Madras High Court

M.N.Bhaskar vs The Gudiyatham Municipality on 27 April, 2021

                                                                                   S.A. No.956 of 2007

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 27.04.2021

                                                         CORAM:

                                   THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                                                    S.A. No.956 of 2007


                     M.N.Bhaskar                                    ...   Appellant
                                                         Versus

                     The Gudiyatham Municipality
                     by its Commissioner,
                     Gudiyatham.                                    ...   Respondent



                                   Second Appeal filed under Section 100 of Civil Procedure Code
                     against the judgment and decree dated 24.04.2007 in A.S. No.2 of 2007,
                     on the file of the          Principal District Court, Vellore, reversing the
                     judgment and decree dated 31.08.2006 in O.S. No.37 of 2004 on the file
                     of the Subordinate Court, Gudiyatham.

                     For Appellant                 : Mrs.R.Ramya
                     For Respondent                : Mr.Muthamizh Selvakumar - No appearance


                                                         JUDGMENT

This Second Appeal has been filed challenging the judgment and

decree of Lower Appellate Court dated 24.04.2007 passed in A.S. No.2

https://www.mhc.tn.gov.in/judis/

S.A. No.956 of 2007

of 2007, on the file of the Principal District Court, Vellore, whereby the

Lower Appellate Court has reversed the findings of the Trial Court,

which had earlier dismissed the suit on 31.08.2006 in O.S. No.37 of

2004 on the file of the Subordinate Court, Gudiyatham.

2. The appellant is the defendant in the suit in O.S.No.37 of 2004

on the file of Subordinate Judge, Gudiyatham. The suit was filed by the

respondent / Municipality seeking recovery of money for the alleged

losses suffered by them on account of the surrender of the shop by the

appellant / defendant which was let out to him by the respondent/

Municipality.

3. The case of the respondent / plaintiff in the suit is that even

before the expiry of the lease cum licence, the appellant / defendant has

surrendered the shop back to the respondent / Municipality, thereby

causing loss to them for which, the suit was instituted seeking recovery

of alleged losses.

4. The Trial Court by its judgment and decree dated 31.08.2006 in

O.S. No.37 of 2004 dismissed the suit on the ground that Ex.A1, the https://www.mhc.tn.gov.in/judis/

S.A. No.956 of 2007

Gazette Notification, dated 16.02.2001, which is the basis of the

respondent's claim is not applicable as the said notification applies only

to daily markets and not to the shops that have been let out for a period

of three years under a proper lease agreement.

5. Aggrieved by the dismissal of the suit O.S. No.37 of 2004 on the

file of the Subordinate Court, Gudiyatham, the respondent / Municipality

preferred an appeal before the Lower Appellate Court viz., Principal

District Court, Vellore in A.S. No.2 of 2007.

6. The Lower Appellate Court viz., Principal District Court,

Vellore by its judgment and decree, dated 24.04.2007 reversed the

findings of the Trial Court and decreed the suit in favour of the

respondent / Municipality and held the appellant / defendant is liable to

compensate the respondent / Municipality to the extent of Rs.1,40,362/-

together with interests and costs. The Lower Appellate Court further

held that Exs.A1 and A6 are applicable to the appellant / defendant as

they committed breach of contract by surrendering the shop even before

the expiry of the lease.

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S.A. No.956 of 2007

7. Aggrieved by the judgment and decree dated 24.04.2007 passed

by the Lower Appellate Court viz., Principal District Court, Vellore in

A.S. No.2 of 2007, this Second Appeal has been filed.

8. At the time of the admission of the Second Appeal, the

following Substantial Questions of Law have been framed by this Court

(1) Whether the Lower Appellate Court has properly appreciated the material evidence in the case namely, Ex.A-1, which is not admittedly applicable to the shops let out by the plaintiff, and which is applicable only to daily market?

(2) Whether the Lower Appellate Court is right in law in decreeing the suit based on Ex.A-1, which is admittedly applicable only to daily markets and when the terms and conditions in Ex.A-1 are not applicable to the suit shop?

9. Heard Mrs.R.Ramya, learned counsel for the appellant.

10. The learned counsel for the appellant drew the attention of this

Court to Ex.A1, dated 16.02.2001, which is the Government Gazette

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S.A. No.956 of 2007

Notification (Vellore District Gudiyatham Municipality) and in

particular, she referred to Sl. No.3 contained therein and would submit

that the same is not applicable to the appellant / defendant as he has not

been allotted a shop in the daily market (rent on day to-day basis), but he

has been granted a lease on a monthly rent basis for a period from 2001

to 2003. Therefore, she would submit that the terms and conditions

contained in Ex.A1 will not apply to the appellant / defendant.

