Madras High Court
The District Welfare Fund ... vs N.Balasubramanian on 5 April, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 15.02.2022
DELIVERED ON 25.02.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.R.P.(MD)No.1353 of 2021
and
C.M.P.(MD)No.7737 of 2021
The District Welfare Fund Committee,
Represented by its Treasurer
K.Govindaraju ...Petitioner/Petitioner/1st Defendant
Vs.
N.Balasubramanian ...Respondent/Respondent/Plaintiff
PRAYER: Civil Revision Petition under Article 227 of the Constitution of
India, to set aside the fair and decreetal order, dated 05.04.2021 made in
I.A.No.3 of 2019 in O.S.No.61 of 2017 on the file of the learned II
Additional District Judge, Tiruchirappalli and allow the revision and reject
the plaint in O.S.No.61 of 2017.
For Petitioner :Mr.G.Ethirajulu for
Mr.P.Arun Jayatram
For Respondent :Mr.G.Prabhu Rajadurai, for
Mr.I.Robert Chandrakumar
https://www.mhc.tn.gov.in/judis
2
ORDER
This Civil Revision Petition has been filed to set aside the fair and
decreetal order, dated 05.04.2021 in I.A.No.3 of 2019 in O.S.No.61 of 2017
passed by the learned II Additional District Judge, Tiruchirappalli.
2.The parties are referred to as per the rank mentioned before the Court
below.
3.The respondent herein/plaintiff has filed a suit in O.S.No.61 of 2017
on the file of the learned II Additional District Judge, Tiruchirappalli, to
recover a sum of Rs.1,08,01,608/-for damage and loss caused by the
defendants. During the pendency of the aforesaid suit, the appellant/1st
defendant has filed a interlocutory petition in I.A.No.3 of 2019 in O.S.No.61
of 2017 under Order 7 Rule 11 of Civil Procedure Code to reject the plaint in
O.S.No.61 of 2017. The said petition was dismissed on 05.04.2021. Against
the said dismissal order, the appellant herein/1st defendant is before this
Court.
4.Heard on either side. Perused the material documents available on
record.
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5.This Civil Revision Petition is filed on the ground that the Court
below has failed to consider that the averments and pleadings in the plaint is
enough to come to a conclusion that the revision petitioner has rightly filed
the petition under Order 7 Rule 11 of Civil Procedure Code. The Court
below has failed to consider that as per the averments in the plaint that he
started running the theatre on 06.07.2012 and he filed the suit in the year
2017. The suit is hit by law of limitation and Article 59 of the Limitation
Act, provides three years time, thereby the suit has to be rejected by invoking
Order 7 Rule 11(d) of Civil Procedure Code. The Cause of action pleaded in
the plaint are vague and there is no cause of action for institution of suit for
recovery of money. The Court below has failed to consider the refusal for
issue of C-Form/E-Form was held correct by this Court in W.P(MD)No.1259
of 2016 and was upheld by the Division Bench of this Court in
W.A.(MD)No.394 of 2016. So, non-functioning the theatre was due to
non-issue of C-Form, Non-Issue of C-Form certificate is due non-issue of
stability certificate. Therefore, by operation of law, the 1st defendant is not
responsible for paying damage, that too, prayer for a relief asked for is not
entitled. Hence, the order passed by the Court below is liable to be set aside.
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6.The 1st respondent/plaintiff has filed the suit in O.S.No.61 of 2017
(i)for recovery of a sum of Rs.1,08,01,608/-being the amount spent by the
plaintiff for making the suit theatre familiarly known as Kalaiyarangam
theatre fit for screening the movies immediately after taking the theatre on
lease on the instruction of the 1st defendant with a promise and undertaking to
refund the same, which has not been done together with subsequent interest
at 12% together with charge over the suit property from the 1st defendant, and
(ii)for recovery of damages for the loss caused to the plaintiff by not allowing
him to run the theatre during the subsistence of lease for the period from
15.01.2016 to 2017 by relegating the matter to a separate proceedings under
Order 20 Rule 12 of Civil Procedure Code for ascertaining the actual loss
together with charge over the suit property from both the defendants.
