G.Ganesan v. P.V.Rajapandi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.08.2012CORAMTHE HONOURABLE MR. JUSTICE P.R.SHIVAKUMARS.A.Nos.819 and 820 of 2012&M.P.Nos.1 and 2 of 2012G.Ganesan.. Appellant/ Appellant / Plaintiff in both the appeals-Vs-P.V.Rajapandi.. Respondent/ Respondent/ Defendant in both the appealsPrayer in S.A.No.819 of 2012: Second Appeal filed under section 100of C.P.C against the judgment and decree of the learned PrincipalSubordinate Judge of Chengalpattu, dated 29.6.2011 in A.S.No.33 of2010 confirming the Judgment and Decree of the learned DistrictMunsif of Chengalpattu dated 30.07.2010 in O.S.No.174 of 2007.Prayer in S.A.No.820 of 2012: Second Appeal filed under section 100of C.P.C against the judgment and decree of the learned PrincipalSubordinate Judge of Chengalpattu, dated 29.6.2011 in A.S.No.34 o f2010 confirming the Judgment and Decree of the learned DistrictMunsif of Chengalpattu dated 30.07.2010 in O.S.No.345 of 2006. For appellant : Mr.V.NicholasFor Respondent : Mr.S.ThirumavalavanJUDGMENTG.Ganesan is the tenant and P.V.Rajapandi is the landlord.The tenant filed a suit in O.S.No.345 of 2006 on the file of thelearned District Munsif, Chengalpattu for a bare injunctioncontending that the landlord was trying to forcibly evict himwithout adopting due process of law. Besides resisting the saidsuit, the landlord filed a suit in O.S.No.174 of 2007 on the file ofthe learned District Munsif, Chengalpettu for eviction of the tenantbased on the alleged termination of lease probably on the beliefthat Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was notapplicable to the suit property. https://hcservices.ecourts.gov.in/hcservices/

2. Both the suits were tried together and by a common judgment,O.S.No.345 of 2006, namely the suit filed by the tenant wasdismissed and O.S.No.174 of 2007, namely the suit filed by thelandlord was decreed. Challenging the said decrees passed by thetrial Court dated 30.07.2010, two appeals came to be filed by thetenant, namely A.S.No.33 of 2010 against the decree passed inO.S.No.174 of 2007 and A.S.No.34 of 2010 against the decree passedin O.S.No.345 of 2006. Both the appeals were jointly heard anddisposed by the learned Sub-Judge, Chengalpattu by a commonJudgment and decrees dated 29.06.2011 confirming the decrees passedby the trial Court in both the cases. As against the decree of theappellate Court made in A.S.No.33 of 2010, S.A.No.819 of 2012 hasbeen filed. As against the decree passed in A.S.No.34 of 2010,S.A.No.820 of 2012 has been filed. In both the second appeals, thetenant is the appellant and the landlord is the respondent.3. The respondent entered a caveat in the S.R stage itself andhe is represented by a learned counsel. Learned counsel for theappellant in both the appeals submits that the Second Appeal No.819of 2010 involves a substantial question of law which is as follows:"Whether the Civil Court's jurisdiction stood oustedby the provisions of Tamil Nadu Buildings (Lease and RentControl) Act, 1960 in the absence of a finding by the RentController that there is a denial of title and the denialis a bonafide one? " 4. Since the appellant relies on the notification by theGovernment of Tamil Nadu upgrading the erstwhile Town Panchayat ofMaraimalai Nagar within which the suit property situates andcontends that from the date on which it was upgraded to aMunicipality, the rent control Act stood attracted, the learnedcounsel for the respondent concedes the said question is a questionof law that could be raised in the said second appeal. So far as the other second appeal, namely S.A.No.820 of 2012 isconcerned, admittedly there is no such direct question of lawinvolved. However, it is admitted that the sustainability of theclaim for injunction shall largely depend upon the outcome of theabove said question involved in S.A.No.819 of 2012. In the light ofthe fact that the landlord has chosen to approach the Court foreviction, the said appeal also can be taken as an appeal fit foradmission on the following question of law:"Whether the appellant in S.A.No.820 of 2012 (tenant)is entitled to the relief of permanent injunction when therespondent/landlord has chosen to file a suit for evictionwithout taking any forcible steps to evict the tenantotherwise? " Hence those two questions are framed as Substantial questions of lawrespectively in S.A.No.819 of 2012 and 820 of 2012. https://hcservices.ecourts.gov.in/hcservices/

