statement, besides stating that it is a tenant within the meaning of the Act, a reference is also made to the filing of I.A.No.12457/1982 under section 9 of the Act. In the earlier portion of this judgment, we have already extracted in extenso the pleading of the defendant in I.A.No.12457/1982. Suffice it to point out at this stage that the pleading in that regard is only as hereunder:

"It is not disputed that ever since 22.6.1962 Standard Vaccum Oil Company and its successors in interest companies have been in continuous possession of the suit site."

The plaintiff filed a counter contending in sum and substance that the defendant is not a tenant under the Act referred to above.

19. Since it is the defendant who wants an order in his favour under section 9 of the Tamil Nadu City Tenants' Protection Act, we hold that the defendant must plead and prove that he is a "tenant" as defined under section 2(4)(ii)(b) of the Act. If there is neither pleading nor evidence, then the defendant goes out of court. If there is proof without pleading, then such evidence cannot be looked into at all. If there is only pleading and there is no proof, even then the defendant goes out of court. Therefore the defendant must plead and prove the cause of action for him  the cause of action being that he is a tenant within the meaning of section 2(4)(ii)(b) of the said Act. The Hon'ble Supreme Court of India in the case reported in (1994) 6 SCC Pg.322 (Bloom Dekor Limited Vs. Subhash Himat Lal Desai) had explained what the expression "cause of action" means. We extract the same hereunder:

"By "cause of action" it meant every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit ..........."

Therefore a duty is cast upon the defendant to plead the necessary facts before ever he could get an order in his favour under section 9 of the said Act. Order 6 Rule 2(1) of the Code of Civil Procedure reads as hereunder:

"Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved."

Order 6 Rule 4 of the Code of Civil Procedure reads as hereunder:

"In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."

Therefore it is clear that there is a marked difference between "material facts" and "material particulars". The Hon'ble Supreme Court of India had an occasion to consider these two expressions namely, "material facts" and "material particulars" in the judgment reported in (1997) 1 SCC Pg.511 (Udhav Singh Vs. Madhav Rao Scindia) equivalent to AIR 1976 SC Pg.744. In that judgment, failure to plead as per the mandate of Section 83 of the Representation of People Act came up for consideration. Section 83 of the Representation of People Act reads as hereunder:

"(1) An election petition -
(a) shall contain a concise statement of the material facts on which the petitioner relies:
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, and
(c) * * * *"

The Supreme Court went on to hold that, like the Code of Civil Procedure, section 83 of the Representation of People Act also envisages a distinction between "material facts" and "material particulars". We extract paragraph Nos.41, 42 and 43 of the said judgment hereunder:

"41. Like the Code of Civil Procedure, this section also envisages a distinction between "material facts" and "material particulars". Clause (a) of sub-section (1) corresponds to Order 6, Rule 2, while clause (b) is analogous to Order 6, Rule 4 and 6 of the Code. The distinction between "material facts" and "material particulars" is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency or material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation."
"42. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice, "material facts" would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of section 83(1)(a).
"43. "Particulars", on the other hand, are "the details of the case set up by the party". "Material particulars" within the contemplation of clause (b) of section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). "Particulars serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative."

The Supreme Court, in AIR 1979 SC Pg.134 (T.H.D.Vashista Vs. Glaxo Laboratories) emphasized the need to plead material facts constituting the cause of action and the consequence of it's failure. In AIR 1966 SC Pg.735 (Bhagwati Vs. Chandramaul), the Supreme Court had held as hereunder:

"Undoubtedly if a party asks for a relief on a clear and specific ground, and if the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance."
"If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."

In AIR 1947 Privy Council Pg.132 (Gopalakrishnayya Vs. Madras Province) the Privy Council had held as hereunder:

"The rule that material facts should be pleaded is no mere technicality, and an omission to observe it deprives pleadings of most of their value and may increase the difficulty of the Court's task of ascertaining the rights of the parties."

The position that could be culled out from the above case laws is that, pleading must contain all "material facts". "Material particulars" are those which, on furnishing, gives an expansion of a party's case based on material facts pleaded. Even in the absence of pleadings, if the parties to the trial knew what the issue is and they have let in evidence, then, absence of pleading would not come in the way of the court considering the claims. If the parties do not know the matter in issue and one of the contesting parties lets in evidence in respect of that matter, then, it would undoubtedly be a different matter. In such circumstances, to allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice and in doing justice to one party, the court cannot do injustice to another. Mr.G.Masilamani learned senior counsel, citing the judgment of the Hon'ble Supreme Court of India in the case reported in (2004) 1 SCC Pg.551 (V.Rajeshwari Vs. Saravanabava), submitted that the plaintiff did not plead in the plaint that the defendant is not in possession; in the counter filed to the application filed under section 9 of the said Act, no such definite stand had been taken; not even in the grounds of appeal filed against the decree in the suit or in the order passed under the Act, any such ground had been taken and therefore, by producing additional evidence, the plaintiff should not be allowed to contend that point. This argument of the learned senior counsel for the defendant proceeds on the basis that the initial burden is on the plaintiff to plead and prove to non-suit the defendant from getting any benefit under the Act. This is just like putting the cart before the horse. We have already held that the initial burden is on the defendant to plead and prove it's case (i.e.) the defendant is entitled to an order in it's favour under section 9 of the said Act. Under these circumstances, we are inclined to reject the argument advanced by the learned senior counsel for the defendant that since the plaintiff failed to plead and prove that the defendant is not entitled to the relief under the Act, the defendant cannot be found fault with for lack of pleading or inadequate pleading and as a result of the plaintiff's failure to plead and prove, the defendant is entitled to the right as a matter of routine.

