IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.1.2008 C O R A M The Honourable Mr.Justice M.JAICHANDREN S.A.No.1372 of 2002 1. Rameshkumar Jain 2. G.S.Eshwarlal Jain ..Appellants/Appellants/Defendants Versus S.K.Habibullah .. Respondent/Respondent/Plaintiff PRAYER: This second appeal has been filed against the judgment and decree passed by the VIII Additional City Civil Judge, Chennai, on 21.9.2001 in A.S.No.91 of 1999, confirming the decree and judgment passed by the VI Assistant Judge, City Civil Court, Chennai, on 21.9.1998, in O.S.No.6030 of 1995. For Appellants : Mr.S.Balasubramanian For Respondent : Mr.Rangarajan J U D G M E N T The second appeal has been filed against the judgment and decree passed by the VIII Additional City Civil Judge, Chennai, dated 21.9.2001, in A.S.No.91 of 1999, confirming the judgment and decree passed by VI Assistant Judge, City Civil Court, Chennai, dated 21.9.1998, in O.S.No.6030 of 1995. 2. The appellants were the defendants in the suit O.S.No.6030 of 1995. The plaintiff in the suit, who is the respondent in the present second appeal, had filed the suit praying that the defendants ought to vacate the suit shop and to deliver vacant possession of the same and also for recovery of damages from the defendants. 3. For the sake of convenience, the parties in the appeal are referred to as they have been arrayed in the suit in O.S.No.6030 of 1995. https://hcservices.ecourts.gov.in/hcservices/ 4. The short facts of the case, as stated in the plaint, are that the plaintiff is the sole and absolute owner of the suit mentioned premises bearing shop No.5, Northern side of the Shopping Complex, Ground Floor of Habib Complex, Door No.3, Durgabai Deshmuk Road, Madras. The construction of the building had been completed in the month of September, 1991. The Corporation of Madras had assessed the building for the purpose of property tax. Therefore, the building does not fall within the purview of the provisions of The Tamil Nadu Building (Lease and Rent Control) Act, 1960 (hereinafter referred to as "the Act"). The defendants are the tenants under the plaintiff in the suit mentioned shop carrying on business of Selling Tyres and Tubes in the name and style of "Klasik Tyres". 5. An unregistered lease agreement had been entered into between the plaintiff and the defendants, on 1.1.1992, for granting the lease for a period of 11 months. Thereafter, the tenancy was to continue on monthly basis and the monthly rent payable by the defendants was Rs.2,100/- till 31.12.1993 and thereafter, it was to be Rs.2,300/- per month, based on the English Calendar month. The tenancy was one at will. The plaintiff had issued a notice, dated 22.6.1995, as stipulated in Section 106 of The Transfer of Property Act, 1882, terminating the tenancy on and from 31.7.1995. The plaintiff had also called upon the defendants through the said notice to quit and delivery the vacant possession of the suit premises, on or before 1.8.1995. The defendants were given 15 days clear notice as required under the Act to quit and deliver the vacant possession of the premises to the plaintiff. 6. In the notice, dated 22.6.1995, the plaintiff had clearly informed the defendants that they are liable to pay Rs.1,000/- per day as damages, if the defendants did not give vacant possession of the premises to the plaintiff, on 1.9.1995. The defendants had refused to comply with the plaintiff's just and legitimate demands by their reply, dated 13.7.1996. The plaintiff had issued a rejoinder reiterating the demand made in the notice, dated 22.6.1995. Since the defendants did not quit and deliver the vacant possession of the premises in question, a suit in O.S.No.6030 of 1995, had been filed. 7. In the written statement filed on behalf of the defendants, it was stated that the suit was not maintainable in law, as it was premature in nature. The defendants did not deny the fact that they have taken the suit shop on lease for the purpose of carrying on their business of sale of tyres. They had also not denied the fact that the tenancy was for a period of 11 months at the first instance and the lease period was to be extended on an increased rent of Rs.200/-. On the request of the https://hcservices.ecourts.gov.in/hcservices/ defendants, while the plaintiff had extended the period of tenancy and the defendants were paying the enhanced rent, it was not open to the plaintiff to file a suit before the expiry of the extended period of tenancy. As such, the suit filed against the defendants was premature. The plaintiff is estopped from filing the suit for recovery of possession of the shop which is the subject matter of the tenancy agreement. 