5. Learned counsel for the appellant and the learned counselfor the respondent agreed that both the cases can be disposed of onthe resolution of the above said pure questions of law and hence, afinal disposal of the second appeals can be given at the time ofadmission itself. Accordingly, after hearing the arguments advancedon both sides on the above said questions of law, the followingjudgment is pronounced:-(i) It is not in dispute that the appellant in both the appealsis the tenant and the respondent in both the appeals is the landlordand that the tenancy is in respect of a residential portion situatedwithin erstwhile Maraimalai Nagar town panchayat. It is brought tothe notice of the Court that long prior to the filing of the suits,the said town panchayat was upgraded into a third grade municipalitywith effect from 14.06.2004. The relevant Government Orders cameto be passed in G.O.Ms.No.270, Municipal Administration and WaterSupply Department dated 11.06.2004, G.O.Ms.No.277, MunicipalAdministration and Water Supply Department dated 02.07.2004 andG.O.Ms.No.300, Municipal Administration and Water Supply Departmentdated 24.08.2005. The notifications of the Government, having theforce of law, can be looked into and the Court itself can takejudicial notice of it especially when the same is not disputed. Bysuch notification, the entire area comprised in the erstwhile townpanchayat of Maraimalai Nagar become part of the third grademunicipality of Maraimalai Nagar. The effect of suchupgradation/reclassification of the erstwhile town panchayat into athird grade municipality, as rightly contended by the learnedcounsel for the appellant, shall be the automatic application of theprovisions of Tamil Nadu Buildings (Lease and Rent Control) Act,1960 from the date of such upgradation. Section 1(2) dealing withthe application of the said Act is extracted hereunder:[(a)(i) This Act, [except sub-section (2) of Section3] shall apply to the City of Madras [and to the City ofMadurai] and to all municipalities constituted or deemedto have been consitituted under the Tamil Nadu DistrictMunicipalities Act, 1920 (Tamil Nadu Act V of 1920) in thestate:Provided that the Government may, by notification,direct that this Act shall cease to apply to anymunicipality specified therein or to the City of Madras[or to the City of Madurai] from such date as may bementioned in the notification.[(ii)Where this Act had, under the proviso to sub-clause (i), ceased to apply to any such municipality orCity as is mentioned in that proviso, the Government may,by notification apply this Act, except sub-section (2) ofSection 3, to any such municipality or city with effectfrom such date as may be specified in the notification.](b) [Sub-section (2) of Section 3} shall apply to theCity of Madras [or to the City of Madurai] or anymunicipality consitituted or deemed to have beenconstituted under the Tamil Nadu District Municipalities https://hcservices.ecourts.gov.in/hcservices/ Act, 1920 (Tamil Nadu Act V of 1920), in the state onlyfrom such date as the Government may, by notification,appoint [and the Government may, cancel or modify any suchnotification].(c) The Government may, by notification, apply all orany of the provisions of this Act except sub-section (2)of Section 3, to any other area in the state with effectfrom such date as may be specified in the notification andmay cancel or modify any such notification.(d) Upon the issue of a notification under theproviso to sub-clause (i) of clause (a) or of anotification of cancellation under clause (b) or clause(c) this Act or as the case may be, the provision thereof,shall cease to apply, except as respects things done oromitted to be done before such cesser; and Section 8 ofthe Tamil Nadu General Clauses Act, 1891, (Tamil Nadu Act1 of 1891), shall apply upon such cesser as if this Act orsuch provision had then been repealed by a Tamil Nadu Act;but such cesser shall not be deemed to affect the power ofthe Government under sub-clause (ii) of clause (a) orunder clause (b) or clause © again to apply this Act orany such provision to any area mentioned in that sub-clause or clause."