Madras High Court
M/S.Hindustan Petroleum Corporation ... vs M/S.Gem Paper Company on 1 November, 2010
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated: 01.11.2010 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal No.2274 of 2004 and C.M.P.No.646 of 2007 M/s.Hindustan Petroleum Corporation Ltd., 861, Anna Salai, Chennai-600 002. ..Appellant ..vs.. 1. M/s.Gem Paper Company, rep.by its partner S.Sundaram, 43, Malayaperumal Street, Chennai-600 001. 2. S.Sundaram 3. S.Jagannathan 4. A.Uppili 5. A.Sridhar 6. M/s.Kerala Hotels Pvt.Ltd., No.2, Lynwood Avenue, Mahalingapuram, Chennai-34. (R6 impleaded vide order of Court dt.15.11.2006 made in CMP No. 10220/2006). ..Respondents Second Appeal under section 100 of Civil Procedure Code, filed against the judgment and decree dated 05.10.2004 in A.S.No.140 of 2004 on the file of VII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 07.01.2004 in O.S.No.9433 of 1981 on the file of VI Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.O.R.Santhanakrishnan For Respondents : Mrs.Chitra Sampath JUDGMENT
The defendant is the appellant, who filed this Second Appeal aggrieved over the decree and judgment dated 05.10.2004 passed by the learned VII Additional Judge, City Civil Court, Chennai, in A.S.No.140 of 2004, whereby the decree and judgment dated 07.01.2004 passed by the learned District VI Assistant Judge, City Civil Court, Chennai, in O.S.No.9433 of 1981 were confirmed.
2. The facts of the case, in brief, are as follows:
The 1st respondent herein as the plaintiff filed the suit in O.S.No.9433 of 1981 for a direction to the defendant (appellant) to vacate and deliver vacant possession of the property situated at Bazullah Road, T.Nagar, Madras-17 and also for a direction to pay a sum of Rs.35/- per day towards damages from 15.12.1981, stating that the plaintiff company is the owner of the suit property, namely, the vacant piece of land to an extent of 120 feet east to west on Bazullah Road and 80 feet north to south on Usman Road comprised in Paimash No.430/431 in Old Mambalam Zamin and situated at the junction of Usman Road and Bazullah Road, T.Nagar, Maras-17. The defendant took the said land on lease under a lease deed dated 30.04.1973 registered as Document No.726/1973 for the purpose of installing a petrol pump, for storing and selling or carrying on trade in petroleum products, oil and kindred motor accessories. Therefore, the purpose was only to carry on trade in petroleum products and not for any other purpose and the lease was for a period of ten years commencing from 01.12.1971, which was coming to expire on 30.11.1981. Just few months prior to the expiry of lease, the plaintiff came to know that the film shooting activities had taken place in the said site for more than two days, and more so, with the consent of the defendant's officials. Immediately, on 21.08.1981, the plaintiff issued a legal notice to the defendant reminding them the obligations undertaken under the lease deed and also making it clear that the lease was going to expire on 30.11.1981. In the said notice, the plaintiff company had expressed their unwillingness to renew the lease and called upon the defendant to deliver vacant possession of the site on 01.12.1981. After getting reply from the defendant, the plaintiff sent a rejoinder on 30.08.1981. Even after the exchange of notice, the plaintiff came to know that frequent violations of the lease continued to take place and on one occasion, the plaintiff's personnel had happened to see a lorry loading huge pipes weighing several tonnes from the suit site on 02.11.1981 and when it was brought to the notice of the defendant, he simply denied the said incident. Since the defendant had violated the terms and conditions stipulated in the lease deed, the plaintiff filed the suit for the reliefs mentioned supra.
3. Resisting the case of the plaintiff, the defendant filed a written statement stating that the allegations made by the plaintiff against them at the fag end of the lease period would show that the intention of the plaintiff was only to avoid further renewal of the lease in their favour. The defendant Corporation came into existence as a Central Government Enterprise by virtue of the Caltex Acquisition of Shares of Caltex Oil Refining (India) Limited and of the undertakings in India of Caltex (India) Limited Act, 1977 (17 of 1977), by which all the rights and interests of Caltex Oil Refining India Limited vested in the newly formed Hindustan Petroleum Corporation Limited. Under the provisions of the Caltex Act, the defendant is entitled for the statutory renewal for a further similar period on the same rental. Hence, the defendant Corporation issued a notice to the plaintiff on 27.08.1981 that in terms of section 7(3) of Act 17 of 1977, the defendant Corporation is entitled to renewal/continuation of the lease for a period of ten years commencing from 01.12.1981 to 30.11.1991 on the same rental and with similar terms and conditions as was contained in the lease deed due to expire on 30.11.1981. Only after receipt of the notice, the plaintiff attempted to find out imaginary lapses on the part of the defendant in the terms of the lease deed. As per the Act 17 of 1977, their possession in the suit property cannot be disturbed for a further period of ten years from 01.12.1981. Hence, they prayed for the dismissal of the suit.
4. Originally the suit was filed by M/s.Gem Paper Company, represented by its Partner S.Sundaram. Pending suit, the plaintiff company was dissolved by a Deed of Dissolution dated 20.03.1987 and pursuant to the same, the suit property fell to the share of the other partners and as such, the plaintiff filed an application in March, 1988, to implead the other partners viz., S.Aravamudhan, S.Sundaram and S.Jagannathan, as parties to the suit. For which, the defendant filed a counter stating that the newly added parties have no locus standi to maintain the suit since when the partnership firm had been dissolved, the right to prosecute the suit had also been ceased and hence, the newly added parties cannot claim to be the legal successors. However, the said application was allowed by the trial court and the other partners were impleaded as plaintiffs 2 to 4. Subsequently, the defendant filed another additional written statement stating that the suit was bad for want of notice under section 11 of the Tamil Nadu City Tenants' Protection Act and the non-compliance of section 11 of the said Act would result in the dismissal of the suit and apart from that, no damages would be awarded against the defendant since the defendant Corporation is a statutory tenant entitled to the protection under the provisions of the Tamil Nadu City Tenants' Protection Act. Pending suit, the 2nd plaintiff Aravamudhan died in 1995 and his legal heirs were brought on record as plaintiffs 5 and 6 (respondents 4 and 5 herein).
