Madras High Court
The Arakkonam Market vs The Commissioner on 2 February, 2023
S.A.Nos.1294 and 1295 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.Nos.1294 and 1295 of 2019
and C.M.P.Nos.27946 and 27948 of 2019
The Arakkonam Market
All Merchants Association,
Represented by its President A.Doorvasalu Naidu,
No.1, Galivari Kandigai Road,
Arakkonam. .. Appellant in both S.As
Vs.
The Commissioner,
Arakkonam Municipality,
Arakkonam. .. Respondent in both S.As
Common Prayer:- Second Appeals filed under Section 100 of CPC to set
aside the Judgment and Decree made in A.S.Nos.16 and 17 of 2019 dated
14.08.2019 on the file of the Learned Subordinate Judge, Arakkonam
modifying the Judgment and decree dated 20.11.2000 made in O.S.No.75 of
1995 on the file of the learned District Munsif, Arakkonam.
In both S.As
For Appellant : M/s.Jeremiah Gregory John
For Sole Respondent : Mr.V.P.Sengottuvel, Senior Counsel
for Mr.K.R.Nishanth
https://www.mhc.tn.gov.in/judis
S.A.Nos.1294 and 1295 of 2019
COMMON JUDGMENT
These second appeals have been filed to set aside the Judgment and
Decree passed in A.S.Nos.16 and 17 of 2019 dated 14.08.2019 on the file of the
Learned Subordinate Judge, Arakkonam modifying the Judgment and decree
dated 20.11.2000 passed in O.S.No.75 of 1995 on the file of the learned District
Munsif, Arakkonam, thereby partly decreeing the suit.
2. The appellant filed a suit in O.S.No.75 of 1995 for declaration
declaring that the resolution passed by the respondent dated 26.08.1994 as
illegal and also for injunction restraining the respondent from collecting excess
rents.
3. The case of the appellant is that the appellant is a registered
association of members, who are lessors in respect of the shops and vacant sites
situated at Arakkonam Daily Municipal Market. While being so, in the year
1979, the respondent wanted to demolish the existing building and put up new
construction. Eviction notices were issued to all the shop owners to deliver
vacant possession. Aggrieved by the same, all the members of the appellant
filed writ petitions before this Court challenging the action of the respondent
herein. By an order dated 06.01.1982, all the writ petitions were disposed of
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S.A.Nos.1294 and 1295 of 2019
and new construction was completed in the year 1987 and the respondent
passed resolution dated 23.02.1987, thereby increased rents in respect of
various shops. It was challenged by the appellant before this Court in
W.P.No.7937 of 1987. This Court by an order dated 02.02.1988, permitted
members of the appellant association to occupy the shops as per the resolution
dated 23.02.1987 and the occupation shall be without prejudice to the rights of
the appellant and thereafter, they may apply to the respondent for
reconsideration of the matter. Accordingly, the appellant had submitted several
representations to the respondent, thereby calling upon the respondent to re-fix
the rent in respect of their shops. The respondent passed a resolution dated
27.12.1989 to reduce the rent by 40%. In the year, 1991, again the respondent
started insisting to pay rent with 15% increase. Therefore, the appellant filed a
suit in O.S.No.02 of 1992, for declaration and injunction as directed by this
Court, on 02.02.1988. The said suit was decreed by directing the occupants to
pay 25% of the rent as fixed by the respondent. Again, by a resolution dated
14.11.1994, the respondent re-fixed the rent. Therefore, the appellant
challenged the same by way of the present suit.
4. The respondent resisted the same by way of filing written statement
stating that as directed by this Court in W.P.No.7687 of 1987, the respondent
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S.A.Nos.1294 and 1295 of 2019
re-fixed the rent. Therefore, the appellant is not entitled for any prayer of
declaration and injunction, since their claim itself is bar by resjudicata. They
also failed to issue any statutory notice and as such the suit itself is liable to be
dismissed. The respondent is entitled to take action as against the members of
the appellant association as per the District Municipalities Act, 1920 to recover
the arrears of rent due by the tenants.