(ii) The only question that arises for consideration is whenthe local body had not been designated as a municipality on the dateof coming into force of the Act, whether the subsequent designationof the local body into a Municipality without a further notificationextending the provisions of the Act, shall make the provisions ofthe Act applicable to the areas covered by such newly constitutedMunicipality or upgraded local body into a Municipality. Theprovisions of Tamil Nadu Buildings (Lease and Rent Control) Act donot restrict its application to the municipalities that were inexistence as on the date of publication of the Act in the gazette.It is made applicable to all the Municipalities. An Act may not beapplicable to a person, to an entity or to an area at its inceptionbecause such person, entity or the area might not have conformed tothe descriptions to bring him/it under the purview of the Act. But,subsequently when such person or the entity, by change of law,acquires the status which brings him or it within the purview of theAct, then it cannot be said that a further act on the part of theState extending the provisions of the Act even to such person orsuch entity is necessary for applying the provisions of the Act. Onthe other hand, the Act provides for extending the provisions of theAct even to areas which do not come under the definition ofMunicipalities. That means, the Government, if it thinks fit, canextend the provisions of this Act to a major or minor villagepanchayat. Only in respect of those areas which are not covered bysuch Clause 2, a notification is needed. As such, this Court issatisfied with the soundness of the contention raised by the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the appellant that from 14.06.2004, Tamil Nadu Buildings(Lease and Rent Control) Act, 1960 became applicable to the suitproperty and hence, the suit filed by the landlord, namelyO.S.No.174 of 2007 is barred by the provisions of the Rent ControlAct. In case the Rent Controller decides that the title of thelandlord has been denied by the tenant and the denial is bonafide,then the parties could be referred to the Civil Court whereupon asuit for eviction will be maintainable and it is not the case here.(iii) Thus, the substantial question framed S.A.No.819 of 2012is decided in favour of the appellant and it is hereby held thatthe suit for eviction before the civil Court is not maintainable.Accordingly, the Second Appeal No.819 of 2012 is bound to be allowedand the decree passed by the trial Court as confirmed by the lowerAppellate Court is liable to be set aside.(iv) So far as S.A.No.820 of 2012 is concerned, unless theappellant, who figured as the plaintiff seeking bare injunction, isable to satisfactorily prove that the landlord is taking illegalmeasures to evict the tenant and the landlord is trying to forciblyevict without adopting due process of law, the appellant/tenantcannot succeed in getting a decree for permanent injunction againstthe landlord. In this case, no doubt when the landlord demanded thetenant to vacate and hand over vacant possession, the tenant seemsto have approached the civil Court for a permanent injunctionapprehending that the tenant may be evicted. When the tenantapproached the civil Court for such a relief, the landlord filed asuit for eviction. Both the suits were filed in the civil Court ona wrong impression that rent control Act was not applicable to thesuit premises. Now, it is brought to light that Rent Control Act isapplicable to the suit premises. The very fact that the landlordhas chosen to approach the Court for eviction will show that thelandlord is not bent upon forcibly evicting the tenant withoutadopting due process of law. In this regard, the findings of theCourts below cannot be disturbed as perverse and on that scorealone, the decree passed by the trial Court which was confirmed bythe First Appellate Court deserves to be confirmed; ResultantlyS.A.No.820 of 2012 fails and the same deserves to be dismissed.v) Accordingly, S.A.No.819 of 2012 is allowed and the decreepassed by the trial Court in O.S.No.174 of 2007 which was confirmedby the lower Appellate Court is set aside. O.S.No.174 of 2007 shallstand dismissed. However, there shall be no order as to costs.Consequently, the miscellaneous petitions are closed. https://hcservices.ecourts.gov.in/hcservices/ S.A.No.820 of 2012 is dismissed confirming the decree of thetrial Court as confirmed by the lower Appellate Court. No costs.Though it is not necessary, by way of clarification it is pointedout that landlord shall always have the right to approach the RentController for eviction under the provisions of the Rent ControlAct. Sd/- Deputy.Registrar.(J) /true copy/ Sub Asst.Registrar.gpaTo1. The Principal Subordinate Judge Chengalpattu2. The District Munsif Chengalpattu 2 ccs to Mr.V. Nicholas, Advocate, Sr. 49818, 498172 ccs to Mr.S. Tirumavalavan, Advocate, Sr. 49492, 49491S.A.Nos.819 and 820 of 2012 &M.P.Nos.1 and 2 of 2012RSY (CO)kk 14/9