Madras High Court
S.Ashokan vs The Mettur Municipality on 1 December, 2021
S.A.No.1019 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.1019 of 2021
and
C.M.P.No.19265 of 2021
S.Ashokan, M/63,
S/o.T.R.Sengoda Gounder,
Door No.9/59B, Square Market,
Mettur Dam-1, Mettur Taluk,
Salem District. ... Appellant
.Vs.
The Mettur Municipality,
Rep. by its Commissioner,
Mettur Dam-1, Mettur Taluk,
Salem District. ... Respondent
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and Decree dated 03.08.2020 made in
A.S.No.24 of 2017 on the file of the learned Subordinate Court, Mettur,
confirming the Judgment and Decree dated 20.08.2016 made in
O.S.No.323 of 2009 on the file of the learned District Munsif Court,
Mettur by allowing this Second Appeal.
For Appellant : Mr.E.Duraivaiyapuri
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S.A.No.1019 of 2021
JUDGMENT
This Second Appeal is directed against the judgment and decree of
the learned Subordinate Judge in A.S.No.24 of 2017 dated 03.08.2020 ,
confirming the judgment of the learned District Munsiff, dated 20.08.2016
made in O.S.No.323 of 2009.
2.The Appellant filed a Suit in O.S.No.323 of 2009, seeking
declaration that the demand notice of the Defendant dated 23.01.2008 and
13.02.2008 in Na.Ka.No.854/2004/A3 as arbitrary, illegal, unenforceable
and against natural justice, null and void and for costs.
3.The basis for filing the Suit is that Appellant is the lessee of
Cinema Theatre called “Annai Kaveri” belonged to Respondent/Defendant
from February, 1982. The lease was for a period of three years.
Subsequently, the lease was extended by enhancing lease amount at 15%
in G.O.Ms.No.285. The Plaintiff filed a Suit in O.S.No.85 of 1985 to
extend the lease period for a period of three years by enhancing the rent at
15%. The suit was decreed on 07.10.1994, extending the lease till
31.03.1997. The Plaintiff again filed O.S.No.100 of 1987 for extension of
lease. The lease was extended on condition of depositing Rs.1,64,570/-.
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S.A.No.1019 of 2021
The Defendant took a sum of Rs.2,00,000/- as deposit. The lease was
extended periodically and last date of extension is 13.03.2002.
Meanwhile, the Suit in O.S.No.100 of 1997 was dismissed on 09.06.2004.
Appellant filed an Appeal in A.S.No.59 of 2003 before the Sub Court and
that was dismissed on 10.08.2004. Respondent/Defendant filed
O.S.No.558 of 1999 before the Sub Court, Mettur, claiming arrears of
Rs.1,91,912/- from the year 1982. That suit was dismissed for the reason
that the account was not proper. It was also observed that if the Defendant
has any proper account, it may file a suit within a period of two months
from the date of that Judgment.
4.Respondent has not filed any suit. On 16.09.2004 Respondent
issued notice stating that Plaintiff was in arrears of Rs.1,72,601/- and
demanded payment within a period of 7 days. Appellant sent a reply
stating that advance amount of Rs.1,01,530/- was paid and requested the
Respondent to adjust the advance amount. On 01.10.2004, the
Respondent directed the Appellant to vacate the premises. On 10.11.2004,
the Revenue Inspector of Mettur Municipality took the possession of the
Theatre. Appellant filed Writ Petition in W.P.M.P.No.32395 of 2004 to
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S.A.No.1019 of 2021
quash the proceedings and an interim order of stay was granted on
condition of paying the arrears of rent amounts to Rs.1,72,601/- within a
period of four weeks and increased the rent by Rs.5,000/-, and from
October 2004. Appellant paid arrears of rent of Rs.1,72,601/- on
03.12.2004. Respondent refused to renew the lease by an order dated
01.02.2005. Therefore, Appellant filed W.P.No.3997 of 2005 against this
order, in which this Court set aside the order of the Respondent and
directed the Respondent to pass orders on merit. Accordingly, lease was
renewed for a further period of three years from 01.04.2005. Subsequently,
W.P.No.32395 of 2004 and W.M.P.Nos.39240 & 39241 of 2004 came to
be disposed with direction. Then Respondent issued impugned notice
claiming arrears of rent, without any proper accounts. Therefore, the Suit.
