Tmt.R.Swarnavalli v. H.H.The Prince of Arcot Endowments

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.03.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.1493 of 2008andM.P.No.1 of 2008Tmt.R.Swarnavalli.. Appellant/Defendantvs.H.H.The Prince of Arcot Endowmentsrep.by its Agent Mr.U.Mohmmed KheliullahAmir Mahal, Royapettah, Chennai 14.. Respondent/PlaintiffThis second appeal is filed against the decree and judgmentpassed in A.S.No.73 of 2008 on the file of the 3rd Additional DistrictJudge, Chennai dated 31.03.2008 confirming the decree and judgmentpassed in O.S.3009 of 2005 dated 3.4.2007 on the file of the learned8th Assistant City Civil Judge, Chennai.For Appellant : No appearanceFor Respondent : No appearanceJ U D G M E N TThis second appeal is focussed by the original plaintiff,animadverting upon the judgement and decree dated 31.03.2008 passedin A.S.No.73 of 2008 by the 3rd Additional District Judge, Chennai,confirming the judgement and decree of the trial Court, namely, 8thAssistant City Civil Judge, Chennai, in O.S.No.3009 of 2005. Forconvenience sake, the parties are referred to hereunder according totheir litigative status before the trial Court.2. The plaintiff filed the suit as against the defendantseeking the following reliefs on the ground that the defendantentered into occupation of the suit property as tenant on monthlyrental basis:"a) pass a decree in favour of the plaintiff directingvacant delivery of possession of the suit property namelythe land comprised in No.45, Ellis Road, which belongs tothe plaintiff; https://hcservices.ecourts.gov.in/hcservices/ b) to pass a decree against the defendant in a sum ofRs.8,784/- as damages for use and occupation from30.04.2004 till the date of filing of the above suit;c) to grant further damages at Re.1/- per sq.ft. fromthe date of plaint till the delivery of possession is madeto the plaintiff;d) to grant a permanent injunction restraining thedefendant or agents, men or contractors from putting up anyconstruction in the suit property till the delivery of thevacant possession of the suit property; ande) order for costs of the suit incurred by plaintiffto be paid by the defendant and for such other relief orreliefs or direction of this Honourable Court may deem fitto pass in the circumstances of the case."Subsequently, the plaintiff issued notice under Section 106 of theTransfer of Property Act terminating the lease. Despite suchtermination, the defendant did not vacate the suit property, hencethe suit.3. Per contra, denying and refuting, remonstrating the impugningthe averments/allegations in the plaint, the defendant filed thewritten statement raising various pleas including the one that theland alone was leased on rent and the superstructure was put upthereon by the tenant concerned; the plaintiff had no right to filethe suit for eviction; he is running a shop in the premises that thetermination notice is not valid, and as such, the defendant is havingright to continue in possession.4. The lower Court framed the relevant issues. During trial, onthe side of the plaintiff, Uma Shankar was examined as P.W.1 andExs.A1 to A6 were marked. On the side of the defendant, thedefendant examined herself as D.W.1 and Exs.D1 to D9 were marked.Exs.C1 and C2 were marked as Court documents.5. Ultimately, the lower Court dismissed the suit, as againstwhich the first appeal was filed, for nothing but to be dismissed,confirming the judgment and decree of the lower Court. Beingdisconcerted and aggrieved by the judgment and decree of both theCourts below, this Second Appeal has been focussed on various groundsand also by suggesting the following alleged substantial questions oflaw:"1. Whether the first appellate court is correct indismissing the appeal without giving opportunity for theappellant to advance their arguments? https://hcservices.ecourts.gov.in/hcservices/ 2) Whether the appellate court is correct indismissing the appeal as if it heard the arguments ofappellant?3) Whether the appellant is entitled to purchase thesuit property as per Section 9 of City Tenants ProtectionAct?4) Whether the notice sent under Section 106 ofT.P.Act by the respondent is valid in eyes of law?5) Whether the respondent is entitled for damages asclaimed by the respondent?6) Whether the sale deed executed in favour of thisappellant on 11.7.1985 has got any validity in eyes of law?7) Whether the suit is maintainable when admittedlythe superstructure is constructed by this appellant in thesuit property and the vacant land only is belonged to therespondent?"6. Despite printing the names concerned, none appeared.7. On perusal of the records, I am of the opinion that