Madras High Court
Mrs.D.Meera vs Mrs.V.Saroja Devi on 9 September, 2014
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.09.2014
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
S.A.No.1031 of 2013
1. Mrs.D.Meera
2. M/s Selvi Memorial Illam
Society Registered Under
Societies Registration Act
No.40, Marisam Street (Pulianthottam)
Alandur
Chennai 600 016 .. Appellants
-vs-
Mrs.V.Saroja Devi
W/o G.Viswananthan
rep by Power of Attorney Agent
Mrs.Usharani
No.1, Cauvery Street
Gayathri Nagar
Sembakkam
Chennai 600 073 .. Respondent
Memorandum of Grounds of Second Appeal under Section 100 of the Civil Procedure Code, against the judgment and decree dated 10.07.2013 made in A.S.No.18 of 2011 on the file of the learned Principal District Judge, Chengalpet, confirming the judgment and decree dated 06.10.2010 made in O.S.No.5 of 2009 on the file of the learned Subordinate Judge, Tambaram.
For Appellants :: Mr.S.Balasubramanian
For Respondent/Caveator :: Mr.A.Palaniappan for
Mr.G.R.Ravichandran
JUDGMENT
The defendants before the trial Court, having suffered a decree of ejectment from the suit property let out by the plaintiff, after dismissal of their appeal by the first appellate Court in A.S.No.18 of 2011 dated 10.7.2013, have brought this second appeal.
2. The facts in brief leading to the filing of the second appeal are given as follows. The respondent/plaintiff being the owner of the suit property bearing Plot No.8, Door No.9, Second Main Road, Jaya Nagar, Tambaram Sanatorium, Chennai, filed the suit for ejectment of the appellants/defendants and further claiming damages for use and occupation amounting to Rs.36,000/- along with future damages for use and occupation at the rate of Rs.2,000/- per day inter-alia on the ground that in the year 2003, the respondent's husband underwent a surgery and a portion of his leg got amputated. Thereafter, he was medically advised not to climb any staircase, hence, on the advice of the doctors, the respondent also shifted her residential premises to other rental places and at the time of filing the suit for ejectment, she claimed to have been residing at No.1, Kaveri Street, Gayathri Nagar, Sembakkam, Chennai. It was also the further claim of the respondent before the trial Court that the suit property measuring an extent of 2600 sq.ft., consisting of ground floor and first floor is situate in Survey No.236/A, Chitlapakkam Village and the ground floor was let out to the second appellant-Society represented by the first appellant. Since the second appellant-Society was engaged in providing service to the persons suffering with contagious disease like TB, AIDS, etc., in contravention of the terms of the lease, the appellants have been providing food and accommodation to the persons suffering from such contagious disease. Therefore, the acts of the second appellant-Society caused nuisance to the neighbours of the suit property. In view of that, the neighbours opposed and lodged a complaint of nuisance. Pursuant thereto, the police also summoned the respondent and enquired thereon. In order to avoid such quarrels with neighbours, the respondent was constrained to file the suit for ejectment of the appellants from the suit property.
3. It was also the further claim of the respondent that the first daughter of the respondent, after completing Master's Degree in Veterinary Science, has been running a private clinic at rental premises at Velacherry Main Road, Tambaram. One another daughter, after completing Law Degree, is practising as a Lawyer at an office by paying monthly rent of Rs.1,400/-. Since the landlord of the respondent also had requested her to vacate and surrender vacant possession, it was further averred in the plaint that the suit for ejectment was necessitated. Again it was pleaded that the respondent and her daughters are paying huge amounts towards rent for their residential and office premises. That apart, as per the terms of the lease agreement that was executed for eleven months from 1.1.2008 to 30.11.2008, there is no specific clause for renewal of tenancy after the expiry of lease on 30.11.2008. In view of that, a notice was also issued to the appellants on 30.09.2008 calling upon them to vacate and surrender possession after the expiry of the lease period. On receipt of the said notice, the appellants also issued a reply stating that only in order to extract more rent of Rs.40,000/- per month, the respondent had issued the notice for eviction. Subsequently, the respondent also sent a rejoinder. Under this background, the respondent filed the suit for ejectment of the appellants from the suit property.
