Madras High Court
Emmanuel vs The Diocese Of Vellore Society on 20 November, 2024
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 20 / 08 / 2024
JUDGMENT PRONOUNCED ON : 20 / 11 / 2024
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
S.A.No. 809 of 2018
Emmanuel
... Appellant/Appellant/
Plaintiff
Versus
The Diocese of Vellore Society,
represented by its Secretary Mr.S.Arulappam
… Respondent/Respondent/
Defendant
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908 praying to set aside the Judgment and Decree dated
January 30, 2015 passed in A.S.No.21 of 2014 on the file of Subordinate
Court, Vellore, whereby the Judgment and Decree dated February 6, 2014
passed in O.S.No.431 of 2009 on the file of Principal District Munsif
Court, Vellore was confirmed.
For Appellant : Mr.M.P.Jayaprakash
For Respondent : Mr.V.Manohar
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JUDGMENT
This Second Appeal is directed by the unsuccessful plaintiff,
against the Judgment and Decree dated January 30, 2015 passed in
A.S.No.21 of 2014 on the file of ‘Subordinate Court, Vellore’ [‘First
Appellate Court’ for short], whereby the Judgment and Decree dated
February 6, 2014 passed in O.S.No.431 of 2009 on the file of ‘Principal
District Munsif Court, Vellore’ [‘Trial Court’ for short] was confirmed.
2. Hereinafter, for the sake of convenience, the parties will be
denoted as per their array in the Original Suit.
PLAINTIFF’S CASE IN BRIEF:
3. In the Plaint it is averred that the Suit Property is a non-
residential vacant premises belonging to the defendant – Society and the
plaintiff is the tenant thereof vide unregistered Rental Agreement dated
July 5, 1997. The plaintiff has been running his business in the Suit
Property for about 13 years prior to the date of Plaint. As per the said
Agreement, the plaintiff had paid a sum of Rs.50,000/- as advance. The
rent was fixed at Rs.1,500/-. One of the condition in the said Agreement is
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that the plaintiff may develop the Suit Property by carrying out certain
specified constructions and the expenses incurred thereby must be
refunded along with the advance amount of Rs.50,000/- at the time of
vacation. Accordingly, the plaintiff spent around Rs.30,00,000/- for the
development of the Suit Property. The said Agreement was replaced with a
renewed Agreement dated August 1, 2002, increasing the rent amount
from Rs.1,500/- to Rs.5,000/-. The plaintiff has been paying the rent
without any default. Then, approached the then president of the defendant
– Society expressing his intention to purchase the Suit Property. While the
then president agreed, the new president who succeeded him, to the shock
of the plaintiff, issued a notice with false claims calling upon the plaintiff to
vacate the Suit Property. Having been running his business in the Suit
Property for about 13 years, the plaintiff would suffer heavy financial
losses if he is to vacate immediately. But the defendant is trying to
unlawfully evict the plaintiff with the help of henchmen. Hence the Suit for
injunction restraining the defendant, his men and agents from in any
manner interfering with the plaintiff’s possession and enjoyment of the Suit
Property as tenant, until evicted by due process of law. Also for costs and
other reliefs.
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DEFENDANT’S CASE IN BRIEF:
4. The defendant file written statement, wherein it is averred
that on August 1, 2002, the plaintiff and the defendant entered into a Lease
Agreement in respect of the Suit Property on a monthly rent of Rs.5,000/-
with an advance amount of Rs.50,000/-. The lease period was 5 years i.e.,
until July 31, 2007. It was agreed that the plaintiff is not supposed to sub-
let or put up any construction in the Suit Property without permission of
the defendant. Upon expiry of the lease period, the plaintiff requested for
extension of the lease period vide his letter dated February 3, 2007.
