Syed Zadi v. C.Jayachander

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.03.2011Coram:THE HONOURABLE MR.JUSTICE G. RAJASURIAS.A.No.1583 of 2008 andM.P.No.1 of 2008 Syed Zadi.. Appellant/Defendantvs.C.Jayachander.. Respondent/PlaintiffThis Second Appeal is filed under section 100 of CPC againstthe judgment and decree dated 11.01.2008 in A.S.No.434 of 2006 onthe file of the IV Additional Judge, City Civil Court, Chennaiconfirming the judgment and decree passed in O.S.No.1752 of 2001dated 22.12.2005 on the file of the VII Assistant Judge, City CivilCourt, Chennai. For appellant: Mr.T.Murugamanikkam For Respondent: Mr.K.P.AshokJUDGMENTThis Second appeal is focussed by the defendant animadvertingupon the judgment and decree dated 11.01.2008 passed in A.S.No.434of 2006 by the IV Additional Judge, City Civil Court, Chennai, confirming the judgment and decree of the VII Assistant Judge, CityCivil Court, Chennai in O.S.No.1752 of 2001. The parties arereferred to hereunder according to their litigative status andranking before the trial Court.

Compendiously and concisely, the relevant facts absolutelynecessary and germane for the disposal of this Second Appeal wouldrun thus: (a) The plaintiff filed the suit seeking the following reliefs: "(i) For ejectment/eviction of the defendantfrom the suit schedule mentioned premises; and(iii) For costs. " https://hcservices.ecourts.gov.in/hcservices/ (b) The defendant filed the written statement resisting thesuit. (c) Whereupon issues were framed by the trial Court. (d) The plaintiff-Jayachander examined himself as P.W.1 and Exs.A1 to A4 were marked. On the side of the defendant, the husbandof the defendant, namely Mr.I.Mohideen was examined as D.W.1 and Exs.B1 to B3 were marked.

Ultimately the trial Court decreed the suit, as againstwhich appeal was filed for nothing but to be dismissed by theappellate Court confirming the judgment and decree of the trialCourt.

Challenging and impugning the judgments and decrees of boththe Courts below, this Second Appeal has been focussed by thedefendant on various grounds inter alia to the effect that withoutproperly producing the documents before the trial Court and markingthem, the plaintiff canvassed his case, which was accepted by thetrial Court and the first appellate Court also did not take note ofall these deficiencies on the side of the plaintiff and simplydecreed the suit, warranting interference in the Second Appeal.

As such, suggesting the following substantial questions oflaw, this Second Appeal was filed: "(a) Whether the Judgments of the Courtsbelow are vitiated in that, they have renderedfindings based on documents which have not beenexhibited before the court?(b) Whether the Courts below are correct indecreeing the suit for ejectment when there wassufficient proof with regard to the existence ofthe superstructure in the leased out vacant land?(c) When the tenancy is sought to beterminated on grounds of violation of the terms ofthe lease, and, such violation has not been proved, then, whether a decree can be passed in favour ofthe plaintiff?(d) Whether the impugned decree is valid inlaw considering that the suit schedule set out avacant land as the suit property, whereasadmittedly there is a superstructure on the suitproperty?." (extracted as such) https://hcservices.ecourts.gov.in/hcservices/

Whereupon, my learned Predecessor framed the followingsubstantial question of law: Whether the judgment of the court below arevitiated that they have rendered findings based ondocuments, which have not been exhibited before thecourt below. (extracted as such)

Heard both sides.

The learned counsel for the appellant/defendant placingreliance of the grounds of appeal and the typed set of papers woulddevelop his arguments, which could succinctly and pithily be set outthus: (a) No doubt, the defendant filed I.A.No.20258 of 2001 under Section 9 of the Tamil Nadu City Tenant Protection Act, 1921 and inthat I.A., the lease agreement was exhibited as Ex.P2. In the saidlease agreement there is a clause to the effect that the defendantshall not put up superstructure and since the defendant without thepermission of the plaintiff had put up superstructure, the Courtheld that he was not entitled to any protection under the Tamil NaduCity Tenants' Protection Act. However, the said Ex.P2 marked inI.A.No.20258 of 2001 was not exhibited during trial on the side ofthe plaintiff and in such a case, the plaintiff had not proved thatthe defendant committed violation of the terms and conditionscontained in the lease agreement. (b) Further more, the Commissioner's Report also was notexhibited during trial. Accordingly, the learned counsel for the defendant would submit thatthe judgments of both the Courts below are based on no evidence.

