Madras High Court
P.T.Dhinakar vs K.Ashokumar on 17 April, 2023
CMA Nos.2716 to 2719 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.04.2023
CORAM
THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
CMA Nos.2716 to 2719 of 2022
P.T.Dhinakar ... Appellant
versus
K.Ashokumar ... Respondent
Prayer: Civil Miscellaneous Appeal filed against the fair and decretal order
dated 18.11.2022 in I.A.Nos.6, 7, 4 and 5 of 2022 in C.O.S.No.3 of 2022 on the
file of the learned Principal District Court, Nagapattinam.
For the Appellant :: Mr.N.Manoharan
For the Respondents :: Mr.K.Sukumaran,
Assisted by Mr.M.K.Subramanian
COMMON JUDGMENT
(Made by the Hon'ble Acting Chief Justice)
These appeals have been directed against the fair and decretal order
dated 18.11.2022 in I.A.Nos.6, 7, 4 and 5 of 2022 in C.O.S.No.3 of 2022, on the
file of learned Principal District Court, Nagapattinam.
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CMA Nos.2716 to 2719 of 2022
2. The suit property measuring an extent of 9,004 sq.ft. in T.S.No.103/1
and 14,518 sq.ft. in T.S.No.103/2, totaling 23,522 sq.ft. of land, with Devi Theatre
and other appurtenance therein at Block 3, Ward 3, Nagapattinam Town, was
purchased by the appellant, vide sale deed dated 02.04.2008. According to the
appellant, he spent a sum of Rs.85 lakh for the purpose of renovating the theatre
and was running it till 2016. Thereafter, the appellant settled at Coimbatore.
3. The appellant entered into a lease agreement, dated 22.09.2018, with
the respondent, for a period of 48 months on a daily rent of Rs.3,600/-, which
shall be enhanced after completion of two years. At the time of handing over the
theatre to the respondent, it was fully air conditioned with excellent infrastructure.
The agreement was that the respondent should pay a daily rent of Rs.3,600/-
and till 22.09.2022, the respondent was bound to pay Rs.53,78,400/- whereas
he has paid only a sum of Rs.20,99,850/-. There exists a balance of
Rs.32,78,550/-. Therefore, the appellant thought of selling the theatre to the
second respondent.
4. In the meanwhile, the respondent filed a civil suit in C.O.S.No.3 of 2022
on the basis of fraudulent unregistered lease deeds, by committing an act of
impersonation and forgery, as if the appellant renewed the lease on 21.08.2019,
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CMA Nos.2716 to 2719 of 2022
21.07.2020, 21.06.2021 and 21.05.2022. However, according to the appellant,
on 21.05.2022, he was in Singapore. In support of the said submission, learned
counsel for the appellant has produced before us, a copy of the passport. A
perusal of the same shows that the appellant left India on 16.05.2022 and
returned only on 22.05.2022, from Singapore. Therefore, it was the claim of the
appellant that the allegation of executing lease deed dated 21.05.2022 with
monthly rent of Rs.1000/-, was nothing but a fraudulent claim.
5. Coming to know of the forged lease deed, the appellant immediately
gave a complaint against the respondent to the police on 26.08.2022, which was
registered in FIR No.22 of 2022, for offences under Sections 420, 468 and 471
IPC. The respondent filed an application for anticipatory bail before learned
Principal Sessions Judge, Nagapattinam, and the same was dismissed on
07.09.2022. The respondent approached this Court and filed an application for
anticipatory bail and the same was also dismissed on 17.10.2022. In the
meanwhile, the respondent was arrested on 14.10.2022 and he moved an
application for bail before the Principal Sessions Court, Nagapattinam, and the
same was dismissed on 01.11.2022. Again, the respondent moved this Court for
bail and this Court granted bail on 07.11.2022.
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CMA Nos.2716 to 2719 of 2022
6. When the finding recorded by learned Principal Sessions Judge, holds
that the respondent has committed forgery by executing unlawful lease deeds
forging the signature of the appellant, the same Court sitting in the civil side has
granted the interim orders. Aggrieved thereby, the present appeals have been
filed.
