Madras High Court
R.Purushotham Mohta vs M/S.Chinni Sriramulu Chetty Charties on 22 April, 2021
Author: M.Sundar
Bench: M.Sundar
S.A.No.383 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.04.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.No.383 of 2021
and
C.M.P.No.7346 of 2021
in
S.A.No.383 of 2021
R.Purushotham Mohta
Proprietor
M/s.Mohta Electricals
New No.244 (Old No.118)
Govindappa Street, Chennai-600 001. .. Appellant
Vs.
M/s.Chinni Sriramulu Chetty Charties
Rep. by its Trustees
1. Chinni Ramesh Babu
2. Chinni Balaji
3. Chinni Vinay Krishna
(substituted as per the order passed
in CMP.No.14/2007 dated 21.06.2007) .. Respondent
Second Appeal under Section 100 of CPC to set aside the judgement
and decree dated 05.01.2019 passed in A.S.No.603 of 2005 on the file of
XVII Additional City Civil Court at Chennai, confirming the judgment and
decree dated 20.06.2005 passed in O.S.No.4037 of 2001 on the file of VI
Assistant City Civil Court at Chennai.
1/20
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S.A.No.383 of 2021
For Appellant : Mr.G.RM.Palaniappan
For Respondent : Mr.R.Thirugnanam
----
JUDGMENT
This judgment and order will govern captioned main Second Appeal and captioned CMP.
2. Litigation which has reached this Court by way of captioned Second Appeal commenced nearly a decade ago, to be precise on 13.07.2001 when a suit was laid by an entity and three individuals. The suit was laid inter-alia with a prayer for a decree for delivery of vacant possession of suit property. There were prayers for past and future damages also. Plaint pleadings are to the effect that plaintiff is a public charitable trust (3 trustees joined together with the Trust in filing the suit). It is also to be noted that the defendant is a lessee under the plaintiff qua the suit property. Lease is not disputed. The suit property is at Door No.118 (New No.244) Govindappa Street, Chennai- 600 001 and according to plaint description it consists of two shop numbers, shop numbers 118/C and 118/20 admeasuring 950 sq.ft in ground floor and 250 sq.ft in mezzanine floor. Owing to lessor, lessee relationship being 2/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 admitted i.e., a fact regarding which there is no disputation, this Court deems it appropriate to describe the suit property as 'demised shop' for the sake of convenience.
3. The simple case of the plaintiff is that it is a public charitable trust; that the demised shop is exempt from the provisions of 'the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960)' [hereinafter 'Rent Control Act' for the sake of brevity]; that the plaintiff Trust terminated the lease vide termination notice dated 02.04.2001 (Ex.A1), (postal acknowledgement card is Ex.A2) terminating the lease, but the defendant did not vacate and hand over the vacant possession of demised shop even after 01.05.2001; that plaintiff is entitled to past and future damages also; that the defendant lessee on being served with suit summons, entered appearance and resisted the suit by filing a written statement dated 27.01.2003; that in the written statement defendant admitted the lease; that the defendant pleaded that he is not a defaulter in payment of rents and also took a plea that the actual extent in occupation qua demised shop is 1000 sq.ft and not 1200 sq.ft.; that before the trial Court one of the trustees i.e., 3/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 second plaintiff one Chinni Sriramulu examined himself as P.W.1, defendant i.e., R.Purushotham Mohta examined himself as D.W.1, there were 7 exhibits on the side of plaintiff namely, Ex.A1 to Ex.A7 and no documents were marked on the side of defendant lessee. After full contest, trial Court decreed the suit in and by judgment and decree dated 20.06.2005 directing delivery of vacant possession of the demised shop awarding past damages at the rate of Rs.30,000/- per month and future damages at the rate of Rs.15,000/- per month; that the defendant lessee carried the matter by way of a regular First Appeal under Section 96 of 'The Code of Civil Procedure, 1908' ['CPC' for brevity] vide A.S.No.603 of 2005 to the 'XVII Additional Judge's Court, City Civil Court, Chennai' [hereinafter 'First Appellate Court' for the sake of convenience and clarity] and the First Appellate Court, after full contest, dismissed the appeal by judgment and decree dated 05.01.2019 confirming the decree passed by the trial Court; to be noted, 'VI Assistant Judge's Court, City Civil Court, Chennai' shall hereinafter be referred to as 'trial Court' for the sake of convenience and clarity and original suit therein is O.S.No.4037 of 2001; that against these two concurrent judgements and decrees, the lessee has preferred the captioned Second Appeal under Section 100 CPC. 4/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021
4. Captioned Second Appeal is listed under the cause list caption 'FOR ADMISSION'. Mr.G.RM.Palaniappan, learned counsel for appellant is before me and Mr.R.Thirugnanam learned counsel who has lodged caveat on behalf of lessor is also before this Virtual Court.