In a bid to torpedo and pulversie the arguments as put forthand set forth on the side of the appellant/defendant, the learnedcounsel for the respondent/plaintiff would advance his arguments, which could tersely and briefly be set out thus: (a) The trial Court in I.A.No.20258 of 2001 passed aconsiderate order rejecting the plea of the defendant that thedefendant was not entitled to the protection under the Tamil NaduCity Tenants' Protection Act, as against which no further steps weretaken and the order attained its finality. (b) The law is to the effect that after the expiry of the leaseperiod, the question of citing any specific reason by the landlordfor evicting the tenant would not arise and it is not a case coveredunder the Tamil Nadu Buildings (Lease and Rent Control) Act. https://hcservices.ecourts.gov.in/hcservices/ (c) The only question that could be raised was only relating tothe sufficiency of notice issued under Section 106 of the Transferof Property Act. Here, the defendant has not raised any substantialquestion of law pertaining to the alleged insufficiency of thenotice issued under Section 106 of the Transfer of Property Act. (d) The lease itself was for enabling the defendant to park thevehicles which would be coming to his nearby Kalayana Mandapam andin such a case, absolutely there is no merit in this Second Appeal.

I fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL.(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER.(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL(iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI]A mere poring over and perusal of those judgments would conveyand portray, that the High Court while exercising power under Section 100 of CPC should see as to whether there is any substantialquestion of law in involved in the matter. However, after framingsuch substantial question of law, interference would be possible. Hence, it s the paramount duty of the Court to find out as towhether there is any perversity or illegality on the part of the Courts below in deciding the factual issues involved in the matter.

The order passed by the lower Court in I.A.No.20258 of 2001indubitably and indisputably achieved its finality and as againstwhich no grievance has been aired in subsequent proceedings. Thelaw is well settled that after the expiry of the lease period, thelandlord is not enjoined to cite any reason for evicting thetenant/lease holder unlike the one which is contemplated under the Tamil Nadu Buildings (Lease and Rent Control) Act. Here peculiarly, the sufficiency of the notice issued under Section 106 of the Transfer of Property Act was not under challenge. In such a case, it has to be seen as to whether the non marking of the lease deedduring trial is fatal. No doubt, the Courts below placed relianceon certain clauses in Ex.P2 and held that the defendant violated thestipulation that he should not put up structure, but the defendanthad put up structure and thereby violated the terms and conditions. In my opinion that is not at all germane for deciding the case.

To the risk of repetition and pleonasm, but without being https://hcservices.ecourts.gov.in/hcservices/ tautologus, I would like to point out that what are all required isthat the plaintiff/landlord should issue a notice for eviction. Hence it is turned out to be a valid one and it is beyond challenge. Wherefore no other point need to be considered. In this case, boththe Courts below additionally gave some reasons for orderingeviction which are not germane for the ultimate result arrived at bythem. It is not the case of the appellant/defendant also thatbefore the expiry of the lease period the plaintiff sought foreviction. Hence, I am of the view that non marking of the leasedeed during trial is not fatal. Further, the Commissioner's Reportis part of record and therefore specific marking is also notrequired.

Wherefore, the aforesaid substantial question of law isdecided to the effect that the judgments and decrees of the Courtsbelow are not vitiated though they have rendered findings based ondocuments which have not been exhibited before them.

Accordingly, I could see no merit in this Second Appeal andthe same stands dismissed. No costs. Consequently, connectedmiscellaneous petition is closed.

The learned counsel for the appellant would make anextempore submission that time might be given till December 2011 forvacating the premises. Whereas, the learned counsel for therespondent would object to it. I am of the considered view thattill the end of October 2011 time could be granted for handing overpossession because holus bolus the appellant who is running aKalayana Mandapam in the nearby place cannot get any other place forparking and he might take some time to find suitable alternativeplace for parking. Hence, time for handing over vacant possessionof the suit property is granted till end of October 2011. Anaffidavit of undertaking shall be filed by the appellant to thateffect within a period of fifteen days from the date of receipt of acopy of this order. (Here attached the Xerox Copy of Affidavit of the petitioner)Sd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The IV Additional Judge, City Civil Court, Chennai.2. The VII Assistant Judge, City Civil Court, Chennai. Copy to: The Section Officer, VR Section, High Court, Madras.+ 1 cc to Mr. T. Murugamanikkam, Advocate SR No.17429+ 1 cc to Mr. K.P. Ashok, Advocate SR No.17207CK(CO)SR/20.5.2011S.A.No.1583 of 2008