IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.03.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.32 and 33 of 2011 and M.P.Nos.1 and 1 of 2011 S.Syed Sadick .. Appellant in S.A.No.32/11/Defendant S.Syed Rasool .. Appellant in S.A.No.33/11/Defendant vs. 1. A.M.Adhil Badusha 2. A.M.Abdul Rasheed 3. Yasmeen Kathija 4. Haseena Parveen .. Respondents in both S.As. /Plaintiffs These two second appeals are focussed as against the judgments and decrees of the Appellate Court passed in A.S.Nos.8 and 9 of 2010 dated 14.09.2010 on the file of the District Judge and Appellate Authority of the Nilgiris at Udhagamandalam confirming the decrees and judgments passed in O.S.No.88 and 87 of 2008 respectively dated 18.03.2010 on the file of the Subordinate Judge of the Nilgiris at Udhagamandalam. For Appellants : Mr.M.L.Ramesh For Respondents : Mr.S.K.Raghunathan J U D G M E N T These two second appeals are focussed by the original defendants, animadverting upon the judgements and decrees dated 14.09.2010 passed in A.S.Nos.8 and 9 of 2010 by the District Judge and Appellate Authority of the Nilgiris at Udhagamandalam, confirming the judgments and decrees of the learned Subordinate Judge of the Nilgiris at Udhagamandalam in O.S.No.88 and 87 of 2008 respectively. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of these Second Appeals would run thus: (a) The plaintiffs filed the two suits seeking the following reliefs: (i) For possession of the premises described in the schedule below; (ii) For payment of Rs.45,900/- with interest thereon at 12% per annum from the date of suit till payment; (iii) For payment of future damages at the rate of Rs.350/- per day from the date of suit till the date of delivery of possession; and (iv) for costs. (Extracted as such) (b) The defendants filed the written statement resisting the suits. (c) Whereupon the trial Court framed the issues. (d) During trial, in O.S.No.87 of 2008, on the side of the plaintiffs, P.W.1 and P.W.2 were examined and Exs.A1 to A7 were marked. The defendant - Syed Rasool examined himself as D.W.1 and Exs.B1 to B3 were marked. (e) In O.S.No.88 of 2008, on the side of the plaintiffs, P.W.1 and P.W.2 were examined and Exs.A1 to A7 were marked. The defendant - Syed Sadick examined himself as D.W.1 and Exs.B1 to B3 were marked. (f) Ultimately the trial Court decreed the suits, as against which appeals were filed for nothing but to be dismissed by the appellate Court confirming the judgments and decrees of the trial Court. 3. Challenging and impugning the judgments and decrees of both the Courts below, these Second Appeals have been focussed on various grounds and also suggesting the following substantial questions of law: "(a) Whether the Courts below are correct in fixing the Age of the Building by considering the assessment for the property tax as per Exhibit A6 for determining the exemption of building provided under Section 30(i) of the Tamil Nadu Buildings (Lease and https://hcservices.ecourts.gov.in/hcservices/ Rent Control) Act 1960? (b) Whether the Courts below are correct in considering Exhibit A4 Notice for termination of notice under Section 106 of Transfer of Property Act? (c) Whether the Courts below are correct in fixing the quantum of Rent without any evidence produced by the plaintiff/respondents herein? (d) Whether the Courts below are correct in assessing the damages for use and occupation not in accordance with law but merely on assumption?" (extracted as such) 4. Heard both sides. 5. After hearing both sides, I have been of the considered view that the following substantial questions of law should be framed: (1) Whether both the Courts below in the absence of having examined the vendor contemplated in Ex.A1 dated 27.03.2006 and the licensee contemplated therein and also in view of having not produced the licence deed dated 30.04.2004, were justified in holding that the suit premises was constructed within 5 years' period anterior to the date of filing of the suits and thereby the exemption under Section 30(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act is attracted? (2) Whether both the Courts below were justified in construing the monthly rent as Rs.5,300/- (Rupees five thousand three hundred only) and also in quantifying the damages for use and occupation in a sum of Rs.200/- (Rupees two hundred only) per day? (3) Whether there is any perversity or illegality in the judgments and decrees passed by the Courts below? SUBSTANTIAL QUESTION OF