8. The defendants had denied the allegations that the building was completed in the month of September, 1991. The defendants were occupying the other portions in the suit shop prior to 1.1.1992, eventhough the defendants were inducted as tenants only, on 1.1.1992 and as such, the trial Court had no jurisdiction to entertain the suit. The defendants had also denied the claim of the plaintiff that the tenancy was one at will. The defendants contended that the tenancy agreement was in force as on the date of the presentation of the plaint and therefore, the plaintiff was not entitled to claim any damages as stated in the plaint. 9. Based on the pleadings available before the trial Court, the following issues had been framed:- "1. Whether the plaintiff is entitled for the vacant possession of the shop premises as prayed for in the plaint? 2. Whether the plaintiff is entitled for claiming damages? 3. Whether the tenancy is in force on the date of the plaint? 4. Whether the trial Court had jurisdiction to try the suit? 5. Whether the plaintiff is estopped to file the suit seeking vacant possession of the suit shop? 6. To what relief?" 10. The plaintiff had examined himself as P.W.1 and had marked Exhibits A.1 to A.6 in his favour. There was no oral or documentary evidence on the side of the defendants. 11. The trial Court, after analysing the oral and documentary evidence available, had come to the conclusion that the plaintiff was entitled for the vacant possession of the suit shop, as prayed for in the plaint. Therefore, the trial Court had decreed the suit directing the defendants to quit the shop and to deliver the vacant possession of the shop to the plaintiff, along with the costs. 12. With regard to the issues 1 to 5, the trial Court had come to the conclusion that it had jurisdiction to try the suit https://hcservices.ecourts.gov.in/hcservices/ and that the plaintiff was entitled to the relief of vacant possession of the suit shop, as prayed for in the plaint. 13. With regard to the claim for damages, it was held that it was open to the plaintiff to initiate separate proceedings under Order XX Rule 12 of the Civil Procedure Code, 1908. The trial Court had clearly found, based on the evidence available before the said Court, that the building in question in which the suit shop was located was exempted in accordance with Section 30 (1) of the Act, since the construction of the building had been completed in the month of September, 1991, as found in Exhibit A1, dated 30.9.1991. Exhibit A.2, is a letter issued by the Corporation of Madras, dated 30.6.1992 and Exhibit A.3, dated 17.7.1992, is a notice regarding the changes made in the rate of tax imposed on the plaintiff with regard to the suit property. By a legal notice, dated 22.6.1995, marked as Exhibit A.4, issued on behalf of the plaintiff, the defendants have been asked to vacate the suit premises. The reply notice, dated 20.7.1995, issued by the defendants has been marked as Exhibit A.5. A reply notice, dated 13.7.1995, issued by the counsel on behalf of the defendants has been marked as Exhibit A.6. There has been no oral adduced or documentary evidence marked on behalf of the defendants before the trial Court. 14. Though the basic factual aspects of matter have not been denied, the defendants have stated that the building in question cannot be exempted from the application of the provisions of the Act. The main dispute raised by the defendants is with regard to the age of the building in question. It has been contended on behalf of the defendants that the plaintiff has not proved that the building in question is less than five years old to be exempted from the application of the provisions of the Act. On analysing the rival contentions, the trial Court had decreed the suit as prayed for by the plaintiff. 15. Aggrieved by the judgment and decree of the trial Court, dated 21.9.1998, made in O.S.No.6030 of 1995, the defendants in the suit had filed an appeal before the lower appellate Court in A.S.No.91 of 1999. The lower appellate Court had framed the following points for consideration: "1. Whether this appeal has to be allowed and thereby the decree and judgment of the trial Court was liable to be set aside? 2. Whether the trial Court had no jurisdiction to entertain the suit? 3. To what relief?" 