S.Leelavathy v. Thiyagarajan7. R.Kasthuri8. R.Indra(

In the High Court of Judicature at MadrasDated 13.07.2007CoramThe Honourable Mr.Justice S.R.SINGHARAVELUAppeal Suit No.329 of 1995and Cross Objection No.148 of 1995S.Leelavathy..Appellant in A.S.329 of 1995&Respondent in Cross Objection..vs..1. K.M.Subramaniam (died)2. Dr.S.Sampath Kumar3. Gowri4. Madhavakrishnan5. Srinivasan6. Thiyagarajan7. R.Kasthuri8. R.Indra(Respondents 2 to 8 brought on record as LRs.of the deceasedsole respondent vide Order ofCourt dt.19.06.2007 made inCMP.Nos.505 to 507 of 2004& CMP.No.10186 of 2003)...Respondents in A.S.329/19951. K.M.Subramaniam (died)2. S.Sampath Kumar3. R.Madhavakrishnan4. R.Thiyagarajan5. R.Srinivasan6. R.Gowri7. R.Kasthuri8. R.Indra(Cross Objectors 2 to 8 brought on record as LRs.of the deceasedsole Cross Objector vide Order ofCourt dt.19.06.2007 made inCMP.Nos.505 to 507 of 2004& CMP.No.10186 of 2003)...Cross Objectors https://hcservices.ecourts.gov.in/hcservices/ Appeal Suit under Section 96 of Civil Procedure Code and CrossObjection under Clause 41 Rule 22 CPC filed against the judgmentand decree dated 17.02.1995 made in O.S.No.285 of 1990 on the fileof Principal Subordinate Judge, Erode.For Appellant in : Mr.A.k.KumaraswamyAS.329 of 1995 &For Respondent in Cross ObjectionFor Respondents in: Mr.V.K.Muthusamy, AS.329 of 1995 & Senior Counsel forfor Cross Objectors M/s. M.M. Sundaresh in cross objection Mr.V.BharathidasanCOMMON JUDGMENTThis appeal arises against the judgment and decree passed bythe learned Principal Subordinate Judge at Erode, in O.S.No.285 of1990 dated 17.02.1995, in decreeing the suit for recovery ofpossession, past and future damages for use and occupation of theproperty at the rate of Rs.800/- per month. Defendant is theappellant. The claim made by the plaintiff was at the rate ofRs.1500/- per month and as the decree was passed only for Rs.800/-per month, there is a Cross Objection filed by the plaintiff.2. The subject matter of the suit was described in the plaintas 'B' schedule and by reading the plaint, one may understand thatit is a property described in Ex.A-1 lease deed dated 18.04.1979.That was the lease deed in between the parties in respect of 90cents of vacant land out of total extent one acre and add. Therespondent/ plaintiff is admittedly the owner. Theappellant/defendant is the lessee under Ex.A1. The monthly rent wasfixed at Rs.400/- per month. The appellant/defendant was alsopermitted to construct a screen printing factory and accordingly,the appellant had constructed the same and is running the saidfactory. The lease period mentioned was five years.3. Although it was stated that the appellant/defendant hadsurrendered possession on 26.04.1985 and that therespondent/plaintiff had filed a suit in O.S.No.381 of 1985 forpermanent injunction in respect of that property, the fact remainsthat the suit was dismissed on 16.06.1988 for default. Apart fromthe allegation made by the appellant/defendant that therespondent/plaintiff had forcibly made entry on 05.05.1985, thepresent possession is admitted with the appellant/defendant. That iswhy, perhaps, the suit in O.S.No.381 of 1985 was dismissed for https://hcservices.ecourts.gov.in/hcservices/ default of the respondent/plaintiff. Since only the appellant/defendant continues in possession, the respondent/plaintiff hadchosen to terminate the tenancy through Ex.A2 notice dated07.09.1988 requiring the appellant to deliver possession by the endof September 1988; that was a 15 days' notice issued in accordancewith Section 106 of Transfer of Property Act.4. Mr.A.K.Kumarasamy, learned counsel appearing for theappellant/defendant submitted that the notice is invalid in the eyeof law inasmuch as usage of the premises by the appellant/defendantwas admittedly for running a screen printing factory, which isengaged for the process of manufacture of cotton sarees, in whichdesigns are printed in the said factory. Therefore, it wascontended that as per Section 106 of the said Act, when the lease ofimmovable property is for agricultural or manufacturing purposes,the notice of termination should be by a period of six months. Inthis case, no notice was issued giving six months time. Ex.A2 wasonly a 15 days' notice. So, it was urged that the notice underEx.A2 is invalid in the eye of law. Therefore, the learned counselsubmitted that the decree of recovery of possession is to be setaside.5. Mr.V.K.Muthusamy, learned senior counsel appearing for therespondent/plaintiff submitted that the screen printing work done inthe factory of the defendant in the suit premises may not be calledas a manufacture and, therefore, only 15 days notice given underEx.A2 is valid. In this connection, reliance was placed upon thedecision reported in Idandas ..vs.. Anant Ramchandra (1982 SC 127),wherein the tests for determining whether a lease is granted forpurpose of "manufacturing process" were mentioned as follows:"(i) That it must be proved that a certain commodity wasproduced;(ii) That the process of production must involve eitherlabour or machinery;(iii) That the end product which comes into existence afterthe manufacturing process is complete, should have adifferent name and should be put to a different use. Inother words, the commodity should be so transformed as tolose its original character".That was a case where a lease was granted for running a flour millwherein wheat was transformed, by manufacturing process whichinvolved both labour and machinery, into flour. Therefore, it washeld that all the three tests were fully satisfied and thus thelease was one for manufacturing process which could be terminatedonly by giving six months' notice under Section 106 of Transfer ofProperty Act.6. While discussing the logical aspect of the case, theobservation found in Allenburry Engineers Private Ltd ..vs.. https://hcservices.ecourts.gov.in/hcservices/ Ramakrishna Dalmia (AIR 1973 SC 425) at page 427 was relied on andwhich is as follows:"The word 'manufacture', according to its dictionarymeaning, is the making of articles or material (now on largescale) by physical labour or mechanical power (ShorterOxford English Dictionary, Vol.I 