IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.10.2006 CORAM THE HONOURABLE MR.JUSTICE R.BALASUBRAMANIAN AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN A.S.NO.113/1991, C.M.P.NO.14303/2005 & C.M.A.NO.336/1987 P.R.Aithala alias P.Ramakrishna Aithala ... Appellant in both the appeals (Plaintiffs Vs. Hindusthan Petroleum Corporation Limited, 24, Pantheon Road, Egmore, Madras – 8. ... Respondent in both the appeals (Defendant) A.S.No.113 of 1991: APPEAL under Section 96 of the Code of Civil Procedure against th judgment and decree dated 21.12.1983 made in O.S.No.3590 of 1982 on th file of II Additional City Civil Judge, Madras. C.M.A.No.336 of 1987: APPEAL under Section 9 (A) of the Tamilnadu City Tenant Protection Act III of 1922 against the order and decree date 21.12.1983 made in I.A.No.12457 of 1982 in O.S.No.3590 of 1982 on th file of II Additional City Civil Judge, Madras. For Appellant : Mr. N.R.Chandran, S.C. for Mr.R.Bharanidharan For Respondent: Mr.G.Masilamani, S.C. For M/s. King & Patridge C O M M O N J U D G M E N T (Judgment of the court was delivered by Justice R.Balasubramanian) The regular first appeal arises out of the judgment and decre dated 21.12.1983 in O.S.No.3590 of 1982 on the file of the Secon Additional City Civil Court declaring that the defendant in the suit i https://hcservices.ecourts.gov.in/hcservices/ entitled to buy the property forming the subject matter of the sui under Section 9 of the Tamilnadu City Tenants' Protection Act, failin which the defendant should deliver vacant possession to the plaintif and the defendant to pay a sum of Rs.812.50 per month to the plaintif till the defendant gets the sale deed in it's name. Hence, th plaintiff in that suit is before this Court in this appeal. Pendin appeal, the plaintiff filed C.M.P.No.14303 of 2005 under Order 41 Rul 27 of the Code of Civil Procedure to receive additional evidence. Th defendant in that suit filed I.A.No.12457/1982 under section 9 of th Tamil Nadu City Tenants' Protection Act. It was ordered as prayed fo by order and decreetal order dated 21.12.1983 by the II Additiona City Civil Court. Therefore the plaintiff in the suit is before us i the Civil Miscellaneous Appeal. In both the proceedings, th defendant in the suit and the petitioner in the application filed unde Section 9 of the Tamilnadu City Tenants Protection Act is th respondent. In this common judgment, for convenience sake, we refe the parties as the plaintiff and the defendant. Heard Mr.N.R.Chandran learned senior counsel appearing for the plaintiff and Mr.G.Masilamani learned senior counsel appearing for the defendant. 2. We summarise the plaint allegation in O.S.No.3590 of 1982 a here under: "The plaintiff is the owner of the land forming the subject matter of the suit. It was leased out under a registered lease deed dated 26.2.1962 to Standard Vaccum Oil Company. The lease was for a period of ten years on a monthly rent of Rs.650/-. The lease deed contains a renewal clause for a further period of ten years from the expiry of the first period of ten years on a rent to be fixed by the plaintiff. On the expiry of the first period of lease, the plaintiff filed O.S.No.4400 of 1972 for recovery of possession against the defendant in the present suit and another who are the successors-in-interest of Standard Vaccum Oil Company. The suit was dismissed and the appeal filed against that judgment and decree was also dismissed. The second appeal filed against those judgments is pending before this Court (we add that the second appeal was dismissed as withdrawn at a later stage). The plaintiff filed O.S.No.7553 of 1980 claiming arrears of damages quantified at Rs.33,475/- till 10.2.1980. That suit is also pending disposal. The defendant had not delivered vacant possession of the property even after the expiry of the second period of ten years, which came to an end on 10.2.1982. The property is situated in a posh area and therefore would fetch atleast Rs.3,000/- per month as rent. Therefore, the defendant is liable to pay a sum of Rs.3,000/- per month as damages for use and occupation. The plaintiff by his letter dated 1.2.1982 called upon the defendant to quit and deliver vacant possession of the property on the expiry of 10.2.1982. The defendant received https://hcservices.ecourts.gov.in/hcservices/ the notice. But failed to comply with the demand. The defendant has no authority to stay in the suit property. The cause of action arose on the expiry of ten year period after the first period under the lease deed was over....." On the above allegations, the plaintiff wanted delivery of possessio of the property and for a sum of Rs.3,000/- per month as damages fo use and occupation from the date of the plaint till the date o delivery of possession. 