5. Learned counsel for appellant, notwithstanding very many grounds raised in memorandum of grounds of appeal and as many as six questions being proposed as substantial questions of law made pointed submissions, a summation of which is as follows:
(a) Lessee is not in default, the termination notice should necessarily mention the period of default as 15 days notice has to be given and this period of default will only determine the reckoning date for commencement of 15 days.
(b) There is waiver on the part of lessor and this waiver plea turns on Section 113 of Transfer of Property Act, 1882, [hereinafter 'TP Act' for the sake of convenience and clarity] as the lessor has received revised rent post termination notice.5/20
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(c) Lessor has not established that it is a public charitable trust and therefore the demised shop is not exempt from the provisions of Rent Control Act.
6. Three out of six questions proposed in memorandum of grounds of appeal may please be considered and they are (a), (b) and (f) is learned counsel's further say and a perusal of memorandum of grounds brings to light that these three questions turn on default, exemption from Rent Control Act and waiver respectively.
7. This Court now proceeds to embark upon the exercise of examining arguments of learned counsel with the specific objective of examining if any substantial question of law arises in the captioned Second Appeal.
8. First argument is predicated on default in payment of rent. Plaintiff has mentioned in the plaint more particularly in paragraph No.3 of plaint that the defendant lessee is in default qua payment of rent commencing from July 2000 and rent for June 2000 was paid by way of cheque dated 23.03.2001 6/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 bearing No.576446 drawn on State Bank of India. Defendant in response has pleaded that he is not a defaulter in payment of rent for any month. Learned counsel for appellant vehemently contended that in a termination notice under Section 106 of TP Act, the period of default has to be mentioned as according to learned counsel that is the basis on which reckoning date qua 15 days period qua the termination notice can be computed under Section 106 of TP Act. A careful perusal of Section 106 of TP Act makes it clear that absent (a) contract or (b) local law or (c) usage to the contrary (to be noted, all the three are absent in the case on hand), a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable by six months notice on the part of lessor or lessee. In this case, it is nobody's case that the demised shop was used for agricultural purposes or for manufacturing purposes. Therefore, the next limb of Section 106 of TP Act kicks in and that is the lease of any other property shall be deemed to be a lease from month to month terminable on the part of lessor or lessee of 15 days notice. It does not talk about default in payment of rent or period of default. In other words, the lessee being in default is not a condition precedent (not even a condition) for issuing 7/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 termination notice under Section 106 of TP Act. After all, it is not eviction on the ground of wilful default more particularly Section 10(2)(i) of erstwhile Rent Control Act. This Court deems it appropriate to describe the Statute as erstwhile Rent Control Act, as a new Act has now kicked in place of above mentioned Rent Control Act, but in any case, as far as the instant case is concerned, the Act that was in vogue at the relevant point of time is the above mentioned Rent Control Act. Therefore the first argument that the period of default should have been mentioned in the termination notice, that it has not been mentioned in Ex.A1 and that the period of default is significant for reckoning the date qua 15 days notice period is clearly a non- starter and in the considered view of this Court, owing to the language in which Section 106 of TP Act is couched and owing to the matter being governed by TP Act and the Rent Control Act, default itself is of no relevance much less period of default.
