Rameshkumar Jain v. S.K.Habibullah

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.1.2008C O R A MThe Honourable Mr.Justice M.JAICHANDRENS.A.No.1372 of 20021. Rameshkumar Jain2. G.S.Eshwarlal Jain ..Appellants/Appellants/DefendantsVersusS.K.Habibullah .. Respondent/Respondent/PlaintiffPRAYER: This second appeal has been filed against thejudgment and decree passed by the VIII Additional CityCivil Judge, Chennai, on 21.9.2001 in A.S.No.91 of1999, confirming the decree and judgment passed by theVI Assistant Judge, City Civil Court, Chennai, on21.9.1998, in O.S.No.6030 of 1995. For Appellants : Mr.S.Balasubramanian For Respondent : Mr.RangarajanJ U D G M E N TThe second appeal has been filed against the judgment anddecree passed by the VIII Additional City Civil Judge, Chennai,dated 21.9.2001, in A.S.No.91 of 1999, confirming the judgmentand decree passed by VI Assistant Judge, City Civil Court,Chennai, dated 21.9.1998, in O.S.No.6030 of 1995. 2. The appellants were the defendants in the suitO.S.No.6030 of 1995. The plaintiff in the suit, who is therespondent in the present second appeal, had filed the suitpraying that the defendants ought to vacate the suit shop and todeliver vacant possession of the same and also for recovery ofdamages from the defendants. 3. For the sake of convenience, the parties in the appealare referred to as they have been arrayed in the suit inO.S.No.6030 of 1995. https://hcservices.ecourts.gov.in/hcservices/

4. The short facts of the case, as stated in the plaint, arethat the plaintiff is the sole and absolute owner of the suitmentioned premises bearing shop No.5, Northern side of theShopping Complex, Ground Floor of Habib Complex, Door No.3,Durgabai Deshmuk Road, Madras. The construction of the buildinghad been completed in the month of September, 1991. TheCorporation of Madras had assessed the building for the purposeof property tax. Therefore, the building does not fall within thepurview of the provisions of The Tamil Nadu Building (Lease andRent Control) Act, 1960 (hereinafter referred to as "the Act").The defendants are the tenants under the plaintiff in the suitmentioned shop carrying on business of Selling Tyres and Tubes inthe name and style of "Klasik Tyres". 5. An unregistered lease agreement had been entered intobetween the plaintiff and the defendants, on 1.1.1992, forgranting the lease for a period of 11 months. Thereafter, thetenancy was to continue on monthly basis and the monthly rentpayable by the defendants was Rs.2,100/- till 31.12.1993 andthereafter, it was to be Rs.2,300/- per month, based on theEnglish Calendar month. The tenancy was one at will. Theplaintiff had issued a notice, dated 22.6.1995, as stipulated inSection 106 of The Transfer of Property Act, 1882, terminatingthe tenancy on and from 31.7.1995. The plaintiff had also calledupon the defendants through the said notice to quit and deliverythe vacant possession of the suit premises, on or before1.8.1995. The defendants were given 15 days clear notice asrequired under the Act to quit and deliver the vacant possessionof the premises to the plaintiff. 6. In the notice, dated 22.6.1995, the plaintiff had clearlyinformed the defendants that they are liable to pay Rs.1,000/-per day as damages, if the defendants did not give vacantpossession of the premises to the plaintiff, on 1.9.1995. Thedefendants had refused to comply with the plaintiff's just andlegitimate demands by their reply, dated 13.7.1996. The plaintiffhad issued a rejoinder reiterating the demand made in the notice,dated 22.6.1995. Since the defendants did not quit and deliverthe vacant possession of the premises in question, a suit inO.S.No.6030 of 1995, had been filed.7. In the written statement filed on behalf of thedefendants, it was stated that the suit was not maintainable inlaw, as it was premature in nature. The defendants did not denythe fact that they have taken the suit shop on lease for thepurpose of carrying on their business of sale of tyres. They hadalso not denied the fact that the tenancy was for a period of 11months at the first instance and the lease period was to beextended on an increased rent of Rs.200/-. On the request of the https://hcservices.ecourts.gov.in/hcservices/ defendants, while the plaintiff had extended the period oftenancy and the defendants were paying the enhanced rent, it wasnot open to the plaintiff to file a suit before the expiry of theextended period of tenancy. As such, the suit filed against thedefendants was premature. The plaintiff is estopped from filingthe suit for recovery of possession of the shop which is thesubject matter of the tenancy agreement. 