Madras High Court
Chennai Otteri Vattara Nadar Sangam vs / on 21 January, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
C.S.No.66 of 2022
and
A.Nos.17 & 18 of 2025 & 1847 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :03.01.2025
Pronounced on :21.01.2025
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Civil Suit No.66 of 2022
and
A.Nos.17 & 18 of 2025 and 1847 of 2022
Chennai Otteri Vattara Nadar Sangam,
Rep.by its General Secretary of Mr.S.P.Mariappan,
Office at No.106, Strans Road,
2nd Floor, G.P.Mini Mahal,
Otteri, Chennai 600 012. .. Plaintiff
/vs/
Mr.P.Kasirajan,
S/o Ponnapan Nadar,
Chennai Otteri Vattara Nadar Sangam,
Thirumana Maligai,
No.9, Thiru-Vi-Ka-Street,
Otteri, Chennai 600 012. .. Defendant
Prayer: Civil Suit has been filed under Order IV, Rule 1 of the O.S.
Rules r/w Order VII, Rule 1 of Civil Procedure Code, praying to pass a
1/20
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C.S.No.66 of 2022
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judgment and decree in favour of the plaintiff as follows:-
(a)To pass a decree for ejectment by way of directing the defendant to
quit and deliver the vacant possession of the Schedule 'A' mentioned
immovable property to the plaintiff;
(b)Direct the defendant to return all the movable, furniture, fittings
etc., morefully mentioned in the schedule 'B' movable properties to the
plaintiff;
(c)Directing the defendant to pay a sum of Rs.2,17,000/- towards
arrears of rent for the period of 01.06.2021 to 10.04.2022 together with
interest of 6% per annum from the date of the plaint to till its realization;
(d)To direct the defendant to pay a sum of Rs.1,50,000/- per month
for use and occupation of both schedule-A (Rs.1,25,000/- immovable
property) and schedule-B (Rs.25,000/- movable property) mentioned
property from the date of plaint to till its realization;
(e)To award the cost of the suit to the plaintiff.
For Plaintiff :Mr.P.Suresh Babu
For Defendant :Mr.M.Arvind Kumar
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C.S.No.66 of 2022
and
A.Nos.17 & 18 of 2025 & 1847 of 2022
ORDER
Suit has been filed for ejectment of ‘A’ schedule immovable property
and for direction to return the ‘B’ schedule movables and fittings. Besides
to pay a sum of Rs.2,17,000/- towards arrears of rent for the period of
01.06.2021 to 10.04.2022 together with interest at the rate of 6% p.a. from
the date of plaint, till the date of realisation and to pay a sum of
Rs.1,50,000/- p.m. towards use and occupation of the 'A' schedule building
and Rs.25,000/- p.m for the movables listed in 'B' schedule.
2. The gist of the plaint reads as below:-
The plaintiff is a registered society formed to cater the needs of the
Nadar Community residing in and around Otteri, Chennai, as its name
indicates. The 'A' schedule property is a building to be used as
Kalyanamandabam/community hall. The 'B' schedule properties are the
necessary movables, such as furniture, utencils, electrical fittings etc., to run
the marriage hall.
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3. The building was constructed by the plaintiff Sangam in the year
1989 and during the intial period, Kalyanamandabam was administered by
its officer bearers. Later, in the year 2005 it was leased out to the defendant.
The plaintiff Sangam and the defendant entered into two separate agreement
one for the building and another for the movables and amenities in the
building. The lease commenced on 01.04.2005 and renewed periodically for
5 successive years upto 2009. The monthly rent paid for the building was
Rs.9,000/- and for the movables a sum of Rs.12,000- was paid.
4. In the year 2010, the lease expired. The defendant did not come
forward to renew the lease but continue to be in occupation of the building
and utilising the movables and earning by letting out the utensils and
furnitures for rent to outsiders. He started paying the monthly rent belatedly
and in lump sum, after accumulating the arrears for 4 or 5 months.
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5. The plaintiff Sangam solely dependent on the income from this
property to carry out its object, hence filed R.C.O.P.No.2500 of 2012 under
Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
for fixation of fair rent. After contest, the Rent Control Tribunal fixed
Rs.96,346/- as fair rent per month with effect from 07.12.2012. Despite the
order by the Rent Control Tribunal to pay Rs.96,346/- as rent, the defendant
continued to pay only Rs.21,000/- p.m.