3. The defendant contended as here under: "The lease deed dated 26.6.1962 in favour of the predecessors-in-interest of the defendant is true and the terms of the lease is also true. After the expiry of the first period of ten years, renewal of the lease for a further period of ten years was claimed. The plaintiff refused to renew the lease and filed O.S.No.4400 of 1972 in the City Civil Court, Chennai seeking recovery of possession. That suit was dismissed. The appeal arising there from, namely, A.S.No.377 of 1979 was also dismissed. Second Appeal No.2257 of 1981 further arising there from is pending. The defendant is the successor-in-interest of the original tenant, namely, Standard Vaccum Oil Company and therefore it is a tenant within the meaning of the Tamilnadu City Tenants Protection Act. The defendant filed I.A.No.12457 of 1982 under Section 9 of the Tamilnadu City Tenants Protection Act. As the defendant is a statutory tenant, claim for damages is not maintainable. A sum of Rs.3,000/- estimated as damages per month is arbitrary and excessive. The claim must therefore be rejected." 4. On the above pleadings, the trial Court framed the followin issues: a) Is not the defendant entitled to the benefits flowing out of Section 9 of the Tamilnadu City Tenants' Protection Act? b) Is the defendant liable to pay damages to the plaintiff? c) Whether as a rent or damages, what would be the amount the plaintiff would be entitled to? d) To what are the relief the parties are entitled to? 5. It must be noticed that O.S.No.3590 of 1982 along wit I.A.No.12457 of 1982 and O.S.No.7553 of 1980 – suit for arrears o damages, came to be disposed of by a common judgment. The defendan filed I.A.No.12457 of 1982 under Section 9 of the City Tenant Protection Act. The pleading in support of the application is as her under: https://hcservices.ecourts.gov.in/hcservices/ "2. The Plaintiffs have filed the above suit against the defendant in this Hon'ble Court for recovery of possession of a piece of vacant land admeasuring 10,000 square feet and for recovery of damages for use and occupation at the rate of Rs.3,000/- per month. The suit summons was served on the Defendant only on 1.7.1982. A large extent of land admeasuring 10,000 square feet in Door No.242, Royapettah High Road, Madras – 600 014 was leased by the plaintiffs to Standard Vaccum Oil Company, by a Registered Deed of Lease dated 22.6.1962, on a monthly rental of Rs.650/- for a period of 10 years. Standard Vaccum Oil Company merged with another foreign company called Esso Standard Eastern Incorporation. In the year 1974 the Government of India took over the said Esso Standard Eastern Incorporation by an Act of Parliament Act 4 of 1974 and vested the same in the new Government Company called the Hindustan Petroleum Corporation Limited, the present Defendant herein. It is not disputed that ever since 22.6.1962 Standard Vaccum Oil Company and its successors in interest companies have been in continuous possession of the suit site. The tenancy of the successor companies have been recognised by the plaintiffs and the plaintiffs have been receiving rents from the defendant till recently. 3. The defendant states that it is a successor in interest to the erstwhile Standard Vaccum Oil Company and the Esso Standard Eastern Incorporation and hence is a tenant within the meaning of Section 2(4) of the Madras City Tenants Protection Act of 1921 as amended upto date. The defendant therefore states that as a tenant it is entitled to purchase the suit site from the plaintiffs under Section 9 of the said Act at a market price to be fixed by this Hon'ble Court. This petition is therefore filed for an order for the purchase of the said land. 4. The defendant therefore prays that this Hon'ble Court may be pleased to direct the Plaintiffs/Respondents to sell the suit land to the Defendant/Petitioner at a market price to be fixed by this Hon'ble Court." The plaintiff filed a counter contending, among other things, as her under: "I submit that the application filed by the petitioner under Section 9 of the Act is not maintainable in law on the ground that the petitioner do not come under the definition of tenant as per Section 2 (4) of the Act." https://hcservices.ecourts.gov.in/hcservices/ Ultimately the suit in O.S.No.3590 of 1982 came to be disposed b judgment and decree dated 21.12.1983 on the following lines: "The defendant is entitled to the protection under Section 9 of the Tamilnadu City Tenants Protection Act and an order accordingly in I.A.No.12457 of 1982 is passed; in case the