4. A detailed written statement was filed by the appellants taking a specific stand that the suit filed by the respondent was not maintainable, as she has got a remedy of filing Rent Control Original Petition under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It was also the claim of the appellants that the second appellant being a community based organisation registered under the Tamil Nadu Societies Registration Act and the first appellant being the President of the organisation, they became a tenant under the respondent in respect of the suit property in the year 2003 on payment of initial monthly rent of Rs.10,500/- for a period of eleven months on the basis of the agreement. Subsequently, the rent was also gradually increased to Rs.21,500/-. Besides, the appellants also paid a sum of Rs.1,00,000/- as advance and security deposit. Although the respondent has not been in the habit of issuing receipts or vouchers while acknowledging the rent, a false complaint was made against the appellants before the local police as though there was a public nuisance created by the locals residing in the nearby vicinity for treating TB, AIDS patients. It was also the further case of the appellants that the respondent had laid the suit for ejectment only for the purpose of collecting exorbitant monthly rent of Rs.40,000/-, since the same was refused by the appellants. On this basis, they prayed for dismissal of the suit.
5. Under this background, in view of the above claims and rival claims made by the parties to the suit, the trial Court, after framing the following issues,
(i)Whether the plaintiff is entitled for the relief of recovery of possession as prayed for?
(ii)Whether the defendants are liable to pay a sum of Rs.35,000/- as damages to the plaintiff as prayed by the plaintiff?
(iii) Whether the plaintiff is entitled for future damages as prayed for?
(iv) To what other relief the plaintiff is entitled to?
giving a specific finding with regard to the jurisdiction whether the respondent should have approached the learned Rent Controller under the provisions of the Tamil Nadu Buildings (Lease & Rent Control) Act, rejecting the objections raised by the appellants, concluded that the respondent is not entitled to file the R.C.O.P., as the suit property is not situated within the municipal area as notified. While dealing with the other objections raised by the appellants in respect of the terms of the lease and also the incidental issue of issuing a notice under Section 106 of the Transfer of Property Act, the trial Court, taking note of the fact that the respondent has issued Ex.A9 notice by giving sufficient time of 15 days and only thereafter has instituted the suit, came to the conclusion that the suit was perfectly maintainable. Secondly, it has further held that the non-issuance of notice under Section 106 of the Transfer of Property Act cannot be stated to be a defective one. Finally, coming to the bona fide requirement of the respondent, by justifying the claim of the respondent that the respondent has got every justification for her own occupation of the suit property along with her husband who is a diabetic patient whose leg has been partly amputated and also for accommodating her two daughters, ordered the ejectment.
6. Aggrieved by the judgment, the appellants preferred an appeal before the first appellate Court. The first appellate Court, after considering the findings and conclusions reached by the trial Court, confirmed the same holding that the trial Court has rightly come to the conclusion and that there was no need for interference with the judgment and decree of the trial Court. Being aggrieved by the concurrent findings of both the Courts below, the present second appeal has been brought by the appellants.
7. Learned counsel for the appellants, heavily criticising the reasoning given by both the Courts below, submitted that when the respondent ought to have filed a petition before the learned Rent Controller, in view of the fact that the place in which the suit property is situated has been upgraded as Town Panchayat by G.O.Ms.No.55, Municipal Administration and Water Supply (Election) Department dated 14.7.2006, wherein the Government have reconstituted 561 Special Village Panchayats as Town Panchayats under the Tamil Nadu District Municipalities Act, 1920, among these 561 Special Village Panchayats, the Chitlapakkam Village Panchayat also has been upgraded as Town Panchayat, in exercise of the power conferred by sub-section (1) of Section 3-P of the Tamil Nadu District Municipalities Act, 1920, as amended by the Tamil Nadu Municipal Laws (Amendment) Ordinance, 2006, therefore, when the Chitlapakkam Village Panchayat has been reclassified, R.C.O.P., alone will lie in the place of the suit for ejectment. But the trial Court, ignoring this vital and significant legal issue, has non-suited the appellants and decreed the suit in favour of the respondent. Adding further, the learned counsel for the appellants submitted that once the Government has come forward to reconstitute the 561 Special Village Panchayats as Town Panchayats in G.O.Ms.No.55, Municipal Administration and Water Supply (Election) Department dated 14.7.2006, the question of issuance of notification separately conferring jurisdiction to try the eviction petition on the learned Rent Controller, does not arise. Continuing his arguments, the learned counsel for the appellants further contended that when a detailed and exhaustive written statement was filed by the appellants pleading that the trial Court has no jurisdiction to try the ejectment suit by virtue of the above mentioned G.O.Ms.No.55 dated 14.7.2006, the trial Court, without even framing a specific issue on the question of jurisdiction, by giving a mere observation on the jurisdictional issue, has miserably failed to give a specific finding on the preliminary issue of jurisdiction raised by the appellants.
