IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15-06-2010
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
S.A.No.508 of 2010 and
M.P.No.1 of 2010
T.Selvaraj .. Appellant.
Versus
1.Smt.K.Ambika
2.Dharmamoorthy Rao Bahadar
Calavala Cunnan chettys
Charities, No.116,
Govindappa Naicken Street,
George Town, Chennai-1,
Represented by its Managing Trustee .. Respondents.
PRAYER: Appeal against the judgment and decree made in A.S.No.487 of 2007, dated 21.7.2008, on the file of the learned IV Additional Judge, City Civil Court, Chennai, confirming the judgment and decree in O.S.No.5281 of 2003, dated 16.12.2004, on the file of the XVI Assistant Judge, City Civil Court, Chennai.
For Appellant: Mr.M.V.Muralidaran
JUDGMENT
This second appeal has been filed against the judgment and decree, dated 21.7.2008, made in A.S.No.487 of 2007, on the file of the IV Additional Judge, City Civil Court, Chennai, confirming the judgment and decree of the XVI Assistant Judge, City Civil Court, Chennai, dated 16.12.2004, made in O.S.No.5281 of 2003.
2. The appellant had filed the suit, in O.S.No.5281 of 2003, before the XVI Assistant Judge, City Civil Court, Chennai, praying for a declaration, declaring that the order, dated 9.2.2001, passed by the Rent Controller, in R.C.O.P.No.1096 of 2000, is null and void, as it is without jurisdiction and not binding on the plaintiff, and for a consequential injunction restraining the first defendant from evicting the plaintiff in view of the said order and for costs.
3. The plaintiff in the suit, who is the appellant in the present second appeal, had stated in the plaint filed in the suit, in O.S.No.5281 of 2003, that he is the absolute owner of the property and the superstructure at Old No.20-A, New No.56, Boxen Street, Perambur, Chennai, and that he has been in possession and enjoyment of the said property for the past several decades. It had also been stated that the first defendant was also residing in a portion of the suit schedule property, along with the other occupants, who are residing in the said property. The second defendant has been claiming that the plaintiff and the first defendants properties and certain other properties are belonging to the trust.
4. It had also been stated that the first defendant had filed the rent control proceedings, in R.C.O.P.No.1096 of 2000, against the plaintiff. An exparte delivery order has been passed by the Rent Controller, on 9.2.2001. The plaintiff had filed a petition to set aside the said exparte order and had also filed a petition to condone the delay of 281 days in filing the said petition. The Rent Controller had dismissed the condone delay petition, on 14.2.2002. Against the said order, made in M.P.No.938 of 2001, the plaintiff had preferred a civil revision petition before this Court, in CRP.No.1072 of 2002. The said civil revision petition had been dismissed by this Court, on 20.8.2003.
5. The plaintiff had also stated that the first defendant is not the owner of the plaint schedule property. The real owner of the suit schedule property is Dharmamoorthi Rao Bahadar Calavala Cunnan Chetty Charities. The plaintiff is in no way connected with the first defendant. The first defendant is also a tenant, like the plaintiff, under the second defendant. If the plaintiff was permitted to contest the rent control proceedings, in R.C.O.P.No.1096 of 2000, on merits, he could have proved that the first defendant is not the owner of the property and therefore, there was no landlord-tenant relationship between the plaintiff and the first defendant. The first defendant had not produced any document to prove the landlord-tenant relationship between the plaintiff and the first defendant. When the title of the property is questioned the Rent Controller ought to have dismissed the rent control proceedings. It is only the appropriate Civil Court which has the necessary jurisdiction to decide the title of the property in question. Since, the first defendant was attempting to evict the plaintiff from the suit schedule property he had filed the suit, in O.S.No.5281 of 2003, before the XVI Assistant Judge, City Civil Court, Chennai.
6. In the written statement filed by the first defendant it has been stated that the plaintiff is not the owner of the suit property. The first defendant, as the owner of the property, had let out the suit premises in favour of the plaintiff, on a monthly rental basis. The first defendant had filed an eviction petition, in R.C.O.P.No.1096 of 2000, before the Rent Controller. Based on the order passed by the Rent Controller, on 9.2.2001, the possession had been taken from the plaintiff, by way of execution proceedings. Thereafter, the plaintiff had trespassed into the suit premises. He had filed the civil revision petition before this Court, suppressing the material facts. The civil revision petition had been dismissed by this Court, on 20.8.2003. The plaintiff has no right, whatsoever, to occupy the suit premises.
7. Based on the rival contentions the trial Court had framed the following issues for consideration:
1) Whether the plaintiff is entitled to the relief of declaration in the suit?
2) Whether the plaintiff is entitled to get the relief of permanent injunction in the suit?
3) What other reliefs the plaintiff is entitled to in the suit?
8. On analyzing the evidence available on record the trial Court had come to the conclusion that the claims made by the plaintiff in the suit, who is the appellant in the first appeal, cannot be sustained. It had also found that the plaintiff had not been in a position to show, by sufficient evidence, that he had purchased the property in question, nor had he a patta in respect of the said property. The plaintiff could not show that he was in possession of the suit schedule property, by way of documentary evidence. No revenue records had been filed before the trial Court to substantiate the claims made by the plaintiff.