LAW NO.1 6. The learned counsel for the appellants/defendants would advance his arguments, the gist and kernel of them would run thus: https://hcservices.ecourts.gov.in/hcservices/ (a) The Hon'ble Apex Court in the precedent reported in AIR 1982 SC 945 [Ram Saroop Rai v. Smt.Lilavati] highlighted and spotlighted the fact that the onus of proof is on the plaintiff/landlord to prove that the building concerned was built within five years anterior to the date of the filing of the suit as against the tenant for eviction, so as bring the matter within the exception contemplated in Section 30(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act. (b) The vendor contemplated under Ex.A1 was not examined and it is an admitted fact that the earlier licensee under the said vendor constructed the suit premises long prior to the sale effected in favour of the plaintiff as per Ex.A1. Neither the vendor nor the licensee who allegedly constructed the building was examined and even the licence deed was not produced before the Court. (c) Mere production of Ex.A6 – the communication issued by the Municipality, in no way would demonstrate and display that the building was constructed as claimed by the plaintiffs within five years anterior to the filing of the suits. Even though as per the plaintiffs, their plea could be demonstrated and proved by adducing clinching and best evidence, the same was not produced. As such in the absence of such evidence, both the Courts below were wrong in relying upon the patchy, sketchy, tenuous, weak, meek and bleak evidence and rendering their judgments warranting interference in the Second Appeal. (d) The defendants are occupying only small areas which are not found described in the plaints. Only the shop numbers are found specified as Nos.1 and 2 The entire building area purchased by the plaintiffs was only 600 sq.ft., and thereon, there are several shops. As such for such small shops, both the Courts below were not justified in assuming and presuming as though the rent per month was Rs.5,300/- per shop. Even the evidence of P.W.2 would falsify the stand of the plaintiffs. (e) Both the Courts below were not justified in quantifying the damages for use and occupation at Rs.200/- per day per shop. As such there is perversity and illegality in the judgments passed by the Courts below. Accordingly, the learned counsel for the defendants would pray for setting aside the judgments and decrees of both the Courts below and for dismissing the Original Suits. 7. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the defendants, the learned counsel for the respondents/plaintiffs would set out thus: https://hcservices.ecourts.gov.in/hcservices/ (a) Ex.A1 is the sale deed which emerged at the time when this dispute was not at all in contemplation. Ex.A1 being a registered document, would speak to the effect that the building as on the date of registering the document was only three years old; wherefore there is ample scope of presuming that within five years anterior to the filing of the suit the building was constructed. (b) The non production of the licence deed contemplated in Ex.A1 and also the non examination of the vendor of the plaintiffs are not at all germane for deciding this case, as Ex.A6 would clearly show that the Municipality assessed the tax for the building only during the year 2007. (c) Regarding quantification of the rent as well as the damages for use and occupation made by both the Courts below, the learned counsel for the plaintiffs would submit that there is nothing wrong in that. Accordingly, the learned counsel for the plaintiffs would pray for the dismissal of the Second Appeals. 8. The learned counsel for the defendants would place reliance on the following decisions: (i) The decision of the Hon'ble Apex Court reported in 1982 SC 945 [Ram Saroop Rai v. Smt.Lilavati] (ii) The decision of this Court reported in 1995 MLJ 159 [S.Ranganathan v. S.Venkatesan] and stress upon the fact that the onus of proof was heavily on the plaintiff to prove that the suit premises is exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act. 9. At this juncture I recollect the following maxims: (1) Affirmantis est probare : The person who affirms must prove (2) Affirmanti, non neganti, incumbit probatio : The proof is incumbent on the one who affirms, not on the one who denies. 