9. This takes us to the next argument predicated on waiver. Section 113 of TP Act talks about notice under Section 111(h) of TP Act. In the case on hand, there is nothing demonstrable qua pleadings or evidence that the 8/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 lessor showed any intention to treat the lease as substituting post termination. Therefore, this argument predicated on waiver also does not find favour much less in a legal drill under Section 100 of CPC which turns on substantial question of law. This takes us to third argument posited on plaintiff not being a public charitable trust. A careful perusal of the plaint makes it clear that the plaintiff has pleaded with specificity that it is a public charitable trust. This is in paragraph No.3 of plaint. A perusal of written statement reveals that this has not been denied anywhere in the five paragraphs of written statement dated 27.01.2003 (spanning three pages) filed by defendant. Therefore the trial Court has not framed any issue with regard to whether the plaintiff is a public charitable trust. Further more, the plaintiff, has paid concessional fixed Court fee taking advantage of an executive order namely, G.O.No.1574 dated 12.06.1972 which applies to a public charitable trust. This is clear from Paragraph No. 8(a) of plaint. This has also not been questioned in the trial Court. It has neither been pleaded nor raised in the trial Court. For the first time, in the First Appellate Court, a ground was raised saying that the plaintiff is not a public charitable trust. Learned counsel for appellant drew the attention of this Court to ground 9/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 No.2 in the memorandum of grounds of first appeal before the First Appellate Court. This ground No.2 reads as follows:
'2. It is respectfully submitted that the trial Court has erred in holding that the building is exempt from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960. The trial Court has failed to see that there was no pleading to the above effect in the plaint and an issue was not framed as to whether the building can be exempted from the provisions of the Tamil Nadu Buildings Lease and Rent Control Act 1960. The defendant was not given an opportunity to raise such a plea in his written statement that the building is not exempted from the provisions of the Tamil Nadu Buildings Lease and Rent Control Act, more particularly when the plaintiff has pleaded that the defendant is in arrears of rent and hence a willful defaulter. The edifice of the trial Court judgment is built on the premises that the plaintiff is a public charitable trust but however there is no pleading to the above effect and no amount of evidence can be looked into if a fact is not properly pleaded. Therefore, the trial Court's judgment is erroneous and is liable to be set aside.'
10. First Appellate Court is a Court of fact albeit last Court of fact and no doubt, a question of fact can be raised in the First Appellate Court, but the manner in which it has been raised in ground No.2 has been set out supra.
The burden of song is that the trial Court made an error with regard to point 10/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 qua plaintiff's status as a public charitable trust. In this view of the matter, this has been answered by the First Appellate Court in Paragraph No.17 of its judgment which reads as follows:
'17. The land lord and tenant relationship is an admitted fact. The contention of the plaintiff that it is a charitable trust is also an admitted by the defendant. There is no quarrel with respect to the fact that a property owned by a public charitable trust is exempted from the provisions of Rent Control Act. Therefore, the suit filed for ejectment is very much valid in the eye of law. The defendant has not raised any grounds as to the maintainability of the civil suit. Therefore, the finding of the trial Court with respect to the maintainability of the suit is to be upheld.' (Underlining made by this Court is for the ease of reference)
11. Therefore it cannot be gainsaid that the First Appellate Court had committed an error in this regard. As already alluded to supra, there is a categoric pleading with clarity and specificity more particularly paragraph No.3 of plaint that the plaintiff is a public charitable trust. Defendant which has accepted lessor/lessee relationship has not disputed this assertion of plaint. Defendant has not chosen to assail the payment of concessional Court fee by the plaintiff by taking advantage of an executive order i.e., G.O. 11/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 (which provides for fixed Court fee as it is opposed to ad-valorem) for public charitable trust. Therefore one cannot find fault with the First Appellate Court for saying that there was no quarrel in the trial Court about this and this has been admitted by defendant. Obviously, the reference to admission is to imply that there was no pleading and no issue was ever raised.
Therefore this argument pertaining to plaintiff's status as a public charitable trust also does not find favour with this Court. Though not set out, in the pleadings or judgments of Courts below, this Court deems it appropriate to notice that exemption of building owned by Charitable Trust from the provisions of Rent Control Act, is vide G.O.Ms.No.2000 dated 16.08.1976 which reads as follows:
'No.II(2)/HO/4520/76.- In exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) and in supersession of the Home Department Notification No.II(2)/HO/3811/74, dated the 12th August, 1974, published at page 444 of Part II - Section 2 of the Tamil Nadu Government Gazette, dated the 21st August, 1974, the Governor of Tamil Nadu hereby exempts all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions of the said Act.' 12/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021
12. Under the erstwhile Rent Control Act, the above provision was operating. This takes us to the three out of six questions which were projected by learned counsel for appellant. As already alluded to supra, learned counsel projected and predicated his arguments on three out of six questions proposed in the memorandum of grounds of appeal namely, (a), (b) and (f) which read as follows:
'(a) Whether the Courts below are correct in rendering a finding that there is cause of action for the suit especially when there was no arrears of rent on the date of filing of the suit?
(b) Whether the Courts below are correct in rendering a finding that the building is exempted from the provisions of the Tamil Nadu Buildings Lease and Rent Control Act of 1960?
