Madras High Court
Anthony Muthu vs Anthony Christy Jeeva Rathinam on 21 February, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.02.2018
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A.(MD)No.45 of 2018 and
C.M.P.(MD)No.813 of 2018
Anthony Muthu ... Appellant/Appellant/
Defendant
Vs.
Anthony Christy Jeeva Rathinam ... Respondent/Respondent/
Plaintiff
Prayer: Second Appeal is filed under Section 100 of C.P.C., against the
Judgment and Decree passed in A.S.No.225 of 2017, dated 06.11.2017 by the
learned Subordinate Judge, Thiruchendur, confirming the Judgment made in
O.S.No.64 of 2012, dated 29.01.2015 on the file of the learned District
Munsif, Sathankulam, Thoothukudi District.
!For Appellant : Mr.S.R.Anbarasu
^For Respondent : Mr.V.Natarajan
:JUDGMENT
This Second Appeal is filed against the Judgment and Decree passed by the learned Subordinate Judge, Thiruchendur, in A.S.No.225 of 2017, dated 06.11.2017 confirming the Judgment passed by the learned District Munsif, Sathankulam, Thoothukudi District, in O.S.No.64 of 2012, dated 29.01.2015.
2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.
3. The defendant in the Suit for ejectment is the appellant in this case. Admittedly, the plaintiff, namely, the respondent filed the Suit to direct the defendant to vacate the suit property, to hand over the possession to the plaintiff and for recovery of a sum of Rs.3,250/- towards arrears of rent and also for mesne profits. It is not in dispute that the plaintiff has purchased the suit property which was in the enjoyment of the defendant as tenant. The defendant himself admitted that he is a tenant in respect of the suit property and the suit property is a shop portion in which he is carrying on business. Normally, the lease in respect of a building is governed by the Tamil Nadu Buildings(Lease and Rent Control) Act. Since the Act is not extended to non municipal areas, the Suit came to be filed.
4. The Suit was resisted mainly on the ground that the defendant is continuing as Lessee and carrying on business as a Grocery merchant in the tenanted premises for quiet some time and that the Eviction Suit is without any bona fides and if decreed would cause serious hardship. In the original written statement, the defendant has not raised any dispute with regard to the identity of the property for which eviction was sought for. However, the defendant came up with an amendment of Written statement stating that the lease agreement was in respect of the suit property as well as an adjacent building of the suit property. However, in the reply statement given by the plaintiff, it was clarified that the suit property is a shop portion bearing door No.3/138 and the suit property includes another portion of the building which is located on the southern side of the suit property. Since there is no independent door number given to the adjacent building, it was clarified that there was no infirmity or mis-description found with regard to the identity of the suit property and it cannot be disputed. The defendant admits that he is in possession of the building along with the adjacent shop portion as a tenant paying a sum of Rs.250/- per month as rent. Hence, it is not open to the defendant to contend that the plaintiff has filed the Suit in respect of the property which is not properly described. This point was not raised as one of the issue before the trial Court.
5. As a matter of fact, the defendant raised a counter claim seeking prayer for mandatory injunction directing the plaintiff to receive the rent from the month of June 2012 for the plaint scheduled property and the adjacent shop property. Even in the counter claim, it is indicated that the defendant is in enjoyment of a shop portion and the adjacent building on the southern side and that he is liable to pay rent at Rs.250/- per month for the whole. Though it is admitted that the defendant is in enjoyment of the shop portion and adjacent building and both are covered by a single lease, the defendant raised an issue before the lower Appellate Court regarding description of the suit property. There is no dispute with regard to the identity of the property with reference to his counter claim. It is unethical and inequitable for the defendant to raise an objection, as if there is some dispute or discrepancy with regard to the identity of the property. The other defence raised by the defendant is that the notice issued under Section 106 of Tamil Nadu Transfer of Properties Act is not proper and valid.
6. The trial Court, after considering the pleadings and evidence, rejected all the contentions and decreed the Suit as prayed for, giving three months time to the defendant to vacate the suit property. Aggrieved by the same, the defendant preferred the Appeal in A.S.No.225 of 2017 before the learned Subordinate Judge, Thiruchendur.