20. We have clearly spelt out the requirements which a tenant, to get the benefit under section 9 of the Tamil Nadu City Tenants' Protection Act, must satisfy. To reiterate, the requirements are as hereunder:

(a) The defendant or his predecessor in interest should have erected any building on such land; and
(b) the defendant or his predecessor in interest continues in actual physical possession of such land and building.

In this case, the defendant, on whom the initial burden to plead and prove it's case lies, had not pleaded any where that it's predecessor in interest had put up a building on the land demised originally and the defendant or it's predecessor in interest continues in actual physical possession of such land and building. Therefore, when the defendant had not pleaded such "material facts", it must be held that the defendant is before the court in the application filed under section 9 of the Act on an "incomplete cause of action". Then, as held by the courts in the various judgments referred to supra, the defendant must be non-suited on that ground alone. We find from the pleadings that the plaintiff had resisted the defendant's claim by stating that it is not the "tenant" within the meaning of the Act. The expression "actual physical possession" excludes symbolical possession. In other words, actual physical possession of such land and building put up as referred to above must be with the person who claims the protection under the Act. The judgment in O.S.No.4400/1972, rendered between the parties on an earlier occasion and received by this court as required by it to pronounce judgment, undoubtedly shows that the defendant's predecessor in interest had underlet the property. The defendant's predecessor in interest had pleaded that it is only that person, to whom the property had been underlet, had put up the construction. Therefore, one of the essential requirements of section 2(4)(ii)(b) of the Act that the building standing on the land ought to have been erected by the defendant's predecessor in interest, remains not established. Even before the Advocate Commissioner appointed under section 9 of the Act, the defendant's witness had not stated that it's predecessor in interest had erected the building. Such can never be the evidence because, in the judgment in O.S.No.4400/1972, the defendant's predecessor in interest had asserted the right of the person to whom the property was underlet to put up construction. Therefore it is clear that the building, which stands in the land as on date, had not been put up either by the defendant or it's predecessor in interest and therefore the building admittedly erected by a person other than the defendant or it's predecessor in interest cannot be equated to a building erected on such land by the defendant or it's predecessor in interest. Of course, from the report filed by the Advocate Commissioner appointed under section 9 of the said Act, it is seen that the defendant's employee, examined as a witness, had deposed that the company is in possession of the property. There is no reference at all in that report that the defendant continues in actual physical possession of the property. As already noted, in the face of the judgment in O.S.No.4400/1972 between the parties, where it is seen that the predecessor in interest of the defendant had admitted that he had under-let the property since it not prohibited under the lease deed. It is not possible to accept that the defendant continues and it's predecessor in interest continued in actual physical possession of the land and building.

21. Accordingly, we answer issue No.(a) framed by us against the defendant and issue No.(b) in favour of the plaintiff. On issue No.(c), no argument at all had been advanced and accordingly, the judgment, so far as it relates to the quantum of damages decreed, is confirmed. The judgment under challenge so far as issues (a) and (b) are concerned are set aside. As a result thereof, A.S.No.113/1991 stands allowed by setting aside the judgment and decree dated 21.12.1983 in O.S.No.3590/1982 on the file of the II Additional City Civil Judge, Madras and instead, the said suit would stand decreed for possession. Time for delivering possession is sixty days from the date of receipt of a copy of this judgment. Since this court has found that the superstructure, which stands on the land forming the subject matter of the suit, is not shown to have been erected by the defendant or it's predecessor in interest, the defendant is not entitled to any compensation as provided for under section 3 of the Tamil Nadu City Tenants' Protection Act. As a result of the judgment in A.S.No.113/1991, C.M.A.No.336/1987 stands allowed by setting aside the order and decreetal order dated 21.12.1983 in I.A.No.12457/1982 in O.S.No.3590/1982 on the file of the II Additional City Civil Judge, Madras. As a consequence thereof, I.A.No.12457/1982 stands dismissed. There will be no order as to costs in both the proceedings before this court.

Vsl To The II Additional City Civil Judge, Madras [vsant 8193]