Madras High Court
T.Chandrakanthan vs Vallithai on 8 December, 2021
S.A(MD)No.226 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.226 of 2021
T.Chandrakanthan ... Appellant/Appellant/Defendant
Vs.
Vallithai ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 17.03.2020 passed
in A.S.No.170 of 2017 on the file of the Sub Court, Tiruchendur,
confirming the judgment and decree, dated 27.06.2014 passed in
O.S.No.153 of 2012 on the file of the District Munsif Court,
Srivaigundam.
For Appellant : Mr.S.Muthumalai Raja
For Respondent : Mr.T.A.Ebenezer
1/10
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S.A(MD)No.226 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.153 of
2012 by the District Munsif Court, Srivaigundam and in A.S.No.170 of
2017 on the file of the Sub Court, Tiruchendur, are being challenged in
the present Second Appeal.
2. The respondent / plaintiff has instituted a suit in O.S.No.153 of
2012, on the file of the trial Court for the relief of eviction, arrears of
rent for a sum of Rs.12,600/- and past benefits of Rs.2,000/- mesne
profits and costs, wherein, the present appellant has been shown as
defendant.
3. In the plaint, it is averred that originally the plaintiff and the
defendant entered into an agreement for 11 months. On 04.09.2008,
the defendant had deposited a sum of Rs.25,000/- to the plaintiff and
sought for the lease of building for a period of three months and
agreement was written among the parties. The defendant had paid rent
upto 2009 and also received receipts for the amount paid. Later on, the
defendant failed to pay the rent and he requested the plaintiff to
deduct it from the advance amount. The defendant had violated the
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S.A(MD)No.226 of 2021
condition, as agreed between the parties and he was using the building
for unwarranted purpose. Hence, the plaintiff requested the defendant
to vacate the building. In the meanwhile, the defendant filed a suit in
O.S.No.124 of 2011 against the plaintiff with false allegations.
Therefore, the plaintiff cancelled the agreement between the parties
and sought for recovery of possession from the defendant and issued a
legal notice. The defendant sent a reply notice with false averments.
Hence, the plaintiff has sought for recovery of possession, rent of
Rs.12,600/- past benefits, mesne profits from the defendant.
4. In the written statement filed on the side of the defendant, it
is averred that the defendant had deposited a sum of Rs.25,000/- on
04.09.2008 to the plaintiff and the agreement entered into between
the plaintiff and the defendant was only for 11 months. When the rent
was enhanced to Rs.500/- per month, from the year 2011 onwards,
the defendant had not paid the rent. The defendant had paid the rent
only upto May 2011 and the plaintiff has also received the rent on
June, 2011. When the plaintiff interfered with the enjoyment of the suit
property by the defendant as a tenant, the defendant filed a suit in
O.S.No.124 of 2011 against the plaintiff not to evict him unlawfully
from the suit building. The defendant was ready and willing to pay the
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S.A(MD)No.226 of 2021
rent amount, but the plaintiff refused to receive it and the defendant
had deposited the rent in O.S.No.124 of 2011 and till today, the same
has been deposited. The defendant never acted against the condition
stipulated in the agreement. The defendant is running the shop under
the name and style of "Kali Murugan Cool Bar" and the plaintiff has no
reason to cancel the oral lease agreement entered between the parties.
The suit property is not required by the plaintiff for his own purpose
and the plaintiff is a co-owner in respect of the suit property. Hence,
the suit is bad for non-joinder of necessary parties. The arrears of rent
amount of Rs.12,600/- is not correct and the suit is liable to be
dismissed.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
herself was examined as P.W.1 and one Bhavani was examined as
P.W.2 and Exs.A1 to A3 were marked. On the side of the defendant,
the defendant himself was examined as D.W.1 and Exs.B.1 to B.5 were
marked.
6. On the basis of the rival pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has decreed the suit in favour of the
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S.A(MD)No.226 of 2021
respondent / plaintiff and directed the defendant to handover the
possession of the suit building to the plaintiff within a period of three
months and further stated that the plaintiff is also entitled for a sum of
Rs.12,600/- towards arrears of rent Rs.2,000/- past benefits together
with costs of the suit and further stated that the plaintiff is directed to
initiate separate proceedings under Order 20 Rule 12 C.P.C, regarding
mesne profits.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the defendant as appellant, had filed an Appeal Suit in
A.S.No.170 of 2017 and dismissed the appeal confirming the Judgment
and Decree passed by the trial Court.
8. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the defendant as appellant.