5. On the said pleadings, the trial court framed four issues and four additional issues and on the side of the plaintiffs, the 5th plaintiff was examined as P.W.1 and Exs.A-1 to A-22 were marked and on the side of the defendant, one Indersen, the Area Sales Manager of the defendant Corporation was examined as D.W.1 and Exs.B-1 and B-2 were marked. The trial court, after analysing the evidence, both oral and documentary, dismissed the suit with a direction to the defendant to surrender vacant possession of the suit property to the plaintiffs within two months and to pay a sum of Rs.35/- per day from 15.12.1981 till the date of handing over possession of the suit property towards damages. Aggrieved over the same, the defendant filed A.S.No.140 of 2004 before the VII Additional Judge, City Civil Court, Chennai, and the appellate court also dismissed the appeal confirming the judgment and decree of the trial court. Against the said judgment, the defendant has filed the present second appeal.
6. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration:
(a) Whether the lower Appellate Court was right in holding that no notice under Section 11 of the Tamil Nadu City Tenants' Protection Act will have to be given to the defendant when it is clear from the evidence that the defendant is not in actual physical possession of the suit property ?
(b) Whether the lower Appellate Court was right in holding that the defendant is not in actual physical possession of the suit property when the same was not pleaded in the plaint ?
(c) Whether the lower Appellate Court was right in holding that the defendant is not in actual physical possession of the suit property by placing reliance on judgments which are not applicable to the facts of the case on hand ?
(d) Whether the lower Appellate Court was right in holding that even after a firm is dissolved on the death of a partner, the partners can continue the suit and there is no legal bar under Order 30 Rule 1 C.P.C.?
(e) Whether the lower Appellate Court was right in construing the provisions of Section 43(2) of the partnership Act in the proper perspective ?
(f) Whether the lower Appellate Court was right in holding that the defendant has not taken steps to renew the lease when it is well settled law, a mere exercise of option ipso facto renews the lease ?
(g) Whether the lower Appellate Court was right in relying on decisions which were subsequently overruled by the Apex Court ?
(h) Whether the lower Appellate Court was right in confirming the amount of damages awarded by the trial Court especially when the defendant was under statutory protection at least for the period from 1.12.1981 to 30.11.1991 ?
(i) Whether the lower Appellate Court was right in describing the defendant as a rank trespasser ?
7. Mr.O.R.Santhanakrishnan, the learned counsel for the appellant/defendant Corporation submitted that originally the suit was filed in the name of the partnership firm represented by one of its partners Sundaram and subsequently, the partnership firm was dissolved by a deed of dissolution dated 20.03.1987. Thereafter, by filing I.A.22866 of 1987, the other partners were added as plaintiffs 2 to 4. Subsequently, the 2nd plaintiff Aravamudhan died and respondents 4 and 5 herein were added as plaintiffs 5 and 6. The learned counsel further submitted that on the death of one of the partners, the partnership firm got dissolved and as such, the right to sue by the partnership firm had also been ceased and hence, the newly added respondents cannot claim to be the legal successors. In this regard, the learned counsel for the appellant, by inviting the attention of this Court to section 42(c) of the Partnership Act, submitted that the firm is deemed to be dissolved unless the respondents were able to prove that there was a contract to the contrary and under such circumstances, the suit filed by the partnership firm has no legs to stand. In this regard, the learned counsel relied upon the judgments reported in the case of COMMISSIONER OF INCOME TAX, BOMBAY ..vs.. EMPIRE ESTATE, BOMBAY((1996)2 SCC 345), PEERAN SAHIB ..vs.. PEDDA JAMALUDDIN SAHIB (AIR 1958 AP 48) and MOHD.LAIQUIDDIN ..vs.. KAMALA DEVI MISRA ((2010)2 MLJ 820 (SC). Therefore, on this short ground, the appeal has to be allowed by setting aside the judgment and decree of the courts below.
8. The learned counsel for the appellant further submitted that the property which was leased out to the appellant was only the land and the superstructure thereon was put up by the appellant for the purpose of carrying on petrol business and under such circumstance, the appellant had a protection under the provisions of the Madras City Tenants' Protection Act. But, no notice under section 11 of the City Tenants' Protection Act was given by the respondents and since the issuance of notice under section 11 is a mandatory requirement, offering compensation to the appellant for the superstructure erected by them in the suit property, the suit is not legally sustgainable for non-issuance of notice under section 11 of the City Tenants' Protection Act. The illegality goes to the root of the institution of the suit and hence the plaint is non-est in the eye of law. But the courts below have not properly appreciated the defence put forth by the appellant that the suit is liable to be dismissed for want of notice. In this regard, the learned counsel for the appellant submitted that the courts below have come to the erroneous conclusion that since the appellant is not in actual physical possession of the land, notice under section 11 is not necessary. Attacking the said finding, the learned counsel further submitted that it is not the case of the respondents that the appellant is not in actual physical possession. When the respondents did not raise any plea with regard to the actual physical possession of the appellant, the courts below ought to have come to the conclusion that there is no need to issue notice under section 11 of City Tenants' Protection Act. suit is bad for non-issuance of notice under section 11. In support of his contention, the learned counsel relied upon a judgment in the case of RAJAGOPAL ..vs.. KISHAN GOPAL reported in (2003)10 SCC 653 to substantiate the principle that in the absence of any specific pleading in the plaint, no lis existed thereon and the courts are precluded from taking cognizance on mere evidence. Moreover, in the instant case, P.W.1 had admitted in his cross examination that they did not offer any compensation for the superstructure and they did not call upon the appellant to remove the superstructure, which is mandatory as required under section 11 of the Act. Therefore, now, it is not open to the respondents to contend that there is no superstructure. With regard to the issuance of notice under section 11 by the landlord to the tenant, the learned counsel for the appellant relied upon the decisions reported in the case of MOHD.HUSSAIN ROWTHER ..vs.. TIRUPATHI CHETTIAR (1966(1) MLJ 206), S.A.RAMACHANDRAN ..vs.. S.NEELAVATHY (AIR 1997 SC 1735) and VALLIAMMAL ..vs.. S.ARUMUGHA GOUNDER (2001 (1) CTC 708).