7.The case of the plaintiff is that he is a lessee of Kalaiyarangam
theatre which is famous in Tiruchirappalli. He has taken the theatre on lease
for 5 years from 08.05.2012 to 07.05.2017 for a monthly rent of
Rs.9,16,000/-. Only after taking possession of the theatre, he understood that
the theatre was not in running condition. Immediately, he contacted the 1st
respondent committee who is owner of the theatre to repair the damaged
building. The members of the committee inspected the building and
requested the plaintiff to complete the repair work and agreed to pay the cost
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of repair. Accordingly, the plaintiff undertook the repair work and incurred
expenses of Rs.1,08,01,608/-. After completing the maintenance work, the
plaintiff started to run the theatre from 06.07.2012 onwards after informing
the 1st defendant. The District Collector is the authority for granting 'C' Form
license to cinema theatre in question. The very same District Collector in the
capacity as the President of 1st defendant committee leased out the theatre to
the plaintiff for 5 years. It is the duty for him to get 'C' Form license for the
lease period. But, the District Collector refused to renew the 'C' Form
license. The theatre was closed by the defendants unlawfully on 15.01.2016
around 04.00 a.m. with the help of police. As the 1st defendant complained
about non-payment of rent, the plaintiff has filed writ application before this
Court in W.P.(MD)No.1259 of 2016. But, it was dismissed on 29.03.2016.
Against that order, W.A.(MD)No.394 of 2016 is also disposed by this Court.
The writ proceedings have nothing to do with the present suit. The plaintiff
is not liable to pay rent for the period when it was closed. The plaintiff is
entitled to recover the expenses incurred for rectification of damages of the
theatre. Moreover, he is entitled to get the loss because of the closure of the
theatre by the defendants. Hence, this suit is filed to recover a sum of Rs.
1,08,01,608/-damage and loss caused by the defendants.
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7.The defendant has filed a petition under Order 7 Rule 11 to reject the
plaint. The averments in the petition is that there is no cause of action in the
suit. Admittedly, the theatre began to screening cinema from 06.07.2012.
Therefore, the expenses incurred before the above date is barred by
limitation. The alleged damage caused to the plaintiff is nothing but statutory
function of the District Collector. As the plaintiff failed to comply the
statutory requirements, the 'C' form license was denied to him. The District
Collector was challenged by the respondent in W.P.(MD)No.1259 of 2016
and the same was rejected by this Court. The appeal in W.A(MD).No.394 of
2017 was also dismissed by this Court. Hence, the suit is not maintainable
and the plaint may be rejected in limine.
8.The respondent/plaintiff has also filed counter and stated that the
petition in I.A.No.3 of 2019 is not maintainable and there is no ground to
reject the plaint. Whether the claim is barred by law of limitation or not? is a
mixed question of law and fact. In such case, the question of limitation
cannot be decided at this stage. The petitioner has filed a suit in O.S.No.80
of 2017 as a counter blast of this suit. The period of limitation for filing suit
to recover the cost incurred by the plaintiff starts from the date of refusal of
the 1st defendant. The date of refusal is not even set out in the affidavit by
the petitioner. The 5 years lease period expired only on 07.05.2017. In such
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situation, the plaintiff claim for reimbursement cannot be termed as barred by
limitation. In the complete trial only, the question can be decided. The right
of recovery of cost incurred by the plaintiff starts only from the date when the
lease period come to end. The District Collector has leased out the theatre in
the capacity of President of the 1st defendant committee ensuring that the
theatre is in sound stability condition for 5 years. But, in the capacity of
Collector, he refused to renew the 'C' form license quoting the reason that
building is not stable for public safety. Therefore, the plaintiff is entitled to
get the damages. After conducting complete trial only, the plaint pleadings
could be proved. Without conducting trial, the reasons stated in the affidavit
is not acceptable.
9.The defendant leased out the property for five years from 08.05.2012
to 07.05.2017. After informing the defendant the plaintiff did repair works
and running the theatre. The defendant did not renew 'C' form which was
expired on 30.11.2012. The respondent/plaintiff filed W.P.(MD)No.5400 of
2015 to issue 'C' form license. The writ was allowed and direct the
petitioner/defendant to issue 'C' form on deposit of 25% of rental amount
with tax. The amount was also deposited. Subsequently, 'C' form was
renewed from 11.06.2015 to 14.01.2016.
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10.After that the theatre was closed on 15.01.2016. The petition in
W.P.(MD)No.1259 of 2016 was rejected by this Court. The appeal in
W.A(MD).No.394 of 2017 was also dismissed by this Court.