Extension of 2 years was orally granted by the defendant. After the expiry
of the extension period of 2 years viz., July 31, 2009, the defendant issued
notice to the plaintiff to vacate and handover possession. Despite notice,
the plaintiff has been unlawfully squatting over the Suit Property without
payment of rent from July 31, 2009 onwards. In these circumstances, the
plaintiff has come up with this false Suit. Accordingly, it is prayed that the
Suit shall be dismissed.
TRIAL COURT:
5. At Trial, on the side of the plaintiff, the plaintiff examined
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himself as P.W.1 and Ex-A.1 to Ex-A.12 were marked. On the side of the
defendant, D.W.1 was examined and no document was marked.
6. Upon hearing both sides and considering the oral and
documentary evidence, the Trial Court concluded that despite notice, the
plaintiff is in unlawful possession of the Suit Property without paying rent
after the expiry of the 2 years extension, and that he has violated the terms
of the Lease Agreement by constructing superstructure in the Suit Property
without permission. Hence, there is no bona fides in the plaintiff’s case.
Accordingly, it dismissed the Suit.
FIRST APPELLATE COURT:
7. Aggrieved by the dismissal, the plaintiff approached the
First Appellate Court by way of an appeal under Section 96 of the Code of
Civil Procedure, 1908. The First Appellate Court upon hearing both sides
and analysing the oral and documentary evidence, concluded that the
plaintiff filed the Suit only to evade the eviction proceedings initiated by the
defendant lawfully. Hence, there is no question of denial of natural justice
to the plaintiff. The plaintiff’s contention that the defendant attempted to
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evict him illegally is not proved. Accordingly, it concurred with the findings
of the Trial Court and dismissed the appeal.
SECOND APPEAL:
8. Aggrieved by the concurrent findings, the plaintiff preferred
this Second Appeal and the same was admitted on December 14, 2018 on
the following Substantial Questions of Law:
“(1) When the commencement of possession of the plaintiff
is by a Lease Deed whether the Courts below are
correct in law in saying that the plaintiff is in illegal
possession of the suit property?
(2) When the plaintiff has proved his possession and
there are attempts by the defendant to take
possession whether the Courts below are correct in
law in dismissing the suit for injunction as prayed
for?”
ARGUMENTS:
9. Mr.M.P.Jayaprakash, learned Counsel for the appellant /
plaintiff would argue that the defendant admitted the tenancy and the oral
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extension till July 31, 2009. The plaintiff did not violate the terms of the
agreement. The plaintiff has invested a huge amount in the Suit Property
towards its development. The Trial Court and the First Appellate Court
failed to consider the above aspects.
9.1. Further, he would refer to the additional typed set of
papers-I dated March 8, 2024 and ague that subsequent to the Judgment of
the First Appellate Court, the plaintiff filed O.S.No.244 of 2016 before
District Munsif Court, Vellore inter alia for the declaration that the Sale
Deed executed by the defendant in favour of one G.Naveen is void and not
binding on the plaintiff and also for the sale of the Suit Property to the
plaintiff. The said Naveen had filed a Suit in O.S.No.8 of 2017 before the
Principal District Court, Vellore, for recovery of possession of the Suit
Property from the plaintiff and which was transferred to III Additional
District Judge (FTC), Vellore, on March 27, 2018. Subsequently,
O.S.No.244 of 2016 filed by the plaintiff was also transferred to the III
Additional District Court, Vellore, and renumbered as O.S.No.57 of 2018
for joint trial and the plaintiff filed I.A.No.4 of 2023 under Section 9 of the
Chennai City Tenants Protection Act, 1921 and the same was dismissed,
against which the plaintiff preferred appeal before this Court in
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C.M.A.No.1873 of 2023. The same was disposed of with the following
observations:
“9.This Court for the present leaves open
the issue regarding the application of the City
Tenants Protection Act to the facts of the case to
claim the value of improvements alleged to have
been made by him to the property. Given the
nature of facts presented before the Court, and
given the fact that the appellant cannot sustain or
maintain his petition filed under Sec.9 of the City
Tenancy Protection Act, this Court chooses to
modify the order of the trial court and decides to
appoint the Commissioner, for entirely different
purpose. Supposing the trial court finds that the
appellant is entitled to value of any
improvements which he alleges to have made to
the property in his occupation, then it might be
necessary for the court to determine the value of
improvements alleged to have been made by the
appellant. Rather than undertaking the exercise
at a later point of time and delay the final
outcome of the suits, this Court considers it
appropriate to complete the process now. It is,
however, made clear that this order does not
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dispense the appellant from proving what he
considers as improvements made in the property,
and this has to be decided by the trial Court, nor
can it be construed that this Court has decided
any issue pertaining to the applicability of the
City Tenants Protection Act. As stated earlier,
this appeal is allowed only to shorten the
duration of the litigation, since in the eventuality
of the trial Court holding in favour of the
appellants, rather than driving the parties to
another length of time for obtaining the value of
improvements.