9. The learned counsel for the appellant further submitted that the question as to whether the appellant is in actual physical possession, would arise only in a case where the appellant wants to file an application under section 9 of the Tamil Nadu City Tenants' Protection Act for a direction to the landlord to sell the land. Therefore, the question of deciding the actual physical possession does not arise in the instant case. In support of this contention, the learned counsel relied on the decision reported in RAJAMMAL (DIED) ..vs.. THE IDOL OF SRI THANTHONNEESWARASWAMI (1993(1) MLJ 387).
10. Further, by relying upon an unreported judgment of the Apex Court passed in C.A.No.708/2008 (BPCL ..vs.. RAVIKRISHNAN), the learned counsel for the appellant submitted that in the said matter, the Hon'ble Supreme Court had set aside the decree and judgment of the High Court and remanded the matter to record a finding on the question 'whether the appellant is entitled to the benefit of section 2(4)(i)(a) and section 2(4)(ii)(a) of the Act'. Section 2(4) defines the term 'tenant' within the purview of the City Tenants' Protection Act and 2(4)(i)(a) says that 'Tenant' includes any such person, who continues to be in possession of the land after the determination of tenancy agreement. But the said provisions do not speak about the actual physical possession. Referring to these provisions, the Hon'ble Apex Court remanded the matter to the High Court to record a finding, without expressing any opinion, with regard to the question of actual physical possession. Therefore, by relying upon the said unreported judgment, the learned counsel submitted that by virtue of this judgment, it could be presumed that even if a person is not in actual physical possession, he had a protection under the provisions of the City Tenants' Protection Act and under such circumstances, issuance of notice under section 11 is mandatory.
11. By relying upon the provisions of the Act 17 of 1977, the learned counsel for the appellant further submitted that the appellant Corporation is entitled for a statutory renewal and protection under the Madras City Tenants' Protection Act. Therefore, issuance of a notice by the landlord to the tenant to remove the superstructure by offering compensation is a must. With regard to the use and occupation of the suit property, the learned counsel for the appellant submitted that when the appellant had a protection under the said Act, the claim for damages for use and occupation is not legally sustainable. But, without properly looking into these legal aspects, the courts below had directed the appellant to pay a sum of Rs.35/- per day as damages to the respondents. That apart, the learned counsel has also made his submission by relying upon a number of judgments that the option for renewal could be exercised by the Government company itself and there is no legal requirement that that option should be exercised by the Government only. Further, the learned counsel submitted that though there are divergent opinions that option should be exercised only by way of filing a separate suit for specific performance, by way of subsequent judgments, the position was settled that by written request by the Government, the option for renewal could be exercised by a Government company itself.
12. Assailing the said submissions made on behalf of the appellant, Mrs.Chitra Sampath, the learned counsel for the respondents submitted that it is incorrect to state that since the firm had been dissolved on the death of one of the partners, the suit was not maintainable and she further submitted that under Order 30 C.P.C. the suit can be continued by the dissolved firm and the dissolution had not taken place due to the death of any one of the partners. In this regard, she relied upon the judgments reported in the case of J.PRASANNA CHANDRASEKARAN ..vs.. M/s.MOHAN STEEL CORPORATION BY ITS PARTNER AND OTHERS (1987 TLNJ 74), S.V.S.DAVEY SONS ..vs.. LIBERTY DRY CLEANERS (1994(1) MLJ 545 and RAMASWAMY ..vs.. M/s.P.M.AGENCIES (1994(2) MLJ 328).
13. Learned counsel for the respondents further submitted that after filing the suit, the partnership firm was dissolved by a deed of dissolution dated 20.03.1987 and in pursuance of the same, the suit property fell to the share of plaintiffs 2 to 4. Therefore, by filing an application in I.A.No.22866 of 1987 before the trial court, all the three partners were impleaded as parties to the suit, but the said application was not opposed by the appellant. Subsequently, pending suit, the 2nd plaintiff Aravamudhan died and his legal heirs were impleaded as respondents 4 and 5. Therefore, it is incorrect to state that on the death of one of the partners, the suit, which was filed during his lifetime, was not maintainable. Though the suit was filed in the year 1981, only in the year 2000, the appellant had filed an additional written statement that the suit was barred for want of notice under section 11 of the City Tenants' Protection Act. Till 2000, the appellant had not raised any such plea with regard to the entitlement of the benefits under the provisions of the Madras City Tenants' Protection Act. But, both the courts below have come to the conclusion that since the appellant Corporation is not in actual physical possession, they are not entitled to a notice under section 11 of the said Act. Moreover, D.W.1, the Area Sales Manager of the appellant Corporation has categorically stated in his evidence that the appellant Corporation was running a petrol bunk in the suit property only on dealership basis. Therefore, in view of the several judgments of the Apex Court as well as this court, the courts below gave a finding that since the actual physical possession is sine qua non, the plea of non-maintainability of the suit for want of notice under section 11 is not open to the appellant. In this regard, the learned counsel has relied upon the following decisions;
HPC ..vs.. K.M.YAKUB (DIED) & OTHERS (1996-2-L.W.817), HPC ..vs.. KEYARAM HOTELS (P) LTD., (2002(2) CTC 21), RADHAKRISHNAN, S.R. ..vs..NEELAMEGAM (2003(3) CTC 488), HPC ..vs.. SPENCER & CO., (2003-4-L.W.432), M.RAJA v. MANAKCHAND JAMATH (DECEASED) & OTHERS (2006-3-L.W.223), MALINI PARTHASARATHY .vs.. HPC (2007 (1) CTC 67), ALBERT MORRIS ..vs.. CHANDRASEKARAN ((2006)1 SCC 228), ESTATE OF T.P.RAMASWAMI PILLAI .vs.. MOHD.YOUSUF(1983(II)MLJ 318) and T.R.P.RAJA SEKARA BHOOPATHY ..VS.. NAVANEETHAMMAL (92 L.W.259).