6. Meanwhile, the defendant admitting the tenancy filed a petition
under Section 8 of the Act, for depositing the old rent alleging that the
landlord was refusing to receive rent. The petition of the Defendant
R.C.O.P.No.1915 of 2012 was allowed. The defendant, even thereafter,
never paid the rent regularly. Hence, the plaintiff filed R.C.O.P.No.1602 of
2015 under Section 10(2)(1) of the Tamil Nadu Building, (Lease and Rent
Control) Act, 18 of 1960 Amended by Act of 1973 and Act of 1980 and
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R.C.O.P.No.595 of 2013 under Sections 10(2)(ii) (b) and 10(3)(a)(i) of the
of Tamil Nadu Buildings (Lease and Rent Control) Act 18/60 As amended
by Act 23/73 and Act 1/80.
7. The Rent Control Tribunal dismissed R.C.O.P.No.595 of 2013 and
allowed R.C.O.P.No.1602 of 2015 on 05.09.2017 directing the tenant
(defendant herein) to vacate the premises and hand over the vacant
possession of the building along with all movables within a period of 2
months. Aggrieved by the order of eviction, the tenant/(defendant herein)
preferred Appeal and succeeded on the technical ground that the lease being
a composite lease for the building and materials, the Rent Control Act will
not apply. The Civil Revision Petition preferred by the landlord/(plaintiff
herein) was dismissed confirming the order of the Appellate Tribunal.
8. Though the case of the plaintiff is that the lease for building and the
materials/movables were separate and distinct and the tenant himself earlier
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resorted to the Rent Control Act for deposit of rent under Section 8 of the
Act, this contention was overturned by the High Court. Under the said
circumstances, the present suit is filed for the relief noted earlier after
causing termination notice as required under the Transfer of Property Act.
9. The defendant was served with suit summons on 02.05.2022, he
had failed to file the written statement in time and was set exparte vide,
order dated 28.10.2022. The plaintiff was directed to tender evidence before
the Additional Master II on 07.11.2022. S.P.Mariappan, (aged 74 years) the
General Secretary of the plaintiff Sangam filed his proof affidavit and was
examined as PW-1.Through him, 24 exhibits were marked on 21.11.2022
and the matter was listed before the Court for further adjudication.
Thereafter, the defendant took out an application to set aside the exparte
order. That application was allowed on terms. After payment of cost, the
written statement of the defendant was taken on file.
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10. The defendant in its written statement had denied each of the
plaint averments. According to the defendant, the plaintiff and the defendant
entered into a lease agreement for renting the premises along with movable
and the fixtures for the purpose of running Thirumana Mandapam as a
composite lease for a period 3 years. Subsequently, it was renewed for a
period of 11 months upto 2010. Thereafter, it was orally agreed by the
parties to continue the lease for 3 years and agreed to pay rent of
Rs.21,000/- p.m. The said oral arrangement was recorded in the minute
book of the Plaintiff’s Society. Before expiry of the lease period, the
plaintiff started harassing the defendant with intention to terminate the lease
and to forcible evict him. A false complaint to the police was also lodged by
the plaintiff, however the attempt failed.
11. Admitting the lease and claiming the composite rent was
Rs.21,000/-, the defendant had pleaded that there is no arrears of rent as
alleged. In order to drag the defendant into unwanted litigation, the plaintiff
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has indulged in various illegal activities in the name of inspecting the leased
premises and created disturbance to the peaceful functioning of the
Mandapam. A detailed reply was made to the termination notice explaining
as to why the notice to terminate the lease is bad in law. The claim of
Rs.1,50,000/- p.m. towards the use and occupation is without any basis or
reason.
12. On considering the pleadings, on 03.01.2024, this Court framed
following issues:-
1.Whether the plaintiff is entitled for recovery of
possession as prayed for?
2.To what other relief parties are entitled?
directed parties to file affidavit of list of documents and for inspection, and
typed sets of paper and two weeks time was granted. The matter was
ordered to be listed before the Additional Master-II for recording evidence.
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13. While PW-1 was present with his proof affidavit before the
Additional Master-II for recording evidence, the defendant had failed to be
present on those hearing dates. Hence, the Additional Master on 20.03.2024
recorded the following adjudication and had listed the matter before the
Court.
