Madras High Court
Jaya Radhakrishnan vs The Official Trustee Of Tamil Nadu on 22 August, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.08.2023
CORAM
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
S.A.No.925 of 2012
and M.P.No.1 of 2012
1.Jaya Radhakrishnan
2.R.Ethiraj (Died)
3.R.Santhanam
4.Nirmala
5.Leela (died)
6.R.Loganathan
7.E.Selvakumari
8.E.Ramesh
9.R.Dhanalakshmi
10.E.Jayakumar
11.E.Bhakiyalakshmi
12.E.Parthiban ... Appellants
A2 and A5 died, A7 to A11 are brought on records as LRs of
deceased A2 and A12 is brought on record as LT of deceased A5 vide
Court order dated 09.08.2023 made in C.M.P.Nos.18071 and 18061
of 2023 in S.A.No.925 of 2012.
Vs
1.The Official Trustee of Tamil Nadu,
Representing the Trust Estate
of M.M.Charities,
Additional City Civil Court Buildings,
High Court Buildings, Chennai - 600 104.
1/8
https://www.mhc.tn.gov.in/judis
2.V.Durairaj
3.3.D.Vasanthakumar ... Respondents
PRAYER:-This Second Appeal has been filed under Section 100 of
Civil Procedure Code to call for the records pertaining to the
judgment and decree passed in A.S.No.613 of 2007 dated 05.03.2010
on the file of the learned V-Additional Judge, City Civil Court,
Chennai and set aside the same and restore the judgment and decree
passed in O.S.No.4369 of 1986 dated 31.01.2007 on the file of the
learned XII Assistant Judge, City Civil Court, Chennai.
For Petitioners : Mr.R.Natarajan
For Respondents: Ms.R.Madhumith for Official Trustee
for Mr.E.V.Chandru
: R2 - Died
: R3 - No appearance
ORDER
This appeal arises against the judgment passed in A.S.No.613
of 2007, dated 05.03.2010 on the file of the learned V-Additional
Judge, City Civil Court, Chennai
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2. O.S.No.4369 of 1986 is a suit for ejectment. In the said
suit for ejectment, the tenant claimed right under the City Tenant
Protection Act, 1921. The learned trial Judge allowed the application
under Section 9 of the Act and simultaneously dismissed the suit.
This is contrary to the procedure consistently laid down by this Court.
The procedure, being the application under Section 9 after it is being
allowed, the suit must be adjourned sine die. Once the proceedings
under Section 9 are concluded either in favour of the tenant or in his
default in favour of the landlord, the suit must be taken up for
disposal. Giving a go-by to this principle, the trial Court had
dismissed the suit.
3. The lower Appellate Court following the procedure laid
down by this Court, had allowed the appeal and restored the suit on to
the file of the learned trial Judge. He held that the tenant is not
entitled to the protection under the City Tenants Protection Act, 1921.
Today, by an order in C.R.P.No.3106 of 2012, I have confirmed the
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order passed by the lower Appellate Court in C.M.A.No.134 of 2007,
dated 05.03.2010. In that proceedings, I have concluded that the
tenant is not entitled to the benefits under the City Tenants Protection
Act.
4. I have heard this appeal on the following substantial
questions of law.
1. Whether the lower Appellate Court has
not framed correct point for consideration as required
under Order XLI Rule 31 C.P.C.?
2. Whether the lower Appellate Court has
committed an error in granting a decree as prayed for
in the plaint much against its observation that the suit
ought to have been kept pending till the compliance
with the provisions of Section 9 of the City Tenants
Protection Act?
3. Whether the lower Appellate Court has
committed an error in decreeing the suit solely on the
ground of dismissal of the application under Section 9
of the City Tenant's Protection Act without affording
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an opportunity to the contesting defendants to lead
evidence in the suit resisting the claim of the plaint for
ejectment?"
5. On the first question of law that the learned Appellate
Judge did not frame the correct point for consideration, I have already
held that it is the duty of the trial Court to keep the ejectment suit
pending till the application under Section 9 is disposed of. Therefore,
the point of consideration framed by the lower Appellate Court is
correct.
6. In so far as the second question of law is concerned, it
has been the consistent view of this Court that till the petition under
Section 9 application is disposed of in its entirety, the suit cannot be
taken up for hearing. If the application under Section 9 is allowed and
the tenant pays the entire amount fixed by this Court, only thereafter,
the suit must be dismissed. In case, the tenant does not pay the
amount, then the trial Court necessarily will have to take up the
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ejectment suit for consideration and pass a decree. Therefore, the
second question of law also does not arise for consideration.
7. In so far as the third question of law is concerned, the
learned lower Appellate Court has decreed the suit holding that
Section 9 does not apply to the tenant.
8. Here is a case, where the relationship between the parties
are not denied. On the contra, accepting the relationship of landlord
and tenant, the tenant had filed an application under Section 9, which
unfortunately went against him. Once Section 9 application has been
dismissed, all that remains to see is whether a valid notice terminating
the lease has been issued by the landlord to the tenant.
9. I have to take note of the fact that after the amendment
to Section 106 of Transfer of Property Act, 1882, the question of
validity of the notice period has been removed as a defence from the
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statute. The notice dated 20.03.1986 had terminated the tenancy of
the residential property giving more than a months time with the
month ending in April 1986. Therefore, the notice issued under
Section 106 of the Transfer of Property Act, 1882 is valid.
10. Once these grounds have been found in favour of the
landlord, nothing further remains for consideration of the Court
below. Therefore, all the three substantial questions of law framed are
answered against the Appellants and in favour of the respondents.
11. In fine, the judgment and decree in A.S.No.613 of 2007,
dated 05.03.2010 in reversing the judgment and decree of the XII
Assistant City Civil Court in O.S.No.4369 of 1986 dated 31.07.2007
stands confirmed. The suit stands decreed. Time for eviction is six
months.
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12. Accordingly, this Second Appeal stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
22.08.2023
gba
Index: Yes/ No
Speaking order: Yes/ No
Neutral Citations: Yes/ No
To
1. The V-Additional Judge,City Civil Court, Chennai.
2. Record Keeper
VR Section
High Court of Madras, Chennai.
https://www.mhc.tn.gov.in/judis
V. LAKSHMINARAYANAN,J.
Gba
S.A.No.925 of 2012
and M.P.No.1 of 2012
22.08.2023
(2/2)
https://www.mhc.tn.gov.in/judis
