Madras High Court
D.V.Mercy vs R.Vijayalatha on 29 April, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
S.A.(MD)No.315 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 22.04.2025
Pronounced On : 29.04.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
S.A.(MD)No.315 of 2015
and
M.P.(MD)No.1 of 2015
1.D.V.Mercy
2.Caroline
3.Arul Yagappa
4.Maria Durairaj
... Appellants / Appellants /
Legal Heirs of Y.Victor who died
after the judgment and decree in original suit.
Vs.
R.Vijayalatha
... Respondent / Respondent / Plaintiff
PRAYER : Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 25.09.2014 passed in
A.S.No.24 of 2013 on the file of the Principal District Court, Thanjavur
1/16
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S.A.(MD)No.315 of 2015
confirming the judgment and decree dated 22.02.2013 in O.S.No.306 of
2010 on the file of the Additional Subordinate Court, Thanjavur.
For Appellants : Mr.Raguvaran Gopalan,
for Mr.E.V.N.Siva
For Respondent : Mr.M.P.Senthil
JUDGMENT
(Judgment of this Court was delivered by M.JOTHIRAMAN J.)
Unsuccessful defendants have preferred the second appeal. For the
sake of convenience, the parties are referred to as per their rank before the
trial Court.
2.The brief case of the plaintiff is as follows:-
The plaintiff/R.Vijayalatha is the tenant of the suit property ie., Arul
Theatre with machineries belong to defendant-Victor. They have entered
into an agreement, under which, the defendant leased out the suit property
to the plaintiff under a lease agreement dated 25.08.2006. Prior to the
lease arrangement, the theatre was not running. The plaintiff was already
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running a theatre by name Yagappa theatre, which belonged to the brother
of the defendant. The defendant agreed that the plaintiff may carry out the
repairs and do the remodeling to convert the theatre into an air condition
one. On completion of the entire process of the renovation was early in
August 2006. A sum of Rs.15,00,000/- was paid as advance and monthly
rent was fixed at Rs.1,12,000/-. When the plaintiff apprehended forcible
eviction from the property leased to her, she had filed a suit in O.S.No.353
of 2018 on the file of the District Munsif, Thanjavur. The plaintiff spent a
sum of Rs.8,30,146/- towards the repairs and renovation works. Initially,
the defendant agreed to reimburse the same and later, refused to return the
amount. Hence, the suit.
3.The brief case of the defendant is as follows:-
As per agreement dated 25.08.2006, the plaintiff had been licensed
to use the furniture and machines of the theatre alone, not of the entire
premises. The facilities which are required to the theatre were carried out
by the defendant of his own. The allegations, that the defendant consented
to carry out repairs and remodeling by the plaintiff and agreed to
reimburse the expenses are all absolutely false. There is no such agreement
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or contract between the parties at any point of time. As there is no works
were carried out by the plaintiff, the defendant has no necessity to pay the
amount. The plaintiff deliberately creates false documents to file the suit
for which she will liable for prosecution.
4.Based on the above pleadings, the trial Court framed the following
issues:-
i)Whether the plaintiff is entitled a money decree as prayed for?
ii)Whether the suits pending between the parties, which are
mentioned in the written statement is relevant to this case?
iii)To what other reliefs entitled?
On the side of the plaintiff, plaintiff's husband Thiru.Ramakrishnan was
examined as P.W.1, one Sathishkumar examined as P.W.2 and one Selvam
examined as P.W.3 and Ex.A1 to Ex.A82 were marked. On the side of the
defendant, the defendant himself examined as D.W.1, one Sethuraman
examined as D.W.2 and Ex.B1 to Ex.B7 were marked.
5.Upon hearing either side arguments and considering the evidences
and documents, the trial Court decreed the suit on 22.02.2013 and directed
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the defendant to pay a sum of Rs.8,30,146/- with interest @ 7.5% from the
date of plaint till the date of decree and thereafter, with interest 6% from
the date of decree to till the date of realization. Aggrieved over the same,
the defendant preferred an first appeal in A.S.No.24 of 2013 before the
Principal District Court, Thanjavur. On re-appreciation of the entire
evidence and documents, the first appellate Court confirmed the trial
Court's decree and judgment and dismissed the appeal vide judgment
dated 25.09.2014. The defendant died after passing of the decree and
judgment in O.S.No.306 of 2010 dated 22.02.2013. The legal heirs were
preferred the aforesaid first appeal. Aggrieved over the concurrent decree
and judgments of the both Courts below, the present second appeal has
been preferred.