at theadmission stage itself the matter could be disposed of.8. A plain poring over and perusal of the typed set of papersincluding the copy of the judgment of the Courts below woulddemonstrate and display that the plaintiff is the absolute owner ofthe suit property and the defendant was a tenant under the plaintiff.The plaintiff also issued notice under Section 106 of the T.P. Actterminating the tenancy of the defendant, and calling upon him tohand over vacant possession. Both the Courts below discussed andappreciated the relevant facts and ordered eviction.9. At this juncture my mind is redolent and reminiscent of theof the following decision of the Hon'ble Apex Court reported in(2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL,certain excerpts from it would run thus:-"17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state thesubstantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. ... https://hcservices.ecourts.gov.in/hcservices/

18. ... It has to be kept in mind that the right of appealis neither a natural nor an inherent right attached to thelitigation. Being a substantive statutory right, it has tobe regulated in accordance with law in force at therelevant time. The conditions mentioned in the sectionmust be strictly fulfilled before a second appeal can bemaintained and no court has the power to add or to enlargethose grounds. The second appeal cannot be decided onmerely equitable grounds. The concurrent findings of factswill not be disturbed by the High Court in exercise of thepowers under this section. Further, a substantial questionof law has to be distinguished from a substantial questionof fact. ...21. ... However, it is clear that the legislature haschosen not to qualify the scope of "substantial question oflaw" by sufficing the words "of general importance" as hasbeen done in many other provisions such as Section 109 ofthe Code or Article 133(1)(a) of the Constitution. Thesubstantial question of law on which a second appeal shallbe heard need not necessarily be a substantial question oflaw of general importance. In Guran Ditta v. Ram Ditta thephrase "substantial question of law' as it was employed inthe last clause of the then existing Section 100 CPC (sinceomitted by the Amendment Act, 1973) came up forconsideration and their Lordships held that it did not meana substantial question of general importance but asubstantial question of law which was involved in the case.In Sir Chunilal case the Constitution Bench expressedagreement with the following view taken by a Full Bench ofthe Madras High Court in Rimmalapudi Subba Rao v. NoonyVeeraju(Sir Chunilal case, SCR p.557)"When a question of law is fairly arguable, wherethere is room for difference of opinion on it or where theCourt thought it necessary to deal with that question atsome length and discuss alternative views, then thequestion would be a substantial question of law. On theother hand if the question was practically covered by thedecision of the highest court or if the general principlesto be applied in determining the question are well settledand the only question was of applying those principles tothe particular fact of the case it would not be asubstantial question of law."This Court laid down the following test as proper test, fordetermining whether a question of law raised in the case issubstantial:(Sir Chunilal case, SCR pp.557-58)"The proper test for determining whether a question oflaw raised in the case is substantial would, in our https://hcservices.ecourts.gov.in/hcservices/ opinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or call for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."23. To be "substantial" a question of law must bedebatable, not previously settled by law of the land or abinding precedent, and must have a material bearing on thedecision of the case, if answered either way, insofar asthe rights of the parties before it are concerned. To be aquestion of law "involving in the case" there must be firsta foundation for it laid in the pleadings and the questionshould emerge from the sustainable findings of fact arrivedat by court of facts and it must be necessary to decidethat question of law for a just and proper decision of thecase. An entirely new point raised for the first timebefore the High Court is not a question involved in thecase unless it goes to the root of the matter. It will,therefore, depend on the facts and circumstance of eachcase whether a question of law his a substantial one andinvolved in the case or not, the paramount overallconsideration being the need for striking a judiciousbalance between the indispensable obligation to do justiceat all stages and impelling necessity of avoidingprolongation in the life of any lis.