5. On the basis of the pleadings, the Trial Court framed the following
issues:-
“ 1/ thjp mtuJ tHf;Fiuapy; nfl;Ls;sthW gupfhuk;
bgw cupatuh>
2/ rl;lg;go tHf;F jhf;fy; bra;a[k; Kd; bfhLf;f
ntz;oa nehl;Oir thjp. gpujpthjpf;F bfhLf;fhky; ,e;j
tHf;if muf;nfhzk; efuhl;rp nky; jhf;fy; bra;jpUg;gjhy;
,e;j tHf;F rl;lg;go epiyf;fj;jf;fJ jhdh>
3/ 26/08/1994k; njjp epiwntw;wg;gl;l jPu;khdk; vz;/131
cupa Kiwapy; epiwntw;wg;gl;lJk;. rl;lg;go bry;yj;jf;fJk;
kw;Wk; thjpia fl;Lg;gLj;jf;ToaJk; jhdh>
4/ Vw;fdnt ,d;d thlif vd epu;zapf;fg;gl;l jd;
nky; ,g;nghJ g[jpajhf thlif epu;zapf;f jil
Vw;gl;Ls;sJ vd;W Twpa[s;sJ rupjhdh>
5/ thjp tHf;Fiuapy; nfhupa[s;sthW tpsk;gi [ f
gupfhuKk; cWj;Jf;fl;lisg; gupfhuKk; bgw cupatu;jhdh>
6/ tHf;Fiuapy; Twpa[s;sJ nghy; 14/11/1994k; njjpapl;L
epiwntw;wg;gl;ljhf Twg;gl;l jPu;khd vz;/313 cz;ikapy;
epiwntw;wg;gl;l jPu;khdk; jhdh>
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S.A.Nos.1294 and 1295 of 2019
7/ tHf;Fiuapy; Twpa[s;sJ nghy; Kd;jPu;g;g[ jil
Vw;gl;Ls;sJ vd tHf;Fiuapy; Twpa[s;sJ Vw;fj;jf;fJjhdh>
8/ thjpf;F fpilf;ff;Toa gupfhuk; vd;d>
The Trial Court had also framed the following additional issues:-
“ 1. Whether plea of Resjudicata set up by the
respondent/defendant is valid?
2. Whether the Court has jurisdiction to fix up the rent?
3. What will be the quantum of correct rent?”
6. On the side of the appellant, they had examined P.Ws.1 and 2 and
marked Exs.A1 to 30. On the side of the respondent, he had examined D.W.1
and marked Exs.B1 to 4. On a perusal of oral and documentary evidences, the
Trial Court negatived the prayer of declaration and held that 60% of the rent
fixed through Ex.B1 dated 01.10.1980 is the correct rent and in respect of the
shops facing road with shutter, it fixed the rent as Rs.37.50/- and in respect of
other shops it is fixed as Rs.27/- payable from 01.10.1988 and enhanced rent at
5% once in three years. Further, the Trial Court directed the respondent not to
collect any other charges apart from above rents and also passed an order of
interim injunction restraining the respondent from interfering with the peaceful
possession and enjoyment of the suit shops. Aggrieved by the same, the
appellant preferred appeal and the first appellate Court partly allowed the
appeal and modified the Judgment and Decree passed by the Trial Court and
fixed the rent to the effect that the rent fixed by the respondent under Ex.B1 is
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S.A.Nos.1294 and 1295 of 2019
fair and proper in respect of the shops of the categories is payable with effect
from 28.06.1994 being the date of order passed in Ex.B1. Insofar as the
enhancement of existing rent is concerned, it is fixed as 15%, once in three
years. There shall be no injunction restraining the respondent from recovery of
arrears of rent or future rents from the appellants.
7. The learned counsel for the appellant would submit that both the
Courts below, without considering the order passed by this Court, mechanically
ordered for enhancement at the rate of 15% once in three years. As per Section
22 of the Tamil Nadu District Municipalities Act, 1920, the resolution passed
by the respondent are binding on the authorities until and unless the resolution
was cancelled by the State Government which is the only authority under the
Act to cancel the resolution passed by the Municipal Council and the same has
legal force and binding in law. The members of the plaintiff are daily vendors
and the market was only a daily market and the rents payable are daily rents.