9. The trial Court had also found, from the admission of P.W.3, during the cross examination, that the property belonged to the second defendant Trust. It is also an admitted fact that the plaintiff had been evicted by way of eviction proceedings following the order passed by the rent controller, in R.C.O.P.No.1096 of 2000. The trial Court had also found that D.W.1 had admitted, during the cross examination, that the suit schedule property and the property in which she was living belonged to the second defendant. The rental amounts were also being paid to the second defendant. D.W.2 had also stated that the property belongs to the second defendant trust. It had also been found that the plaintiff had filed a petition to set aside the exparte order of the Rent Controller, dated 9.2.2001, made in R.C.O.P.No.1096 of 2000. The miscellaneous petition, in M.P.No.938 of 2001, to condone the delay of 281 days in filing the set aside petition had also been dismissed by the Rent Controller. The plaintiff had challenged the said order before the High Court, in C.R.P.No.1072 of 2002. The High Court, by its order, dated 20.8.2003, had dismissed the civil revision petition. In such circumstances, the trial Court had found that the suit filed by the plaintiff was devoid of merits. Hence, by a judgment and decree, dated 16.12.2004, the trial Court had dismissed the suit, in O.S.No.5281 of 2003. The plaintiff had filed an appeal before the First Appellate Court, in A.S.No.487 of 2007, challenging the judgment and decree of the trial Court, dated 16.12.2004. The First Appellate Court had framed the following point for consideration:
Whether the judgment and decree recorded by the trial Court is just and legal?
10. The First Appellate Court had found that the plaintiff had made contradictory statements in claiming that he is the owner of the property concerned and that he is also a tenant in the said property. It was also noted that in the statements made by D.W.1 she had stated that she is the owner of the property and that the plaintiff is a tenant. It was also found that there was no dispute with regard to the fact that rent control proceedings had been filed against the plaintiff by the first defendant. An exparte order had been passed in the rent control proceedings directing the plaintiff to vacate the premises in question. Thereafter, the plaintiff had been evicted from the said premises by way of an execution proceedings. It was also found that the civil revision petition filed by the plaintiff before the High Court, against the order dismissing the petition to condone the delay in filing the petition for setting aside the exparte order, had also been dismissed. The first Appellate Court had come to the conclusion that both the plaintiff, as well as the first defendant are not the owners of the suit property and that the suit had been filed by the plaintiff without any bona fides and that the suit suffers from the defect of laches. The first appellate Court had also stated that the plaintiff and the first defendant had colluded in trying to deny the second defendant of the suit schedule property. In such circumstances, the first appellate Court had dismissed the appeal filed by the plaintiff, confirming the judgment and decree of the trial Court, dated 16.12.2004.
11. Aggrieved by the judgment and decree of the First Appellate Court, dated 21.7.2008, made in A.S.No.487 of 2007, the plaintiff has filed the present second appeal, raising the following questions, as substantial questions of law:
1.Whether the Courts below rightly dismissed the suit filed by the plaintiff?
2. Whether the first defendant proved that she is the owner of the suit schedule of property?
3. Whether the Courts below rightly come to a conclusion that the plaintiff is the tenant under the first defendant and not under the second defendant?
4. Whether the Courts below rightly come to a conclusion the the suit filed by the plaintiff is a collective suit between the plaintiff and the first defendant?
5. Whether the Court below right dismissed the suit since the plaintiff is no right to invoke civil jurisdiction?
12. The learned counsel for the appellant had stated that both the Courts below had failed to correctly appreciate, both the oral, as well as the documentary evidence available on record. The Courts below had failed to note that the respondents are not the owners of the suit schedule mentioned property. The Courts below had failed to note that the first defendant is also a tenant like the appellant. The Court below ought to have noted that the first defendant is attempting to interfere with the appellants peaceful possession and enjoyment of the suit property. Both the Courts below had failed to note that the first respondent has no right to evict the appellant, without following the due process of law. Since, the suit filed by the plaintiff is bona fide in nature the Courts below ought to have accepted the claims made by the appellant as they have been sufficiently substantiated, both by documentary, as well as by the oral evidence adduced on behalf of the appellant.
13. On a perusal of the records available and in view of the submissions made by the learned counsel appearing on behalf of the appellant, this Court is of the considered view that the appellant has not shown sufficient cause or reason to interfere with the judgment and decree of the Courts below. It is an admitted fact that the first defendant had filed the rent control proceedings against the plaintiff, in R.C.O.P.No.1096 of 2000. The Rent Controller had passed an exparte order, on 9.2.2001, ordering the eviction of the plaintiff from the suit schedule premises. The petition filed by the appellant to condone the delay of 281 days in filing the set aside petition had also been dismissed by the Rent Controller. The civil revision petition filed by the appellant before this Court, in C.R.P.No.1072 of 2002, had also been dismissed, by an order, dated 20.8.2003.
14. Both the Courts below had clearly found that the plaintiff/appellant is not the owner of the suit schedule property, from the evidence available on record. The appellant had not been in a position to substantiate his claims that he is the owner of the property in question, by way of documentary evidence. The appellant had also accepted the fact that he had been evicted from the suit schedule premises by way of eviction proceedings pursuant to the order passed by the Rent Controller, in R.C.O.P.No.1096 of 2000. As such, it cannot be said that the judgment and decree of the Courts below are erroneous, illegal and void. It is clear that the appellant had not established his case by way of sufficient evidence. Further, no substantial question of law arises for the consideration of this Court. In such circumstances, this Court is not inclined to interfere with the judgment and decree of the Courts below. Hence, the second appeal is dismissed and the judgment and decree of the Courts below stand confirmed. No costs.
Index:Yes/No 15-06-2010 Internet::Yes/No csh To 1) The IV Additional Judge, City Civil Court, Chennai. 2) The XVI Assistant Judge, City Civil Court, Chennai. M.JAICHANDREN,J csh S.A.No.508 of 2010 and M.P.No.1 of 2010 15-06-2010