10. The appeal is disposed of accordingly.
The trial Court is required to appoint an
advocate, where he is reasonably regular in
appearing before the Court and has also some
standing in the civil Bar as the Commissioner,
whom to be assisted by a qualified engineer to
note any such improvements which the appellant
claims to have made. The appellant is now
required to circulate a memo before the trial
Court as to the exact aspects which he requires
the Commissioner to take note of. The
respondents are also at liberty to circulate any
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similar memo either before the Court or at any
time during the visit of the Commissioner. Once
appointed, the Commissioner is required to
complete his exercise within a period of four
weeks. In the meantime, the trial of the case is
directed to continue. No costs. Consequently,
connected miscellaneous petition is closed.”
9.2. Further would argue that joint trial is going on in the said
Suits. The defendant shall not evict the plaintiff during the pendency of the
said Suits. This Court may be pleased to grant injunction as prayed for
until the said Suits are disposed of. Accordingly, he would pray that the
Second Appeal shall be allowed.
10. Mr.V.Manohar, learned Counsel for the respondent /
defendant would contend that the plaintiff has been in unlawful possession
of the Suit Property without any payment of rent since July 31, 2009.
Further, the plaintiff violated the terms and conditions of the lease
agreement by illegally putting up some super structures. Despite due
notice, the plaintiff refused to vacate and handover possession. Further, the
plaintiff has no right whatsoever to squat over the Suit Property without
payment of rent. Moreover, he cannot question the title of the landlord and
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cannot compel the landlord to execute a Sale Deed in his favour in respect
of the Suit Property. The current title holder of the Suit Property filed a
Suit for recovery of possession in O.S.No.8 of 2017 before the III
Additional District Court (FTC), Vellore. Thus, the person claiming
through the defendant has opted to evict the plaintiff by due process of law
and hence, the Suit prayer has become infructuous. Accordingly, he would
pray that the Second Appeal is liable to be dismissed and the concurrent
findings of the Trial Court and the First Appellate Court shall be
confirmed.
DISCUSSION:
11. This Court has heard on either side and perused the
materials available on record in light of the Substantial Questions of Law.
12. The Suit was filed seeking the relief of injunction
restraining the defendant, his men and agents from in any manner
interfering with the plaintiff’s possession and enjoyment of the Suit
Property as tenant, until evicted by due process of law. The Trial Court as
well as the First Appellate Court concurrently held that the plaintiff did not
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pay rent from July 31, 2009 onwards and has been unlawfully occupying
the Suit Property. Further held that to evade the eviction proceedings
initiated by the defendant, the present Suit has been filed. Further both the
Courts held that the plaintiff’s case is not a bona fide one.