(See Santosh Hazari v.Purushottam Tiwari).24. . . . (iii) The general rule is that High Court will notinterfere with the concurrent findings of the Courts below.But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below haveignored material evidence or acted on no evidence; (ii) thecourts have drawn wrong inferences from proved facts byapplying the law erroneously; or (iii) the courts havewrongly cast the burden of proof. When we refer to"decision based on no evidence", it not only refers tocases where there is a total dearth of evidence, but alsorefers to any case, where the evidence, taken as a whole,is not reasonably capable of supporting the finding." https://hcservices.ecourts.gov.in/hcservices/ (ii) One other decision of the Hon'ble Apex Court could also becited as under:2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH ANDANOTHER, an excerpt from it would run thus- 9. It has been noted time and again that withoutinsisting for the statement of such a substantial questionof law in the memorandum of appeal and formulating the sameat the time of admission, the High Courts have been issuingnotices and generally deciding the second appeals withoutadhering to the procedure prescribed under Section 100 ofthe Code. It has further been found in a number of casesthat no efforts are made to distinguish between a questionof law and a substantial question of law. In exercise ofthe powers under this Section in several cases, thefindings of fact of the first appellate Court are found tohave been disturbed. It has to be kept in mind that theright of appeal is neither a natural nor an inherent rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this Section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. This Court in Sir Chunilalv. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962SC 1314) held that:"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or calls for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."As such, in the absence of any question of law, much less substantialquestion of law, the probability of entertaining the Second Appealdoes not arise.10. Here the proposed substantial question of law Nos.1 and 2are to the effect that the first appellate Court did not hear the https://hcservices.ecourts.gov.in/hcservices/ appellant at all before passing the judgment. A plain reading of therelevant judgment of the first appellate Court would display andevince that the respondent therein filed the written submissions,whereas on behalf of the appellant/defendant, even though Advocateswere on record, none appeared and the lower court based on therecords rendered its judgment. Had really the appellant/defendantbefore the First Appellate Court was aggrieved by such judgment, heought to have filed I.A. for recalling the said order or get the saidorder set aside on the ground that the said judgment was passedwithout hearing the appellant and for reasons to be recorded, theFirst Appellate Court would have the jurisdiction to recall or setaside the order passed by it, by way of giving one more opportunityof hearing. But in this case, the appellant/defendant before theFirst Appellant Court had not chosen to do so, but straightawaypresented the Second Appeal. As such, the approach of the defendantherein in filing the Second Appeal is not tenable. Accordingly, theproposed substantial question of law Nos.1 and 2 are answered.11. The proposed substantial question of law No.3 is relating toSection 3 of the Madras City Tenants' Protection Act, 1921. Byvirtue of Tamil Nadu Amending Act 2 of 1996, clause (f) was insertedunder the said Section in the Act and it runs as under:"S.1(3) This Act shall apply:-(a)...(b)...[Provided that nothing contained in this Act shall apply totenancies of land owned -(a)......(f) by any religious institution or religious charity belongingto Hindu, Muslim, Christian or other religion."It is therefore crystal clear that the defendant cannot try to claimany benefit under the Madras City Tenants' Protection Act, 1921. Assuch, the substantial question of law No.3 is a misconceived one.12. The proposed substantial question of law No.4 is relating tovalidity of the notice issued by the plaintiff under Section 106 ofTransfer of Property Act. The lower Court correctly gave a findingof fact that proper, notice under Section 106 of Transfer ofProperty Act was issued by the plaintiff terminating the tenancy ofthe defendant. There is nothing to highlight in the writtenstatement or in the evidence as to how the said notice under Section106 is untenable in the eye of law. What are all contemplated