7. Only before the lower Appellate Court, the defendant raised an issue specifically with reference to the identity of the suit property and contended that the Suit for ejectment describing the suit property without referring to measurement and boundaries is not capable of execution and that therefore, the Suit is liable to be dismissed.
8. As pointed by the trial Court, it can be seen that the defendant himself has filed a Suit in O.S.No.42 of 2012 and described the property in his possession as bearing door No.3/138(Shop portion). Hence, the contention that the suit property has not been properly described, cannot be accepted.
9. Having regard to the statement filed by the plaintiff in this case, the property in respect of which the ejectment Suit is filed and the property which is in the enjoyment of the defendant, as tenant and in which he is carrying on business is the shop portion bearing door No.3/138 including the adjacent building. Admittedly, the defendant is in enjoyment of the property as a tenant under a single lease. There is no dispute with regard to the premises in which the defendant is carrying on business. In such circumstances, the contentions with regard to identity are made with an ulterior motive to defeat the rights of the plaintiff to get possession of the property. In this Suit for ejectment, the defendant has no other defence. Though the defendant contended that he has not committed any willful fault and that the building is not required by the plaintiff for his own use, all these contentions are not relevant, as the plaintiff is entitled to evict the defendant from the suit property after terminating the tenancy. Even though a question is raised with regard to some defect in the notice that was issued under Section 106 of Tamil Nadu Transfer of Properties Act, the defendant has not substantiated the same with reference to particulars and why and how the notice is ineffective to terminate the tenancy.
10. Even before the lower Appellate Court, the point was not argued with reference to the notice that was issued by the plaintiff as against the defendant. Even before this Court, no attempt is made as to how the notice issued by the plaintiff for ejectment is not properly issued. After the amendment, the process of issuing notice for termination of tenancy has been made easier and this Court is not in a position to appreciate the contentions of the appellant as there is no attempt even before this Court pointing out any defect.
11. Having regard to the specific stand taken by the defendant, this Court expect that the defendant may also create some problem to the plaintiff to execute the decree which he has obtained in the Suit. Hence, this Court make it clear that that plaintiff is entitled to execute a Decree for eviction in respect of the shop portion including the building which is adjacent to the shop portion in which the defendant is carrying on business. Since the suit property that was leased out to the defendant is the property purchased by the plaintiff from his vendor under the document, dated 08.04.2011, and the suit property is the property which is in the enjoyment of the defendant as a tenant, this Court specifically hold that there is no dispute with regard to identity and that the defendant is liable to be evicted from the premises which he is in occupation as a tenant.
12. As a result, the Second Appeal is dismissed and the Judgment and Decree passed by the learned Subordinate Judge, Thiruchendur, in A.S.No.225 of 2017, dated 06.11.2017, is confirmed.
13. At this juncture, the learned counsel for the appellant seeks indulgence of this Court to grant some time for vacating the property.
14. Learned counsel for the respondent submitted that already delivery is ordered.
15. Taking into consideration that the appellant is doing business in Groceries as a Grocery merchant in a small village, this Court is inclined to show some indulgence. However, having regard to the stand taken by the appellant with regard to the identity of the property and he may make an attempt to drag on the execution proceedings by raising some issue about identity with an ulterior motive, this Court directed the appellant to file an affidavit of undertaking to vacate the property, namely, the building and the adjacent building in which he is in possession as tenant on or before 31.12.2018.
16. Today, the appellant/tenant has filed an affidavit of undertaking to vacate the suit property, namely, the building and the adjacent building in which the appellant is conducting business within the time stipulated by this Court. Since this Court is inclined to grant time till 31.12.2018, the appellant shall hand over the vacant possession of the building and the adjacent building on or before 31.12.2018, without compelling the respondent/landlord to file an execution petition. The appellant is also directed to pay rent without any default, till he vacate the property, on or before 10th of every succeeding month. In case of default in payment of rent consecutively for two months, it is open to the respondent to file a petition for taking possession. If any amount is lying in the Court deposit towards rental arrears, it open to the respondent/landlord to file a petition for withdrawing the amount. However, no order as to costs. Consequently, connected Miscellaneous petition is closed.
To
1. The Subordinate Judge, Tiruchendur.
2. The District Munsif, Sathankulam, Thoothukudi District.
3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.