Madras High Court
Venkateswaralu vs Yelsuru Venkatakottiah ... on 9 January, 2023
S.A.No.514 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.01.2023
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
S.A.No.514 of 2006
M/s. OBBAI Brothers
Represented by its partners
1. Venkateswaralu
2. Y.Balasubramaniam
3. P.S.Maheswari
Carrying on business at
No.37, Anna Pillai Street,
Chennai – 600 001 .. Appellant
Vs.
1. Yelsuru Venkatakottiah Charities
Management of Knnikaparameswari
Devasthanam and Hindu Religious and
Charitable Endowments by its
Trustee and President
C.V. Chandrasekar S/o.Gunniah Chettiar
Having its office at
No.1, Adhiappanaicken Street,
Kothawalchavadi, Chennai – 600 001.
2. T.V.S.Gupta
3. Pappi Chetty Sriramulu
1/10
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S.A.No.514 of 2006
4. P.Muthukrishnan
5. V.Srinivasan
6. P.Madhusudhanan
7. Ummidilakari
8. G.M.Ramachandran,
Secretary of first respondent .. Respondents
Prayer: The Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the Judgment and decree dated 19.04.2005 made in
A.S.No.203 of 2003 on the file of the 7th Additional Judge, City Civil Court,
Chennai, confirming the judgment and decree dated 28.06.2002 made in
O.S.No.10398 of 1988 on the file of the 11 th Assistant Judge, City Civil Court,
Chennai.
For Appellant : Mr.R.Agilesh
For Respondent 1 : Mr.P.K.Sivasubramaniam(died)
For Respondents 2 to 8 : No appearance (served)
JUDGMENT
The unsuccessful defendant before the Courts below is the appellant
before this Court, challenging the judgment and decree passed by the learned
7th Additional Judge, City Civil Court, Chennai in A.S.No.203 of 2003 in and
by which the learned Judge has confirmed the judgment and decree passed by
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S.A.No.514 of 2006
the learned 11th Assistant Judge, City Civil Court, Chennai in O.S.No.10398
of 1988.
2. The facts in brief are herein below set out and in the narration the
parties are referred to in the same rank as before the Trial Court.
3. The plaintiff-Trust had filed the above referred suit for a direction to
the defendant to vacate and deliver the possession of the suit schedule
property and to pay damages for use and occupation at the rate of Rs.3600/-
from the date of the plaint till the date of delivery of possession. It is their
case that the plaintiff-Trust which is a public charitable institution exempt
from the provisions of the Tamil Nadu Buildings (Lease and Rent Control)
Act 1960, had leased out the premises to the defendant for carrying on their
business on a monthly rental of Rs.801/- the tenancy being according to the
English Calender month. The plaintiffs would contend that the defendant had
occupied an extent of 600 sq.ft. in the suit property which would easily fetch a
sum of Rs.3600/- per month as lease rental. By their legal notice dated
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S.A.No.514 of 2006
06.02.1987, the plaintiff-Trust had called upon the defendant to pay the
enhanced rent with effect from 01.01.1987, failing which, they were requested
to deliver the vacant possession to the plaintiff-Trust. But, the defendant failed
to comply with the demand. Therefore, the plaintiff-Trust had issued yet
another notice dated 05.11.1987 determining the tenancy with effect from
30.11.1987 and calling upon the defendant to vacate the portion and the said
notice was received by the defendant on 09.11.1987. However, the defendant
did not come forward to vacate the premises, therefore, the plaintiffs had filed
the above suit.
4. The defendant on entering appearance has filed a written statement,
in which, they had admitted the relationship of landlord-tenant, but however
would submit that the property would not fetch a monthly rental of Rs.3600/-
and the same was an exaggerated figure. The defendant would deny that the
plaintiff institution is a public charitable institution. An additional written
statement has also been filed, in which, the defendant had taken a plea that
the remedy available to the plaintiff-Trust was only to file a fresh suit since
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S.A.No.514 of 2006
the original cause of action was not subsisting, particularly, when the entire
Board of Management of Trustees have retired and new trustees have been
inducted in their place.