7. Mr.N.Manoharan, learned counsel for the appellant submitted that it is
an admitted fact that the respondent had executed lease deed dated
22.09.2018, for a daily rent of Rs.3,600/-. Bank statement of the City Union
Bank, Nagapattinam Branch, clearly shows that the respondent has been
regularly depositing the daily rent. The respondent cannot claim that the daily
rent was only Rs.1000/-, when he was initially paying a sum of Rs.3600/-.
8. The lease deed dated 22.09.2018 has been prima facie found to be
forged by learned Principal Sessions Court while dismissing both the anticipatory
bail and bail applications. Contrary to the reasons stated therein, the very same
learned Judge sitting on the civil side, has passed the interim orders.
9. In support of his submission that the appellant was out of country on
21.05.2022, Mr.N.Manoharan, learned counsel, has produced before us a copy
of the passport marked as Ex.R-1, and demonstrated that the appellant was out
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CMA Nos.2716 to 2719 of 2022
of India between the period 16.05.2022 and 22.05.2022. This fact clearly shows
that the lease agreement dated 21.05.2022 has not been executed by the
appellant as alleged by the respondent. Since these material aspects have been
completely overlooked by learned trial Judge, the impugned fair and decretal
orders are liable to be set aside by directing the respondent to handover the
cinema theatre.
10. Learned counsel has relied on the judgment in Mahadeo Savlaram
Shelke and ors. vs. Pune Municipal Corporation and Anr. (1995) 3 SCC 33,
wherein the Hon'ble Supreme Court has referred to the earlier order in Shiv
Kumar Chadha vs. Municipal Corporation of Delhi (1993) 3 SCC 161, wherein it
was observed that Court should be always willing to extend its hand to protect a
citizen who is being wronged or is being deprived of a property without any
authority in law or without following the procedure which are fundamental and
vital in nature.
11. Again, referring to the judgment in Maria Margarida Sequeira
Fernandes and ors. vs. Erasmo Jack De Sequeira, through LRs, (2012) 5 SCC
370, learned counsel argued that caretaker, watchman or servant can never
acquire interest in the property irrespective of his long possession. The caretaker
or servant has to give possession forthwith on demand. The Court has also
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CMA Nos.2716 to 2719 of 2022
observed that the protection of the Court can only be granted or extended to the
person who has valid, subsisting rent agreement, lease agreement or license
agreement in his favour.
12. In the present case, admittedly, the appellant is the owner of the
property in question. It is also an admitted case that the respondent had taken
the cinema theatre on lease. We find that the lease was granted vide
agreement dated 22.09.2018 for a period of four years, which has already
expired. Only based on forged lease agreement, the lease is contested to be
extended. When there is no agreement executed between the appellant and the
respondent, learned trial Judge ought to have dismissed the interlocutory
applications and directed the respondent to handover the theatre. On the
contrary, the impugned orders have been passed, which need to be set aside.
13. Mr.Sukumaran, learned counsel for the respondent submitted that the
arguments advanced by learned counsel for the appellant that the lease deed
dated 21.05.2022 is a forged document, is a matter for trial. The question of
forgery also needs to be examined by the trial court on production of oral and
documentary evidence. The argument that the appellant was out of India during
that particular point of time, has to be looked into by the competent trial court.
Therefore, the arguments advanced by learned counsel for the appellant that a
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CMA Nos.2716 to 2719 of 2022
direction should be issued to the respondents to handover the theatre during the
period of lease agreement is unacceptable.
14. We are unable to accept the said arguments for the following reasons:
(a) The lease deed dated 22.09.2018 was
executed for a period of four years, and the daily rent
of the theatre fixed at Rs.3,600/-. The respondent
was also honouring the terms and conditions of the
lease agreement and has been depositing the daily
rent in bank. The bank statement produced before us
issued by the City Union Bank, Nagapattinam Branch,
clearly shows that the respondent has been paying
Rs.3,600/- towards daily rent. When in the year 2018,
the respondent was paying the daily rent of
Rs.3,600/-, it is not known how it can be as as low as
Rs.1,000/- in the year 2022.
(b) Secondly, regarding the subsequent lease
renewal agreement dated 21.05.2022, it has been
demonstrated before us that the appellant was in
Singapore between 16.05.2022 and 22.05.2022.
Therefore, it is clear that the document dated
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CMA Nos.2716 to 2719 of 2022
21.05.2022 is a forged one. A perusal of the passport
placed before us, marked as Ex.R-1 before the trial
court, clearly falsifies the case of the respondent.