14. Learned counsel for the respondents further submitted that the suit property was misused by the appellant/lessee, who was in possession, by allowing the persons in the suit property for film shooting activities. Therefore, the appellant had no right to claim to be in possession saying that the lease had not been determined by efflux of time. But in this case, the appellant has abdicated their right as a lessee by committing violation of the terms and conditions of the lease and hence, they are liable to be evicted. In support of her contention, she relied on the decision reported in THOMAS, P.A. .vs..MOHAMMED TAJUDDIN (1997(1) CTC 36). The learned counsel further invited the attention of this Court to section 7(3) of Caltex Act, 17 of 1977, which reads as follows:
"On the expiry of the term of any lease, tenancy or arrangement referred to in sub-section(1) or sub-section (2), such lease or tenancy or arrangement shall, if so desired by the Central Government, be renewed or continued, so far as may be, on the same terms and conditions on which the lease or tenancy or arrangement was originally granted or entered into".
By relying upon the words used "such lease or tenancy or arrangement shall, if so desired by the Central Government, be renewed or continued" in the said section, the learned counsel submitted that the option for renewal should be exercised only by the Central Government and not by the appellant company and on the expiry of the period of renewal, the tenant had no right to continue in the suit property and even assuming for a moment that the appellant is entitled for the statutory renewal, the lease period came to an end in 1981 and thereafter, they have no right to continue in the suit property. In support of this contention, the learned counsel relied on the decisions reported in HPC .v. UMA RANI (1996 (II) CTC 543), V.RAVICHANDRAN ..vs.. R.RAMESH JAYARAM (1998-3-L.W.822), NATH T.B. vs.HPC., (1999 (II) CTC 145) and BPC LTD., ..vs.. CHURCH OF SOUTH INDIA (2003-4-L.W.625).
15. Heard the learned counsel for both sides and perused the materials available on record.
16. In view of the submissions made by the learned counsel on either side, the following questions that arise for my consideration are, (1) Since the respondents' partnership firm got dissolved on account of the death of one of the partners, whether the suit is legally sustainable ?
(2) Whether the suit is bad for want of notice under section 11 of the Madras City Tenants' Protection Act ?
(3) Whether the appellant is entitled to the protection under the City Tenants' Protection Act ? and if so, whether any direction can be given by the courts below to pay damages for use and occupation is legally sustainable ?
(4) Whether the tenant has committed any breach of the terms of lease, resulting in forfeiture of his right to claim protection under the City Tenants' Protection Act, especially in the circumstances when the appellant is entitled for statutory renewal ?
17. With regard to the first question, it is the submission of the learned counsel for the appellant that on account of the death of one of the partners, the partnership firm got dissolved and as such, the suit itself is not legally sustainable. It is also the submission of the learned counsel for the appellant that when the firm itself got dissolved on the death of one of the partners, the other partners, namely, plaintiffs 3 and 4, by impleading the legal heirs of deceased partner Aravamudhan as plaintiffs 5 and 6, cannot maintain the suit. In this regard, the learned counsel, by relying upon section 42(c) of the Partnership Act, submitted that the partnership firm would get dissolved on the death of a partner and unless the plaintiffs were able to prove the contract to the contrary, they cannot continue the suit. In support of this contention, the learned counsel for the appellant has relied upon the following judgments and the relevant passages of which judgments are extracted hereunder:
18. In (1996) 2 SCC 345 (Empire Estate's case), it has been stated as follows:
"5. Section 187 of the Partnership Act, so far as is relevant, reads thus:
187. (1) Where at the time of making an assessment under Section 143 or Section 144 it is found that a change has occurred in the constitution of a firm, the assessment shall be made on the firm as constituted at the time of making the assessment.
* * * (2) For the purposes of this section, there is a change in the constitution of the firm
(a) if one or more of the partners cease to be partners or one or more new partners are admitted, in such circumstances that one or more of the persons who were partners of the firm before the change continue as partner or partners after the change; or
(b) where all the partners continue with a change in their respective shares or in the shares of some of them. Section 188 reads thus:
188. Where a firm carrying on a business or profession is succeeded by another firm, and the case is not one covered by Section 187, separate assessments shall be made on the predecessor firm and the successor firm in accordance with the provisions of Section 170. It needs to be noted that a proviso was inserted in Section 187 by the Taxation Laws (Amendment) Act, 1984, with retrospective effect from 1-4-1975, which reads thus:
Provided that nothing contained in clause (a) shall apply to a case where the firm is dissolved on the death of any of its partners. Mrs Ellen Modi having died on 12-1-1974, the assessees case is not affected by the proviso.
6. Section 42 of the Indian Partnership Act, 1932, so far as it is relevant, reads:
42. Subject to contract between the partners a firm is dissolved
(a)-(b) * * *
(c) by the death of a partner; and
(d) * * *
7. The deed of partnership between Mrs Ellen Modi and the partners who survived her did not provide that the death of a partner would not dissolve the partnership. Therefore, by reason of Section 42 of the Partnership Act, the partnership stood dissolved on 12-1-1974, by reason of Mrs Ellen Modis death. This the Tribunal rightly found".
19. In (2010) 2 MLJ 820 (supra), the Hon'ble Apex Court has held as follows:
"26. In the light of aforementioned case, it is clear that when there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved-despite the existence of a clause which says otherwise. A partnership is a contract between the partners...."
20. In the decision reported in 1959 M.L.J.p.30 (M.S.V.NARAYANAN CHETTIAR ..vs.. M.S.M.UMAYAL ACHI), this Court has examined the effect of death of a partner in a partnership of two partners in the absence of a contract to the contrary and has made the following observation:
"The general rule that the death of a partner would dissolve the partnership could apply only in the absence of a contract to the contrary between the partners. If the intention of the partners was that the death of one of them was not to result in the dissolution of the firm such an agreement could be given effect to. But the application of this rule will be difficult in the case of a firm composed only of two partners in which case the partnership will come to an end with the death of one partner as there could be no partnership existing with only one person".
21. On going through the said decisions, I am of the view that the judgments relied on by the learned counsel for the appellant will be useful to come to a conclusion that on the death of one of the partners, the partnership firm would get dissolved. But the question that arises for consideration in this matter is, whether the dissolved partnership firm can continue the suit or not ?
