Madras High Court
A.Mohandoss vs Manju Bai on 12 July, 2021
S.A.No.507 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.07.2021
CORAM:
THE HONOURABLE Mr.JUSTICE M.SUNDAR
S.A.No.507 of 2021
and
C.M.P.No.10142 of 2021
A.Mohandoss
S/o.Antony ... Appellant
Vs.
1. Manju Bai
W/o. Late Parsan Chand
2. Vikash Kumar
S/o. Late Parsan Chand ... Respondents
Prayer:
Second Appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
25.09.2019 passed by the learned XVI Additional Judge, City Civil Court,
Chennai in A.S.No.128 of 2019 which was dismissed, thereby confirming the
judgment and decree dated 1.10.2018 passed by the learned XI Assistant
Judge, City Civil Court, Chennai, in O.S.No.6129 of 2016.
For Appellant : Mr.B.K.Sreenivasan
For Respondents : Mr.T.Saikrishnan
***
1/14
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
JUDGMENT
Age of the lis out of which the captioned second appeal arises is more
than 4½ years as a plaint was presented by 'appellant' in captioned second
appeal [hereinafter 'plaintiff' for the sake of convenience and clarity] on
09.12.2016 and this plaint was taken on file as O.S.No.6129 of 2016 by the
'XI Assistant Judge's Court, City Civil Court at Chennai' [hereinafter 'trial
Court' for the sake of convenience and clarity].
2. In the aforementioned suit, two persons (mother and son) were
arrayed as defendants 1 & 2 respectively. Defendants 1 and 2 are
respondents 1 and 2 respectively in captioned second appeal, from hereon in
this judgment, 'respondents 1 and 2' shall be referred to as 'defendants 1 and
2' respectively and 'defendants' collectively for the sake of convenience and
clarity.
3. Immovable property described in the schedule to plaint reads
'No.19-A, Thiruvenkatapuram Main Road, Choolaimedu, Chennai-600 094
also identified as Door No.13/2, Khan Street, Choolaimedu, Chennai-600
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
094' which shall hereinafter be referred to as 'suit property' for the sake of
convenience and clarity.
4. Prayer in the aforementioned suit is for permanent injunction
restraining the defendants from disturbing plaintiff's peaceful possession and
enjoyment of suit property.
5. It is the case of plaintiff that he is a tenant in the suit property; that
there are two tenancies i.e., two demised portions, one demised portion is
first and third floors and another demised portion is second floor (to be
noted, this Court is informed about these two tenancies in the hearing today);
that the plaintiff is an agreement holder vide a sale agreement dated
05.09.2007 qua one P.Parsanchand; that defendants on receipt of suit
summons entered appearance through counsel, filed a written statement
dated 08.02.2017, resisted the suit and also made a counter claim; that
defendants resisted the suit primarily by disputing 05.09.2007 sale agreement
said to have been executed by P.Parsanchand whom this Court is informed
died on 07.04.2009; that the counter claim made by defendants is regarding
permanent injunction restraining plaintiff from making any
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
alternations/changes/carrying renovation/demolishing of any portion in suit
schedule property; that the trial Court framed issues and parties went to trial
on the issues framed; that after full contest, trial Court vide judgment and
decree dated 01.10.2018 dismissed plaintiff's suit as well as the counter
claim of defendants; that this Court is informed that defendants did not carry
the matter in appeal qua dismissal of their counter claim and they have given
legal quietus to dismissal of their counter claim; that plaintiff carried the
matter in appeal by way of a regular first appeal under Section 96 of 'The
Code of Civil Procedure, 1908' [hereinafter 'CPC' for the sake of
convenience and clarity] vide AS.No.128 of 2019 on the file of 'XVI
Additional Judge's Court, City Civil Court, Chennai' [hereinafter 'First
Appellate Court' for the sake of convenience and clarity] and the First
Appellate Court after full contest, in and by judgment and decree dated
25.09.2019 dismissed the first appeal of plaintiff and confirmed the non-
suiting of plaintiff by the trial Court.
6. This Court, having set out broad facts imperative for appreciation of
judgment and the trajectory the matter has taken in two tiers/two Courts in
reaching this Court vide captioned second appeal, now proceeds to capture
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
what unfurled in the hearing today.
7. Captioned second appeal and CMP therein are listed under the cause
list caption 'FOR ADMISSION'.
8. Mr.B.K.Sreenivasan, learned counsel on record for plaintiff
(appellant in captioned second appeal) and Mr.T.Saikrishnan, learned
counsel who has lodged caveat on behalf of two defendants (respondents in
captioned second appeal) are before this Virtual Court.