11. She also drew the attention of this Court to the Cross

examination of the respondent's/plaintiff's witness (PW1) before the Trial

Court and would submit that PW1 has himself admitted before the Trial

Court that Ex.A1 will not apply to the appellant / defendant.

12. She then drew the attention of this Court to Ex.A6(Licence

agreement, dated 13.08.2001), licence granted to the appellant /

defendant for a period of three years to run the shop and would submit

that only those terms and conditions are applicable to the appellant /

defendant and not the terms and conditions stipulated under Ex.A1. She

would also submit that Ex.A6 does not provide for any recovery of

damages by the respondent / Municipality for the losses suffered by them https://www.mhc.tn.gov.in/judis/

S.A. No.956 of 2007

on account of the surrender of shop, even before the expiry of the lease

cum licence period.

13. The learned counsel for the appellant then drew the attention of

this Court to the findings of the Trial Court in O.S. No.37 of 2004 and

would submit that the Trial Court has rightly rejected the claim of the

respondent / Municipality. She then drew the attention of this Court to

the judgment and decree, dated 24.04.2007 passed by the Lower

Appellate Court in A.S.No.2 of 2007 and would submit that the Lower

Appellate Court erroneously reversed the findings of the Trial Court

despite the admission made by the respondent / plaintiff witness (PW1)

that Ex.A1 is not applicable to the appellant / defendant.

14. This Court has perused and examined Ex.A1 as well as Ex.A6,

which are the necessary documents for the purpose of adjudicating this

Second Appeal.

15. Ex.A1 is the Government Gazettee Notification (Vellore

District Gudiyatham Municipality) dated 16.02.2001, which is the basis https://www.mhc.tn.gov.in/judis/

S.A. No.956 of 2007

for the respondent's / plaintiff's claim. In the plaint, paragraph No.4, the

respondent / Municipality has averred that on 16.02.2001 they have

called for tenders to conduct public auction for the shops at Gudiyatham

Town Dharanampet, West Tank Bund.

16. The District Gazette Notification dated 16.02.2001 is Ex.A1,

which contains the terms and conditions for allotment of shops. As seen

from Ex.A1, it is clear that it pertains to allotment of shops only on daily

rent basis. However, the case of the appellant / defendant is totally

different. The appellant / defendant has been granted lease cum licence

for a period of three years as per Ex.A6 and not on daily rent basis.

When the very basis of their claim made by the respondent / Municipality

seeking recovery of their losses for surrender of the shop by the appellant

/ defendant even before the expiry of the lease cum licence period is the

District Gazette Notification, dated 16.02.2001 marked as Ex.A1, the

Trial Court has rightly rejected the claim of the respondent / Municipality

by dismissing the suit as Ex.A1 will not apply to the appellant /

defendant. However, the Lower Appellate Court by its Judgment and

decree dated 24.04.2007 passed in A.S. No.2 of 2007 on the file of the

Principal District Court, Vellore has reversed the findings of the Trial

Court by total non application of mind to Ex.A1 as well as Ex.A6. The https://www.mhc.tn.gov.in/judis/

S.A. No.956 of 2007

Lower Appellate Court has mis-appreciated Ex.A1 which pertains only

to the shops that are let out on daily rent basis and does not pertain to

shops which are let out on lease cum licence for a period of three years

which is the case of the appellant / defendant. The Lower Appellate

Court has also failed to take into consideration the admission made by

the respondent's witness before the Trial Court (PW1) during the course

of cross examination by the respondent / plaintiff witness (PW1),

wherein he has categorically admitted that Ex.A1 is not applicable to the

appellant / defendant.

17. The relevant extract of the cross examination of respondent /

plaintiff witness (PW1) is reproduced hereunder :

v1 khtl;l fbyf;lh; bfrl; K:ykhf tpsk;guk; bra;J me;j bfrl;od; go

jhd; tHf;fpw;F rk;ge;jg;gl;l Vyj;ij elj;jpndhk;/ ,e;j bfrl;oy; ve;bje;j

fil Vyk; tplg;gLk; vd;W Fwpg;gplg;gl;Ls;sJ/ filfSf;fhd bfrl;

jdpahf ,Uf;fpwJ mij jdpahf jhf;fy; bra;Js;nshk;/ v1y; fz;Ls;s

filfs; tHf;F filf;F rk;ke;jg;gl;lit ,y;iy/ v6y; ,e;j tHf;F

rk;ke;jg;gl;l Fj;jif fhyk; ,y;iy/

18. As seen from the admission made by PW1, it is clear that

Ex.A1, Gazette Notification does not apply to lease cum license granted

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S.A. No.956 of 2007

for a period of three years, but applies only to shops which have been let

out on daily rent basis.

19. Therefore this Court is of the considered view that the Lower

Appellate Court ought to have confirmed the findings of the Trial Court

by dismissing the appeal but instead erroneously allowed the appeal.