22. The following case, namely, 1994(1) MLJ 545 (S.V.S.DAVEY SONS ..vs. LIBERTY DRY CLEANERS UNDER THE NAME BOARD, GARMENT CLEANERS, MADRAS) gives the fitting answer to the above said question posed by this Court. In that case, Justice Venkatasamy (as he then was), has after making reference to various decisions of other courts, concluded as follows:
"14. From the above decisions, it can be seen that the dissolution of a partnership firm will not liable the partnership continuing action in all cases initiated before dissolution. In this case, we have noticed that the eviction order was obtained before dissolution, and this Court confirmed the order of eviction, passed by the Rent Controller by reversing the judgment of the appellate authority. Further, we have noticed that the rents were paid in the name of the partnership firm, and that shows that there was no winding up pursuant to the dissolution. Apart from that, Sec.47 of the Indian Partnership Act enables the partners notwithstanding the dissolution to continue the unfinished proceedings in the name of the firm. Further, paragraph 12 of the partition deed dated 30.11.1979 inter alia states that all proceedings commenced before the dissolution shall be continued in the same way until the firm is finally wound up. That being the position, it cannot be said that the petitioner cannot execute the decree granted in favour of the firm.
15. In Firm Ganpat Ram Rajkumar v. Kalu Ram A.I.R.1989 S.C.2285, their Lordships have considered the effect of a direction by the court to give an undertaking while granting time to the tenant to vacate the premises. Their Lordships have held as follows:
"...Where an order of eviction passed against a firm was confirmed by the Supreme Court and it was ordered that the order of eviction should not be executed for a period of six months on firm's filling usual undertaking in the court and the order was not complied with inasmuch as no such undertaking was given nor the premises were vacated by the firm, it was held that the firm and its partners were bound to comply with the order of Supreme Court and the order cannot be defeated by the sons and grandsons of the partners of the firm by filing a suit for permanent injunction against landlords and one of the partners restraining them from ejecting the said plaintiffs and by obtaining order of temporary injunction in that suit. The plaintiffs in the said suit must be held to have deliberately not objected to Supreme Court passing the order and thereby allowed the firm to mislead the court. Though, contempt is a serious matter and it interferes with the right of these who are found guilty of contempt, no court should allow any party to mislead the court and thereby frustrate its order. Thus, in such a case, assuming that the firm and its partners could not be found guilty of violation any undertaking as there was none, in the facts and circumstances of the case the court should ensure compliance with its order and see that vacant and peaceful possession is given to the landlord in the interest of justice. It was further observed by the Supreme Court that save as aforesaid there would be no other order on the petition for contempt."
23. In 1994(2) MLJ 328 (supra), a learned single Judge of this Court made reference to the decision in J.Prasanna Chandrasekaran ..vs.. M/s.Mohan Steel Corporation by its Partner, Kailash Chand Gagoria (1987 T.L.N.J.74), wherein a Division Bench of this Court has made the following observation having regard to the facts of that case:
2. ....
"It was next contended by the learned counsel for the petitioner that when a partner dies the partnership itself will get dissolved. Unless there is a provision to the contrary in the agreement between the partners and in this case since there is no evidence of any agreement between the partners that the partnership will continue in spite of the death of a partner, the other partners could not be permitted to bring themselves on record and in any case the first petitioner becomes a dissolved partnership firm and could not pursue this petition. We are unable to agree with the contention of the learned counsel. We have already referred to Rule 4 of O.30 of the Code of Civil Procedure. There is no dispute and there could be no dispute that the provision of O.30 do apply to the proceedings initiated under the provisions of the Presidency Towns Insolvency Act and Rule 4 provides that on the death of a partner it shall not be necessary to join the legal representative of the deceased as a party to the suit. The ratio of this provision itself shows that the fact that the death brings in a dissolution of the partnership itself will not affect the already instituted proceedings in all the name of the firm. It will be only considered as a partnership firm if at all dissolved and represented by the erstwhile partners. The debt is not wiped out and the liability of the debtor does not get extinguished by death of a partner and dissolution of the firm as such. In the circumstances, on this ground also we could not say that the petition is not maintainable. For the foregoing reasons, the appeal fails and it is accordingly dismissed".
I am bound to follow the view taken by the Division Bench of this High Court"
24. A reading of the above said judgments would show that the suit, already instituted, can be continued even after the death of a partner. The judgments relied upon by the learned counsel for the appellant only deal with the legal position that on the death of the two partners of a firm, the partnership firm shall be dissolved. There is no controversy in accepting the legal position, but the question, whether the suit already instituted by the firm can be continued in other situation of having more partners than two, is answered in favour of the respondents in the light of the dictum laid down in the judgments relied on by the learned counsel for the respondents.
25. With regard to the next fold of submission that the suit is bad for non-issuance of a notice under section 11 of the City Tenants' Protection Act, it is the submission of the learned counsel for the appellant that since the appellant is entitled to get the protection under the provisions of the City Tenants' Protection Act, the respondent ought to have issued a notice under section 11 before instituting the suit, requesting the appellant to surrender the vacant possession by offering to pay the compensation for the superstructure erected by them, whereas, it is the defence taken by the respondents that since the appellant Corporation is not in actual physical possession, the appellant is not entitled to get the benefits under the Madras City Tenants' Protection Act and under such circumstances, there is no need to issue a notice under section 11. In view of the said submissions made by the learned counsel appearing on either side, the question that arises for consideration in this regard is, whether the appellant is entitled to the protection under the City Tenants' Protection Act. To appreciate this contention, it is necessary to refer to the various decisions relied on by either side. The learned counsel for the appellant has relied upon the following observation, reported in 1966(1) M.L.J.206 (supra) to substantiate his contention.
"... If it is a matter of pleading, it is obvious it is for the plaintiff to plead in the plaint that the defendant had waived the benefit of notice under section 11. That section says that no suit shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building and also offering to pay compensation for the building and trees, if any, and stating the amount thereof. This section is mandatory and non-compliance with it will entail a rejection of the plaint.........
I am of opinion therefore that the suit instituted by the respondent should have been dismissed for non-compliance with the mandatory provisions of section 11. The Second Appeal should therefore be allowed and the judgments and decrees of both the Courts set aside".
26. In AIR 1997 SC 1735 (supra), it has been held as follows:
"14. We are of the view that since the requirements under Section 11 are in the nature of conditions precedent which had to be complied with before instituting a suit in a Court, the non-compliance would be fatal and such suit would be liable to be dismissed..."