8. The defendants had denied the allegations that thebuilding was completed in the month of September, 1991. Thedefendants were occupying the other portions in the suit shopprior to 1.1.1992, eventhough the defendants were inducted astenants only, on 1.1.1992 and as such, the trial Court had nojurisdiction to entertain the suit. The defendants had alsodenied the claim of the plaintiff that the tenancy was one atwill. The defendants contended that the tenancy agreement was inforce as on the date of the presentation of the plaint andtherefore, the plaintiff was not entitled to claim any damages asstated in the plaint. 9. Based on the pleadings available before the trial Court,the following issues had been framed:-"1. Whether the plaintiff is entitled forthe vacant possession of the shop premises asprayed for in the plaint?2. Whether the plaintiff is entitled forclaiming damages?3. Whether the tenancy is in force on thedate of the plaint?4. Whether the trial Court hadjurisdiction to try the suit?5. Whether the plaintiff is estopped tofile the suit seeking vacant possession of thesuit shop?6. To what relief?"10. The plaintiff had examined himself as P.W.1 and hadmarked Exhibits A.1 to A.6 in his favour. There was no oral ordocumentary evidence on the side of the defendants. 11. The trial Court, after analysing the oral anddocumentary evidence available, had come to the conclusion thatthe plaintiff was entitled for the vacant possession of the suitshop, as prayed for in the plaint. Therefore, the trial Court haddecreed the suit directing the defendants to quit the shop and todeliver the vacant possession of the shop to the plaintiff, alongwith the costs. 12. With regard to the issues 1 to 5, the trial Court hadcome to the conclusion that it had jurisdiction to try the suit https://hcservices.ecourts.gov.in/hcservices/ and that the plaintiff was entitled to the relief of vacantpossession of the suit shop, as prayed for in the plaint. 13. With regard to the claim for damages, it was held thatit was open to the plaintiff to initiate separate proceedingsunder Order XX Rule 12 of the Civil Procedure Code, 1908. Thetrial Court had clearly found, based on the evidence availablebefore the said Court, that the building in question in which thesuit shop was located was exempted in accordance with Section 30(1) of the Act, since the construction of the building had beencompleted in the month of September, 1991, as found in ExhibitA1, dated 30.9.1991. Exhibit A.2, is a letter issued by theCorporation of Madras, dated 30.6.1992 and Exhibit A.3, dated17.7.1992, is a notice regarding the changes made in the rate oftax imposed on the plaintiff with regard to the suit property. Bya legal notice, dated 22.6.1995, marked as Exhibit A.4, issued onbehalf of the plaintiff, the defendants have been asked to vacatethe suit premises. The reply notice, dated 20.7.1995, issued bythe defendants has been marked as Exhibit A.5. A reply notice,dated 13.7.1995, issued by the counsel on behalf of thedefendants has been marked as Exhibit A.6. There has been no oraladduced or documentary evidence marked on behalf of thedefendants before the trial Court. 14. Though the basic factual aspects of matter have not beendenied, the defendants have stated that the building in questioncannot be exempted from the application of the provisions of theAct. The main dispute raised by the defendants is with regard tothe age of the building in question. It has been contended onbehalf of the defendants that the plaintiff has not proved thatthe building in question is less than five years old to beexempted from the application of the provisions of the Act. Onanalysing the rival contentions, the trial Court had decreed thesuit as prayed for by the plaintiff. 