Madras High Court
Hindustan Petroleum Corporation … vs C.M. Hariraj, C.V. Raman And … on 28 January, 2002
Equivalent citations: (2002) 1 MLJ 684
Bench: A Ramamurthi
ORDER
1. M/s. Hindustan Petroleum Corporation Limited plaintiff in unnumbered plaint on the file of District Munsif Court, Pollachi have preferred these two civil revision petitions under Article 227 of the Constitution of India aggrieved against the order dated 09.03.2001 by which the plaint was rejected and the unnumbered petition under Section 7(A) of Tamil Nadu City Tenant’s Protection Act to fix a reasonable rent was also rejected.
2. The case in brief for the disposal of both these revision petitions is as follows:- The plaintiff filed a suit as a tenant under section 42 of the Specific Relief Act directing the first defendant to renew the lease in respect of the suit properties for a period of ten years from 01.10.1999 and if the first defendant fails to execute the lease deed, pass a decree to execute the lease by Court on be first defendant . The plaintiff also filed an application under section 7(A) of Tamil Nadu City Tenants Protection Act to fix a reasonable rent for the occupation of the land. By an Agreement of Lease by the plaintiff with defendants 2 and 3 on 19.03.1991, the property was taken for a period of ten years. The lease period expired on 30.09.1999 and there is a clause in the lease deed that the lease for a further period of ten years on the same terms and conditions except the rent to be fixed at that time on the basis of mutual agreement and a fresh lease deed to be executed. The first defendant is the purchaser of the suit properties from defendants 2 and 3 and he has not agreed to renew the lease from 01.10.1999, which necessitated the plaintiff to file the suit as well as the application.
3. The court below without numbering the plaint or the application , after hearing the learned counsel for the plaintiff, rejected the plaint on the ground that the plaint is not maintainable as framed and also rejected the petition. Aggrieved against this, the plaintiff has come forward with the present revision petitions.
4. Heard the learned counsel for the parties. 5. The points that arise for consideration are (1)
Whether the order passed by the trial court rejecting the plaint and the petition without notice to the other side is proper and correct ? and (2) To what relief ?
6. Points: It is admitted that the suit property originally belonged to defendants 2 and 3 and they have leased the same to the plaintiff on 19.03.1991 and the purpose of lease was established, to lease outlet for the sale of petroleum products. The lease is for a period of ten years on a monthly rent of Rs.2,000/=. As per clause 2 (c), there is a provision for renewal for a further period of ten years on the same terms and conditions at mutually agreed rentals. During 1996 , defendants 2 and 3 have sold their interest in the property to the 1st defendant separately. He is also bound by the agreement of lease and the renewal clause in the agreement. The first defendant did not agree to renew the lease deed for a further period of ten years calculated from 01.10.1999. The first defendant had purchased the property from defendants 2 and 3 knowing fully well about the subsistence of the lease agreement and the clause relating to renewal. The plaintiff was always ready to register the lease deed and as the first defendant failed to execute the renewal, the suit was filed.
7. Learned counsel for the respondents / defendants mainly contended that the order passed by the court below is proper and correct. The revision petitioner / plaintiff is only a statutory tenant by operation of the law and therefore they are not entitled to call upon the owner of the property to renew the lease for a further period of ten years. In short, according to the first defendant, there is no cause of action for the plaintiff to file the suit or any petition and hence, the order passed by the court below is proper and correct and no interference is called for.
8. As adverted to, the trial court without issuing any notice after hearing the learned counsel for the plaintiff, dismissed the suit as well as the petition on the ground that the agreement lacks mutuality between the plaintiff and the first defendant and, as such, the agreement for lease is not specifically enforceable as the 1st defendant was not a party to the same. An option by the previous owner of the property in the agreement cannot be made as compulsory on the expiry of the agreement period with the new owner of the property.
