Madras High Court
A.Manickam vs Dharmapuri Handloom Weavers on 11 December, 2023
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.805 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.12.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.805 of 2021
and
C.M.P.No.15495 of 2021
A.Manickam ... Appellant
Vs.
Dharmapuri Handloom Weavers
Co-operative Production and Sales Society Limited,
Represented by its Handloom Inspector/Liquidation Officer,
Dharmapuri Town,
Dharmapuri. ... Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C. to set
aside the judgment and decree dated 06.07.2021 in A.S.No.8 of 2020
passed by the learned Additional Subordinate Judge, Dharmapuri,
confirming the judgment and decree dated 27.09.2019 in O.S.No.5 of
2000, passed by the learned District Munsif, Dharmapuri.
For appellant : Mr.P.Valliappan, Senior Counsel,
for Mr.T.Deeraj
for M/s P.V. Law Associates.
For respondent : Mr.V.Baranidharan
1/13
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S.A.No.805 of 2021
JUDGMENT
The defendant who had unsuccessfully contested the suit in
O.S.No.5 of 2000 on the file of the District Munsif Court,
Dharmapuri, is the appellant before this court.
2. The facts which have led to the filing of the above second
appeal are set out hereinbelow briefly and the parties are referred to in
the same ranking as before the Trial Court.
FACTS OF THE CASE:
2.1. The plaintiff co-operative society had filed the above
referred suit for recovery of possession. It is their contention that the
plaintiff is the absolute owner of the suit schedule property and that
the defendant was a tenant under them on a monthly rental of
Rs.31.50/- payable without default on 1st day of every following
month a under lease deed dated 12.04.1988. Thereafter, it appears
that the defendant has been claiming title over the suit property as he
had put up construction over the property without the consent of the
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plaintiff. The plaintiff, therefore, requested the defendant to hand over
the vacant possession of the suit schedule property. However, the
defendant refused to do so.
2.2. Meanwhile, the Deputy Registrar of the Co-operative
Societies had passed an order in A.R.C.No.780/90-91 dated
30.10.1991, directing the defendant to hand over the possession to the
plaintiff co-operative society. Despite the said order, the defendant
continues to squat on the property. Therefore, the plaintiff filed this
suit for recovery of possession.
2.3. The defendant had filed a written statement inter alia
contending that the suit is a false and vexatious one. The defendant
would submit that he admits that the plaintiff co-operative society is
the owner of the suit property and he is the tenant under them on a
monthly rental of Rs.31.50/- under the lease deed dated 12.04.1988.
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2.4. The defendant would submit that it is false to state that he
should pay rent on the 1st day of every month. The defendant would
contend that he had no knowledge about the alleged eviction order
dated 31.09.1991, though he and his father are the members of the
plaintiff co-operative society.
2.5. It is the contention of the defendant that the suit property
was originally leased out to him on 12.04.1988 by the plaintiff for a
period of 15 years. The plaintiff had permitted him to put up
construction over the suit property and to pay taxes on the said
building. Accordingly, the defendant who has put up the
superstructure has been paying house tax and electricity charges. The
defendant would submit that rent was paid till March 2000 for which
receipts were issued to him. At no point of time, the plaintiff had
requested the defendant to vacate and hand over the vacant
possession.
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2.6. After April 2000, the plaintiff started refusing to receive
rent from the defendant. This appears to be a ploy for evicting the
defendant from the suit property. However, the plaintiff received the
rent from the defendant after institution of the suit. Therefore, the
defendant's possession of the property was legal and valid. The
defendant would submit that he were always ready to pay the rent and
it was only that the plaintiff who had refused to receive the rent. The
defendant had not committed any wrongful act and cannot be evicted.
2.7. The defendant had filed an additional written statement
inter alia contending that the plaintiff co-operative society had leased
out the suit property initially under a registered lease deed dated
04.05.1974 on a monthly rent of Rs.9/- per month for a period of 10
years. Subsequently, the plaintiff leased out the suit property for a
period of 15 years. Thereafter, under the lease deed dated 12.04.1988,
the lease amount was enhanced to Rs.31.50/- per month and lease was
modified through a registered lease deed dated 05.08.1994.
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2.8. Subsequently, another lease deed dated 22.08.1997 was
executed for a further period of 15 years on a rent of Rs.150/- per
month and initial deposit of advance of Rs.1,000/- was received i.e.
till the year 2012. The defendant would, therefore, submit that the
plaintiff cannot seek to evict him, particularly, in the light of the
subsequent lease deeds. Therefore, the defendant prayed for the
dismissal of the suit.
