Madras High Court
A.C.S.Jayapaul vs The Church Of South India Trust ... on 21 December, 2021
S.A.No.1085 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.1085 of 2021
and
C.M.P.No.20543 of 2021
A.C.S.Jayapaul,
Nagai Christ Church,
CSI Church Compound,
Nethaji Road,
Nagapattinam Taluk & Munsif,
Nagapattinam ... Appellant
.Vs.
The Church of South India Trust Association,
Tiruchirappali-Thanjavur Diocese,
Rep. by its power agents,
(i)Lt.Col.S.S.Immanuel,
S/o.Mr.J.M.Schewarts,
Diocesan Treasures,
(ii)Rev.A.John Durai,
S/o.M.Asirvatham,
Clerical Secretary,
CSI Diocesean Office,
Puthur, Thiruchirapalli – 620 017. ... Respondent
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code against the Decree and Judgment dated 23.02.2021 passed in
A.S.No.34 of 2016 on the file of Subordinate Court, Nagapattinam,
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S.A.No.1085 of 2021
confirming the Decree and Judgment dated 30.01.2014 passed in
O.S.No.192 of 2010 on the file of District Munsif Court at Nagapattinam.
For Appellant : Mr.A.Prabhakaran
JUDGMENT
The Second Appeal is directed against the Judgment dated
23.02.2021 passed in A.S.No.34 of 2016 on the fie of Subordinate Court,
Nagapattinam, confirming the Decree and Judgment dated 30.01.2014
passed in O.S.No.192 of 2010 on the file of District Munsif Court at
Nagapattinam.
2.The Respondent/Plaintiff filed a suit against the
Appellant/Defendant for vacating and delivering the vacant possession
of the suit property, to pay the past damages for wrong use and
occupation from 01.07.2009, till the date of the suit and for future
damages.
3.The case of Respondent is that Appellant became tenant under
Respondent in the suit property, for the monthly rent of Rs.600/- payable
on or before the 5th of every succeeding English calendar month. The
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S.A.No.1085 of 2021
tenancy is oral and is according to the English calender month.
Respondent is a Public Religious Trust and Public Charitable Institution
and the buildings owned by it, are exempted from the purview of the
Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 60 as
amended by Act 23 of 73. Respondent sent a notice to the Appellant on
09.06.2009, terminating the tenancy with the expiry of the tenancy month
June 2009 and requested the Appellant to vacate and deliver the vacant
possession of the suit property. Appellant received the notice and sent
reply dated 26.06.2009, with false and frivolous allegations. Appellant
has not chosen to vacate the premises and handover the possession to the
Respondent, forcing to file Suit.
4.Appellant filed written statement admitting that Respondent is
the owner of the suit property. However, suit filed for vacating the
Appellant from the suit property on the grounds on which the Suit was
filed have to be proved only by the Respondent. It is the case of the
Appellant that, he is a tenant in respect of suit property from the year
1973. Initially, he paid monthly rent of Rs.50/- and it has been enhanced
from time to time and lastly he was paying the monthly rent of Rs.600/-
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S.A.No.1085 of 2021
per month. Appellant was taking care of the maintenance of the suit
property. Though it was agreed to adjust the maintenance amount from
the rent, the Respondent has not honoured its commitment. Whenever
respondent demanded the suit property for the use of church, Appellant
handed over the possession of the suit property. The motive for filing
the Suit is that Appellant has established a Christian Assembly viz.,
Nagai Christ Assembly. Irritated against the establishment of Nagai
Christ Assembly, this suit was filed, only with a view to vacate the
Appellant from the suit property. Therefore, suit is liable to be
dismissed.
5.On the basis of the aforesaid pleadings, the trial Court framed
the following issues:
“(i)Whether the Plaintiff is entitled to get the relief of
delivery of vacant possession as prayed for?
(ii)Whether the Plaintiff is entitled to get to relief past and
future damages as prayed for?
(iii)To what other reliefs and order as to costs?”
6.During the trial before the trial Court, no oral and documentary
evidences produced on either side.
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S.A.No.1085 of 2021
7.On considering the case of the parties, the trial Court found that
there is jural relationship of landlord and tenant between the Respondent
and the Appellant and a valid notice of terminating the tenancy has been
given to the Appellant by the Respondent, terminating the tenancy from
the end of tenancy month of June 2009. Therefore, learned trial Judge
decreed the suit as prayed for.
8.Aggrieved against the judgment of the trial Court, the Appellant
preferred an Appeal in A.S.No.34 of 2016. The learned first Appellate
Judge also found that, there was valid termination of tenancy by the
Respondent and therefore, there is no reason to interfere with the
judgment of the trial Court and confirmed the judgment of the trial Court
and dismissed the Appeal.
9.Learned counsel for the Appellant canvassed this Second
Appeal, only on a short point, that is, Respondent has not chosen to
examine himself as witness or produced any documents, including
notice, terminating the tenancy and reply sent by the Appellant to
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S.A.No.1085 of 2021
substantiate the Respondent's case. It is the responsibility of the
Respondent to prove his case by producing appropriate evidence. The
fact that, no evidence adduced in this case, shows that Respondent has
failed to establish its case. Therefore, the judgment of the Courts below
have to be set aside and this Appeal has to be allowed.