10. In commensurate with the same, the plaintiff examined himself as P.W.1 and in addition to that he also got P.W.2 one other tenant under him examined before the Court. The deposition of P.W.2 bears testimony to the evidence of P.W.1. Ex.A6 would reveal that the said certificate was issued by the Municipality concerned on 28.08.2009. https://hcservices.ecourts.gov.in/hcservices/ 11. The learned counsel for the defendants would submit that such a document emerged subsequent to the filing of the suits so to say, it is a pendente lite document, whereas, the learned counsel for the plaintiffs would expound and explain that no doubt such certificate was issued pendente lite, but what is contemplated in that certificate is that even in the year 2007 so to say on 29.01.2007 the suit properties were assessed tax for the financial year 2006-2007. The suits were filed only in the year 2008 and as such it cannot be termed that the assessments were made pendente lite. Wherefore, I am of the considered view that reliance placed by the both the Courts below on Ex.A6 cannot be found fault with. 12. Ex.A1-the sale deed is of the year 2006. No doubt, the defendants started occupying the suit property as tenants ever since 30.04.2004 as per Ex.B1 (2 lease agreements), but the suit disputes did not get emerged at the time of the execution of Ex.A1 the sale deed. As such, Ex.A7 the lease deed emerged at the time when there was no dispute between the plaintiffs' vendor and the defendants or between the plaintiffs and the defendants herein. Illustration (e) to Section 114 of the Indian Evidence Act could also be ushered in so as to hold that the Registering authority who registered the document might have got himself satisfied about the factum of the age of the building as three years found set out therein. Ex.A1 is not a sale deed simplicitor. Peculiarly the narration in the sale deed would refer to the entire history relating to the suit property as to when it was leased out as a plot to the erstwhile licencee for car parking and how the said licensee was allowed to raise shops thereon, which is the subject matter of the suits herein and in such a case, factually these cases could be differentiated from the other cases found set out in the decision cited supra. 13. A precedent could be applied only in consimili casu and not in matters where factually that is distinguishable. Regarding adequacy of evidence,, it all depends upon case to case. The learned counsel for the defendants would insist upon the fact that the completion certificate regarding the building was not given to the Municipality concerned and the relevant notification given by the plaintiffs' vendor to the Municipality was also not produced so as to attract the exemption contemplated under Section 30(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act. I would like to point out that no hard and fast rule could be laid down in this regard. When facts are sufficient to buttress and fortify the plaintiffs' contention, one cannot throw the baby along with bath water and any admissible evidence could be relied on to hold that whether a building emerged five years anterior to the building or not. Accordingly if viewed, it is pellucidly and axiomatically clear https://hcservices.ecourts.gov.in/hcservices/ that at any rate the suit premises could not have been constructed five years anterior to the filing of the suits. The very licence granted by the plaintiff's vendor in favour of his licensee was on 21.08.2003. The suits were filed on 11.08.2003 that is within five years period and in such a case even by phantasmagorical thoughts it cannot be visualised that anterior to 21.08.2003 the said shops were constructed by the licencee and in such a case, I would like to agree with the findings of both the Courts below that the building was constructed within five years anterior to the filing of suits. 14. Accordingly, the substantial question of law No.1 is decided to the effect that both the Courts below were justified in holding that the suit premises was constructed within 5 years' period anterior to the date of filing of the suits. SUBSTANTIAL QUESTION OF LAW NOS.2 AND 3: 15. I could see perversity or illegality in the finding rendered by the Courts below concerning the quantification of the damages for use and occupation in view of the reasons set out infra. I would like to point out that the judgments of both the Courts below are fraught with perversity and illegality throwing to winds Section 92 of the Indian Evidence Act. Both the Courts below simply accepted the oral evidence of the landlord as though