11.Now, the respondent/plaintiff has filed the suit for recovery of
money and damages. Whether the plaintiff is entitled for money as prayed
for will be decided after full trial.
12.The following issues are to be decided in this Civil Revision
Petition:
(i)Whether the suit is barred by limitation?
(ii)Whether there is no cause of action?
13.In the plaint there is cause of action. The cause of action for the
suit arose on and from 03.05.2012 the date of the order issued by the 1 st
defendant granting lease of the suit theatre to the plaintiff for a period from
08.05.2012 to 07.05.2017 viz., for five years. Consequently, the president of
1st defendant committee also granted a 'C' Form License in his capacity as
District Collector, on instructions from 1st defendant the plaintiff had to incur
the expenses over and above to the tune of Rs.1,08,01,608/-to make the
theatre fit for screening movies as aforesaid which the 1st defendant has
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undertaken to return the said amount which amount has not been returned by
the 1st defendant , subsequently, the defendants for obvious reasons saw to it
that C-Form license is not renewed for a period commencing from
15.01.2016 without any justification what so ever and on the ground of non
renewal of C-Form license the president has closed the theatre thereby
causing immense loss financially to the plaintiff and everyday thereafter the
plaintiff has become entitled to file the suit for recovery of amount and for
the loss for not allowing the theatre to be run as aforesaid at Me.Donalds
Road, Cantonment, Tiruhirappalli Taluk and District, which is well within the
jurisdiction of this Court.
14.To decide the petition under Order 7 Rule 11 the pleadings in the
plaint alone has to be looked into.
“11. Rejection of Plaint:-
The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action,
(b) where the relief claimed is undervalued and the
plaintiff, on being required by the court to correct the
valuation within a time to be fixed by the court, fails to do
so;
(c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped and the
plaintiff, on being required by the court to supply the
requisite stamp paper within a time to be fixed by the
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Court, fails to do so;
(d)where the suit appears from the statement in the plaint
to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of
rule 9
Provided that the time fixed by the court for the
correction of the valuation of supplying of the requisite
stamp papers shall not be extended unless the court, for
reasons to be recorded, is satisfied that the plaintiff was
prevented by any cause of an exceptional nature from
connecting the valuation or supplying the requisite stamp
papers, as the case may be, within the time fixed by the
court and that refusal to extend such time would cause
grave injustice to the plaintiff.”
15.As per petition, the suit is barred by limitation. Since the money
due is in the year 2012 when the plaintiff did repair works. But, the plaintiff
has contended that the defendant has refused to pay the amount when
rejecting the renewal of 'C' form from 15.01.2016. So, the period of
limitation commences from 2016.
16.It is a mixed question of law and facts. There is no written
agreement for the lease. Only oral agreement. So, the plaintiff has to prove
his right of sue is infringed on what date only after full trial.
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17.The paragraph No.6 of the Judgment reported in 2015-5 LW 905, in
the case of Gururaj Reddy and another Vs. P.Neeradha reddy and others, is
extracted hereunder:
....
“6.In the present case, reading the plaint
as a whole and proceeding on the basis that the
averments made therein are correct, which is
what the Court is required to do, it cannot be
said that the said pleadings exfacie discloses
that the suit is barred by limitation or is barred
under any other provision of law. The claim of
the plaintiffs with regard to the knowledge of the
essential facts giving rise to the cause of action
as pleaded will have to be accepted as correct.
At the stage of consideration of the application
under Order VII Rule 11 the stand of the
defendants in the written statement would be
altogether irrelevant.”
18.In view of the foregoing reasons, the trial Court has rightly
dismissed the I.A.No.3 of 2019 in O.S.No.61 of 2017, for the reasons stated
in the order. This Court has no valid reason to interfere with the order passed
by the Court below.
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19.Accordingly, the Civil Revision Petition is dismissed by confirming
the fair and decreetal order, dated 05.04.2021 in I.A.No.3 of 2019 in O.S.No.
61 of 2017 passed by the learned II Additional District Judge, Tiruchirappalli.
No Costs. Consequently, connected miscellaneous petition is closed.
Index :Yes/No 25.02.2022
Internet:Yes/No
ksa
Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
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To
The II Additional District Judge,
Tiruchirappalli.
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S.ANANTHI, J.
ksa
Order made in
C.R.P.(MD)No.1353 of 2021
25.02.2022
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