Sri Thiruvoteeswarar Free High ... vs Thiru S.Sivaprakasam
2023 Latest Caselaw 11145 Mad

                                                                           S.A.No.1475 of 2003

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                Dated : 24.08.2023

                                                       CORAM
                              THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
                                               S.A.No.1475 of 2003
                                            and CMP.No.20631 of 2022


                    Sri Thiruvoteeswarar Free High School Trust
                    represented by its sole Trustee Mr.T.R.Kannan (Died)
                    office at No,1, E.V.K.Sampath Salai,
                    VePery, Chennai,                                           ...Appellant

                    Substituted T.R.K.Saravana
                          vide Court order dated 15.02.2018 made in
                          CMP.No.22560 of 2017 in SA.No.1475 of 2003.

                                                         Vs.

                    Thiru S.Sivaprakasam
                    S/o.Thiru S.S.Moorthy,
                    Partner M/s.Elite Traders
                    At No.145, Broadway,
                    Chennai – 600 108.                                       ... Respondent
                    PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
                    Judgment and Decree dated 28.09.2001 made in A.S.No.276 of 2000 on the
                    file of the Court of Principal City Civil and Sessions Judge, Chennai
                    confirming the Judgment and Decree dated 25.07.1997 made in
                    O.S.No.9362 of 1991 on the file of the Court of V Assistant, City Civil
                    Judge, Chennai.



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                                                                                    S.A.No.1475 of 2003

                                     For Appellant      : Mr.G.Sugumaran

                                    For Respondent      : No representation


                                                        JUDGMENT

The appellant herein is the plaintiff/Sri Thiruvoteeswarar Free High

School Trust filed the suit in O.S.No.9362 of 1991 on the file of the V

Assistant Judge, City Civil Court Chennai, against the respondent

herein/defendant for delivery of possession and for future damages.

2. The case of the plaintiff is that the defendant is the tenant under the

plaintiff/Sri Thiruvoteeswarar Free High School Trust in the suit property

@ first floor portion of premises No.145, Broadway, Madras-108, was let

out to Mr.S.S.Moorthy who is the father of the defendant on a monthly rent

of Rs.1,400/- and after the death of the tenant Mr.S.S.Moorthy, the

defendant by his letter dated 16.03.1989 requested for transfer of tenancy in

his favour as such legal representative of the deceased tenant, hence, the

defendant has become the tenant of the first floor portion of the suit

premises. Thereafter, the defendant has illegally and without any

https://www.mhc.tn.gov.in/judis S.A.No.1475 of 2003

vaporisation sublet the first floor portion of the suit premises and making

profits and the portion let out to the defendant is sufficiently large and

capable of fetching a rent not less then Rs.5,000/- per month as damage for

use and occupation from the date of plaint till the date of delivery of

possession. Further, the suit property belongs to a Public Charitable Trust

and same was exempted from the purview of the Tamil Nadu Building

(Lease and Rent Control Act) by reason of G.O.Ms.No.2000 Home, dated

16.08.1976. Thereafter, the plaintiff has issued a notice of termination on

13.04.1991 and the same was duly acknowledged by the defendant and

reply was also given on 13.05.1991. Hence, the plaintiff/trust filed the suit

for delivery of possession, directing the defendant to vacate the suit

schedule premises.

3. The defendant contested the suit by filing the written statement,

stating that he is the tenant under the plaintiff/trust on a monthly rent of

Rs.1,400/- and he is carrying on business in the first floor of the said

premises under the name and style of ''The Elite Traders''. Further, the

defendant has not subletted any portion of the suit premises to anybody else,

as stated by the plaintiff. Further, the portion let out to the defendant is

https://www.mhc.tn.gov.in/judis S.A.No.1475 of 2003

neither sufficiently large nor capable of fetching a sum not less than

Rs.5,000/- per month. The suit property does not belongs to a public

charitable trust and hence the question of claiming any exemption from the

purview of the said Act does not arise. But the plaintiff/trust filed the above

suit with an ulterior motive and to harass the defendant. Therefore, the

defendant's right are prevented under the Provisions of the Tamil Nadu

Building (Lease and Rent Control Act). Therefore, the defendant has denied

the allegations as stated by the plaintiff/trust and the plaintiff/trust has no

right to file the suit before the Civil Court and only a Rent Control

proceedings can be initiated before the trial Court.

4. Before the trial Court on the side of the plaintiff PW1 was

examined and four documents were marked, On the side of the defendant,

no witness was examined and one document was marked.

5. Upon hearing both sides, the trial Judge concluded that the

plaintiff/trust has not produced any document to show that students are

studying in that school run by the Trust or teachers are working in that

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school and also held that any account for spending of money towards

running of the school or any scrap of paper to show that the school is run by

the Trust and also held that the plaintiff failed to establish that it is a public

charitable trust, according to G.O.Ms.No.2000 Home, dated 16.08.1976

which is not applicable to the present case and the plaintiff/trust are not

exempted from the purview of the Tamil Nadu Building (Lease and Rent

Control Act). Therefore, the suit was dismissed.

6. Against which, the plaintiff/trust has preferred an appeal in

A.S.No.276 of 2000 on the file of the City Civil Court, Chennai, wherein,

the lower Appellate Judge independently analysed the facts and evidence

finally concluded that the Civil Court has no jurisdiction to deal with the

case and confirmed the findings rendered by the lower Court.