27. In 2001(1) CTC 708 (supra), a learned single Judge of this Court has made a reference to a decision in S.A.RAMACHANDRAN vs. S.Neelavathy, 1997(1) CTC 298, wherein the Supreme Court has held as follows:
"32. .... Suit instituted for eviction without issuing notice under section 11 or before expiry of 3 months of issue of notice cannot be proceeded with.
Section 11 notice is a condition precedent and no suit for eviction should be instituted without issuing notice under Section 11.
In fact, the Supreme Court has left the questions open as to whether under the Madras City Tenants Protection Act waiver of notice under Section 11 is applicable without giving any authoritative, pronouncements. It was also held that even where the tenant had failed to file a petition under section 9 seeking the benefits of the City Tenants Protection Act, he can still raise the question of maintainability of the suit for want of notice under Section 11 of the Act..."
28. In 2001-3-L.W.236 (supra), it has been held that if the mandatory provisions of Section 11 were not followed which go to the root of the matter, the suit itself was not maintainable and hence the compromise decree in that suit was nullity as the suit was absolutely without jurisdiction.
29. A catena of judgments relied on by the learned counsel for the appellant would show that notice under section 11 is mandatory before instituting the suit. But the question that has arisen in the instant case is, whether the appellant is entitled to claim benefits under the City Tenants' Protection Act to say that no notice under section 11 has been issued to them before instituting the suit.
30. It is the submission of the learned counsel for the respondents that only if the tenant is under the actual physical possession then only the question of getting protection under the said Act would arise. To appreciate this contention, it is necessary to extract section 11, which reads as follows:
"11. Notice before institution of suits or applications against tenants:- No suit in ejectment or applications under section 41 of the Presidency Small Cause Courts Act, 1882 (Central Act XV of 1882) shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building, and offering to pay compensation for the building and trees, if any, and stating the amount thereof".
31. A reading of section 11 would reveal that notice to the tenant requiring him to surrender possession of the land is a must. But, in the instant case, admittedly, the appellant Corporation is carrying on business only through their dealer and only the dealer was in actual physical possession of the land. In fact, D.W.1 categorically admitted in his evidence that they are running business only through a dealer. Though a submission was made by the learned counsel for the appellant that there is no pleading in the written statement, the issue with regard to the actual physical possession will arise only when the plaintiff pleaded the same in the plaint. In my considered opinion, claiming protection under the City Tenants' Protection Act based on the physical actual possession, is a question of law and the same can be examined even without any pleading, based on the available evidence. Therefore, I am not inclined to accept the submission made by the learned counsel for the appellant in this regard. In 92 L.W.259 (supra), this Court, after examining a legal contention in this aspect, has held as follows:
"3. The legal contention of learned counsel for the landlord-petitioner is that the tenant in occupation of the vacant land, claiming benefits under the City Tenants Protection Act, should be in actual possession of the land and that he cannot claim such entitlement in cases where he has parted with actual physical possession of the land and building put up by him to a third party. It is common ground in this case that the land and the building has been sublet to the fifth defendant in the main action. Relying upon the provisions of S.2(4) of the Act, the legal contention of learned counsel for the petitioner is that the conclusion of the Appellate Authority that actual physical possession by the tenant is not contemplated is against law. Learned counsel for the respondent would, however, say that such actual physical possession of the land and building is not necessary.
4. S.2 which is the definition section defines 'tenant' in sub.S.(4) as follows:
S.2(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 (1).....(2).....(c) the heirs of any such person as is referred to in sub-clause (i) or sub-clause(ii)(a)or(ii)(b); but does not include a sub-tenant or his heirs".
Whatever may have been the position at one time regarding a tenant who holds over after the determination of the tenancy agreement the law as it stands now enables such a tenant also to claim the benefits under the Act by reason of the provisions of S.2(4)(ii)(a). The question, however, is whether actual physical possession of such land and building should be with the tenant, or his successor-in-interest to enable him to claim such benefit. The argument of learned counsel for the petitioner is that it was only Rathnavel Chettiar, who could claim the benefit, as a tenant, and not his successors-in-interest or heirs. This is against the very intendment of S.2(4)(ii)(b). As already excerpted, this provision speaks of 'any predecessor-in-interest having erected a building on the demised 'land'. That pre-supposes therefore that a successor-in-interest of the person who erected such building and who continues to be in possession of the land and building would be a tenant within the meaning of this provision. That this is the reasonable conclusion is also made clear by the amendment to the section which was introduced by Act 24 of 1973, under which a tenant will also include the heirs of such person as is referred to in sub-clause (i) or sub-clause (ii)(a) or (ii)(b), but will not include a sub-tenant or his heirs. The express reference to the heirs of any such person as is referred to in sub-clause(i) or sub-clause(ii)(a) or (ii)(b) shows that even the heirs of the tenant will be entitled to the benefit of the Act provided that they continue to be in possession of the land and building. I am, therefore, unable to agree with the contention of learned counsel for the petitioner that it was only Rathnavelu Chetti who could claim the benefits under the Act, and not his heirs who are defendants 1 to 4 in the litigation".
32. In 1996(2) L.W.817 (HPC ..vs.. K.M.Yacob (died) and others), this Court has stated as follows:
"14. In view of the finding in the Civil Revision Petition aforementioned, it cannot be doubted that the first defendant herein is not in possession. If possession is a sine qua non to claim the benefit of the Act, and if it is found that the first defendant is not in possession, then, he cannot be said to be a tenant under the Act. The finding in C.R.P.No.2100 of 1985 concludes the matter, even though that was in an interlocutory stage. A reading of Section 11 of the City Tenants Protection Act makes it clear that the institution of the suit barred only against those tenants who are entitled to claim the benefits of the tenancy or who come within the definition of 'tenant' under the Act. ....
....
20. In 1992-1-L.W.560 (Sundara Rajan and another v. Sundaramoorthy), the learned Judge who decided the Civil Revision Petition also held that the plea that the suit is not maintainable due to lack of notice under Section 11 could be waived by the tenant. In that case, the defendant filed written statement in which he did not take such a contention. But subsequently when he filed an additional written statement, such plea was taken and the learned Judge said that it will amount to waiver.
21. In view of the settled position of law, on merits also, the first appellant-first defendant cannot contend that the suit is not maintainable since no notice was issued to it. According to me, since it is not a tenant under the Act, Section 11 notice also is not necessary. The only point urged before me at the time of arguments in the Second Appeal was, regarding the maintainability of the suit since there was lack of notice under Section 11 of the Act".