“C.S.No.66 of 2022: On 20.03.2024, no
representation for defendant side till 12.30 Noon. Plaintiff
side present. PW-1 also present with proof affidavit. Due to
absence of defendant side, the proof affidavit of PW-1 could
not be recorded. Last hearing also no representation for
defendant side. Hence, the matter was adjourned today.
Hence Submit the matter to the Court.
Sd/-AM-II
14. By this time, Mariappan, who gave evidence earlier fell sick and
was not able to attend the Court, hence, on behalf of the plaintiff Sangam
one Natesan, a member of the Sangam was examined, after obtaining the
permission of this Court. The said Natesan was examined as PW-1 in chief
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on 09.07.2024 and 15.07.2024. For cross examination of PW-1, the matter
was adjourned to 31.07.2024. The defendant partly cross examined PW-1
and took time for further cross, however, did not continue the cross
examination, despite the case was being adjourned, for that purpose for
more than 8 hearings, the Learned Additional Master recording the conduct
of the defendant that he is not interested in completing the cross
examination of PW-1 and sent back the matter to the Court .
15. This Court on 12.11.2024 after hearing the counsel and perusing
the daily orders of the Master, passed the following order:-
“4.The learned counsel appearing for the plaintiff
states that there is no other witness on the side of the
plaintiff. The learned counsel appearing for the defendant
seeks further time to cross examine Pw-1. However, the
same is strongly opposed by the learned counsel for the
plaintiff stating that inspite of adjourning the matter for
nearly three months, the defendant has not choosen to
complete the cross examination. Further, the defendant is
squatting over the property without paying the rent and the
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attempt is only to protract the proceedings.
5.This Court is convinced about the submissions
made by the learned counsel appearing for the plaintiff.
Inspite of granting adequate opportunity to the defendant,
he has not chosen to exercise his right of cross-examining
the plaintiff and therefore, there is no reason to extend the
time to cross examine the witness who was bound over to
attending the Court on the dates of hearing and was present
except on two occasions.”
16. On 19.11.2024, the defendant failed to produce the list of
witnesses and documents. The learned counsel for the defendant sought
further time to file the list of documents and witnesses. This Court after
recording reasons declined to give further time and posted the matter for
arguments to be heard on 02.01.2025, after taking two adjourments fo
arguments, i.e. on 03.12.2024 and 11.12.2024. When the matter was taken
up on 02.01.2025, the learned counsel appearing for the defendant reported
that he has taken out two applications one A.No.17 of 2025 for reopen the
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evidence of PW-1, Mr.Natesan and another application A.No.18 of 2025 to
recall PW-1 Mr.Natesan for further cross examination. The Court found that
these applications are of no merits. Hence, post the matter on 03.01.2025 for
argument.
17. Before adverting to the other facts of the case, it is to be noted
that the defendant/applicant filed applications in A.Nos.17 and 18 of 2025
to reopen and recall the evidence of PW-1 Mr.Natesan and deserve to be
dismissed because the reason stated in the applications that he was disturbed
by my son's matrimonial problem and does not agree well. Moreso, in the
light of the fact that the defendant is not interested in pursuing the matter in
accordance with law, but to drag the proceedings under one pretext or
another, it appears that the intention of the defendant was to occupy the
premises as long as possible without paying rent and that is the reason, why
he had not come forward even to deposit the admitted rent of Rs.21,000/-
per month from the date of filing the suit.
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18. The prayer sought in the suit, the evidence of PW-1 and 29
exhibits marked through him proves that PW-1, who authorised to represent
the Sangam to give evidence under Ex.P1 had clearly stated that the
Sangam has resolved to lease out the premises to the defendant and
executed the rental agreement Ex.P3 on 01.04.2005. The same been
renewed time to time and they were marked as Ex.P4, Ex.P5, Ex.P6 and
Ex.P7. From the Ex.P8 (series) and Ex.P9(series), which are the rental
receipts. It is adequately proved that the rent for the immovables and rent
for the movables was paid separately. The proceedings before the Rent
Control Tribunal, initiated by both the Landlord Society and the tenant
reflect the fact that the defendant was supposed to pay a fair rent of around
Rs.1,00,000/-. However, due to technical reasons, the rent control
proceedings was nullify prompting the parties to approach the Civil Court.
Accordingly, the present suit is filed.
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19. As far as the issues involves in this case is whether the plaintiff is
entitled for recovery of possession?