1203). According to thePermanent Edition of Words and Phrases Vol.26, 'manufacture'implies a change but every change is not manufacture and yetevery change in an article is the result of treatment,labour and manipulation. But something more is necessaryand there must be transformation; a new and differentarticle must emerge having a distinctive name, character oruse".7. Again, the following observation found in Joyanti HosieryMills ..vs.. Upendra Chandra Das (AIR 1946 Calcutta 317) was alsorelied upon."To manufacture", according to its Dictionary meaningmeans "to work up materials into forms suitable for use".The word 'material' does not necessarily mean the originalraw material, for a finished article may have to go throughseveral manufacturing processes before it is fit and madeready for the market. What is itself a manufacturedcommodity may constitute a "material" for working it upinto a different product. "Thus, for example for thetanner, the material would be the raw hide, but the leatheritself a manufactured article would constitute the materialfor the shoemaker's business, and we cannot say that theshoe-makers are not manufacturers because they do not workon raw hides".8. In the case of John Augustine Peter Mirande ..vs.. N.DathaNaik (AIR 1971 Mysore 365), the observation was as follows:"In common parlance 'to manufacture goods' means 'to bringgoods into being'. The essence of manufacture is thechanging of one object into another for the purpose ofmaking it marketable. Therefore, the proper approach forascertaining the meaning or expression of the word'manufacture' is to see in the context in which it isused".9. The same was relied upon in Meghraj ..vs.. B.Seshagiri Rao(AIR 1977 Karnataka 163), wherein it was observed that to constitute'manufacture' there must be such transformation in the change out ofwhich a new and different article must emerge having a distinctivename, character or use.10. Again in UOI ..vs.. J.G.Glass Industries Ltd., (1998(97)ELT https://hcservices.ecourts.gov.in/hcservices/ 5,11(SC), the Supreme Court has laid down a two-fold test fordeciding whether the process is 'manufacture'. First, whether bythe said process a different commercial commodity comes intoexistence or whether the identity of the original commodity ceasesto exist. Secondly, whether the commodity which was already inexistence will serve no purpose but for the said process. Applyingthe two-fold test, it was held that printing on bottles does notamount to manufacture.11. In Oudh Sugar Mills Ltd., ..vs.. Union of India (1982 ELT937, 939), it was held that, "The word 'manufacture' is a verb which is generallyunderstood to mean bringing into existence a new substanceand not merely to produce some change in substance howeverminor it may be. The word includes any process incidentalor ancillary to the process of a manufactured product. Manufacture at intermediate stage: It is not correct tostate that until a final or last product is made, there willbe no manufacture. If in the intermediate stage a distinctproduct known to the commercial world comes into existence,manufacture does take place".12. Now, there is no distinct product known to the commercialworld that comes into existence because it was the same category ofsaree either prior to or after the printing. Printing may create achange; but all changes are not new manufactures. There is nooccurrence of transformation into usable commodity; because evenearlier to printing it was an unprinted but at the same time, usablecommodity.13. Considering the above definitions and circumstances inwhich the term 'manufacture' was to be understood, it could be saidthat any product of a fabric because of its undergoing printing maynot involve any transformation and therefore, in this case, nomanufacture gets itself involved.14. Above all, it is very much pertinent to note that no properplea in this regard was taken in the written statement ofappellant/defendant. The present argument of the learned counselfor the appellant that as this happens to be squarely a legalproblem or question of law, the appellant cannot fail for no plea inthat respect, is unacceptable because although it may appear thatwhat is involved is a question of law, for inviting such question onSection 106 of Transfer of Property Act, it must have been pleadedthat there is a basic fact in favour of the appellant/defendant andthat fact will get Section 106 attracted for the issuance of sixmonths' notice. When such factum is not pleaded, an application oflaw under Section 106 of the Act may not become necessary. In that https://hcservices.ecourts.gov.in/hcservices/ way, the failure to make plea of question of fact in order to applya law or in order to make it a question of law may go against theappellant. So, viewed in any angle, the notice under Ex.A2 is foundvalid.15. The next question that would arise is about the quantum ofdamages. Learned counsel for the respondent/plaintiff would beentitled for a sum of Rs.1500/- per month for the reason that thereis escalation of price mainly in and around Erode and that too, whenthe suit property is lying in an important locality of Erode and onthe bank of Cauvery river. While fixing damages, we cannot ignoreterms of agreement between the parties, that was only for Rs.400/-per month. Of course, that was agreed in April 1979. But thetrial court has considered all the aspects in its judgment. Here,the respondent/plaintiff claimed a sum of Rs.1500/- per month andfor reasons mentioned in the judgment of the lower court, it hasfixed at the rate of Rs.800/- per month and the same is confirmed.In view of the above circumstances, I am not inclined to grant anytime for vacating the same as pleaded by the learned counsel for therespondent/appellant.For the reasons stated above, both the Appeal as well as CrossObjection are dismissed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.glTo 1.The Principal Subordinate Judge,Erode.2. The Record keeper,VR section, High Court, Madras.1 cc to Mr.M.M. Sundresh, Sr. 432851 cc to Mr.A.K. JKumarasamy, Sr. 43054 Appeal Suit No.329 of 1995 and Cross Objection No.148 of 1995BS(CO)kk 7/8