defendant did not buy the property as ordered, then the defendant must deliver vacant possession of the property to the plaintiff; when the plaintiff files execution petition for recovery of possession, then the final order in I.A.No.12457 of 1982 must be filed and on the basis of which only the relief could be granted; the defendant should pay a sum of Rs.812.50 per month to the plaintiff; such payment will be upto the date on which the sale is to take place and the defendant has to bear half the cost." In the suit filed by the plaintiff one witness as P.W.1 was examine besides marking Exs. A.1 to A.5. Neither oral nor documentary evidenc was brought before Court at the instance of the defendant. By the sam judgment dated 21.12.1983 I.A.No.12457 of 1982 in O.S.No.3590 of 198 was allowed. As noted earlier, it is the decree in O.S.No.3590 of 198 and the order in I.A.No.12457 of 1982 are in challenge in this regula First Appeal and the Civil Miscellaneous Appeal. 6. C.M.P.No.14303 of 2005 is filed by the plaintiff to receiv the judgment and decree dated 6.3.1979 in O.S.No.4400 of 1972 and th judgment and decree dated 1.8.1980 in A.S.No.377 of 1979 arising ther from as additional evidence. In support of the petition, an affidavi is filed sworn to by the petitioner himself. In paragraph 10 and 11 o the affidavit filed in support of the application alone the followin averments have been made for receiving the additional documents: "The issue in the present suit essentially involves the fact as to whether the respondent herein is entitled for relief under the Madras City Tenants Protection Act. The question of granting relief under Section 9 of the Madras City Tenants Protection Act would not arise dur to fact that the respondent ceased to be in possession by virtue of subletting which has been documented in judgments rendered in O.S.No.4400 of 1972 and A.S.No.337 of 1979. Hence, it is just and necessary that the judgment and decree passed in O.S.No.4400 of 1972 and A.S.No.337 of 1979 are taken on record and marked as additional documents. Petitioner most humbly submits that due to his age and health he could not effectively follow the suit and other proceedings in respect of the suit schedule property. The petitioner herein only recently upon consulting his counsel came to know about the technicalities and the need to mark the judgment of the earlier proceedings in the present suit. Hence the present application. Serious prejudice and https://hcservices.ecourts.gov.in/hcservices/ hardship would be caused to the petitioner if the application is not ordered as prayed for. On the contrary no prejudice would be caused to the respondent as the documents, which are sought to be marked are judgement and inter-parties which is admissible in evidence. Moreover the existence of the document cannot be disputed as the same forms part of the record of this Hon'ble Court in S.A.No.2258 of 1981. Valuable rights of the petitioner would be seriously prejudiced if the application is not allowed." The defendant filed a counter to this application opposing tha essential ingredients of Order 41 Rule 27 of the Code of Civi Procedure are not established. According to the defendant, the reaso attributed for the non-production of the document on the face of it i incorrect and unacceptable. The plaintiff is guilty of laches an there is an inordinate deliberate delay in producing the documents According to the defendant no new documents could be allowed to b brought as additional evidence to fill up the lacuna. The furthe objection is the affidavit filed in support of the application t receive additional documents do not set out the circumstances and fact warranting reception of additional evidence and that the presen application is only intended to delay and defeat the defendant' statutory right. 7. Mr.N.R.Chandran, learned senior counsel appearing for th plaintiff would submit that the defendant is not entitled to th protection under Section 9 of the City Tenants Protection Act, sinc the defendant is not in actual physical possession of the propert demised to him and the building standing thereon. To show that th defendant did not continue in actual physical possession of the lan and the building, additional documents produced before this Cour would throw enough light. Though there is delay in filing th additional documents, yet this Court, in order to do complete justic between the parties, can receive additional evidence. Since n prejudice at all would be caused to the defendant, additional evidenc can be received. The additional documents will not take the defendan by any surprise since they are parties to it and they are nothing bu