Therefore, the fixation of the rent is not fair and it is liable to be set aside. Both
the Courts below wrongly construed the order passed by this Court in
W.P.No.1064 of 1995 and disposed of the suit.
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S.A.Nos.1294 and 1295 of 2019
8. The appellant raised the following substantial questions of law:-
“ A) Whether the finding of the learned Judge that the
judgment and decree made in O.S.No.2 of 1992 would not
operate as Resjudicata is correct in law?
B) Whether the Learned Judge was right in law in
failing to comply with the orders in CMA.Nos.1446 and 1447
of 2007 dated 23.08.2018 is correct in law?
C) Whether the Learned Judge was correct in law in
not permitting the appellant herein to adduce evidence as per
the directions of the Hon'ble High Court in CMA.Nos.1446 and
1447 of 2007 dated 23.03.18?
D) Whether the finding of the Learned Judge accepting
the validity of Ex.B2 wrongly mentioned as Ex.B1 in the
judgment is correct in law?
E) Whether the Learned Judge was correct in law in not
having permitted the appellant to adduce additional evidence
so as to produce the resolution No.072 dated 31.01.11?
F) Whether the Judgment and Decree of the Learned
Judge in not adverting to the law applicable to lessee of
Municipal property is correct in law?”
9. Heard M/s.Jeremiah Gregory John, learned counsel appearing for the
appellant and Mr.V.P.Sengottuvel, learned Senior counsel appearing for the
respondent.
10. The Trial Court held that the rent fixed by the respondent through
Ex.B1 dated 01.10.1988 is a correct rent. The Trial Court also fixed the rent in
respect of the road facing shops with shutter at Rs.37.50/- and other shops at
Rs.27/- payable from 01.10.1988 and enhanced the rent of 5% to be paid from
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S.A.Nos.1294 and 1295 of 2019
the said rent once in three years. Aggrieved by the same, both the appellant and
the respondent preferred appeal suit. In the appeal suit, the appellate Court set
aside the Judgment and Decree passed by the Trial Court and modified to the
effect that the rent fixed by the respondent under Ex.B1 is fair and proper in
respect of the suit shops of all categories is payable with effect from 28.06.1994
being the date of order passed under Ex.B1. The rent to be enhanced at 15% is
payable once in three years. Therefore, there shall be no injunction restraining
the respondent from recover of arrears and rent or future rents from the
members of the appellant.
11. A perusal of Ex.B1 dated 26.08.1994, shows that it was passed based
on the proceedings dated 08.01.1990, 06.07.1990, 12.03.1991, 17.12.1991,
26.02.1992, 28.06.1992, 24.05.1994 in Na.Ka.No.313/87-R2. Therefore the
earlier proceedings having been duly followed by the respondent, the present
proceedings were passed. The appellant filed a writ petition before this Court in
W.P.No.1064 of 1995 challenging the impugned letter dated 14.11.1994. While
disposing of the writ petitions, this Court observed that it appears that no
irregularities in the said letter and the same is issued in line with the order
passed by the Civil Court, which was marked as Ex.A25. Therefore, the first
appellate Court rightly modified the decree passed by the Trial Court and this
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S.A.Nos.1294 and 1295 of 2019
Court finds no infirmity or illegality in the order passed by the First appellate
Court and also finds no substantial questions of law involved in these second
appeals and these second appeals are liable to be dismissed.
12. Accordingly, these Second Appeals are dismissed. Consequently,
connected Miscellaneous petitions are closed. No costs.
02.02.2023
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
mn
https://www.mhc.tn.gov.in/judis
S.A.Nos.1294 and 1295 of 2019
G.K.ILANTHIRAIYAN,J.
mn
To
1. The Subordinate Judge, Arakkonam.
2. The District Munsif, Arakkonam.
S.A.Nos.1294 and 1295 of 2019
and C.M.P.Nos.27946 and 27948 of 2019
02.02.2023
https://www.mhc.tn.gov.in/judis
