Madras High Court
Krishna Pillai vs S.Anbu on 20 April, 2021
1 S.A.(MD)NO.930 OF 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.930 of 2011
Krishna Pillai ... Appellant/Respondent/
Defendant
Vs.
S.Anbu ... Respondent/Appellant/
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Decree and Judgment in A.S.No.58 of 2010
dated 11.04.2011 on the file of the I Additional Sub Court,
Nagercoil, reversing the well considered Decree and
Judgment passed by the learned Principal District Munsif,
Nagercoil, in O.S.No.403 of 2007 dated 08.10.2009.
For Appellant : Mr.K.P.Narayana Kumar
For Respondent : Mr.R.J.Karthick,
for Mr.R.Subramaniam.
***
https://www.mhc.tn.gov.in/judis/
1/14
2 S.A.(MD)NO.930 OF 2011
JUDGMENT
The defendant in O.S.No.403 of 2007 on the file of the
Principal District Munsif, Nagercoil, is the appellant in this
second appeal.
2. The respondent herein, namely, Anbu filed the said
suit seeking recovery of a sum of Rs.60,000/- with interest at
the rate of 12% p.a. from the date of plaint till the date of
payment. The case of the plaintiff is that he is the owner of
Jeyalakshmi Modern Rice Mill, bearing Door No.154, Puliyadi,
Kalungadi Road, Vadasery Village. The defendant took over
possession of the said Modern Rice Mill as lessee. After
entering into rent deed dated 25.02.2004, the defendant
deposited a sum of Rs.5,00,000/- with the plaintiff. It was
agreed that the monthly rent will be Rs.30,000/-. The
agreement was to be for a period of three years. The
allegation of the plaintiff is that for the first 18 months the
defendant paid the rent regularly and thereafter, he defaulted.
The plaintiff lodged a complaint before the local police station
for recovering the arrears of 6 months rent to the tune of Rs.
1,80,000/-. Though the defendant admitted his liability and
https://www.mhc.tn.gov.in/judis/
3 S.A.(MD)NO.930 OF 2011
agreed to clear the same, he paid only a sum of Rs.30,000/- on
11.04.2006. Thereafter, the defendant filed O.S.No.75 of 2006
on the file of the II Additional Sub Court, Nagercoil, claiming
damages from the plaintiff and for restraining the plaintiff
from interfering with his possession of the rice mill. The suit
was dismissed on 09.04.2007 and thereafter, he filed A.S.No.
34 of 2007 before the District Court, Nagercoil. The plaintiff
would claim that the defendant voluntarily surrendered the
possession of the Rice Mill on 21.05.2007. The rental arrears,
according to the plaintiff came to Rs.5,60,000/-. After
deducting the advance amount of Rs.5,00,000/- and for
recovering the balance amount of Rs.60,000/-, he had
filed the said suit.
3. The appellant herein filed his written statement
opposing the suit prayer. The defendant would claim that
there was no default in the matter of payment of rent. He also
denied the claim of the plaintiff that the possession was
amicably handed over. According to the defendant, the
plaintiff took forcible possession on 21.05.2007. The
defendant had registered a police case against the plaintiff in
https://www.mhc.tn.gov.in/judis/
4 S.A.(MD)NO.930 OF 2011
Crime No.1234 of 2007 on the file of Vadasery police station.
The very institution of the suit was a counterblast to the
earlier suit filed by the defendant in O.S.No.75 of 2006. The
trial Court framed the issue as to whether the plaintiff was
entitled to recover money as prayed for. The plaintiff
examined himself as P.W.1 and marked Ex.A.1 to Ex.A.5. The
defendant examined himself as D.W.1 and marked Ex.B.1 to
Ex.B.4. The learned trial Munsif came to the conclusion that
the plaintiff had not filed any document except Ex.A.3 to show
that the defendant was in arrears of rent. Since the plaintiff
had not examined any independent witness to substantiate the
case, the trial Court dismissed the suit by Judgment and
Decree dated 08.10.2009. Questioning the same, the plaintiff
filed A.S.No.58 of 2010 before the I Additional Sub Court,
Nagercoil. By Judgment and Decree dated 11.04.2011, the
Judgment of the trial Court was set aside and the appeal was
allowed. Questioning the same, this second appeal came to be
filed.