6.At the time of admission, this Court has formulated the following
substantial question of law:-
i)Whether the Courts below have committed an error in disregarding
the fact that there was no contract between Y.Victor-deceased defendant
and the plaintiff for renovation of Arul Theatre prior to 25.08.2006?
ii)Whether the Courts below have committed an error in holding
that the plaintiff was entitled to recover the amount allegedly spent by him
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for renovation of the theatre, in the absence of any specific clause in the
agreement and in the absence of any permission obtained from the theatre
owner in writing?
iii)Whether the Courts below have rendered a perverse finding that
the plaintiff proved her case of spending a sum of Rs.8,30,146/- prior to
25.08.2006?
7.The learned counsel appearing for the appellant/defendant would
submit that after the lease agreement dated 25.08.2006 the plaintiff
obtained a sum of Rs.19,00,000/- from late Y.Victor/defendant on
execution of four promissory notes and the plaintiff was defaulted in
payment of rent as well as the amount borrowed and had the plaintiff spent
such huge amount towards renovation before 25.08.2006, definitely, the
same would be only on written agreement. He would submit that when
there is no such written agreements entered between the parties, the entire
claim made by the plaintiff was false on the face of it. When the theatre
was not handed over to the plaintiff before 25.08.2006, the question of
repair and renovation by the plaintiff does not arise at all. When the
plaintiff admitted that entire renovation was carried out before August
2006 whereas, most of the bills produced towards alleged expenditure
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pertains to after August 2006 were not supported to the case of the
plaintiff. There is no documentary proof of handing over possession of
theatre prior to 25.08.2006 for renovation, the Courts below have rendered
judgment based on assumption and presumption of facts.
8.Per contra, the learned counsel appearing for the plaintiff would
submit that prior to the lease arrangement the theatre was not running and
was kept close for a long time. The theatre building needed some repairs
which needed substantial amount of investment. The defendant agreed
that the plaintiff may carry out the repairs and do the remodeling to
convert the theatre into an air condition one. The trial Court based on the
documents and based on the evidences of witnesses come to a conclusion
that the plaintiff is entitled to recover the suit amount with interest.
9.It is an admitted fact that lease agreement was entered between the
parties dated 25.08.2006 and the plaintiff started running the theatre. A
sum of Rs.15,00,000/- was paid as an advance by the plaintiff to the
defendant and monthly rent was fixed at Rs.1,12,000/-. It is also an
admitted fact that the defendant filed a suit for recovery of money based
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on pro-notes in O.S.No.132 of 2008 on the file of the Principal District
Judge, Thanjavur as against the plaintiff. The plaintiff had filed a suit in
O.S.No.438 of 2008 on the file of the District Munsif Court, Thanjavur as
against the defendant. The defendant has also filed a suit for recovery of
money based on the promissory notes in O.S.No.143 of 2008 against the
plaintiff. The plaintiff has also filed a suit for the relief of permanent
injunction restraining the defendant from in any way interfering with the
plaintiff lawful possession of the suit property ie., Arul Theatre, except by
due process of law, in O.S.No.353 of 2008 on the file of the District
Munsif Court, Thanjavur. Therefore, between the parties several
litigations are came to be initiated.
10.In order to prove the case of the plaintiff, Ex.A2 to A7 have been
relied upon to prove that the plaintiff has purchased electrical pipes and
ceramic items to the tune of Rs.3,16,166/-. Ex.A18 to A20 have been
relied upon to prove that shed and fall-ceiling work have been carried out
for a sum of Rs.1,17,000/-. Ex.A21 to A29 have been relied upon to
prove that the plaintiff had purchased timper and plywood for a sum of Rs.
1,68,427/-. Ex.A32 to A38 have been relied to prove that projector and
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generator have been serviced for a sum of Rs.80,017/-. Further, to
purchase cements and hardware materials for a sum of Rs.1,48,436/- to
that effect, 46 vouchers have been placed and a bill for a sum of Rs.
1,04,436/- issued by the Sri Lakshmi Corporation Limited have been
placed.
11.It is requisite to cite the sections 101 and 103 of the Indian
Evidence Act -
Section 101 – Burden of Proof – Whoever desires any
Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must
prove that those facts exist. When a person is bound to prove
the existence of any fact, it is said that the burden of proof
lies on that person.
Section 103 – Burden of proof as to particular fact -
The burden of proof as to any particular fact lies on that
person who wishes the Court to believe in its existence,
unless it is provided by any law that the proof of that fact
shall lie on any particular person.
12.The decision of the Hon'ble Supreme Court reported in AIR 2011
SC 2344 – Ranammal v. Kuppuswami wherein it has been held that
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“when a person is bound to prove the existence of any fact, it is said that
burden of proof lies on that person. Thus, the burden of proving fact
always lies upon the person who asserts it. Unless such burden is
discharged, the other party is not required to be called upon to prove his
case.”