the monthly rent was Rs.5,300/- per shop. Ex.B1 - the lease deed, which emerged between the plaintiffs' vendor and the defendants would amply show that the monthly rent was only Rs.1,000/- per shop and in such a case, quite antithetical to such clause and averment, the plaintiffs should not have been permitted to adduce evidence. Having chosen to get incorporated in the lease deed itself the monthly rent, the onus is on the plaintiffs to prove how it was enhanced. Not even a receipt of enhanced rent or counter foil of such receipt, has been produced by the plaintiffs. In fact, adding fuel to the fire, P.W.2 himself, the one other tenant under the plaintiffs would try to expound and explain by pointing out that purely for the purpose of evading tax assessment at a higher level it was mentioned as though the rent was only Rs.1,000/- per shop even though the rent agreed was only Rs.5,000/- per shop. 16. I recollect the following maxims: (i) Ex dolo malo non oritur actio – Out of fraud no action arises; fraud never gives a right of action. (ii) Ex nudo pacto non oritur actio-Out of a nude or naked pack that is, a bare parol agreement without consideration, no action arises. Out of a promise neither attended with particular solemnity such as belongs to a specialty nor with any consideration no legal liability can arise. https://hcservices.ecourts.gov.in/hcservices/ (iii)Ex turpi causa non oritur actio: Out of a base illegal, or immoral consideration, an action does not arise. (iv) Ex maleficio non oritur contractus : A contract cannot arise from misconduct. 17. The Court should discourage such practice of parties pleading that they deliberately forged such clauses to evade tax. The parties having chosen to defraud cannot be heard to contend that reality has to be seen by the Court. Accordingly, I would like to set aside the findings of both the Courts below in assessing the monthly rent in a sum of Rs.5,300/- per shop. 18. Ultimately in the absence of evidence, the Court should assess the damages for use and occupation after termination of tenancy at the same rate as that of the erstwhile rent. If at all there is any clinching evidence to the contrary then there could be enhancement, but in the absence of any evidence, I would like to quantify the damages for use and occupation also at the same rate as that of the erstwhile rent, i.e. Rs.1,000/- per month per shop. 19. As such the calculation of rent for the period from 01.12.2002 to 31.07.2008 shall be at the rate of Rs.1,000/- per month per shop and damages for use and occupation shall be calculated at the rate of Rs.1,000/- from the date of suit till payment. The defendants also are liable to pay 6% interest on the arrears of rent only from the date of suit till payment. Accordingly the lower Court decrees shall stand modified. 20. The substantial question of law Nos.2 and 3 are decided to the effect that both the Courts below were not justified in construing the monthly rent as Rs.5,300/- (Rupees five thousand three hundred only) and also in quantifying the damages for use and occupation in a sum of Rs.200/- (Rupees two hundred only) per day. 21. The learned counsel for the defendants also would point out that the lease deeds contemplates the receipt of advance in a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) by the plaintiffs' vendor and the defendants are entitled to set off the advance amounts towards part of the dues. I could see considerable force in his submission and the advance amounts as contemplated in Ex.B1 could be set off by the defendants towards the total dues proportionately and pay the remaining dues to the plaintiffs. 22. Inasmuch as the defendants being business men cannot https://hcservices.ecourts.gov.in/hcservices/ holus bolus shift their business to some other premises, I would like to grant six months' time for handing over possession of the suit property to the plaintiffs. Accordingly, these Second Appeals are partly allowed. No costs. Consequently, connected miscellaneous petitions are closed. Gms Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The District Judge and Appellate Authority of the Nilgiris at Udhagamandalam. 2. The Subordinate Judge of the Nilgiris at Udhagamandalam. Copy to: The Section Officer, VR Section, High Court, Madras. + 2 ccs to Mr. G. Kumud Jnabakh, Advocate SR No.19523 + 1 cc to Mr. S.K. Rakhunathan, Advocate SR No.19539 SP(CO) SR/31.3.2011 S.A.Nos.32 and 33 of 2011 https://hcservices.ecourts.gov.in/hcservices/