the printed copy of the judgment in an earlier suit to which th plaintiff and the defendant are parties. The learned trial Judge ha committed an error in law in granting the relief to the defendant unde Section 9 of the Tamilnadu City Tenants Protection Act since it is no shown to be the tenant at all and if that order is set aside, th plaintiff would be entitled to the relief of possession prayed for b him in the suit. It is further argued by the learned senior counse that the defendant had a right to file an application under Section of the Tamilnadu City Tenants Protection Act in O.S.No.4400 of 1972 an yet, the defendant did not claim any such benefit in those proceedings Even assuming that on the date when the suit in O.S.No.4400 of 1972 wa filed, the defendant had no subsisting right, yet when the secon appeal was pending, which is a continuation of the suit, such a righ https://hcservices.ecourts.gov.in/hcservices/ accrued to the defendant and he ought to have at least asked for th relief at that stage. Therefore on the principle of Resjudicata th defendant is prevented from claiming such right once again in th present proceedings or he is deemed to have waived his right Mr.G.Masilamani, learned senior counsel appearing for the defendan would contend that the plaintiff had not pleaded in the plaint filed i O.S.No.3590 of 1982 or in the counter filed by him to I.A.No.12457 o 1982 that the defendant did not continue in actual physical possessio of the property. Even in the grounds of appeals filed before thi court, namely, either in the first appeal or in the civil miscellaneou appeal, no ground is taken that the defendant does not continue i actual physical possession of the property. Whether the defendan continues in actual physical possession or not of the property is question of fact and therefore when the plaintiff had not pleaded t that effect at any stage, then to allow such a plea raised for th first time now by producing additional evidence would caus considerable prejudice to the defendant. Bringing to our notice cas law on the requirement of pleadings and the effect of failure to plead learned senior counsel for the defendant would contend that th plaintiff is not entitled to any relief at all in both the proceeding filed by him before this Court. Learned senior counsel would conten that the defendant had never lost possession of the property and ther is no finding whatsoever in the earlier proceedings that the defendan lost possession. Learned senior counsel would further contend that i at all the defendant had any right accrued to him under Section 9 o the Tamilnadu City Tenants' Protection Act, it accrued to him for th first time only on Tamil Nadu Act 2/80 coming into force. Therefor in the pending when Second Appeal No. 2257 of 1981, the defendan could have filed an application under section 9 of the Act. Bu however, the present suit had come to be filed within a short tim after the withdrawal of the second appeal "as not pressed" and in th present suit the defendant filed the application under Section 9 of th Act. Therefore neither on the principle of res judicata nor on th plea of waiver the defendant can be non-suited. 8. In the light of the arguments advanced by learned senio counsel on either side and on the available pleadings, we are of th opinion that the following issues alone arise for consideration i these two appeals: a) Is not the defendant entitled to protection under Section 9 of the Tamilnadu City Tenants Protection Act? b) If not, whether the plaintiff is entitled to the relief of possession prayed for by him? c) In the event of the plaintiff succeeding in the suit for possession, what is the quantum of damages for use and occupation which he is entitled to get? 9. In our considered opinion, any discussion on issue No. framed by us would be over lapping on issue No.2. Accordingly, we ha decided to take up issue Nos. 1 and 2 for a common discussion. https://hcservices.ecourts.gov.in/hcservices/ tenant, if he is protected under the Tamil Nadu City Tenants Protection Act, hereinafter referred to as the "Act", must file a application under section 9 of the Act to the court for an orde directing the land owner to sell for a price to be fixed by the court the whole or part of the extent of land specified in the application Invariably, we find that every tenant/defendant always files a application for purchasing the entire extent of land demised to hi and seldom we have come across any case where the tenant/defendant ha expressed his readiness to purchase a smaller extent than the on demised to him. It is not as though once the defendant/tenant files a application to purchase