16. The lower appellate Court had found that there was no https://hcservices.ecourts.gov.in/hcservices/ dispute with regard to the ownership of the suit property. The main dispute was only with regard to the age of the suit building. Based on the case laws cited on behalf of the defendants/appellants, the lower appellate Court had found that the onus of proving that the building in question was less than 5 years old, to be exempted from the application of the provisions of the Act, was on the plaintiff. The lower appellate Court had also found that the plaintiff had sent a communication, dated 30.9.1991, to the Corporation of Madras, marked as Exhibit A.1, intimating the completion of the construction of the suit building as per the sanctioned plan. The suit building was said to have been completed, on 29.9.1991. According to the said communication, the plaintiff had requested the Revenue Officer, Corporation of Madras, to arrange for the inspection and for assessment. The said communication had been received by the Corporation of Madras, on 30.9.1991. In turn, the Corporation of Madras, had written a letter, dated 3.6.1992, marked as Exhibit A.2, wherein, the plaintiff had been directed to clear the arrears of Tax. 17. The lower appellate Court had also seen that a notice had been issued by the plaintiff, through his counsel, to the defendants to vacate the suit premises. The said notice, dated 22.6.1995, had been marked as Exhibit A.4. The defendants had sent a reply, dated 13.7.1995, marked as Exhibit A.6. In the said reply, the defendants had not raised the issue of the age of the building in question. Based on the Exhibits A.1 to A.3, the first appellate Court had held that the trial Court had come to the correct conclusion that the suit building has been built not earlier than five years from the relevant date and therefore, it is exempted, in accordance with the Section 30(1) of the Act. The lower appellate Court had also found that the defendants have not supported their claims with sufficient oral or documentary evidence. In such circumstances, the lower appellate Court had confirmed the judgment and decree of the trial Court by dismissing the appeal and holding that the trial Court had jurisdiction to decide the issues in question. 18. Aggrieved by the judgment and decree of the Courts below, the appellants have preferred the present second appeal before this Court stating that the Courts below have erred in coming to the conclusion that the trial Court had jurisdiction to try the issues in question and in holding that the suit building was exempted from the purview of the provisions of the Act and in granting the reliefs as prayed for by the plaintiff in the suit O.S.No.6030 of 1995. 19. The second appeal had been admitted on the following substantial question of law:- https://hcservices.ecourts.gov.in/hcservices/ "Whether the judgment and decree of the Courts below are legally sustainable in as much as the respondent has failed to establish that the age of the building is less than 5 years so as to get exemption under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by producing proper corporation record so as to maintain the suit for eviction?" 20. On analysing the judgment and decree of the Courts below and in view of the submissions made by the learned counsels appearing for the parties concerned, this Court is of the considered view that the defendants/appellants in the present second appeal have not shown sufficient cause or reason to interfere with the conclusions arrived at by the Courts below. It is clear that the plaintiff/respondent had sufficiently proved his case based on the oral and documentary evidence relied on by him. The claims of the plaintiff/respondent that the suit building is exempted from the purview of the provisions of the Act has been sufficiently proved by Exhibits A.1 to A.3, marked in favour of the plaintiff. Further, no oral or documentary evidence had been shown to substantiate the claims of the defendants/appellants. It is also seen that the appellants in the second appeal have not been in a position to show that there is a substantial question of law to be decided by this Court at this stage. In such circumstances, the second appeal stands dismissed confirming the judgment and decree of the Courts below. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. VIII Additional City Civil Judge, Chennai 2. VI Assistant Judge, City Civil Court, Chennai. 3. The Section Officer, V.R.Section, High Court, Madras 1 cc To Mr.S.Balasubramanian, Advocate, SR.2545. 2 cc To Mr.Rangarajan, Advocate, SR.2540. S.A.No.1372 of 2002 ASM(CO) SKY 28.04.2008 https://hcservices.ecourts.gov.in/hcservices/