4. This second appeal was admitted on the following
substantial questions of law:-
https://www.mhc.tn.gov.in/judis/
5 S.A.(MD)NO.930 OF 2011
“ 1) Whether the first appellate Court was wrong in
decreeing the money suit by directing to pay rent, for the
period when admittedly no landlord tenant relationship exists
and
2) Whether the first appellate Court failed to
appreciate that the plaintiff has not proved his case
independently?”
5. Heard the learned counsel on either side.
6. The learned counsel appearing for the appellant
submitted that the trial Court after a detailed consideration of
the evidence on record had rendered a finding that the
plaintiff has not proved his claim that the defendant was in
arrears and that the defendant owed to pay money to the
plaintiff. The appellate Court had misdirected itself by
assuming that the suit suffered dismissal on the ground that
the plaintiff instead of filing a suit for damages for use and
occupation had filed the suit for recovery of rental arrears.
According to the appellant's counsel, the first appellate Court
failed to consider the fact that the plaintiff had not proved the
https://www.mhc.tn.gov.in/judis/
6 S.A.(MD)NO.930 OF 2011
case independently. He would also contend that going by the
case of the plaintiff, the defendant should be considered as
tenant at sufferance and in other words, his position was akin
to a trespasser. The plaintiff had claimed that the tenancy
expired on 26.02.2007. Therefore, the suit for payment of rent
for the period from the date of termination of tenancy from
21.05.2007 will not arise at all. He wanted this Court to
answer the substantial questions of law in favour of the
appellant and to set aside the Judgment passed by the first
appellate Court and restore the decision of the trial Court.
7. Per contra the learned counsel appearing for the
respondent submitted that the impugned Judgment passed by
the first appellate Court does not call for any interference. He
prayed for dismissal of the second appeal.
8. I carefully considered the rival contentions and
went through the evidence on record.
9. Though the plaintiff had stated that the agreement
https://www.mhc.tn.gov.in/judis/
7 S.A.(MD)NO.930 OF 2011
was terminated only in the mid night of 25.02.2007, he had
not characterised the defendant as a trespasser. The lessee
occupying the premises after the termination of tenancy will
be either a tenant at sufferance or tenant holding over. He will
be a tenant holding over if the lessor accepts rent from the
tenant for occupation. If the lessor does not accept rent and
insists on ejecting the tenant, he will be a tenant at sufferance.
10. The Hon'ble Supreme Court in the decision
reported in 1995 (5) SCC 698 (R.V.Bhupal Prasad V. State of
Andhra Pradesh and others) had clearly stated that tenant at
sufferance is akin to trespasser, though initially he had
lawfully entered. However the distinction must be noted. It is
open to the lessor to accept rent from the person whose
tenancy had already expired. In that event, the status of the
occupant will be tenant holding over. Therefore, it is not open
to the appellant to make a self-proclamation.
11. According to the appellant's counsel, the
respondent should have instituted a proper suit for damages.
The learned counsel would also draw my attention to the
https://www.mhc.tn.gov.in/judis/
8 S.A.(MD)NO.930 OF 2011
decision reported in 2003-1-L.W. 751 (Palani Municipal
Council V. C.Sadasivam). In the said case, the learned Judge
had set out the distinction between the two situations. That
was the case involving a local body. The lessees of the local
body had committed default. The local body filed a suit. It was
also decreed. Thereafter, a second suit was filed for
recovering damages for unauthorised use and occupation. The
second suit was dismissed by invoking Order 2 Rule 2(2) of
C.P.C. The High Court set aside the Judgments and Decrees
passed by the Courts below and allowed the second appeals in
the following terms:-
“3. The question as to whether the
respondents are entitled to Section 116 of the
Transfer of Property Act arises for consideration
of this Court. Under Section 116 of the Transfer
of Property Act, for an entitlement of holding
over, a lessee or under-lessee of property
remains in possession thereof after the
determination of the lease granted to the lessee,
and the lessor or his legal representative
accepts rent from the lessee or under-lessee, or
https://www.mhc.tn.gov.in/judis/
9 S.A.(MD)NO.930 OF 2011
otherwise assents to his continuing in
possession, the lease is, in the absence of an
agreement to the contrary, renewed from year to
year, or from month to month, agreeing to the
purpose for which the property is leased, as
specified under Section 106. In order to satisfy
the said section, there must be a determination
of lease and after the determination of lease, the
lessee must be in possession of the shop and the
owner of the shop should also receive the rent.
