IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:01.04.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.797 of 2005 and C.M.P.No.11167 of 2005 M.Umar Farooz Hussain .. Appellant (cause title accepted vide order of the Court dated 18.02.2005 made in CMP No.1391 of 2005) vs. 1. Santhakumari 2. T.J.Venkatesan .. Respondents This second appeal is filed against the order passed by the learned II Additional Judge, City Civil Court, Chennai made in A.S.No.144 of 2000 dated 17.02.2003 and reversing the order passed by learned XV Assistant Judge, City Civil Court, Chennai in O.S.No.5977 of 1997 dated 12.01.2000. For Appellant : No appearance For Respondents : No appearance J U D G M E N T
This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 17.02.2003 passed in A.S.No.144 of 2000 by the II Additional Judge, City Civil Court, Chennai, reversing the judgment and decree of the trial Court, namely, XV Assistant Judge, City Civil Court, Chennai, in O.S.No.5977 of 1997. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
The plaintiff/second appellant herein filed the suit O.S.No.5977 of 1997 before the XV Assistant Judge, City Civil Court, Chennai seeking permanent injunction. The defendant entered appearance and filed the written statement resisting the suit.
3. During trial, the plaintiff examined himself as P.W.1; one Ethiraj was examined as P.W.2; Arjunan was examined as P.W.3 and Exs.A1 to A7 were marked. The defendant examined himself as D.W.1 on his side and no exhibit was marked.
4. Ultimately, the trial Court decreed the suit in favour of the plaintiff, as against which the appeal was filed. However, the first appellate Court reversed the judgement and decree of the trial Court by allowing the first appeal A.S.No.144 of 2000.
5. Being disconcerted and aggrieved by the said judgement and decree of the first appellate Court, the plaintiff filed this second appeal on various grounds and also suggesting the following alleged substantial questions of law.
“(a) Whether the lower appellate Court not erred in law in holding that the trial Judge was carried away by no representation made on the plaint believe it or true?
(b) Whether the lower appellate Court not erred in holding that the evidence of P.W.1 is contrary to averments in the plaint?
(c) Whether the findings of lower appellate Court not liable to be set aside as it had gone into the question and issues relating to RCA 524 of 2002 which is pending before VII Judge Small Causes Court?
(d) Whether the finding of the lower appellate Court that the plaintiff is in arrears of rent when the plaintiff himself has filed an I.A.No.15867 of 1997 to deposit the rent which has been allowed as there is no counter by defendant, plaintiff deposited the rent?”
(extracted as found in the
memorandum of second appeal)
5. Despite printing the names concerned, none appeared.
6. A plain poring over and perusal of the records would display and convey that the plaintiff filed the suit seeking injunction, that he being the tenant should not be dispossessed, otherwise than in accordance with law. Indubitably and indisputably, RCOP No.2715 of 1998 was filed by the defendant as against the plaintiff and it was allowed, as against which RCA No.524 of 2002 was filed by the tenant, namely the plaintiff herein and in such a case, there is no question of apprehension on the part of the tenant that he would be dispossessed forcibly.
7. The First Appellate Court being the last Court of fact, in its reasoned judgment considered all these facts and held that there was no threat at the instance of the defendants to the possession of the suit property by the plaintiff. The First Appellate Court also considered that purely for the purpose of stalling the effective steps that might be taken by the landlord to evict the tenant/ the plaintiff legally, the suit has been filed. Accordingly it dismissed the original suit after reversing the judgment and decree of the trial Court. Accordingly, no substantial question of law is involved because the judgments and decrees of the courts below are based on discernible appreciation of evidence. Hence, I could see no merit in this Second Appeal, accordingly the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
gms 01.04.2009 Index :Yes Internet :Yes To 1. II Additional Judge, City Civil Court, Chennai 2. XV Assistant Judge, City Civil Court, Chennai G.RAJASURIA,J. gms S.A.No.797 of 2005 01.04.2009