33. This Court in 2002(2) CTC 21 (supra) has held as follows:
"9. The burden is only upon the defendant to establish that they are tenants and there are permanent superstructures put up either by them or by their predecessors-in-interest and they continued to be in possession and enjoyment of the property. No doubt, section 9 of the Act provides for the right of the tenant to purchase the land in his occupation in case the landlord seeks to evict him from the same. The preconditions that would enable a tenant are (i) he should be a tenant in possession of the land; (ii) he should have erected a superstructure on the land in respect of which he would be entitled to claim compensation under section 3 of the Act, (iii) a suit or proceedings in ejectment should have been taken by the landlord against him and (iv) he should have applied to the Court for direction in that regard within one month from the date of service of the summons in such suit. The building in respect of which compensation is payable to a tenant under section 3 of the Act is a permanent structure resting on foundation embedded in earth and not permitting its removal in tact. A bunk with tin roof fabricated on wooden frame with no definite structure, footing or foundation, merely resting on the surface of the land, capable of being removed or transported embloc without affecting the land over which it is rested, cannot be called a building within the meaning of the Act. It is clear that such physical and actual possession of the land and building is a sine qua non to protect the benefit or statutory entitlement under the Act. The Act is not intended to enrich a tenant at the cost of the landlord. A tenant who has sublet the leased property and is not himself in possession nor carrying on business in the leased property cannot claim the right under section 9 of the Act".
34. A conjoint reading of the abovesaid judgments would show that notice under section 11 by the landlord is necessary before instituting the suit, but to claim the protection under the City Tenants Protection Act, the tenant should be in actual physical possession. Though the learned counsel for the appellant relied upon an unreported judgment of the Hon'ble Apex Court in C.A.No.5903 of 2006 in support of his contentions, on a perusal of the said judgment, I find that the Hon'ble Apex Court had rejected the contention of the appellant that they were in actual physical possession and remitted the matter to the High Court to decide the issue whether the appellant is entitled to the benefit of section 2(4)(i) and sub-clause (a) of section 2(4)(ii) of the Act.
35. I find from the judgment reported in 1983(2) MLJ 319(supra) relied on by the learned counsel for the respondents that the issue with regard to the actual physical possession in consonance with section 2(4)((ii)(b) of the Act has already been decided by this Court and it may be worthwhile to extract the relevant paragraphs, which are as follows:
"5. In this case, there is no dispute that Ramaswami Pillai was the tenant in respect of the site which originally belonged to Mohamed Ismail Sahib. It is also not disputed that the lessee Ramaswami Pillai had put up certain superstructures in the vacant site taken on lease and that the site as well as the superstructure had all been sublet to different tenants and that actual physical possession of the premises and the superstructures never was with the petitioner. In this state of affairs, whether the petitioner can claim the benefits of section 9 of the Act is the question that has to be decided. It is true that under section 2(4)(i) of the Act, while defining a 'tenant', there is no specific reference whatever to the tenant being in possession of the land; but what has been stated under section 2(4)(i) is one of the incidents of a tenancy express or implied, viz., the tenant had made or rendered himself liable to pay rent in respect of the land. The payment of such rent to the landlord is only on account of the possession and enjoyment of the demised land by the tenant and not for any other purposes. The normal incident of a tenancy is that the tenant should be put in possession of the land let out and the landlord should be paid the rent for the land so let out. In the definition, under section 2(4)(i)of the Act, the liability to pay the rent alone is explicitly referred to, but that would also take in the other incidents of a tenancy express or implied, viz., possession of the demised land by the tenant. That it was so contemplated is made clearer by section 2(4)(ii) of the Act which enacts an inclusive definition so as to take in persons who continue to remain in possession after the determination of the tenancy agreement. The inclusive definition confers the status of a tenant on an erstwhile tenant who continues in possession, even after the determination of the tenancy agreement; but what is important is, this contemplates that the person referred to in section 2(4)(i) of the Act should also be a person, who should be in possession. While section 2(4)(i) of the Act contemplates a person who is in possession as a tenant during the subsistence of the tenancy and thereby becoming entitled to the benefits of the Act, section 2(4)(ii) extents such benefits to a person who continues to remain in possession of the demised land after the determination of the tenancy agreement. In other words, on a conjoint reading of section 2(4)(i) and 2(4)(ii) of the Act, it is clear that while section 2(4)(i) takes in a tenant in possession during the currency of the lease, section 2(4)(ii) contemplates the case of continuity of possession by an erstwhile tenant after the determination of the tenancy and the conferment of the status of a tenant even on such a person. To accept the contention of the learned counsel for the petitioner would be to hold that the tenant need not be in possession during the currency or subsistence of the lease to claim the benefits of section 9 or other provisions of the Act, but nevertheless can claim such statutory benefits, while, after the expiry or determination of the lease, unless he is in possession he cannot claim the benefits of section 9 or other provisions of the Act as a tenant under section 2(4)(ii) of the Act. This is a very anomalous position. That is why, the word ' tenant' has been so defined in the Act as to take in both categories of persons, viz., tenants in possession during the subsistence of the lease as well as tenants in possession after the determination of the lease. Inasmuch as the acceptance of the contention urged by the learned counsel for the petitioner would result in the conferment of the benefits of the Act upon persons not in possession of the land and superstructures at all during the subsistence of the tenancy, it is not possible to accept that contention.
6. The identical question had arisen for consideration before this Court in T.P.R.Raja Sekara Bhoopathy v.Navaneethammal and others (1979) 2 MLJ 144:92 L.W.259 with the entertainability of a claim to the benefits of section 9 of the Act by the heirs of tenants, who were not in actual physical possession of the land and the building, as in this case. In holding that they were not so entitled, Ramaprasada Rao, CJ., observed at page 146 as under-
"....On a fair reading of S.2(4)(ii)(b) of the Act, it is clear that such a physical and actual possession of the land and building is a sine qua non to project the benefits or statutory entitlement under the Act. If that were not the intendment of this piece of legislation, then the very foundation of its objective would be lost, and at the same time it would be a travesty to hold that it is only the original tenant of the vacant site, who put up the superstructure, who would be entitled to the benefits of the Act and that his heirs, though they may be persons who can be described as tenants would be entitled to such benefits even though they have parted with possession. I am, therefore, of the view that 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".