9. Learned counsel for the revision petitioner contended that no doubt, the petitioner is a statutory tenant under the City Tenant's Protection Act and the possession of the petitioner is safeguarded by the provisions of the Act as they are in lawful possession and enjoyment of the property. By virtue of enactment of ESSO (Acquisition of Undertaking in India) Act, 1974, the right title in interest of the predecessors and interest of the petitioner became vested with the Central Government . As per clause 2(c) of the lease deed, the lessor promised to renew the lease for a further period of ten years on a written request of the lessee made 90 days before the expiry of the term of lease. Since the first defendant refused to execute a lease deed for fresh term of 10 years, the petitioner filed the suit for specific performance under section 42 of Specific Relief Act. Now, the first respondent had stepped into shoes of respondents 2 and 3 by virtue of the sale deed dated 12.12.1996, whereby the first respondent became the owner of the land and consequently the lessor under the lease deed dated 19.03.1991. The plaint was returned for certain noncompliance on three occasions and is was represented. The impugned order is vitiated by errors apparent on the face of the record and the court below has committed a serious judicial impropriety in rejecting the plaint before the plaint could be taken on file. It had exceeded its jurisdiction in passing the impugned order and it ought not have gone into the merits of the case even before taking the plaint on file. The scope for rejection of plaint is limited in law. The learned Munsif has committed serious error in pre-empting and deciding on the merits of the case prior to accepting the plaint and numbering the suit. The impugned order would amount to dismissal of suit itself even before it could be taken on file. The impugned order had resulted in causing manifest injustice to the petitioner. The learned Munsif had traversed beyond his powers in passing the impugned order and failed to exercise his discretion reasonably and judiciously. The learned Munsif ought to have taken the plaint on file, issued summons to the respondents and after hearing the parties, should have given a finding on the merits of the case. The impugned order is violative of principles of natural justice. The impugned order has no legal basis and, as such, it is bad in law. There is no equally efficacious remedy other than approaching this Court under Article 227 of the Constitution of India and as such the revisions are filed.
10.Learned counsel for the respondents contended that the rejection of the plaint also would amount to a decree and, as such, the order is appealable and under the circumstance, the filing of revisions is not maintainable and on this ground itself, the revision petitions can be dismissed. Further more, the petitioner / plaintiff being a statutory tenant cannot compel the owner of the property to renew the lease for a further period of ten years. The possession if any on the part of the petitioner is unlawful.
11. Learned counsel for the petitioner relied on the decision reported in THE MANAGING DIRECTOR, NADIPPISAI PULAVAR K.R.RAMASWAMY SUGAR MILLS, MAYILADUTHURAI ..vs.. A.FAREED BAWA AND ANOTHER , wherein it is observed as follows:- "Flagrant violation of law as well as errors of law apparent on face of record would justify High Court interfering with orders in exercise of revisional powers - Mere mistake of law or erroneous decision of law would not justify interference with orders in exercise of revisional jurisdiction - Arbitrary and capricious exercise of power and perverse finding would justify High Court exercising revisional jurisdiction and interfering with orders of subordinate Authorities".
This decision is applicable to the case on hand.
12. Learned counsel for the respondents relied on MABLE ..vs.. DELORES relating to Order 7 Rule 11 of Civil Procedure Code of rejection of plaint . Inherent powers cannot be invoked against order rejecting plaint and the remedy is to file an appeal. When an appeal is provided, the party aggrieved gets an opportunity to have his whole case reconsidered by the appellate Court. It is therefore clear that there is no occasion for the Court to exercise its inherent power in such a situation. Moreover, the inherent power of the Court cannot be exercised by the trial Court when the party aggrieved by the rejection of the plaint has already approached the appellate Court with appeal under Section 96 of the Code.
13. It has also been held in R.S.PILLAI ..vs.. R.K.AMBALAM (AIR 197 6 MADRAS 289) that rejection of plaint on whatever ground is a ' decree within the meaning of Section 2(2). It is not limited to such cases wherein plaint is rejected for reasons stated in Order 7 Rule 11 of Civil Procedure Code.
14. It has also been held in NESAMMAL AND ANOTHER ..VS.. EDWARD AND ANOTHER that order rejecting plaint is a decree and appeal lies under Section 96 of Code of Procedure and revision is not maintainable in law.
15. The power under Article 227 is an extraordinary power, and it requires to be exercised sparingly and with extreme caution. It is a power of superintendence reserved for this Court and is subject to its discretion and it cannot be claimed as of right by any party. By now, it has been settled by pronouncements of the highest Court in the land as to when this Court could properly resort to and exercise the powers under Article 227. The well accepted contingencies and features to warrant the exercise of such powers are:-
(i)lack of jurisdiction, erroneous assumption of jurisdiction or excess of jurisdiction or refusal to exercise jurisdiction;
(ii) Grave dereliction of duty or flagrant violation of law or error of law apparent on the face of the record as distinguished from a mere mistake of law or an erroneous decision of law;
(iii) violation of the principles of natural justice;
(iv)perverse finding founded on no material whatsoever, and
(v)arbitrary or capricious exercise of authority or discretion".