10.From the pleadings set out by the parties in the Plaint and in the
written statement, it is evident that jural relationship of landlord and
tenant between Respondent and Appellant is admitted. Appellant also
admitted that he was paying monthly rent of Rs.600/- (Rupees six
hundred) per month, at the time of issuing termination notice. Appellant
has also not denied the issuance of notice dated 09.06.2009, terminating
the tenancy. Then it has to be assumed that appellant admitted the
issuance of lease termination notice. It is relevant to extract Order VIII
Rule 5 of CPC in support of this point:
“5. Specific denial— (1) Every allegation of fact in the
plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of
the defendant, shall be taken to be admitted except as
against a person under disability :
Provided that the Court may in it discretion require any
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S.A.No.1085 of 2021
fact so admitted to be proved otherwise than by such
admission.
(2) Where the defendant has not filed a pleading, it shall
be lawful for the Court to pronounce judgment on the
basis of the facts contained in the plaint, except as against
a person under a disability, but the Court may, in its
discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-
rule (1) or under sub-rule (2), the Court shall have due
regard to the fact whether the defendant could have, or
has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a
decree shall be drawn up in accordance with such
judgment and such decree shall bear the date on which
the judgment was pronounced.”
This Rule makes it clear that if the allegation of fact in the plea is not
denied specifically, it shall be taken to be admitted. Section 58 of Indian
Evidence Act deals with deemed admission as per rules and pleadings.
“58. Facts admitted need not be proved. No fact need to be
proved in any proceeding which the parties thereto their
agents agree to admit at the hearing, or which, before the
hearing, they agree to admit by any writing under their
hands, or which by any rule of pleading in force at the
time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the
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S.A.No.1085 of 2021
facts admitted to be proved otherwise than by such
admissions”
We found that under Order VIII Rule 5 CPC, if the allegation in the
Plaint is not specifically denied, it shall be deemed to have been
admitted.
11.Order XII Rule 6 of CPC is usefully extracted as follows:
"6.Judgment on admissions.
(1)Where admissions of fact have been made either in the
pleading or otherwise, whether orally or in writing, the Court
may at any stage of the suit, either on the application of any
party or of its own motion and without waiting for the
determination of any other question between the parties,
make such order or give such judgment as it may think fit,
having regard to such admissions.
(2)Whenever a judgment is pronounced under sub-rule (1) a
decree shall be drawn up in accordance with the judgment
and the decree shall bear the date on which the judgment was
pronounced."
It is clear from Order XII Rule 6 of CPC that when a party admits either
in the pleading or otherwise, the Court may at any stage of the Suit, give
such judgment as it may think fit, having regard to such admissions.
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S.A.No.1085 of 2021
12.In the case before hand, there is no dispute regarding the jural
relationship of landlord and tenant between Respondent and Appellant
and that valid notice, terminating the tenancy was given by the
Respondent to the Appellant, terminating the tenancy at the end of month
June 2009. What we have to consider is, whether a valid notice
terminating the tenancy was given under Section 106 of The Transfer of
Property Act, 1882. Admittedly, tenancy in this case is monthly tenancy.
Notice dated 09.06.2009, terminating the tenancy with expiry of tenancy
month of June 2009, giving 15 days time as required under Section 106
of the Transfer of Property Act, 1882 was given. Appellant has not
denied the issuance of notice nor challenged the validity or legality of
notice, terminating the tenancy. Thus, it has to be taken that valid notice,
terminating tenancy was given by the Respondent to the Appellant.
When that be the case, Appellant has no option, except to vacate the
premises. Both the Courts have found that valid notice, terminating the
tenancy was given to the Appellant by the Respondent and therefore,
Respondent is entitled for vacating the Appellant and for other reliefs.
Therefore, this Court finds no reason to differ from the views taken by
the Courts below. There is no substantial question(s) of law involved in
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S.A.No.1085 of 2021
the Second Appeal.
13.In fine, this Court confirms the Judgment dated 23.02.2021
passed in A.S.No.34 of 2016 by the learned Subordinate Judge,
Nagapattinam, confirming the Decree and Judgment dated 30.01.2014
passed in O.S.No.192 of 2010 by the learned District Munsif at
Nagapattinam. No costs. Consequently, connected Miscellaneous
Petition is also closed.
14.At the end of pronouncement of this judgment, learned counsel
for the Appellant prayed for reasonable time, for vacating the suit
property. Considering the request, Appellant is granted four months'
time, from today, for vacating and handing over possession of the suit
property to the Respondent.
21.12.2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes / No
sai
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S.A.No.1085 of 2021
To
1. The learned Subordinate Judge,
Subordinate Court,
Nagapattinam.
2. The learned District Munsif
Nagapattinam.
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S.A.No.1085 of 2021
G.CHANDRASEKHARAN, J.
sai
S.A.No.1085 of 2021
and
C.M.P.No.20543 of 2021
Dated: 21.12.2021
https://www.mhc.tn.gov.in/judis