20. It is admitted by the defendant that he was inducted by the
plaintiff as a tenant to the building, and the utensils were leased out to him.
The lease was renewed from time to time and the lease was unregistered.
Subsequently, it was an oral agreement between the parties. It is the case of
the defendant that till May, 2021 the rent of Rs.21,000/- was paid and
thereafter there is no evidence for payment of rent by the defendant. This
statement is also relied by the plaintiff Sangam and has been marked as
Ex.P29. The property owned by the Sangam is the plaintiff. The suit is filed
through its office-bearers, after issuing quit notice as required under Section
106 of the Transfer of Property Act r/w Section 3 of The Transfer Of
Property (Amendment) Act, 2002 informing the tenant that the tenancy
come to an end on 31.01.2022. The notice issued under Section 106 of
Transfer of Property Act is marked as Ex.P24. The suit notice has been duly
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received and replied by the defendant vide reply notice dated 26.08.2021.
The suit is admitted by the Hon'ble High Court on 22.04.2022.
21. The learned counsel appearing for the defendant had given
opportunity to cross examine of PW-1 and he had exercised that option and
had put about 22 questions regarding his default of rent. There is no
question to put to the witness, which would contradict the claim of the
plaintiff. When there is a categorical evidence on the part of the defendant
that from June 2021, the rent was not paid for the premises in possession for
occupation of the defendant. In contrary to the notice for vacating the
premises, although it is contended that there is no arrears of rent, the
defendant has failed to positively establish the factum of payment of rent
and the opportunity given to him to produce the documents was not availed
by the defendant. The Records indicates that the defendant, who entered the
premises as a lease-holder in 2005, stopped for paying the rent, after five
years of continuous of lease and did not renew the rental agreement. From
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2010, he claims that the leasehold right was extended orally. Neither for
extension of lease-hold right nor for payment of lease amount. The
defendant had not chosen to prove the fact through adequate evidence. It is
claimed by the defendant that seeking Rs.1,25,000/- per month as damages
for the building is exorbitant and not supported by any document. Contrarily
to this, the judgment passed in R.C.O.P.No.2500 of 2012 for fixation of fair
rent goes to show that the rent for the said building will be around
Rs.1,00,000/- per month. That apart, vessels and electrical fittings necessary
for Kalyanamandapam was also let out to the defendant. Inspite of repeated
demand, the defendant has neither come forward to pay the rent nor vacated
the building. No justify reason is put forth by the defendant for occupying
the premises. After receipt of the termination notice duly served on the
defendant. The defendant has no further right to occupy the premises
without any justification without paying any rent.
22. It is also necessary to place on record, the plaintiff being
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frustrated by the lengthy litigation and suffered deprivation of rent for more
than 3 years, at one stage through its counsel even offered to withdraw the
claim of rental arrears if the defendant vacates the premises and hand over
the vacant possession. The defendant not ready to accept the offer.
23. In view of this court, the plaintiff being the owner of the building
and material therein, is entitled for recovery of possession along with
arrears of rent and mesne profit. The defendant, who is a tenant under the
Sangam, has exhausted all remedies by dragging the proceedings
unreasonably. The oral submissions made by the learned counsel appearing
for the defendant admitting the non-payment of rent, but justifying the
failure with untenable reason is liable to be rejected forthwith. The fair rent
fixed earlier for the building has to be taken as damages payable for use and
occupation. The plaintiff is also entitle for the rent of the materials leased.
The inordinate and wilful refusal to pay the rent entitles the plaintiff a
reasonable interest also.
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24. Accordingly, this Civil Suit is allowed with costs. The defendant
was hand over the vacant premises to the plaintiff forthwith and liable to
pay the rental arrears of Rs.2,17,000/- from 1.06.2021 to 10.04.2022 with
interest at the rate of 6% per annum from the date of filing the suit till the
date of realisation. He is liable to pay Rs.1,50,000/- per month for use and
occupation of both schedule A and B mentioned in the plaint (immovables
and movables properties).
25. In the result, this Civil Suit is allowed with costs.
Consequently, connected Miscellaneous Applications are closed.
21.01.2025
Index:yes/no
Internet:yes/no
Speaking order/Non speaking order
ari
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DR.G.JAYACHANDRAN,J.
ari
delivery Order made in
and
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21.01.2025
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