5.Respondent/Defendant filed written statement, challenging the
allegations made in the Plaint. The legal proceedings between the
Appellant and Respondent are admitted. However, it is claimed that the
Appellant, without properly paying the rent, repeatedly approached the
Court and obtained interim orders and continued to be in possession of the
suit property. As per the notice, the Appellant is liable to pay a sum of
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S.A.No.1019 of 2021
Rs.8,19,772/- towards arrears of rent for the period from 1992-93 to 2007-
08. The suit is filed only to avoid payment of rent and only to protract the
proceedings.
6.On the basis of the above pleadings, trial Court framed the
following issues:
(i)Whether the demand notice issued by the Defendant is true
and valid?
(ii)Whether the Plaintiff is entitled for declaration as prayed
for?
(iii)To what other relief, the Plaintiff is entitled for?
7.During the trial PW1 was examined and Ex.A.1 to A24 were
marked on the side of the Plaintiff. DW1 was examined and Ex.B1 to
B.10 were marked on the side of the Defendant.
8.On going through the evidence, the trial Court found that
Appellant/Plaintiff has initiated several legal proceedings just to squat on
the property, without regularly paying the rent. When the Respondent
claimed that there is arrears of rent, it is for Appellant to prove that there
was no arrears by producing receipts. However, the Appellant has not
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S.A.No.1019 of 2021
produced any receipt to show the payment of rental arrears claimed by the
Respondent. Therefore, the prayer of the Appellant cannot be entertained
and accepted. In this view of the matter dismissed the suit. The first
Appellate Court also found there is no ground to interfere with the
judgment of the trial Court and dismissed the Appeal by confirming the
judgment of the trial Court. Therefore, the Appellant is before this Court
by way of the Second Appeal.
9.Learned counsel for the Appellant submitted that Appellant has
been regularly paying the rent and produced the documents to show the
payment of rents. It is brought to my notice that in the written statement
filed by the Respondent, a statement is given claiming that there is an
arrears of Rs.8,19,772/-. Learned counsel for the Appellant specifically
drew my attention to the entries made in Serial Nos.3 and 4, wherein it is
said in Serial No.3 the balance amount liable to be paid for the year 1994-
95 is mentioned as Rs.4,427/- and in the next row (i.e.,) serial No.4, it is
again claimed that during 1994-95, the balance amount to be paid is shown
as Rs.3,27,799/-. Thus, learned counsel for the Appellant submitted that it
shows that the claim of the Respondent with regard to arrears of rent is not
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S.A.No.1019 of 2021
correct. Of course, this is a point to be considered. There is some
discrepancy with regard to the balance amount claimed for the year 1994-
95. Two amounts viz., Rs.4,427 and 3,27,799/- are claimed as balance
amount to be paid for the year 1994-95. This issue has to be addressed by
the Respondent, while claiming the arrears of amount.
10.Be that as it may, primarily it is the duty of the Appellant, who is
the tenant in the suit property, to show that he has regularly paid the rent.
Both the Courts below have concurrently found that Appellant has not
produced any material to show that he has been regularly paying the rent.
As referred above, the Appellant has initiated several legal proceedings in
the form of Original Suit and Writ Petition, from time to time, to continue
in possession of the suit property. The lease was extended only at his
insistent by filing Suit or Writ Petition. When he is interested in continuing
in possession and running the cinema theater, he is expected to pay the
rent due to the Respondent. Apparently, there is arrears of rent, the only
question is the quantum.
11.Therefore, this Court finds that there is arrears of rent and that
arrear is claimed by the Respondent by way of notice. Only thing is that
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S.A.No.1019 of 2021
there is some discrepancy in the quantum claimed for the year 1994-95 and
this Court directs the Respondent to work out the correct arrears amount
for the year 1994-95. In view of the findings of the Court below that there
is arrears of rent and there is no reason to take a different view, this Court
finds that there is no merit in the Second Appeal. There is no substantial
question(s) of law involved in the Second Appeal. Therefore, the
judgment of the first Appellate Court, dated 03.08.2020 made in
A.S.No.24 of 2017 on the file of the learned Subordinate Court, Mettur, is
confirmed, of course, subject to the direction that the Respondent has to
ensure the correct arrears for the year 1994-95.
12.Accordingly, the Second Appeal is dismissed. However, no
order as to costs. Consequently, connected Miscellaneous Petition is
closed.
01.12.2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
sai
https://www.mhc.tn.gov.in/judis
S.A.No.1019 of 2021
To
The learned Subordinate Judge,
Sub Court,
Mettur.
https://www.mhc.tn.gov.in/judis
S.A.No.1019 of 2021
G.CHANDRASEKHARAN, J.
sai
S.A.No.1019 of 2021
and
C.M.P.No.19265 of 2021
Dated: 01.12.2021
https://www.mhc.tn.gov.in/judis