15. Aggrieved by the judgment and decree of the trial Court,dated 21.9.1998, made in O.S.No.6030 of 1995, the defendants inthe suit had filed an appeal before the lower appellate Court inA.S.No.91 of 1999. The lower appellate Court had framed thefollowing points for consideration:"1. Whether this appeal has to beallowed and thereby the decree and judgmentof the trial Court was liable to be setaside?2. Whether the trial Court had nojurisdiction to entertain the suit?3. To what relief?"16. The lower appellate Court had found that there was no https://hcservices.ecourts.gov.in/hcservices/ dispute with regard to the ownership of the suit property. Themain dispute was only with regard to the age of the suitbuilding. Based on the case laws cited on behalf of thedefendants/appellants, the lower appellate Court had found thatthe onus of proving that the building in question was less than 5years old, to be exempted from the application of the provisionsof the Act, was on the plaintiff. The lower appellate Court hadalso found that the plaintiff had sent a communication, dated30.9.1991, to the Corporation of Madras, marked as Exhibit A.1,intimating the completion of the construction of the suitbuilding as per the sanctioned plan. The suit building was saidto have been completed, on 29.9.1991. According to the saidcommunication, the plaintiff had requested the Revenue Officer,Corporation of Madras, to arrange for the inspection and forassessment. The said communication had been received by theCorporation of Madras, on 30.9.1991. In turn, the Corporation ofMadras, had written a letter, dated 3.6.1992, marked as ExhibitA.2, wherein, the plaintiff had been directed to clear thearrears of Tax.17. The lower appellate Court had also seen that a noticehad been issued by the plaintiff, through his counsel, to thedefendants to vacate the suit premises. The said notice, dated22.6.1995, had been marked as Exhibit A.4. The defendants hadsent a reply, dated 13.7.1995, marked as Exhibit A.6. In the saidreply, the defendants had not raised the issue of the age of thebuilding in question. Based on the Exhibits A.1 to A.3, thefirst appellate Court had held that the trial Court had come tothe correct conclusion that the suit building has been built notearlier than five years from the relevant date and therefore, itis exempted, in accordance with the Section 30(1) of the Act.The lower appellate Court had also found that the defendants havenot supported their claims with sufficient oral or documentaryevidence. In such circumstances, the lower appellate Court hadconfirmed the judgment and decree of the trial Court bydismissing the appeal and holding that the trial Court hadjurisdiction to decide the issues in question.18. Aggrieved by the judgment and decree of the Courtsbelow, the appellants have preferred the present second appealbefore this Court stating that the Courts below have erred incoming to the conclusion that the trial Court had jurisdiction totry the issues in question and in holding that the suit buildingwas exempted from the purview of the provisions of the Act and ingranting the reliefs as prayed for by the plaintiff in the suitO.S.No.6030 of 1995. 19. The second appeal had been admitted on the followingsubstantial question of law:- https://hcservices.ecourts.gov.in/hcservices/ "Whether the judgment and decree of theCourts below are legally sustainable in asmuch as the respondent has failed toestablish that the age of the building isless than 5 years so as to get exemptionunder Section 30 of the Tamil Nadu Buildings(Lease and Rent Control) Act, 1960 byproducing proper corporation record so as tomaintain the suit for eviction?"20. On analysing the judgment and decree of the Courts belowand in view of the submissions made by the learned counselsappearing for the parties concerned, this Court is of theconsidered view that the defendants/appellants in the presentsecond appeal have not shown sufficient cause or reason tointerfere with the conclusions arrived at by the Courts below. Itis clear that the plaintiff/respondent had sufficiently provedhis case based on the oral and documentary evidence relied on byhim. The claims of the plaintiff/respondent that the suitbuilding is exempted from the purview of the provisions of theAct has been sufficiently proved by Exhibits A.1 to A.3, markedin favour of the plaintiff. Further, no oral or documentaryevidence had been shown to substantiate the claims of thedefendants/appellants. It is also seen that the appellants in thesecond appeal have not been in a position to show that there is asubstantial question of law to be decided by this Court at thisstage. In such circumstances, the second appeal stands dismissedconfirming the judgment and decree of the Courts below. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. VIII Additional City Civil Judge, Chennai2. VI Assistant Judge, City Civil Court, Chennai.3. The Section Officer, V.R.Section, High Court, Madras1 cc To Mr.S.Balasubramanian, Advocate, SR.2545.2 cc To Mr.Rangarajan, Advocate, SR.2540.S.A.No.1372 of 2002 ASM(CO)SKY 28.04.2008