9. Heard the learned counsel for the appellant and the learned
counsel for the respondent and also perused the records carefully.
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S.A(MD)No.226 of 2021
10. The contention of the plaintiff is that the shop was originally
leased to the defendant for 11 months and subsequently, as the
defendant demanded the shop for further 3 years, the plaintiff leased
the shop from 04.09.2008 to 04.09.2011 for 3 years and in the lease
agreement, it was mentioned as both the parties would act as per the
agreement for 3 years. The contention of the defendant is that the
agreement entered into between the plaintiff and the defendant on
04.09.2008 was only for 11 months and after expiry of the lease period
of 11 months, out of trust and orally agreed by the parties, the
defendant is in occupation of the suit building as a tenant. As the
defendant failed to pay the rent, the plaintiff issued the legal notice on
11.04.2012 by terminating the tenancy on 30.04.2012 and demanded
the defendant to vacate the shop on 01.05.2012.
11. The defendant had denied the lease agreement entered into
between him and the plaintiff for a period of 3 years, but he had
admitted that the original lease agreement between the plaintiff and
the defendant was only for a period of 11 months. The plaintiff has not
produced the original lease agreement as it was handed over by him to
the defendant for the purpose of obtaining license for running the shop.
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S.A(MD)No.226 of 2021
The defendant during his cross-examination had admitted that he had
obtained license for running the shop. The defendant has also admitted
that Arumugam and Sundar Raj had signed in the original lease
agreement. The plaintiff produced the xerox copy of the lease
agreement. The defendant has admitted that he had obtained license
for running the shop, it could be presumed that the original agreement
was in possession of the defendant. Originally, the suit in O.S.No.124
of 2011 was filed by the defendant against the plaintiff, as if he is the
absolute landlord of the suit property. Now, in the present suit, he had
pleaded that the plaintiff is a co-owner in respect of the suit property
and denied the absolute right of the plaintiff. The plaintiff is the owner
of the suit property is established by the evidence of P.W.2, who had
deposed that all the children have released their right to their mother
fully and she is taking care of them. It is also further proved by the
defendant's case in O.S.No.124 of 2011 wherein he has obtained a
decree not to evict him except due process of law. This would prove
that he has accepted that the plaintiff is the landlord of the property.
Only after the termination of the lease period, the plaintiff has issued
the legal notice. Legal notice was issued on 11.04.2012, by terminating
the tenancy on 30.04.2012 seeking to hand over the property within
01.05.2012. The defendant has not produced any document to prove
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S.A(MD)No.226 of 2021
that he had paid the rent regularly from June 2010 to 30.04.2012 and
it has been received by the landlord. The defendant has committed
wilful default towards payment of rent. Accordingly, the trial Court has
correctly held that the defendant has defaulted wilfully and the plaintiff
has taken lawful steps for evicting the defendant from the property and
he is entitled for recovery of the suit building from the defendant. The
first Appellate Court has also rightly confirmed the judgment and
decree passed by the trial Court.
12. All the factual aspects have been proved by the plaintiff
beyond doubt and this Court is not inclined to interfere with the factual
finding which has been accepted by both the parties. The learned
counsel appearing for the appellant/defendant also agreed that he is
running a shop in the premises owned by the plaintiff as a absolute
owner and the claim made by the defendant that the plaintiff was a
co-owner was also negatived by appropriate evidence by the sisters
and mother of the plaintiff and the plaintiff was able to prove her case
that the defendant was in arrears of rent and hence, the plaintiff seeks
for dismissing the Appeal. When there is no question of showing any
leniency on the defendant as he has been in occupation of the said
property inspite of the tenancy, which coming to an end when the
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S.A(MD)No.226 of 2021
plaintiff has issued a notice on 11.04.2012 and on the ground of wilful
default.
13. In the above circumstances, this Court is of the view that the
defendant is not entitled for any relief and no substantial questions of
law has been made out by the appellant/defendant to interfere with the
well considered judgment and decree rendered by the Courts below
and accordingly, the Second Appeal stands dismissed. The defendant is
directed to vacate the premises and surrender the same on or before
28.02.2022, failing which, the defendant is entitled for seeking the help
of the local police to evict him. No costs.
08.12.2021
Index : Yes/No
Internet : Yes/No
ps
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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S.A(MD)No.226 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Sub Court,
Tiruchendur.
2.The District Munsif Court,
Srivaigundam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.226 of 2021
08.12.2021
https://www.mhc.tn.gov.in/judis