The observations extracted above clearly bring out the importance of the requirement as to possession of the property by the tenant before he can proceed to claim benefits under section 9 of the Act. To recognise a claim to the benefits of section 9 of the Act by heirs of tenants as defined under section 2(4)(i) and 2(4)(ii)(a)(b) under section 2(4)(c)of the Act who are not at all in possession, would be to violate the very definition of the word 'tenant' and also totally defeat the very object with which the provisions of the Act had been enacted. Therefore, the decision referred to above would govern this case.
7. The learned counsel for the respondents contended that the petitioner would not be a tenant even under section 2(4)(ii)(a) of the Act, as the tenancy had been terminated on 31st March, 1981, and the petitioner was not in possession either before or even thereafter. Earlier, it had been held that in order to claim the benefits of the Act as a tenant falling under section 2(4)(i)of the Act, the tenant should be in possession of the demised land and in this case, it has been found that even during the currency of the lease, the tenant had parted with actual physical possession and therefore, section 2(4)(i) of the Act cannot be applied to the petitioner and hence the applicability of section 2(4)(ii)(a) of the Act would not arise at all and in this view, it is not necessary to consider this submission of the learned counsel for the respondents. For the reasons stated earlier, the Courts below were quite correct in holding that the petitioner, who was admittedly out of possession of the land as well as the superstructures, cannot claim the benefits as a tenant under section 9 of the Act...."
Therefore, I am not inclined to accept the submission of the appellant in respect of the issue with regard to the actual physical possession. Therefore, in my considered opinion, since the appellant is not in actual physical possession, they are not entitled to claim benefits under the City Tenants' Protection Act. Moreover, the defence with regard to non-issuance of notice under section 11 of the City Tenants' Protection Act was not taken originally in the written statement and subsequently in the year 2000, only by way of additional written statement, the said defence was raised. Under such circumstances, I do not find any infirmity with regard to the non-issuance of notice under section 11.
36. Further, I find that in the instant case, a notice was issued by the landlord only for the purpose of violating the terms in the contract. It is the specific case of the respondents that the suit property was used for the purpose other than for which it was leased out for some days and to substantiate the same, they produced some photographs, which were marked as Exs.A-22, and since the appellant Corporation had violated the terms and conditions of the lease, the suit for ejectment was filed. Under such circumstances, I do not find any infirmity in the judgment of the trial court directing them to pay damages at the rate of Rs.35/- per day for use and occupation of the premises even after the termination of lease, particularly in the circumstances when they were not in actual physical possession. Even assuming for a moment that the case of the appellant was accepted, the statutory period came to an end in the year 1991 itself and hence, even under the statute, they were not entitled to get further renewal more than one time. In this regard, a reference could be placed on the decision cited by the respondents in the case of Bharath Petroleum Corporation Ltd., ..vs.. Maddula Ratnavalli and Others reported in (2007)6 SCC p.81), wherein it has been held as follows:
"8. A second appeal preferred there against by the appellant has been dismissed by the High Court of Andhra Pradesh holding:
In this case, it is an admitted fact that for 17 long years during the pendency of this lis, neither the appellant paid the rents nor deposited to the credit of the suit to prove their bona fides that there is a bona fide requirement, apart from their legal right to have renewal automatically under Sections 5(2) and 7(3) of the Act. Further, it is in the evidence that as soon as the bypass road had come up in Anakapalle, the diesel component of the petrol bunk was closed and the business of the appellant Company was decreased to a considerable extent. This all shows that since the rent was only Rs.50 per month as agreed under Ext.B-1 lease deed and the appellant though not having much business at the present place, they just want to enjoy the suit land for another 30 years in the guise of Sections 5(2) and 7(3) of the Act, just for a rent of Rs.50 per month. During the pendency of the lis, the appellant has not come forward with any proposal to enhance the rent. In fact, the appellant did not deposit even that meagre rent of Rs.50 per month for 17 long years. Therefore, it cannot be said that the appellant acted fairly. The renewal was actuated by unfair and unreasonable motives. As such, it cannot be said that in the guise of Section 5(2) of the Act, the appellant is entitled for automatic renewal.
In view of the above discussion, whether mere expressing desire for renewal or not furnishing reasons for renewal is necessary to be examined in this case. May be, in Bharat Petroleum Corpn. Ltd. v. P. Kesavan (2004) 9 SCC 772) the point did not arise for consideration directly, and only as a general discussion, the Apex Court held that in view of Sections 5(2) and 7(3) of the Act, renewal is automatic. Further, whether Sections 5(2) and 7(3) of the Act are to be given a restrictive meaning to construe that with an intention to protect the interest of the Government of India under the Act, the automatic renewal was contemplated of those leases, which were expired around that time i.e. 1976 also need not be gone into in this case. The very conduct of the appellant is nauseating and does not inspire the confidence of the Court to show any indulgence. No substantial question of law arises for consideration under Section 100 of the Civil Procedure Code. The second appeal is devoid of merit and liable to be dismissed.
37. Taking into consideration the rudimentary principles laid down in the said decision and also the facts and circumstances of the case on hand, in my considered opinion, the appellant is not entitled to any further renewal of lease since the statutory period of lease also came to an end in 1991 itself. Therefore, the other submission made by the learned counsel for the appellant that renewal has to be granted by efflux of time is not dealt with. Moreover, I find that the prayer for ejectment was asked for based on the breach of terms of the lease and not on the ground of expiry of lease on the efflux of time. Looking at any angle, both the courts below have thoroughly analysed the facts and arrived at the correct finding, which is based on legal evidence and under such circumstances, this Court is of the view that there is no valid ground to interfere with the finding arrived at by the courts below and as such, the substantial questions of law are answered accordingly.
For the reasons stated in the foregoing paragraphs, the second appeal fails and the same is dismissed. No costs. Consequently, connected M.P.is closed.
Index: Yes. 01.11.2010 Internet: Yes. gl To The Registrar, City Civil Court, Madras. Copy to: The Section Officer, V.R.Section, High Court,Madras. R.SUBBIAH, J.,, gl Pre-delivery Judgment in Second Appeal No.2274 of 2004 01.11.2010