TRIAL COURT:
3. The Trial Court had framed the following issues.
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4. The plaintiff had examined one Krishnaveni as P.W.1 and
marked Exs.A1 to A13. The defendant had examined himself as
D.W.1 and one Govindasamy and one Palaniyandi as D.W.2 and
D.W.3 respectively, and marked Exs.B1 to B7.
5. Ultimately, the learned Judge, on considering the evidence
on record, had decreed the suit.
LOWER APPELLATE COURT:
6. Challenging the same, the defendant had filed an appeal in
A.S.No.8 of 2020 on the file of the Court of the Additional Sub Judge,
Dharmapuri. The learned Judge has also confirmed the judgment and
decree passed by the Trial Court. Aggrieved by the same, the
defendant has preferred the above second appeal.
7. The second appeal was admitted on the following
substantial questions of law.
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“1.When the respondent admitted the lease deeds
dated 12.04.1988 and 22.08.1997 and when the appellant is
in possession of the suit property in pursuance of these
lease deeds, whether the suit filed during the subsistence of
valid lease is tenable in law and decreeing the suit in
favour of the respondent can be sustained?
2.Whether the Civil Court has jurisdiction to
entertain the suit under Section 146 of Tamil Nadu
Cooperative Societies Act, 1983, which has the
jurisdiction?”
8. Heard the learned counsel on either side and perused the
materials available on record.
DISCUSSION:
9. The main argument which has been advanced by the
learned Senior Counsel appearing on behalf of the learned counsel on
record for the appellant is that the suit has been filed during the
pendency of the extended period of lease and therefore, the suit was
not maintainable. However, he would fail to consider that even as per
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the subsequent lease deed in the year 1997, the period of lease had
come to an end in the year 2012 itself.
10. It is brought to the notice of this Court by the learned
counsel appearing for the respondent that with reference to another
tenant viz., S.Lakshmi under the plaintiff herein, similar proceedings
were filed in O.S.No.22 of 2000 and the very same defence was even
advanced. This suit was decreed, against which, a first appeal was
filed in A.S.No.45 of 2004. The first Appellate Court had reversed the
finding of the Trial Court, against which S.A.No.341 of 2006 was
filed by the co-operative society. This Court, by judgment and decree
dated 10.07.2012, had allowed the appeal.
11. The arguments that have been advanced therein appears to
be more or less the same contention raised in the present suit and
similar arguments have been made on the basis of the subsequent
lease deed. Ultimately, this Court had allowed the second appeal and
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the Trial Court judgment and decree was restored. The facts of that
case which was reported in 2012-4-L.W.124 (Dharmapuri
Handlooms Weavers Co-operative Production and Sales Society
Ltd., Rep. By its Special Officer vs S.Lakshmi) are also more or less
similar to the facts of this case. The defendant in the instant case has
also raised pleadings about the subsequent lease deed. This lease deed
has also expired. The learned Judge, had taken into account the fact
that the period granted in the subsequent lease deed has also come to
an end and the defendant/tenant is none other than a trespasser and
had proceeded to allow the second appeal.
12. In the light of the above facts, both the Courts below have
rightly held that the plaintiff is entitled to the decree for possession.
This suit O.S.No.5 of 2000 is not only filed on the ground that the
defendant is in arrears of rent and has continued to be in possession
even after the expiring of the lease deed but also on the ground that
the defendant had put up the construction without the permission of
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the plaintiff co-operative society which was against the terms of the
lease. Since the defendant has acted against the interest and terms of
the contract, the suit was filed for recovery of possession. Therefore,
the substantial question of law point no.1 is answered against the
defendant.
13. The second substantial question of law has been dealt with
in the earlier connected suit and which is reported in 2012-4-L.W.124
(Dharmapuri Handlooms Weavers Co-operative Production and
Sales Society Ltd., Rep. By its Special Officer vs S.Lakshmi),
wherein, the power of the Civil Court has been discussed. Therefore,
the substantial question of law point no.2 is also answered against the
defendant, since the recovery of possession has been sought on the
ground of violation of the terms of the lease deed.
Accordingly, this second appeal stands dismissed. Consequently,
connected C.M.P. stands closed. No costs.
https://www.mhc.tn.gov.in/judis
11.12.2023
Index : Yes/No
Speaking order/non-speaking order
ssa
To
1. The Additional Subordinate Judge, Dharmapuri .
2.The District Munsif, Dharmapuri .
3.The Section Officer, V.R.Section, High Court, Madras.
P.T.ASHA, J.,
ssa
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and
11.12.2023
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