8. Adding further, he has stated that when the appeal was also filed before the first appellate Court, in the last ground, the appellants have specifically pleaded that they were entitled to urge all the issues raised both before the trial Court and before the first appellate Court and in this connection, when the appeal was taken up, the want of jurisdiction to try the suit for ejectment was heavily emphasised before the first appellate Court, but again there was no specific finding given by the first appellate Court, as a result, repeatedly the appellants have been denied a proper hearing on the question of jurisdiction to try the suit for ejectment. The learned also further contended that the ratio laid down by this Court in the case of S.S.Chokkalingam v. R.B.S.Mani and others, (1994) 2 MLJ 78 holding that the burden was on the appellants to prove that the notification has been made cannot be made applicable to the present case, for the reason that the judgment was rendered in the year 1993 and by the time the suit was filed in the year 2009, Government Order had been issued upgrading the Chitlapakkam Village Panchayat as a Town Panchayat, therefore, there is no need for issuing any other separate notification conferring jurisdiction on the learned Rent Controller. For all these reasons, he prayed for reversing the concurrent findings of both the Courts below by allowing the second appeal.
9. Per contra, the learned counsel for the respondent/caveator, urging the Court to dismiss the second appeal on the ground that when both the Courts below have repeatedly held against the appellants, contended that the finding of facts reached by the Courts below need not be interfered with, more particularly, when the respondent has approached the trial Court seeking eviction on various grounds that the neighbours in the vicinity made complaints on the ground that they face nuisance from the second appellant-Society in providing service to the persons suffering with contagious disease like TB, AIDS, etc., that the first daughter of the respondent Ms.V.Bagyalakshmi, after completing Master's Degree in Veterinary Science, has been running her private clinic at rental premises at Velacherry Main Road, Tambaram; that her second daughter Ms.V.Usha Rani, who is practicing as a Lawyer at an office by paying monthly rent of Rs.1400/- and that the respondent's husband, who is a diabetic patient and was amputated, has to be accommodated in a suitable place. Considering all these vital aspects, specifically answering on the question of jurisdiction to try the suit, the trial Court has decreed the suit, rejecting the claim of the appellants, that the objections raised by the learned counsel for the defendants/appellants with regard to the jurisdiction was not maintainable. When the trial Court has properly considered the case of the appellants, on the question of maintainability of the suit for ejectment, it is not open to the appellants to assail the judgment rendered by the trial Court that there was no specific issue framed on the question of jurisdiction.
