Madras High Court
R.Parvathy vs R.Ramadoss on 9 January, 2017
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.11.2016
PRONOUNCED ON : 09.01.2017
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.242 of 2011
&
M.P.No.1 of 2011
Ramakrishnan(deceased)
1.R.Parvathy
2.R.Vimal Kumar
3.K.Lavanya ... Appellants
Vs.
1.R.Ramadoss
2.K.K.Sasidharan ... Respondents
Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and decree dated 16.08.2010 made in A.S.No.474 of 2009 on the file of the V Additional Judge, City Civil Court, Chennai reversing the Judgment and Decree dated 09.04.2009 made in O.S.No.7645 of 2006 on the file of the VIII Assistant Judge, City Civil Court, Chennai.
For Appellants : Mr.J.R.K.Bhavanantham
For Respondent : Mr.P.Mohanraj
JUDGMENT
The defendants have in this second appeal impugned the judgment and decree dated 16.08.2010 made in A.S.No.474 of 2009 on the file of the V Additional Judge, City Civil Court, Chennai reversing the Judgment and Decree dated 09.04.2009 made in O.S.No.7645 of 2006 on the file of the VIII Assistant Judge, City Civil Court, Chennai.
2.The suit has been laid for mandatory injunction.
3.That the plaintiffs 1 and 2 were the tenants under the deceased first defendant in respect of the suit property under the Rental agreements dated 01.04.1995 and 29.04.1999 respectively, are not in dispute. It could be seen that the deceased first defendant had requested the plaintiffs to vacate the building in which they were allowed to occupy as tenants for the purpose of demolition and reconstruction with a promise that the deceased first defendant would again re-induct them as tenants in respect of the portions occupied by them and accordingly, it could be seen that the plaintiffs 1 and 2 entered into an agreement of undertaking with the deceased first defendant on 15.12.2005 and based upon the terms and conditions of the above said agreement of undertaking, it could be seen that the plaintiffs had vacated the suit property and according to the plaintiffs inasmuch as the first defendant after the demolition and reconstruction of the suit property and after putting up a new construction thereon did not act as per his promise made under the Agreement of undertaking dated 15.12.2005 and delivered the portions, to which the plaintiffs are entitled to re-occupy as tenants, they have been necessitated to lay the suit for the relief of mandatory injunction for a direction to the first defendant to comply with the terms and conditions of the Agreement of undertaking dated 15.12.2005 entered into between the plaintiffs and the first defendant. Pending suit, the first defendant died and his legal representatives have been brought on record as D2 to D5.
4.The Agreement of undertaking dated 15.12.2005, has not been seriously controverted. However, the defence is taken by the defendants that the agreement of undertaking has been obtained by the plaintiffs by exercising coercion and force and therefore, the same would not be binding upon either the deceased first defendant or his legal representatives namely, the defendants 2 to 5. The agreement of undertaking dated 15.12.2005 has been marked as Ex.A3. A perusal of Ex.A3 would go to show that it has been attested by the defendants 2 and 3, who are the wife and the son of the deceased first defendant.
5.As regards the plea of coercion and force made by the defendants to stifle the agreement of undertaking, Ex.A3, it could be seen that the first Appellate Court has rightly disbelieved the above said defence projected by the defendants and held that the above said defence is false. As rightly noted by the first Appellate Court, if really Ex.A3, Agreement of undertaking had been obtained by the plaintiffs using coercion or force or otherwise contrary to law, either the first defendant or after his demise, the defendants would have taken necessary legal redressal to avoid the same. However, till date, the defendants have not taken any action whatsoever to set aside the agreement of undertaking entered into between the plaintiffs and the deceased first defendant.
6.As seen by the first Appellate Court, if there had been an element of coercion and force exercised by the plaintiffs for bringing about Ex.A3, Agreement of undertaking, the defendants would have preferred necessary complaint against the plaintiffs with the police authorities or else the defendants would have preferred the suitable legal action for quashing the agreement of undertaking. Without raising their little finger in challenging the agreement of undertaking, Ex.A3 in any manner known to law, the defence projected by the defendants that the same has been brought about using coercion and force, as such, cannot be countenanced in any manner.