(f) Whether the Court below is correct in rendering a finding that the doctrine of waiver is not applicable to this case?'
13. Further, as already alluded to supra, the first question turns on default, second question turns on exemption from provisions of Rent Control Act and third questions turns on waiver. The question regarding period of default has already been dealt with supra in detail and therefore the first question does not arise in the case on hand. It is deemed appropriate to write that this Court is unable to persuade itself to believe that it is a question of 13/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 law much less a substantial question of law. There will be a little more elaboration on this infra. The next question turns on exemption from provisions of Rent Control Act and the same has also been dealt with in detail supra and that puts an end to the campaign on question No.2, this also does not arise in the case on hand and it certainly, does not arise as a substantial question of law and the third question turns on waiver under Section 113 of TP Act r/w Section 111(h) of TP Act and that also been dealt with supra. In the light of the discussion supra, this question does not arise and certainly, does not qualify as a substantial question of law.
14. This Court deems it appropriate to remind itself of Kanailal principle being principle laid down by Hon'ble Supreme Court in Kanailal and others Vs. Ram Chandra Singh and others reported in (2018) 13 SCC 715 and Kirpa Ram principle being principle laid down by Hon'ble Supreme Court in Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020 SCC Online SC 935. Kanailal principle is to the effect that principles underlying Order XLI Rule 31 of CPC stand telescoped into a Section 100 CPC legal drill also and Kirpa Ram principle is to the effect that a Second 14/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 Appeal can be dismissed at the admission stage without formulating a substantial question of law if none arises in a matter. On a conjoint reading of these two principles which are instructive, this Court deems it appropriate to hold that besides the three points for determination turning on period of default, exemption from provisions of Rent Control Act and waiver. The other point for determination which arises is whether any substantial question of law arises in the case on hand on the facts of the case, the trajectory the matter has taken and arguments advanced before this Court.
15. In this regard, this Court deems it appropriate to mention that the expression 'substantial question of law' occurring in Section 100 of CPC has not been defined in CPC, but it was first elucidatively described and explained by a Hon'ble Full Bench of this Court in the celebrated Rimmalapudi Subba Rao case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR 1951 Madras 969 (FB)] and this was approved by a Constitution Bench of Hon'ble Supreme Court in another celebrated judgment i.e., Sir Chunilal Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co. Ltd., reported 15/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 in AIR 1962 SC 1314], which is also known as Century Spinning Mills case. These principles laid down for first time by Hon'ble Full Bench of this Court and approved by Constitution Bench of Hon'ble Supreme Court have been neatly captured in Santosh Hazari case [Santosh Hazari Vs. Purushottam Tiwari (deceased) by Lrs., reported in (2001) 3 SCC 179]. To be noted, most relevant paragraph in Santosh Hazari case is Paragraph No.12 and the same reads as follows:
'12. The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing 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. T. Ram Ditta [AIR 1928 PC 172 : 55 IA 235] , the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their 16/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 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 as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] 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 [ILR 1952 Mad 264 :
AIR 1951 Mad 969] :
“[W]hen 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 facts of the case it would not be a substantial question of law.” and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: “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 17/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 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.”'
16. This is the obtaining position of law as it has been repeatedly followed in a long line of authorities upto Malan Bi case being Syeda Rahimunnisa Vs. Malan Bi reported in (2016) 10 SCC 315 and as recently as Nazir Mohamed case being Nazir Mohamed Vs. J.Kamala, reported in 2020 SCC OnLine SC 676].
17. The above is set out to make it clear that this Court used the aforementioned principles as litmus test to examine whether any substantial question of law arises in this matter. The answer is clearly in the negative as nothing debatable, nothing res integra or no disregard of settled principles of law arises in the case on hand. The answer being in the negative, it follows as an inevitable sequitur that the captioned Second Appeal deserves to be dismissed at the admission stage without formulating substantial question/s of law as none arise/s in the captioned Second Appeal. Accordingly, this 18/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 Second Appeal is dismissed. Consequently, CMP is also dismissed. This Court refrains itself from making any orders regarding costs.
22.04.2021 Speaking/Non-speaking order Index : Yes / No Internet : Yes / No mk To
1. XVII Additional City Civil Court Chennai.
2. VI Assistant City Civil Court Chennai.
19/20 https://www.mhc.tn.gov.in/judis/ S.A.No.383 of 2021 M.SUNDAR. J mk S.A.No.383 of 2021 22.04.2021 20/20 https://www.mhc.tn.gov.in/judis/