10. Adding further, he has contended that when the appeal was filed by the appellants, although several grounds have been raised, the appellants have miserably abandoned to re-raise the same issue of jurisdiction as to whether the respondent should maintain the petition before the learned Rent Controller or before the civil Court. When there was no specific plea taken before the first appellate Court, after abandoning the said issue, it is not open to the appellants to raise the same, as they are not legally entitled to do so before this Court. Drawing the attention of this Court to Section 3-B of the Tamil Nadu District Municipalities Act, 1920, it was specifically argued before this Court that although in the initial stage the Government have issued G.O.Ms.No.270, Municipal Administration and Water Supply (Election) Department dated 11.6.2004 downgrading the Chitlapakkam village as Village Panchayat, subsequently, by another G.O.Ms.No.55, Municipal Administration and Water Supply (Election) Department dated 14.7.2006, once again upgraded the said village as Town Panchayat. After upgradation, by issuance of the above said Government Order, as per Section 3-B, the Governor shall by notification specify the name of such Third Grade Municipality. But in the present case, as contemplated under Section 3-B of the Tamil Nadu District Municipalities Act, 1920, no notification whatsoever has been issued. Therefore, when there is no notification issued by the Government, the ratio laid down by this Court in the case of S.S.Chokkalingam v. R.B.S.Mani and others, (1994) 2 MLJ 78 holding that under sub-clause (c) to sub-section (2) of Section 1 of the Act, the Government may by notification apply all or any of the provisions of the Act except sub-section (2) of Section 3 to any other area in the State with effect from such date as may be specified in the notification, should be followed. Moreover, when the appellants have specifically raised repeatedly the non-maintainability of the ejectment suit filed by the respondent on the file of trial Court viz., Sub Court, Tambaram, the burden is heavily cast upon them to prove that there has been a specific notification subsequently issued under Section 3-B. Since in the present case the appellants have miserably failed before the Courts below as to the issuance of notification as per Section 3-B, it is not open to them to ask for filing the eviction petition under the provisions of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. Adding further, he has stated that when the respondent approached the learned Rent Controller by filing the eviction petition, as the Chitlapakkam village was not notified by issuing a specific notification by the Government, the learned Rent Controller has refused to entertain the suit. In an effort to justify the argument that the petition filed by the respondent on the file of the learned Rent Controller has been returned, he has produced the xerox copy of the papers returned on 3.10.2013 and signed by the learned District Munsif, Tambaram. For all these reasons, he pleaded that the judgments of the Courts below need no interference.
11. A perusal of the return note made by the learned District Munsif, Tambaram on 3.10.2013 clearly shows that the learned Rent Controller has refused to accept the petition filed by the respondent under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. No doubt, this eviction petition was filed only on 1.10.2013. Even before the filing of the suit, as per the claim made by the respondent, when there was no notification issued by the Government conferring jurisdiction to try the eviction petition by the learned Rent Controller, this Court finds no justification on the preliminary objection raised by the appellants to file the present petition before the learned Rent Controller. Moreover, on the findings of the trial Court on the issue of jurisdiction to try the suit for ejectment, it may be mentioned that the first appellate Court in paragraphs 12 & 13 of its judgment have elaborately dealt with the arguments advanced by the learned counsel for the defendants/appellants and rejected their claim. Therefore, I do not find any infirmity or error on the part of the trial Court in not specifically framing a issue on the jurisdiction. No doubt, the grounds of appeal filed before the first appellate Court do not indicate that the appellants have specifically raised the question of jurisdiction. However, as rightly contended by the learned counsel for the appellants, he was entitled to raise the legal plea of jurisdiction before this Court. Therefore, the arguments advanced by the learned counsel for the respondent that after the appellants completely abandoned the issue of arguing the jurisdiction point before the first appellate Court, he cannot be allowed to raise the same issue, cannot be accepted. In fact, the learned counsel for the appellants has repeatedly contended before this Court that when there has been a specific notification issued in G.O.Ms.No.55 dated 14.7.2006 upgrading the Chitlapakkam Village Panchayat as Town Panchayat and thereby brought within the Third Grade Municipality, the appellants was under the bona fide impression that no more specific or general notification is further required. But a close reading of Section 3-B and Section 4(1) of the Tamil Nadu District Municipalities Act, 1920, which are extracted hereunder, ''3-B. Formation of Third Grade Municipalities.--(1) The Governor,
(a) may, having regard to the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he deems fit, by notification, classify and declare every local area comprising a revenue village or villages or any portion of a revenue village or contiguous portions of two or more revenue villages and having a population estimated at not less than thirty thousand as a transitional area for the purposes of this Act; and
(b) shall, by notification, specify the name of such Third Grade Municipality:
(2) In every transitional area declared as such under sub-section (1), there shall be established a Third Grade Municipality.