7.As regards the terms and conditions found in the agreement of undertaking, it could be seen that the deceased first defendant had covenanted to deliver the constructed portion to the plaintiffs on or before 30.9.2006. Further, it could also be seen that advance already parted by the plaintiffs before the demolition of the building had been retained by the deceased first defendant and the parties have agreed that the same would be treated as the advance for the portion that will be given to the tenants(plaintiffs) in the new construction. Even, the rent for the new construction has been agreed between the parties under Ex.A3. Further, the deceased first defendant had agreed that the tenants(plaintiffs) will be provided with 600 square feet or there about plinth area in the ground floor abutting the Lake View Road in the new construction. Further, it has been agreed between the parties that the tenants need not pay the rent during the period of construction i.e., from the date of handing over the vacant possession of the old construction till the date of taking delivery of the portion in the new construction. Further, it could also be seen that the deceased first defendant had agreed not to sell or settle or gift the land or the land with the old superstructure without constructing the proposed new building after receiving the vacant possession from the tenant and also he had further covenanted not to induct a new tenant to the portion surrendered to him by the plaintiffs(tenants).
8.Further, it could also be seen that the parties have specifically agreed that the business portion agreed to be given on rent in the new construction will be given to the plaintiffs irrespective of the fact whether the plan is sanctioned or not for that portion in the new construction. It could therefore be seen that the terms and conditions stipulated in Ex.A3, Agreement of undertaking are almost similar to the provisions contained in Second 14 of the Tamil Nadu Buildings Lease and Rent Control Act 1960. The conditions imposed on the ''landlord'' taking possession of the building for carrying out repairs, which cannot be carried out without the building being vacant as provided under 14(1)(a) of the above said Act, and the conditions stipulated under Ex.A3 are also found to be more or less similar as provided under Section 14(2) (a), 14(3) and 14(4) of the above said Act. It could therefore be seen that the deceased first defendant as promised by him should have handed over the portions to the plaintiffs in the new building for carrying out their business as agreed to. Inasmuch as the defendants have failed to comply with the terms and conditions set out in Ex.A3, the plaintiffs have come forward with the suit.
9.The Second Appeal was admitted and the following substantial questions of law are formulated for consideration in this Second Appeal:
(a)Whether the finding of the lower Court is perverse?
(b)Whether the impugned Agreement, Ex.A3 is opposed to public policy under Section 29 of the Contract Act?
(c)Whether the equitable relief of mandatory injunction can be granted in view of subsequent change and alteration of the circumstance character of the building by a new construction?
10.It is mainly contended by the defendants' counsel that the terms and conditions stipulated in the Agreement of undertaking are opposed to public policy under Section 23 of the Indian Contract Act. However, as found earlier, it could be seen that the terms and conditions set out in Ex.A3 are not found to be against the public policy as provided under Section 23 of the Indian Contract Act. Equally it has also not been made out that the terms and conditions stipulated in Ex.A3 are violative of any other provisions of the Indian Contract Act 1872. In this connection, it is argued by the defendants' counsel that the condition that irrespective of whether the plan is sanctioned or not by the authorities concerned, the tenant should be re-inducted into the suit property is opposed to public policy. However, I am unable to accede to the above argument. Before demolition, the plaintiffs were carrying on non residential activities in the suit property. Accordingly, the agreement has also stipulated that the plaintiffs should be re-inducted into the suit property after the construction for the same purpose i.e., for carrying on their non residential activities.
11.In such circumstances, it could be seen that on the apprehension that the defendants should not refuse to hand over the possession after the construction, it could be seen that the above clause has been entered into between the parties to ensure that the plaintiffs should be re-inducted into the suit property irrespective of the plan obtained for putting up construction in the area. Further, it could also be seen that even under Section 14(3) of Tamilnadu Buildings, Lease and Rent Control Act 1960, the landlord shall not be entitled to convert a non residential building into a residential building or a residential building into a non residential building after he has recoverd the possession of the building for repairs unless such conversion is permitted by the rent controller. Similarly on such lines the stipulation above mentioned has been incorporated in the agreement of undertaking, Ex.A3. Therefore, the defendants could not be allowed to contend that the above clause found in the agreement of undertaking is opposed to public policy or contrary to the provisions of the Indian Contract Act 1872. Therefore, as rightly found by the first Appellate Court, Ex.A3, Agreement of Undertaking is not opposed to any public policy as contemplated under the Indian Contract Act.