underSection 106 of T.P. Act is that, in matters of this nature where thetenancy is for running business or for residential purpose, thereshould be 15 days notice terminating the tenancy. Here, the tenancyitself as per the defendant was for the business purpose. The reasonfor termination of notice under Section 106 of T.P.Act is not at allgermane as correctly understood and pointed out by the lower Court in https://hcservices.ecourts.gov.in/hcservices/ its judgment. In view of the fact that in the written statementitself there is no specific plea challenging the validity of Section106 of the Transfer of Property Act, it amounts to waiver and in theSecond Appeal he cannot raise such a plea also. Even otherwise, thelower Court correctly scrutinised Ex.A2 dated 07.07.2004, thetermination notice issued under Section 106 of T.P. Act and held thatthe notice was correctly issued. 13. At this juncture, I would call up and recollect thefollowing decisions:(i) 2006(3) S.C.C. 216 [Dharam Pal v. Harbans Singh](ii) AIR 2003 S.C.3995 [Parwati Bas v. Radhika]As such, it is crystal clear that the defendant without specificallyraising a plea in the written statement or by giving a reply noticeto that specific effect cannot raise such a plea. As such, I couldsee no merit in the proposed substantial question of law No.4.14. Regarding finding of fact relating to claiming damages, Icould see no substantial question of law involved. The lower Courtawarded damages for use and occupation in a sum of Rs.8,784/- for theperiod, between 30.04.2004 and the date of filing of the suit at thesame rate of rent which prevailed earlier and from the date ofplaint, damages for use and occupation was awarded at the rate ofRe.1 per sq.ft. I could see no question of law, much lesssubstantial question of law involved in awarding such damages for useand occupation. As such, the suggested substantial question of lawNo.5 warrants no interference by this Court.15. The proposed substantial question of law No.6 is relating tosale deed dated 11.07.1985 executed by one Mir Usif Ali in favour ofthe appellant. I am at a loss to understand as to how thesuperstructure purchased by the defendant as per the sale deed wouldin any way be an embargo for the landlord, the plaintiff herein toevict the defendant herein and obtain vacant possession of the land.16. The lower Court correctly gave a finding to the effect thatthe Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is notapplicable to this case, because the property belongs to theplaintiff, which is a Public Religious and Charitable Institution.At this juncture, I would call up and recollect the publication inPart II - Section 2 of the Tamil Nadu Government Gazette, dated the21st November 1974 effected under Section 29 of the Tamil NaduBuildings (Lease and Rent Control) Act, 1960 exempting all thebuildings owned by Hindu, Christian and Muslim religious trusts andcharitable institutions from all the provisions of the said Act. Assuch, impliedly or expressly, the concept as contemplated under thesaid Act cannot be pressed into service by the defendant.Accordingly, there is no merit in the proposed substantial questionof law No.6 as put forth before this Court. https://hcservices.ecourts.gov.in/hcservices/

17. The proposed substantial question of law No.7 is totallyantithetical to the very written statement filed by the plaintiffhimself and the plaintiff herein prayed only for vacant possession ofthe suit property and since it happens to be the Trust, there is noembargo for such Trust to seek vacant possession of the suit propertyfree from superstructure. Accordingly, there is no merit in theproposed substantial question of law No.7.18. What I could understand from the whole kit and caboodle offacts and figures placed on the side of the defendant, is that hemight find it difficult for vacating the premises all of a sudden;hence considering the circumstances, the trial Court itself grantedtwo months' time for eviction and thereafter, much water has flownunder the bridge and for years together the defendant is continuouslyoccupying it. Nonetheless, in the interest of justice, I would grantthree months' time from this date for evicting and handing overpossession of the suit property by the defendant in favour of theplaintiff.Accordingly, this Second Appeal is disposed of. No costs.Consequently, connected miscellaneous petition is also closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargmsTo1. The Registrar, City Civil Court, Madras2. The Section Officer, VR Section, High Court, Madras.3. The 3rd Additional District Judge, City Civil Court, ChennaiS.A.No.1493 of 2008SR(CO)SRA(14/08/2009)