Even for the naked eye, the difference in signatures
of the appellant in the forged lease/renewal
agreements is very much visible.
(c) Moreover, when learned Trial Judge has
rejected the case of the respondent for grant of
anticipatory bail and bail, it is not known how the
same learned Judge has passed the impugned fair
and decretal order in favour of the person, who has
forged the signature of the appellant in the lease
deed.
(d) The respondent could not produce a shred
of paper to support his case that the rent was only
Rs.1000/-. Therefore, absolutely we have no
hesitation whatsoever in concluding that the suit filed
by the respondent is by playing fraud on Court by
producing forged and concocted documents. There is
no prima facie case at all in favour of the respondent.
Hence, the respondent does not deserve the interim
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CMA Nos.2716 to 2719 of 2022
orders, as granted by the trial court and therefore, all
these four appeals are allowed, vacating the interim
orders.
(e) In normal course, we would have stopped
with the vacating of interim orders. But in the case on
hand, the respondent had the audacity to file the
present suit on the basis of concocted and forged
documents. The Hon'ble Supreme Court of India in
S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 ,
has held as follows:
“5..... The courts of law are meant for imparting
justice between the parties. One who comes to the
court, must come with clean hands. We are
constrained to say that more often than not, process
of the court is being abused. Property-grabbers, tax-
evaders, bank-loan-dodgers and other unscrupulous
persons from all walks of life find the court-process a
convenient lever to retain the illegal gains indefinitely.
We have no hesitation to say that a person, who's
case is based on falsehood, has no right to approach
the court. He can be summarily thrown out at any
stage of the litigation.”
(f) Further, under somewhat similar
circumstances, where the possession of the property
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CMA Nos.2716 to 2719 of 2022
was not through legal means, in Maria Margarida
Sequeira Fernandes and ors. vs. Erasmo Jack De
Sequeira, through LRs, (2012) 5 SCC 370, The
Hon'ble Supreme Court of India has held thus:
“98. In this view of the matter, the impugned
judgment of the High Court as also the trial court
deserve to be set aside and we accordingly do so.
Consequently, this Court directs that the possession
of the suit premises be handed over to the
appellant, who is admittedly the owner of the suit
property.”
(g) In that view of the matter, we have to direct
the respondent to forthwith surrender the possession
of the suit property/theatre to the appellant, within a
week’s time, from the date of receipt of the copy of
this Order.
(h) For indulging in this frivolous litigation, we
also hold that the respondent is liable to pay a cost of
Rs.1,00,000/- (Rupees One lakh only) to the
appellant, within a week’s time from the date of
receipt of a copy of this judgment.
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CMA Nos.2716 to 2719 of 2022
15. In the result,
(i) CMA Nos.2716 to 2719 of 2022 shall stand allowed and
the impugned common order passed by learned Principal District
Judge, Nagapattinam, in I.A.Nos.6, 7, 4 and 5 of 2022 in
C.O.S.No.3 of 2022, dated 18.11.2022, shall stand set aside and
the said I.A.Nos.6, 7, 4 and 5 of 2022 in C.O.S.No.3 of 2022, dated
18.11.2022 shall stand dismissed;
(ii) The respondent is directed to handover the possession
of the theatre/the suit scheduled property, to the appellant, within a
week’s time, from the date of receipt of a copy of this judgment;
(iii) The respondent shall pay the cost of Rs.1,00,000/-
(Rupees One lakh only) as costs to the appellant;
(iv) We direct the trial court to take up the suit and dispose
of the same in accordance with law, within a period of three months
from the date of receipt of a copy of this judgment.
(vi) CMP Nos.21213, 21217, 21212, and 21211 of 2022 are
closed.
(T.R., ACJ.) (D.B.C., J.)
17.04.2023
Index : Yes/No
Neutral Citation : Yes/No
tar
Note: Issue order copy on 28.04.2023
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CMA Nos.2716 to 2719 of 2022
T.RAJA, ACJ,
and
D.BHARATHA CHAKRAVARTHY, J.
(tar)
To
The Principal District Court, Nagapattinam.
CMA Nos.2716 to 2719 of 2022
17.04.2023
https://www.mhc.tn.gov.in/judis