12.The learned counsel for the defendants further contended that in view of the subsequent change and alteration of the character of the building by a new construction, the relief of mandatory injunction should not be extended to the plaintiffs by the court, the same being the discretionary relief. The change that is sought to be projected is that after obtaining the vacant possession of the building, it appears that the deceased first defendant has settled a portion of the suit property to his son and daughter under Ex.B2 & 3 and further the daughter had alienated her settled share in favour of the son under Ex.B4. However, when as per Ex.A3 stipulation, the deceased first defendant had covenanted not to settle the property to any one and also not to induct any tenant in the newly constructed portion, his act contrary to the same in settling the properties in favour of his children as such cannot be accepted. Ex.A3 is binding upon the first defendant(since deceased) and equally upon his legal heirs. That apart, it could be seen that his son had attested Ex.A3. Ex.A3 is not shown to be opposed to public policy. Therefore, the subsequent settlement effected by the deceased first defendant upon his children could not by itself be projected as change of circumstance to disentitle the plaintiffs to obtain the relief of mandatory injunction, as provided to them under Ex.A3.
13.It is argued by the learned counsel for the defendants that the defendants have obtained plan and accordingly put up the new construction only for the residential accommodation and therefore, the plaintiffs cannot be allowed to occupy the new construction for carrying on their non residential activities. However, the above argument also does not merit acceptance. Only on such apprehension, as pointed out earlier, a specific stipulation has been made in the agreement of undertaking that irrespective of the plan sanctioned, the plaintiffs should be inducted into the suit property after reconstruction. Such being the position, after promising the plaintiffs that they would be re-inducted into the suit property after the reconstruction and equally when the advance given by them had been retained by the defendants with a further promise that they need not pay the rent during the period of construction and despite the same, the defendants cannot now turn around and contend that inasmuch as they had obtained the plan for a new building only for the residential accommodation and not for the non residential purposes, the plaintiffs cannot be allowed to occupy the suit property. If that be so, then the defendants should have put on notice about the same to the plaintiffs prior to Ex.A3 and the parties would not have ventured to enter into an agreement of undertaking. On the other hand, after assuring the plaintiffs that they would be re-inducted into the suit property after the construction and contrary to the above promise, the defendants cannot be allowed to contend that inasmuch as they had obtained plan and accordingly, put up the new building in the area only for the residential purpose and therefore they are unable to comply with the terms and conditions of the agreement of undertaking, as such cannot be entertained. The above act of the defendants would only go to show that they have schemingly contrived to get the plan for the residential accommodation in order to avoid the plaintiffs from occupying the suit property and accordingly after obtaining such plan and putting up the construction have now projected a case that the agreement of undertaking cannot be enforced.
14.It is not the case of the defendants that the area in which the suit property is located is exclusively a residential area and no non residential work can be carried out there. Even prior to the demolition, the plaintiffs were inducted as tenants only for the non residential activities. In such circumstance, merely because the defendants have obtained the plan and put up new construction for the residential accommodation that by alone would not disentitle the plaintiffs to seek the possession of the suit property as agreed between the parties under Ex.A3, Agreement of undertaking. Therefore, the argument that on account of the subsequent changes and alteration of the character of the building since brought about by the new construction, the plaintiffs could not be accommodated in the suit property, cannot be accepted in any manner. Barring the above submissions, no other plea has been putforth by the learned counsel for the defendants to negative the pleas made by the plaintiffs. It could therefore be seen that nothing is projected in this second appeal to warrant any interference to the findings and conclusions of the first Appellate Court for upholding the plaintiffs case.
15.The decision reported in AIR 2001 Kerala 101(C.Kunhammad Vs. C.H. Ahamad Haji) is relied upon by the learned counsel for the appellants. The principles of law enunciated in the above said decision are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
16.In conclusion, the substantial questions of law formulated in this second appeal are answered against the appellants and in favour of the respondents. Resultantly, the second appeal fails and is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
09.01.2017 Index : Yes/No Internet:Yes/No dn To
1.The V Additional Judge, City Civil Court, Chennai
2. The VIII Assistant Judge, City Civil Court, Chennai.
T.RAVINDRAN,J.
dn Pre-delivery order in S. A.No.242 of 2011 09.01.2017 Pre -delievery judgment in S.A.No.242 of 2011 To The Hon'ble Mr.Justice T.Ravindran Respectfully submitted dn (P.A.to the Hon'ble Judges) http://www.judis.nic.in