(3) (a) The Governor may, by notification, exclude from a transitional area any area comprised therein, provided that the population of the transitional area after such exclusion, is not less than thirty thousand.
(2).....
4. Creation of Municipalities.--(1) The Governor may, having regard to the population of the area, the density of population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, by notification, declare his intention--
(a) to constitute as a Municipality any, town, village, hamlet, bazaar, station or other local area or any group of the same in the immediate neighbourhood of one another; or
(b) to exclude from a municipality any local area comprised therein and defined in such notification; or
(c) to include within a municipality any local area in the vicinity thereof and defined in such notification:
Provided that no cantonment shall be included within a municipality.'' clearly indicate that the issuance of G.O.Ms.No.55 dated 14.7.2006 is not suffice to bring the jurisdiction of the learned Rent Controller for trying a petition for eviction in respect of any premises situated within the Chitlapakkam Town Panchayat.
12. In an identical situation, when a similar issue came up for consideration before this Court in the case of S.S.Chokkalingam v. R.B.S.Mani and others, (1994) 2 MLJ 78, this Court, while considering the same, has held in the following words:-
''35. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is not applicable to the entire State of Tamil Nadu as such. Section 2(b) provides that the Act shall apply to the City of Madras and to the City of Madurai and to all municipalities constituted or deemed to have been constituted under the Tamil Nadu District Municipalities Act, 1920 in the State. We have now found that Valasaravakkam is only a Town Panchayat and not a municipality. Hence, the Act by its own force will not apply. Under sub-clause (c) to sub-section (2) of Section 1, the Act provides that the Government may, by notification, apply all or any of the provisions of the Act except sub-section (2) of Section 3, to any other area in the State with effect from such date as may be specified in the notification and may cancel or modify and such notification. Counsel appearing before us on either side has not been in a position to assert whether a notification has been made or not. The burden is on the appellant to prove that such a notification has been made. Yet, we directed the Registry to contact the Secretariat and find out whether a notification has been issued. We have been informed that so far the Tamil Nadu Buildings (Lease and Rent Control) Act has not been extended to Valasaravakkam Town Panchayat. The burden is certainly on the appellant to prove that the Act has been extended to the Town Panchayat in which the suit property is situate and the civil court has no jurisdiction. As pointed out already, the appellant has failed to produce any material whatever in support of that contention.''
13. The above ratio laid down by this Court, in my considered opinion, clearly applies to the case on hand, for the reason that when the appellants have all along raised the question of jurisdiction to try the civil suit and asked the respondent to file a proper eviction petition before the learned Rent Controller under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the basis of G.O.Ms.No.55 dated 14.7.2006 upgrading Chitlapakkam Village Panchayat as a Town Panchayat, they have got a heavy burden to prove that a notification also has been issued as contemplated under Section 3-B of the Act. As the appellants have miserably failed to discharge their burden to prove the subsequent notification, the respondent who has been denied the filing of the eviction petition before the learned Rent Controller, in my considered opinion, is justified in laying the claim on the file of the trial Court. Therefore, the question of jurisdiction, having been rightly tried and decided by the trial Court, has been precisely and properly answered by the first appellate Court, this Court, finding no infirmity or error in the concurrent findings, is not inclined to entertain the second appeal. Accordingly, the second appeal fails and it is dismissed. While the learned counsel for the appellants has repeatedly pleaded with the Court to grant sufficient time for vacating and handing over possession of the suit premises to the respondent, in reply, although the learned counsel for the respondent was hesitant to accede to the said request, this Court, taking note of the fact that the second appellant-Society is a registered organisation rendering service to the TB & AIDS patients, is inclined to grant six months time to the appellants to vacate and handover possession of the suit property to the respondent, subject to the filing of the usual undertaking before this Court within a period of two weeks. Consequently, M.P.No.1 of 2013 is also dismissed. No costs.
Index : yes 09.09.2014
ss
To
1. The Principal District Judge
Chengalpattu
2. The Subordinate Judge
Tambaram
T.RAJA, J.
ss
S.A.No.1031 of 2013
09.09.2014