13. Admittedly, the Suit Property is a vacant commercial land
and not an agricultural land. The plaintiff filed photocopy of the alleged
unregistered Rent Agreements dated July 5, 1997 and August 1, 2002. The
same were marked as Ex-A.1 and Ex-A.7 respectively. Period of Ex-A.1 is
7 years and that of Ex-A.7 is 5 years. It has to be noted here that as per
Section 107 of Transfer of Property Act, 1882 read with Section 17 (1) (d)
of the Registration Act, 1908, a lease of immovable property exceeding one
year can only be made by a registered instrument and further, it has to be
executed by both, the lessor and lessee, which means it has to be signed by
both. As stated supra, Ex-A.1 and Ex-A.7 are unregistered. Hence, Ex-A.1
and Ex-A.7, on the face of it, are invalid documents. The specific case of
the defendant is that after the expiry of the period of Ex-A.7, an oral
extension of 2 years was granted and the same expired on July 31, 2009.
Even while assuming that Ex-A.1 and Ex-A.7 are valid, since the two-year
oral extension from the date of expiry of the subsequent agreement (Ex-
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A.7), ended on July 31, 2009, the defendant is entitled to evict the plaintiff
even without notice.
14. Further case of the defendant is that the plaintiff, despite
notice, refused to vacate the Suit Property and failed to remit rent after July
31, 2009. The plaintiff has filed Ex-A.8 series which contains the alleged
Rent Receipts. Perusal of Ex-A.8 series would show that the plaintiff paid
rent amount of Rs.15,000/- in respect of Suit Property for the period from
April 2003 to June 2004.
15. There is one Rent Receipt in Ex-A.8 series which appears
to be the latest. It would show that the plaintiff has paid a sum of
Rs.5,400/- for April 2004 to December 2004. As per the said Receipt, the
plaintiff has paid rent at the rate of Rs.600/- per month, while the actual
rent amount as per Ex-A.7 is Rs.5,000/- per month. Moreover, there is
nothing to connect the said Receipt with the Suit Property. This Court does
not find the evidence available on record sufficient to show that the plaintiff
has been paying the agreed rent amount regularly. For the sake of
argument, even while assuming that Ex-A.1 and Ex-A.7 are valid, the
plaintiff’s occupation of the Suit Property, though lawful in its inception,
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turned to be wrongful in continuance as the plaintiff failed to remit the
agreed rent and remained in possession of the Suit Property without
consent of the defendant even after notice. The defendant (Landlord) is
entitled to recover the Suit Property from the plaintiff directly without
initiating legal proceedings against the plaintiff. Substantial questions of
law are answered accordingly. The Trial Court as well as the First
Appellate Court concurrently recorded that the Suit filed by the plaintiff is
not bona fide. In view of the facts and circumstances and the evidence
available on record, this Court finds no reason to deviate with the findings
recorded by the Trial Court and the First Appellate Court.
16. In view of the subsequent developments viz., sale of the
Suit Property to one G.Naveen and the plaintiff filing a Suit inter alia for
declaration that the Sale in favour of said G.Naveen is null and void
followed by the said G.Naveen filing a Suit for recovery of possession from
the plaintiff, the Suit prayer in the present Suit has become infructuous.
This is specifically because the current title holder of the Suit Property viz.,
G.Naveen has initiated eviction proceedings through process of law against
the plaintiff.
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17. When this Court checked the status of both the said Suits
through the eCourt website, it was seen that joint trial is going on. In these
circumstances, III Additional District Court (FTC), Vellore, shall decide the
said Suits on merits as per law, untrammelled and uninfluenced by any
observation made by this Court herein. It is clarified that the observations
made by this Court are only for the purpose of deciding this Second
Appeal.
CONCLUSION:
18. Resultantly, the Second Appeal stands dismissed with the
above observations. Keeping in mind the facts and circumstances of the
case, there shall be no order as to costs.
20 / 11 / 2024
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
Speaking Order / Non-Speaking Order
TK
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To
1. Principal District Court
Vellore.
2. III Additional District Court (FTC)
Vellore.
3. Principal Sub Court
Vellore.
4. Principal District Munsif Court
Vellore.
5. III Additional District Judge
Vellore.
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R.SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO. 809 OF 2018
20/ 11 / 2024
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