the entire extent of land on the premise that he is entitled to the protection under the Act, the court i duty bound to pass an order directing sale of the entirety of th land. Under section 9(1)(b) of the Act, the court is called upon t first decide the minimum extent of land which may be necessary for th convenient enjoyment by the tenant. Once such an extent of land i arrived at by the court, then, the court shall fix the price for th said extent of land in the manner provided for in sub-section (b) t section 9(1) of the Act. The section also provides the course to b followed thereafter. These are the broad legal principles, which th court must have in deciding an application filed by th tenant/defendant under section 9 of the Act. It is only a "tenant" who alone is protected under the Act. "Tenant" is defined unde section 2(4) of the Act. We extract hereunder the definition o "tenant" as is relevant for the purpose of deciding this case: "(4) "Tenant" in relation to any land - (i) means a person liable to pay rent in respect of such land, under a tenancy agreement express or implied, and (ii) includes - (a) any such person as is referred to in sub-clause (i) who continues in possession of the land after the determination of the tenancy agreement, (b) any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under sub-section (3) of section 1 and who or any of his predecessors in interest had erected any building on such land and who continues in actual physical possession of such land and building, notwithstanding that - " The entirety of clause (ii) of sub-section (4) of section 2 of the Act as it stands today, was brought in by way of an amendment under sectio 2 of The Chennai City Tenants' Protection (Amendment) Act, 1973/ Tami Nadu Act 24/73. Prior to this amendment, the substituted provisio stood thus: "(ii) includes - (a) any such person as is referred to in sub-clause (i) who continues in possession of the land after the determination of the tenancy agreement, and https://hcservices.ecourts.gov.in/hcservices/ (b) the heirs of any such person as is referred to in sub-clause (i) or sub-clause (ii)(a): but does not include a sub-tenant or his heirs." There is no dispute that the defendant in the suit was not in th picture at all in the year 1962 when the land in question was demise to Standard Vaccum Oil Company. Standard Vaccum Oil Company wa succeeded by Esso Standard Eastern Incorporation and the defendan became the successor in interest of Esso Standard Eastern Incorporatio by an Act of Parliament. From the arguments advanced by the learne senior counsel on either side, this court can safely conclude that th defendant's claim to buy the land – as ordered by the lower court, ha to be decided on the basis of the definition of "tenant" as it stand defined today under section 2(4)(ii)(b) of the Act. Then came th Madras City Tenants' Protection (Amendment) Act, 1979, which wa brought into force by Tamil Nadu Act 2/80, which received the assent o the President on 27.02.1980. This Act protects all tenancies create before the coming into force of this Act. But however, it is subjec to the tenant/tenants claiming protection satisfying the definition o "tenant" as it stood on the day when the Act came into force and a it continues even as on date. There is no gain saying in statin that the right to buy the land forming the subject matter of the sui accrued to the defendant in the case on hand only for the first tim after Tamil Nadu Act 2/80 came into force. 10. Section 2(4) of the Tamil Nadu City Tenants' Protection Ac sets out the requirements to be fulfilled by a person, before ever h could be treated as a "tenant". Admittedly, the defendant herein wa not the tenant at the inception and as noted earlier, he is only th successor in interest second in line of the tenant, who was put int possession initially. The period of lease at the inception was for 1 years commencing from the year 1962 and expiring with the year 1972 The tenant, at the inception, had an option for renewal for a furthe period of 10 years and accordingly, the tenant, who was inducted int possession originally, and the successors in interest had a right t be in possession for a total period of 20 years, made up of 10 year from 1962 to 1972 and 10 years from 1972 to 1982. There is no disput that at the inception of tenancy only a vacant land, measuring 100/10 feet in R.S.No.1139/2-B in Royapettah High Road in the registratio District of Mylapore, was leased. "Land" defined under section 2(2 of the Act excludes buildings. It must be shown, to get the benefit o the Act, that the predecessor in interest of the defendant had erecte a building