7. Challenging the said concurrent findings rendered by the Courts

below, the plaintiff/trust has filed the above second appeal

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8. At the time of admission, the following substantial questions of law

were framed in the Second Appeal:-

1.Whether the Courts below are correct in law in spite of

Ex.A4 in holding that the appellant has failed to establish that

the trust is a public charitable trust?

2. Whether the Courts below are correct in law in

holding that the appellant trust is not covered by

G.O.Ms.No.2000 Home, dated 16.08.1976 and thereby

exempted from the Tamil Nadu Building (Lease and Rent

Control) Act, 1960?

9. The learned counsel for the appellant/plaintiff submitted that the

suit property belongs to the public charitable trust, and income from the

property is to be utilised for running a school imparting free education to

the poor people, to that effect, the trust deed was executed by the grand

father of the plaintiff, dated 04.09.1947 and the same was produced before

the trial Court in Ex.A4. In the trust deed, item No.4 is the suit property.

Further, argued that the defendant is a tenant for monthly rent of Rs.1,400/-

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and thereafter, the defendant sublet the suit premises and making profits.

Further, the plaintiff has issued a termination notice and filed the suit for

delivery of possession and also for future damages.

10. In the written statement filed by the defendant, it is stated that he

admits the tenancy with the plaintiff/trust and raised his objection that it is

not a public charitable trust and the suit is not maintainable before Civil

forum and only RCOP proceedings alone shall apply to the facts of the

present case.

11. Both the Courts below have concluded that the plaintiff failed to

establish that it is a public charitable trust, therefore, G.O.Ms.No.2000

Home, dated16.08.1976 does not apply to the present case and only Rent

Control proceedings can be applied.

12. The learned counsel for the appellant/plaintiff submits that as per

object of the trust deed/Ex.A4 with an intention to school being imparting

free education to the poor people and as per Ex.A4 school run by the trust is

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an admitted fact. But the defendant admits that the tenancy with the plaintiff

but disputing the nature of the trust.

13. It is settled proposition of law, if the defendant as a tenant paid

the rent to plaintiff accepting him as landlord, then, he is not entitled to

dispute the title of the landlord. The plaintiff/trust collected the rent as

landlord thus it is not entitled to vacate him as per the manner known to

law.

14. As per the document Ex.A4, the appellant is a public trust and

there is no evidence on the side of the defendant to disprove the said

document. Earlier one 3rd party viz RMS and Company Private Limited had

filed RCOP.No.1503 of 1999 against the plaintiff/trust and the same was

dismissed, stating that it is a public trust and the Civil Court alone is having

jurisdiction. Against which, they have preferred in RCA.No.642 of 2000

and that was also dismissed. Thereafter, the plaintiff/trust had filed the suit

in O.S.No.1103 of 2000 and the same was decreed in favour of the

plaintiff/trust and held that it is a public trust exempted from the purview of

https://www.mhc.tn.gov.in/judis S.A.No.1475 of 2003

the Tamil Nadu Building (Lease and Rent Control Act). Against which,

RMS and Company Private Limited had filed in A.S.No.176 of 2008 and

the compromise was also entered between the parties.

15. At that time of arguments, all the documents pertaining to the

proceedings of Court, it is a public charitable trust which can be interfered.

Therefore, the plaintiff is able to establish that it is a public trust and it is

entitled to proceed before the civil forum. According to the plaintiff, no

witness has been examined on the side of the defendant. Further more, the

defendant himself filed an application before the trial Court to deposit the

rent. Now the landlord has produced the copy of the photographs relating to

nature of the suit property, which reveals that the building is in dilapidated

condition.

16. On earlier occasion, the learned counsel for the respondent seeks

time to file an affidavit of undertaking before this Court on the next date of

hearing. Now, today, there is no representation on the side of the

respondent.

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17. Considering all the above aspects, which reveals that the suit

property belongs to the public charitable trust and exempted from the

purview of the Tamil Nadu Building (Lease and Rent Control) Act

G.O.Ms.No.2000, Home dated 16.08.1976. Hence, the findings given by the

trial Court as well as the lower Appellate Court are erroneous one,

accordingly, the questions of law Nos. 1 and 2 are answered in favour of the

appellant/plaintiff.

18. In view of the above, the second appeal is allowed and the

findings rendered by the Courts below are set aside. Therefore, the

respondent is directed to vacate and deliver the vacant possession of the suit

premises within a period of 6 months from the date of receipt of a copy of

this order. Consequently, connected miscellaneous petition is closed. No

costs.

24.08.2023 Speaking / Non Speaking order Neutral Citation : Yes/No Index :Yes/No msrm Note : Issue order copy on 08.09.2023

https://www.mhc.tn.gov.in/judis S.A.No.1475 of 2003

To

1. The learned V Assistant City Civil Judge, Chennai.

2. The Sessions Judge, City Civil Court, Chennai.

3. The Section Officer, VR Section, High Court, Madras.

https://www.mhc.tn.gov.in/judis S.A.No.1475 of 2003

T.V.THAMILSELVI.J,

msrm

S.A.No.1475 of 2003

24.08.2023 (1/2)

https://www.mhc.tn.gov.in/judis