Only in compliance of all the three conditions,
the lessee should be deemed to have holding
over of the shop in question. Facts of this case
reveal that by efflux of time, the lease expired on
31.3.86 and there was no express extension of
renewal of lease. On and after 1.4.86, the
respondents who were the lessees are not
entitled to continue as lessees of the shops.
Secondly, it is not the case of the
lessees/respondents that after 31.3.86, the
landlord namely the appellant had received the
https://www.mhc.tn.gov.in/judis/
10 S.A.(MD)NO.930 OF 2011
rent for the shops in question. The only
condition that has been complied with by the
lessees is as to their occupation of the shops. In
the absence of non compliance of the other two
conditions, it cannot be considered that the
respondents/tenants are entitled to the
provisions of Section 116 of the Transfer of
Property Act. When once it is admitted that the
respondents/tenants continued to be in
possession even after the expiry of lease period
on 31.3.86 and in the absence of other two
conditions being complied, they should be
considered as persons occupying the shops
without any lease agreement and consequently,
their possession shall be deemed to be
unauthorised. In such event, cause of action for
claiming the amount from 1.4.86 shall be only by
way of damages and not by way of arrears of
rent. Hence, the suits filed by the appellant on
an earlier occasion which were decreed for
recovery of arrears of rent are entirely on
https://www.mhc.tn.gov.in/judis/
11 S.A.(MD)NO.930 OF 2011
different cause of action. In such circumstances,
Order 2 Rule 2(2) of C.P.C. is not applicable, as
Order 2 Rule 2(2) of C.P.C. is applicable only
where the plaintiff omits to sue in respect of, or
intentionally relinquishes any portion of his
claim, he shall not afterwards sue in respect of
the portion so omitted or relinquished. “
12. Though I sustain the contention of the learned
counsel appearing for the appellant that there is distinction
between rental arrears and damages for use and occupation,
as far as the case on hand is concerned, it virtually a
distinction without difference. The trial Court ought to have
considered whether the suit was valued under Section 22 of
the Tamil Nadu Court-Fees and Suits Valuation Act. The Court
Fee payable is 7.5% of the suit claim. A mere look at the suit
prayer would show that the respondent had only characterised
it as recovery of a certain sum of money. Since the court fee
has been correctly paid, there is no need to quibble over
nomenclature. I therefore answer the first substantial question
of law against the appellant.
https://www.mhc.tn.gov.in/judis/
12 S.A.(MD)NO.930 OF 2011
13. The suit rice mill admittedly belongs to the
respondent. The appellant obtained possession only in the
capacity of a lessee. The specific case of the landlord is that
the appellant paid rent without default for the first 18 months
and thereafter there was default on his part. There is no
dispute that the possession was taken over by the landlord
only on 21.05.2007. The specific allegation of the landlord is
that the rental arrears came to Rs.5,60,000/- and that after
deducting advance amount of Rs.5,00,000/-, balance amount
payable by the lessee was Rs.60,000/-. The trial Court had
erroneously cast the burden of proof on the landlord. When
the landlord makes an allegation that the tenant has not paid
the rent, it is the tenant who has to establish that the rent has
been paid. The landlord cannot be called upon to prove the
negative. The second substantial question of law is answered
against the appellant. I do not find any ground to interfere.
Even though the substantial question of law is answered
against the appellant, award of interest at 12% p.a. appears to
be on the higher side. It is reduced from 12% p.a. to 6% p.a.
https://www.mhc.tn.gov.in/judis/
13 S.A.(MD)NO.930 OF 2011
14. This second appeal is partly allowed. No costs.
20.04.2021
Index : Yes / No
Internet : Yes/ No
PMU
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.
To:
1. The I Additional Sub Judge,
Nagercoil.
2. The Principal District Munsif,
Nagercoil.
https://www.mhc.tn.gov.in/judis/
14 S.A.(MD)NO.930 OF 2011
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.930 of 2011
20.04.2021
https://www.mhc.tn.gov.in/judis/