9. Both the learned counsel consented to captioned main second appeal
being taken up and disposed of today itself. It is on such consent, that the
captioned main second appeal was taken up.
10. From the judgments of trial Court and First Appellate Court, it
comes to light that the tenancy of plaintiff, plaintiff's possession of suit
property are not in dispute, but the sale agreement dated 05.09.2007 said to
have been executed by P.Parsanchand and whether defendants are legal heirs
entitled to step into the shoes of P.Parsanchand are the contentious issues. To
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
be noted, plaintiff contended in the First Appellate Court that the expression
'except due process of law' has been omitted inadvertently in the prayer in
the trial Court and plaintiff requested the First Appellate Court to mould the
relief and say that the plaintiff's possession will be protected to the extent
that it will not be disturbed de hors due process of law, but this was
negatived. This Court is informed that the expression 'except due process of
law' was hand written in the plaint (prayer paragraph) and later scored off.
As already alluded to supra, counter claim made by defendants was
dismissed by trial Court, there is no appeal against the same and it has been
given legal quietus. Therefore, the entire matter now turns on the expression
'except due process of law' in the plaint prayer.
11. Before proceeding further, some other facts which were brought to
the notice of this Court in the course of hearing need to be recorded for the
limited purpose of completing narrative of facts.
12. This Court is informed that the defendants have filed two rent
control original petitions vide R.C.O.P.Nos.1317 and 1318 of 2015, both on
the file of XIII Small Causes Court, City Civil Court, Chennai, against the
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
plaintiff qua suit property seeking eviction on various grounds under the
erstwhile Rent Control Act namely, Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960 (Tamil Nadu Act XVIII of 1960)' [hereinafter 'Rent
Control Act' for the sake of convenience and brevity]. Two RCOPs owing to
two demised portions i.e., two tenancies is what this Court is informed.
13. This Court is informed that the above RCOPs are pending and they
are scheduled to be taken up tomorrow. This Court is also informed that
there have been some civil revision petitions pertaining to RCOPs and some
observations have been made by this Court, but it may not be necessary to
delve into those matters owing to the nature of judgment by which the
captioned second appeal is now being disposed of. Suffice to say that above
said RCOPs will proceed to their logical end in accordance with law and in
accordance with directions if any given by this Court. Another fact that was
brought to the notice of this Court is, the plaintiff had filed a civil suit on the
Original Side of this Court vide C.S.No.266 of 2016 with a prayer for
specific performance which was predicated on aforementioned 05.09.2007
sale agreement, after alteration of pecuniary jurisdiction this suit was
transferred from Original Side of this Court to City Civil Court and the same
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
is now pending on the file of XVIII Additional Judge's Court, City Civil
Court, Chennai as O.S.No.2169 of 2019. This Court is also informed that an
interlocutory order made in the suit was carried in appeals by way of
O.S.A.Nos.127 to 129 of 2017 (intra Court appeals) and OSAs were disposed
of by way of a consent order fixing a time frame for disposal of the suit in
the City Civil Court and the suit is now governed by the same.
14. Now that the defendants have kick started legal proceedings qua
suit property i.e., two demised properties seeking eviction in a Court of
appropriate jurisdiction, possession of plaintiff qua suit property and his
eviction will be governed by orders that are made in the Rent Control
proceedings and their final conclusion in statutory appeals and revisions if
any. This means that the eviction of plaintiff from suit property if at all and if
that be so, will be only in accordance with the due process of law. This
draws the curtains on the entire controversy. This is more so, as learned
counsel for plaintiff on instructions, submits that a decree saying that the
plaintiff will not be dispossessed qua the suit property i.e., two demised
portions except/de hors due process of law will suffice and that is all that the
plaintiff wants. This submission is buttressed by the plea taken by plaintiff
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
in the First Appellate Court and the stated position of the plaintiff in the First
Appellate Court wherein the plaintiff sought for moulding of relief which has
already been alluded to supra. Notwithstanding very many averments,
grounds and notwithstanding three questions being proposed as substantial
questions of law in the memorandum of grounds of appeal, both the learned
counsel agreed that the captioned second appeal can be disposed of on one
substantial question of law that is formulated by this Court and the same is as
follows:
'Whether a suit by a tenant to protect possession qua
demised property can be decreed by moulding the prayer and
saying that dispossession shall not be de hors due process of
law, when the plaintiff's pleadings is that he is a agreement
holder with lessor/landlord qua suit property?'