16. Learned counsel for the respondents relied on RASIKLAL M.MEHTA AND ANOTHER ..vs.. THE HINDUSTAN PHOTO FILMS MFG.CO.LTD., (AIR 1976 MADRAS 194) and this relates to merit of the case and, as such, this decision has no application. Reliance is also placed on the decision reported in THE MADURA TALKIES PVT.LTD., REP.BY ITS LICENSEE OWNERS OF NEW CINEMA, MADURAI ..vs.. THE DIST.COLLECTOR, MADURAI AND ANOTHER that "lessee challenging restricted renewal contending that even after expiry of lease he is entitled to continue in possession of property till dispossessed in a manner known to law. Lessee prayed for renewal even beyond lease period - Where site was taken on lease, continuance in possession by lessee even after expiry of lease period was not lawful possession but litigious possession when there was no acquiescence by lessor -Authority was therefore right in restricting renewal upto date of expiry of lease".
17. It has also been held in G.MOHAMED THAJF AND ANOTHER ..vs.. THE BHARATH PETROLEUM CORPORATION LIMITED, CHENNAI (2001 (I) CTC 10) that "renewal pursuant to statutory enactment - Expiry of lease by efflux of time after statutory renewal - Applicability of City Tenants Protection Act - Lessee cannot be considered to be tenant holding over and they rank as trespassers - Lessee is not entitled for benefit of City Tenants Protection Act". They also placed reliance upon DOLLY DAS ..vs.. HINDUSTAN PETROLEUM CORPORATION LTD. relating to renewal of lease and stated that it can be only for one term, wherein Hindustan Petroleum Corporation Limited, the successorin-interest of original lessee, not renewing lease for first term, could not enforce second renewal. Similar view has also been reiterated in N.R.VAIRAMANI ..vs.. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF PETROLEUM, GOVT.OF INDIA, NEW DELHI AND OTHERS (2001 (I) CTC 1).
18. It is therefore evidently clear that the trial court has gone into the merits of the contentions raised by the parties and ultimately rejected the plaint. No doubt, number of decisions have been cited on either side relating to the rejection of the plaint under Order 7 Rule 11 of Civil Procedure Code and also the maintainability of the revision petitions under Article 227 of the Constitution of India. When the rejection of the plaint amounts to a decree and only appeal would lie, the question whether the plaintiff would be entitled to a renewal of lease for a further period of ten years is a matter of question that has to be adjudicated only after hearing both sides. The property, no doubt, belonged to defendants 2 and 3 and the 1st defendant was the purchaser of the property in 1996 and similarly the question whether the earlier lease agreement between defendants 2 and 3 would be binding on the 1st defendant and whether the 1st defendant can be compelled to execute a lease deed are matters that can be decided only after hearing both sides. When this being the state of affairs, it is unfortunate that the trial court has rejected the plaint on the ground that there was no mutual contract between the plaintiff and the 1st defendant. When the 1st defendant had purchased the property from defendants 2 and 3, he stepped into the shoes of defendants 2 and 3 and therefore, the only question whether the 1st defendant is bound by the earlier agreement of lease is a matter that can be thrashed out only after hearing the parties and not in the summary way. Further more, Order 7 Rule 11 of Civil Procedure Code provides only limited ground for rejection of the plaint and I am of the view that the court below has come to the conclusion as if there is no cause of action for the plaintiff to file the suit and ultimately rejected the same as well as rejected the petition. The question whether there is any cause of action or not can be ultimately decided only after issue of notice to the other side and the Court cannot act as a spokesman of the defendants. Similarly, the contentions raised by the defendants may be well founded; but that is not the stage to be considered. Hence, I am of the view that the rejection of the plaint as well as the petition by the court below without notice to the opposite party is not sustainable under law. When there is an error apparent on the face of the record and as it was opposed to natural justice, I am of the view that interference under Article 227 of the Constitution of India becomes absolutely necessary. Normally, the rejection of the plaint amounts to a decree and an appeal has to be filed; but in this case, without any notice and without hearing the other side, the order was passed by the court below and, as such, the inherent jurisdiction of this Court can be exercised and hence, the points are answered accordingly.
19. For the reasons stated above, both the revision petitions are allowed and the order passed by the court below is set aside and the matter is remitted back to the trial court with a direction to number the plaint as well as the petition, if otherwise in order, and issue notice to the opposite party. The trial court is directed to dispose of the suit as well as the petition as early as possible, not exceeding three months. There will be no order as to costs.