13.P.W.2 deposed that he has issued Ex.A29 receipt in the name of
one Ramakrishnan(P.W.1), who is the husband of the plaintiff, for the
purchase of plywood and other materials. P.W.2 in his cross examination
admits that in Ex.A29 receipt there is no mention about the details of the
materials sold to the P.W.1. P.W.3 Selvam deposed that he is working in
a shop namely Ambika Steels and Ex.A2 and Ex.A4 vouchers were issued.
From the above evidence of P.W.2 & P.W.3 and Ex.A18 to Ex.A82, it is
revealed that the initial burden lies on the plaintiff has been discharged
and the burden shifts on the defendant to prove his case.
14.Per contra, it is the specific case of the defendant that as per
agreement dated 25.08.2006, the plaintiff had been licensed to use the
furniture and machines of the theatre alone and not the entire premises.
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The repair works and remodeling to convert the theatre into an air
condition one and all other things were carried out by the defendant on
his own. It is also the case of the defendant that the above said works
were completed by availing loan from the Bank. In order to prove the
aforesaid facts, D.W.2-Thiru.Sethuraman, Assistant Bank Manager, State
Bank of India, Thanjavur Branch, examined. D.W.2 deposed that the
defendant had borrowed a sum of Rs.30,00,000/- from his Bank for
renovating and repairing the theatre and he produced Ex.B4 and Ex.B5
documents. Ex.B4 is the Bank Statement, which shows that a sum of Rs.
29,93,618.16/- is available on 26.09.2006 on the account of the defendant.
Ex.B5 is the letter of arrangement dated 25.05.2006 wherein it has been
stated that the defendant had submitted application dated 10.05.2006
requesting for sanction of term-loan for a sum of Rs.30,00,000/-. In Ex.B4
and B5, no where it has been mentioned that the amount has been
borrowed for repairing and renovating the theatre. Further, it is not
explained by the defendant as to why he had obtained loan on 26.08.2006
for a sum of Rs.30,00,000/- for renovating the theatre, since he had handed
over the theatre to the plaintiff on 25.08.2006 itself.
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15.D.W.1-Victor in his cross examination admits that prior to the
lease agreement dated 25.08.2006, the theatre was not running and kept
closed for sometime. He admits that prior to the lease agreement, some
repairs were carried out and renovated. He admits that the plaintiff has
filed bills and vouchers in support of her case to show that expenses were
incurred by the plaintiff. He admits that the renovation work was carried
out between January 2006 and August 2006. He admits that during the
renovation ceramic tiles have been laid down on the floor in the theatre
and toilet area, plywood works, fall-ceiling works and electrical works
also carried out in the theatre. He has also admitted that the theatre was
remodeling and converted into the theatre into an air condition one. The
defendant has failed to prove his case that all the repair works and
remodeling works were carried out by him on his own.
16.The Courts below has thoroughly analysed the evidence and
documents in a proper manner have rendered factual findings. It is
pertinent to mention that the Hon'ble Apex Court has held in catena of
judgments in (i) Karnataka Board of Wakf v. Anjumman-E-Ismail
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Madris-Un-Niswan- (1999)6 SCC 343 (ii) Ramanuja Naidu v.
V.Kanniah Naidu -(1996) 3 SCC 392 (iii) Navaneethammal v. Arjuna
Chetty - (1996) 6 SCC 166 and (iv)Secy., Taliparamba Education Society
v. Moothedath Mallisseri Illath M.N. - (1997) 4 SCC 484 that “if the
findings of fact of the Courts below are based on legal evidence, the same
cannot be interfered by this Court while exercising power under Section
100 of the C.P.C”.
17.From the evidence of P.W.1 to P.W.3 and through documents, the
claim of the plaintiff has been proved and the plaintiff is entitled the suit
amount as prayed for. The findings rendered by the Courts below does not
requires any warrants of interference. We are of the view that the Courts
below have not committed any error in holding that the plaintiff was
entitled to recover the amount spent by her for renovation of the theatre,
even in the absence of any specific clause in the agreement and in the
absence of written permission obtained from the defendant. The
substantial questions of law are answered accordingly. There is no merit
in this appeal and the same is liable to be dismissed.
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18.In the result, this second appeal is dismissed and the judgment
and decree dated 25.09.2014 passed in O.S.No.306 of 2010 on the file of
the Additional Sub-Court, Thanjavur, upheld in A.S.No.24 of 2013 on the
file of the Principal District Court, Thanjavur, dated 22.02.2013 are hereby
confirmed. No costs. Consequently, connected miscellaneous petition is
closed.
(G.R.S., J.) & (M.J.R., J.)
29.04.2025
NCC : Yes / No
Index : Yes / No
gns
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To
1.The Principal District Court, Thanjavur
2.The Additional Sub-Court, Thanjavur
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G.R.SWAMINATHAN,J.
and
M.JOTHIRAMAN, J.
gns
Pre-Delivery Judgement made in
29.04.2025
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