15. Both the aforementioned learned counsel very fairly submit that
eviction qua suit property if at all and if that be so will be subject to outcome
of the rent control proceedings and final culmination of the same is subject to
appeals and revisions if any. Both learned counsel also very fairly submit
that the question regarding sale agreement and specific performance has to
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
be decided on its own merits and in accordance with law vide
aforementioned O.S.No.2169 of 2019 now pending on the file of the XVIII
Additional Judge's Court, City Civil Court, Chennai.
16. Therefore, answering the aforementioned substantial question of
law becomes a very simple task. The answer is in the affirmative. In other
words, the First Appellate Court or for that matter the trial Court can mould
the relief in cases of this nature and say that dispossession shall not be
de hors due process of law though the expression de hors due process of law
has not been mentioned in the prayer in the plaint or scored off but revived
by plaintiff as in this case. The reasons are two-fold. One reason is, there is
a residuary limb of prayer which provides for further or other reliefs that can
be made which the Hon'ble Court deems fit and proper in the circumstances
of this case. It is limb (c) in the prayer paragraph. The second reason is,
Courts' powers to mould the relief in cases of this nature is well settled, in
the light of the judgment of this Court in Angammal and 2 others Vs.
Komara Gounder and 2 others reported in (2002) 1 CTC 472 and in the
case on hand it would be innocuous moulding of relief as it is only to ensure
the rule of law.
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
17. This Court having answered the aforementioned substantial
question of law, for the purpose of clarity and specificity deems it
appropriate to set out that the captioned second appeal and CMP are disposed
of on the following terms:
(a) There shall be a decree of permanent injunction
restraining defendants from dispossessing the plaintiff's
possession qua suit property except/de hors due process of
law.
(b) Due process of law will include but not limited to
RCOP Nos.1317 and 1318 of 2015 on the file of the XIII
Small Causes Court, City Civil Court, Chennai, which are now
pending and subject to final outcome of the same i.e., subject
to appeals and revisions if any, if the rent control proceedings
are carried in appeal by way of statutory appeal or revision if
any. Though obvious, it is made clear that the same i.e.,
appeals/revisions if any will be dealt with on their own merits
and in accordance with law uninfluenced by this judgment.
(c) Aforementioned rent control proceedings will
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
proceed on their own merits and in accordance with law
without in any manner being influenced by this judgment and
will proceed in accordance with the directives if any issued by
this Court in civil revision petitions arising out of/pertaining
to the same. Though obvious, it is made clear and reiterated
that if there are any appeals or revisions, the same will be
dealt with on their own merits and in accordance with law.
(d) Plaintiff's prayer for specific performance qua suit
property will be subject to the outcome of O.S.No.2169 of
2019 on the file of XVIII Additional Judge's Court, City Civil
Court, Chennai (earlier C.S.No.266 of 2016 on the Original
Side of this Court) and final outcome of the same i.e., subject
to appeal if any which again will obviously be decided on its
own merits and in accordance with law untrammelled by this
judgment.
(e) Aforementioned suit will proceed in accordance with
directives given by Hon'ble Division Bench of this Court vide
a consent order dated 10.07.2017 made in O.S.A.Nos.127 to
129 of 2017.
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
(f) Though obvious it is made clear that the Rent
Controller or Civil Judge will proceed with the matters on
their own merits and in accordance with law subject only to
the directives issued in civil revision petitions and OSAs
completely uninfluenced or untrammelled by anything that has
been set in this judgment. To put it differently, all that have
been set in this judgment is only for the limited purpose of
disposal of the captioned second appeal and CMP therein on
the aforementioned limited consented terms.
18. Before parting with the matter, this Court places on record its
appreciation in a fair approach of both learned counsel in giving a closure to
the captioned second appeal.
19. For the convenience, it is reiterated that the captioned Second
Appeal and CMP are disposed of on terms set out infra. There shall be no
order as to costs.
12.07.2021
Speaking order: Yes/No
Index: Yes/No
Internet : Yes/No
mk
https://www.mhc.tn.gov.in/judis/
S.A.No.507 of 2021
M.SUNDAR.J.,
mk
To
1. XI Assistant Judge,
City Civil Court,
Chennai.
2. XVI Additional Judge,
City Civil Court,
Chennai.
S.A.No.507 of 2021
and
C.M.P.No.10142 of 2021
12.07.2021
https://www.mhc.tn.gov.in/judis/
