Madras High Court
Thiruvengadam vs Panchanathan on 12 November, 2021
S.A.(MD)No.698 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.11.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
S.A.(MD)No.698 of 2021
and
C.M.P.(MD)No.9249 of 2021
Thiruvengadam ... Appellant/ Appellant / Defendant
Vs.
Panchanathan ... Respondent / Respondent / Plaintiff
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, against the judgment and decree, dated 09.02.2021 made in A.S.No.
49 of 2017 on the file of the Principal Subordinate Judge, Kumbakonam,
confirming the Judgment and decree, dated 06.04.2017, made in O.S.No.
105 of 2014, on the file of the Principal District Munsif, Kumbakonam.
For Appellant : Mr.I.Velpradeep
1
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.698 of 2021
JUDGMENT
The appeal is directed against the judgment and decree, dated
09.02.2021 made in A.S.No.49 of 2017, on the file of the learned Principal
Subordinate Judge, Kumbakonam, confirming the judgment and decree,
dated 06.04.2017, made in O.S.No.105 of 2014, on the file of the learned
Principal District Munsif, Kumbakonam.
2. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
3. The averments made in the plaint, in brief, are as follows:-
The suit property originally belongs to the plaintiff and the
defendant was a tenant under him and executed a lease deed, dated
01.01.1995. The defendant was running a Tea Stall in the suit property,
even after expiry of the lease period. Since the building was in a dilapidated
condition, the plaintiff wanted to construct a pucca building and for his
son's business purpose, he required the building. The plaintiff has issued a
legal notice on 03.08.2012, by terminating the lease agreement entered
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.698 of 2021
between himself and the defendant and calling upon to hand over the vacant
possession on or before 01.10.2012.
4. The averments made in the written statement, in brief, are as
follows:-
The suit building was in a good condition and the plaintiff was
owning similar non-residential building just opposite to the suit building
wherein, the petitioner's son doing business under the name and style of
'Raja Store' and that the alleged requirement of the building for his son's
business is not a bona fide one and it was made only for the purpose of
evicting the defendant. The defendant is not liable to hand over the
possession of the suit property.
5. The plaintiff, in support of his case, before the trial Court,
examined himself as P.W.1 and one Sambandamoorthy as P.W.2, and marked
Exs.A1 to A6. On the side of the defendant, he examined himself as D.W.1
and no document was marked.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.698 of 2021
6. On the basis of the above pleadings, the trial Court framed
necessary issues viz.,
1. Whether the plaintiff is entitled for the
relief for recovery of possession?
2. Whether the plaintiff is entitled for
arrears of rent?
3. Whether the plaintiff is entitled for
future mesne profits?
4. To what other relief?
7. Relying on the documents filed by the plaintiff viz., Exs.A1 to
A6, the trial court agreed with the case of the plaintiff and decreed the suit
as prayed for with costs.
8. Aggrieved by the judgment and decree of the trial Court, the
defendant preferred an appeal in A.S.No.49 of 2017, before the learned
Principal Subordinate Judge, Kumbakonam. After determining necessary
points for consideration, the lower Appellate Court has also very much
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.698 of 2021
relied on the documents referred to and accepted by the trial Court,
consequently confirmed the decree of the trial Court and dismissed the
appeal.
9. Against the concurrent findings of the courts below the
unsuccessful defendant filed the present appeal before this Court.
10. The learned counsel appearing for the appellant / defendant
would submit that the son of the plaintiff was doing business, that too,
opposite to the suit building. Hence, the requirement of building in respect
of the suit property for his son's business is not a genuine one. Further, the
courts below failed to note that the building was very strong and not at all
require for immediate demolition and it is seen from the evidence of
plaintiff that “tHf;F fl;olj;jpy; Kd;gFjpapYk; cl;gFjpapYk; jiuapy; ily;!;
Bghl;L ed;whf itj;Js;shh; vd;why; rhpjhd;.” Therefore, the building is not in a
dilapidated condition and the defendant is regularly running the tea stall.
Furthermore, the defendant regularly paying the rent and it could be seen
from the evidence of the plaintiff that “tHf;F jhf;fy; bra;tjw;F Kd;g[tiu
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.698 of 2021
gpujpthjp thlifia rhptu brYj;jp te;Js;shh; vd;why; rhpjhd;.” The Court below
erred in holding that during cross-examination of plaintiff, the defendant did
not raise any objection and also put any question regarding the validity of
the legal notice issued by the plaintiff against the defendant under Ex.A12.
Further, the lower Court came to a wrong conclusion that the plaintiff has
clearly complied with the legal requirements in getting an order or eviction
of the defendant from the suit building, without proving the averments of
willful default. Hence, he prayed for allowing this appeal.
11. I have carefully considered the submission made by the learned
counsel for the defendant / appellant and perused the materials available on
record.
12. Admittedly, it is not in dispute that the defendant had been in
possession of the suit property as a tenant. The defendant did not raise any
objection with regard to legality of the notice issued by the plaintiff against
the defendant under Section 106 of Transfer of Property Act. The notice,
dated 23.08.2021, sent by the plaintiff as against the defendant, was marked
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.698 of 2021
as Ex.A2, wherein, the plaintiff has categorically terminated the lease
agreement, dated 01.01.1995, which admittedly entered into between the
plaintiff and the defendant and called upon the defendant to vacate and hand
over vacant possession on or before 01.10.2012. The defendant has not
raised any specific objection with regard to the validity of the notice issued
by the plaintiff. Therefore, the plaintiff has complied with the legal
requirements in getting an order or eviction of the defendant in respect of
the suit building. The plaintiff has alleged that the defendant has not paid
the rent from August, 2012. On the other hand, it is the contention of the
defendant that he has paid the rent till filing of the suit. It is settled law that
the onus would always be on a tenant to prove that he paid the rent without
any default. No evidence has been adduced by the defendant to prove that
he paid the rent regularly till the filing of the suit. Therefore, it is clear that
the plaintiff has proved the fact that the defendant has not paid the rent and
the plaintiff is entitled to receive arrears of rent. Hence, both the trial Court
a well as appellate Court have rightly rejected the claim made by the
defendant and there is no interference required by this Court and the second
appeal is liable to be dismissed, at the admission stage itself holding that
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.698 of 2021
there is no substantial question of law arises.
13. In the result, the Second Appeal is dismissed, confirming the
judgment and decree, dated 09.02.2021 made in A.S.No.49 of 2017, on the
file of the learned Principal Subordinate Judge, Kumbakonam, confirming
the Judgment and decree, dated 06.04.2017, made in O.S.No.105 of 2014,
on the file of the learned Principal District Munsif, Kumbakonam. However,
there shall be no order as to costs. Consequently, the connected
Miscellaneous Petition is also dismissed.
12.11.2021
Index : Yes/No
Internet : Yes/No
akv
To
1.The Principal Subordinate Judge,
Kumbakonam.
2.The Principal District Munsif,
Kumbakonam.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.698 of 2021
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.698 of 2021
V.BHAVANI SUBBAROYAN,J.
akv
JUDGMENT MADE IN
S.A.(MD)No.698 of 2021
12.11.2021
https://www.mhc.tn.gov.in/judis