5. The Trial Court on considering the pleadings on either side had
framed the following substantial questions of law;
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6. On the side of the plaintiff-Trust one of their official
Mr.GM.Ramachandran had adduced evidence and marked Ex.A1 and A2. On
the side of the defendant, Managing partner Mr.Venkateswaralu had been
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S.A.No.514 of 2006
examined as D.W.1 and Ex.B1 was marked.
7. The learned Trial Court returned a finding that the plaintiff-Trust is
a public charitable institution and has properly instituted the said suit, that the
defendant had entered tenancy in the year 1975 on a monthly rental of
Rs.801/-, which he continued till the notice was issued by the plaintiff-Trust.
The learned Judge had held that the rent of Rs.801/- was rather low and the
same has to be enhanced. The learned Judge on considering the evidence and
the location of the property held that a rent of Rs.1500/- could be fixed and
since the defendant had not been paid the rents from the date of notice, the
suit has to be decreed. The defendant had challenged the said judgment and
decree before the 7th Additional Judge, City Civil Court, Chennai in
A.S.No.203 of 2003, the learned Appellate Judge has also concurred with the
judgment and decree of the Trial Court. Challenging the same, Second Appeal
has been filed.
8. The second appeal has been admitted on the following substantial
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S.A.No.514 of 2006
questions of law;
1) Is the Lower Appellate Court correct and justified in
allowing C.M.P.No.368 of 2005 especially after holding that the
reason given for non-production earlier cannot be accepted?
2)Is the Lower Appellate Court correct and justified in
allowing the appeal on the basis of Ex.P3 additional evidence
received at the appellate stage without following the procedure
laid down in Order 41 Rule 27 C.P.C., and without giving an
opportunity to appellant to rebut the name?
9. The learned counsel appearing for the appellant would submit that
the Trial Court had received an additional document in Appeal, but however
not granted any time and opportunity to the defendant to cross examine the
plaintiff-Trust. He also submitted that the plaintiff-Trust was not a public
trust. As regards the first substantial questions of law, a perusal of the
judgment and decree of the Trial Court would indicate that the plaintiff-Trust
has filed additional document based on the order passed by this Court in
O.P.No.543 of 1999 dated 15.11.1999 and the same has been taken on record
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S.A.No.514 of 2006
and marked as Ex.P3. This Court had passed the order holding that the
plaintiff trust was a public trust. The additional document being a Court order
wherein the plaintiff was characterised as public trust, no serious objection
can be taken to the marking of document. This document was now produced
only on account of the fact that the defendant had opposed the suit filed by
the plaintiff on the ground that the plaintiff is not a public charitable trust.
Therefore, the first argument has to definitely fail. Both the Courts below have
considered the fact that the property in question had fetched the monthly
rental of Rs.801/- in the year 1975 and the property is situated in a busy
commercial area where rents are high. Though the plaintiff had demanded a
rent of Rs.3600/- the Courts below had only fixed rent of Rs.1500/-.
Therefore, this Court does not find any reason to interfere with the judgment
and decree of the Court below and the substantial questions of law (i) and (ii)
is answered against the plaintiff-Trust.
10. After the arguments were heard, the learned counsel for the
appellant would inform that the letter addressed by him to his client has been
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S.A.No.514 of 2006
returned with the endorsement “no such addressee” and he would submit that
it appears that the defendant is no longer in possession of the suit property.
11. Consequently, the second appeal stands dismissed and the
judgment and decree of the learned VII Additional Judge, City Civil Court,
Chennai in A.S.No.203 of 2003 stands confirmed. No costs.
09.01.2023
Index : Yes / No
Speaking/Non-speaking Order
nti
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S.A.No.514 of 2006
P.T.ASHA, J.
nti
To
1. The 7th Additional Judge,
City Civil Court, Chennai.
2.The 11th Assistant Judge,
City Civil Court, Chennai.
S.A.No.514 of 2006
09.01.2023
https://www.mhc.tn.gov.in/judis
