IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.212 of 2008 and M.P.No.1 of 2011 R.Panneerselvam .. Appellant/Ist Defendant Vs 1.V.P.Pereira 2.Sugesh 3.K.R.Sivaraman 4.Nagaraj .. Respondents/Plaintiff and Defendants 2 to 4 Prayer: This Appeal Suit has been preferred under Section 96 of C.P.C., praying to set aside the judgment and decree dated 28.02.2007 made in O.S.No.4709 of 2001 on the file of I Additional District Court, Fast Track Court No.I, Chennai. For Appellant : Mr.D.Panchatsaram For Respondents : Mrs.M.Christella JUDGMENT This appeal has been arising out of the judgment and decree dated 28.02.2007 made in O.S.No.4709 of 2001 on the file of I Additional District Court, Fast Track Court No.I, Chennai. 2.The averments made in the plaint are as follows: (i) The plaintiff has purchased the suit property under a registered sale deed dated 23.08.1975 as a vacant site, he obtained planning permission from the Corporation of Chennai. When the construction was in progress and 90% of the construction was over, the plaintiff had gone to Malaysia to bring down his family members and to settle down at Madras. At the time of going to Malaysia, the plaintiff has given his house key to one Madam Jeeja Bai, the family friend of the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ (ii) In the year 1993, Jeeja Bai had informed the plaintiff that some one has broken the lock of the plaintiff's house and unlawfully occupied the plaintiff's house (i.e.) the suit property. After hearing the said news, the plaintiff came to Madras on 22.10.1994 and to his utter shock and surprise, he found the first defendant herein and his friends unlawfully occupying his premises and staying inside his house. The first defendant is a trespasser and making use of the plaintiff's absence at Chennai, he has broke open the lock of his premises and occupying the same without any authority. Immediately the plaintiff gave police complaint on 18.11.1994 and no action has been taken on the complaint given by the plaintiff. But the first defendant has filed a suit in O.S.No.8440 of 1994 on the file of XII Assistant City Civil Judge at Chennai for the relief of permanent injunction. In the said suit, the first defendant herein has alleged that he has paid a sum of Rs.2,00,000/- to the plaintiff as hand loan and for the amount given as hand loan, it was agreed that the first defendant has to occupy the suit property without any rent and the plaintiff need not pay any interest for the loan amount received by him. But the averment is not true. After contesting, the suit was decreed on 31.07.1996, against the said judgment, the plaintiff had preferred an appeal in A.S.No.164 of 1997 and the said appeal was dismissed. (iii) The plaintiff was ill advised to file a petition for eviction in R.C.O.P.Nos.645 and 646 of 1997 on the file of XIII Judge, Court of Small Causes, Chennai against the defendants herein. When the matter was posted for trial, the plaintiff had withdrawn his petition. (iv) The defendants 2 to 4 in collusion with the first defendant are illegally occupying the suit property. There is no relationship of landlord-tenant or licensee or licenser between the plaintiff and the defendants. Hence the provisions of the Tamil Nadu Buildings Lease and Rent Control Act will not apply. Hence he constrained to file a suit for recovery of possession and also for damages for use and occupation of the suit property and for the costs of the suit and prayed for a decree. 3.The gist and essence of the written statement filed by the first defendant is as follows:- (i) The plaintiff is the owner of the property measuring about 3,200 sq.ft. But he has not handed over the property to one Jeeja Bai. The plaintiff has borrowed a sum of Rs.2,00,000/- from the first defendant and that he is a tenant under the plaintiff on the understanding that "No rent for tenancy and no interest for money borrowed". https://hcservices.ecourts.gov.in/hcservices/ (ii) Neither the first defendant nor any other defendants are the trespassers. The other defendants are only the sub tenants under the first defendant. The defendants 2 to 4 had been paying the rent regularly to the first defendant, who is entitled to receive the rent. (iii) The first defendant was not a trespasser and the plaintiff can get the remedy only through the rent control Court. The plaintiff had filed two petitions in R.C.O.P.Nos.645 and 646 of 1997 for eviction and for enhancement of fixing fair rent and the same were dismissed as withdrawn. The defendants 2 to 4 have vacated the premises and handed over the possession to the first defendant after receiving the processes from the Court and receiving their advances back. Hence he prayed for the dismissal of the suit. 4.The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, has framed three issues and considering the oral evidence of P.W.1 and D.W.1 and Exs.A1 to A3 and B1 to B8, decreed the suit as prayed for in the plaint with costs. Against which, the appellant/first defendant has preferred this appeal. 5.After hearing the arguments of both sides counsel, the following points for determination are framed: 1.Whether the trial Court is correct in held that the appellant/first defendant is a trespasser? 2.Whether the trial Court is correct in held that there is no landlord - tenant relationship between the appellant/first defendant and the first respondent/plaintiff? 3.Whether the first respondent/plaintiff is entitled to the recovery of possession and damages for use and occupation? 4.Whether the judgment and decree passed by the trial Court are correct? 5.Whether the documents filed along with M.P.No.1 of 2011 is necessary for the disposal of the appeal and whether the appellant/first defendant is entitled for marking those documents ? 6.To what relief, the appellant/first defendant is entitled to? 6.Point No.5: (i) The learned counsel for the appellant/first defendant submitted that the suit has been filed on the basis that the appellant/first defendant is alleged to be a trespasser and the suit has been valued under Sections 30 and 22 of the Tamil Nadu Court Fees and Suit Valuation Act. But in previous proceedings, it was decided that the appellant/first defendant was only a tenant under the first respondent/plaintiff. That factum was not considered by the trial Court. He further submitted that the first respondent/plaintiff herein has received a sum of Rs.2,00,000/- from the appellant/first defendant and sent a letter by acknowledging the same. The appellant/first defendant was inducted as a tenant with the condition https://hcservices.ecourts.gov.in/hcservices/ as "no rent for tenancy and no interest for money borrowed". That factum has not been considered by the trial Court. To prove the same, the documents along with M.P.No.1 of 2011 are necessary to substantiate the case. Hence he prayed for allowing the appeal. (ii) At this juncture, the learned counsel for the first respondent/plaintiff submitted that once the appellant/first defendant filed a petition for reception of additional evidence, he ought to have proved to fulfil the conditions mentioned in Order 41 Rule 27 of C.P.C. Admittedly, the documents along with M.P.No.1 of 2011, previous proceedings (i.e.) petitions and judgment in R.C.O.P.Nos.645 and 646 of 1997, legal notice, letter given by the first respondent/plaintiff to the appellant/first defendant and CSR copy, are available at the time of trial. But the appellant/first defendant has not filed the same before the trial Court. He has not assigned any reason for not filing the same. So the first ingredient has not been fulfilled. She further submitted that those documents filed along with M.P.No.1 of 2011 are not necessary for the disposal of the present appeal. The appellant/first defendant could not permitted to fill up the lacunas in his case by giving him an opportunity to file the petition for reception of additional evidence. (iii) Considering the rival submissions made on both sides, this Court has to decide whether the appellant/first defendant is entitled to rely upon the documents. It is true that M.P.No.1 of 2011 has been filed under Order 41 Rule 27 of C.P.C. for reception of additional evidence. Now, it is appropriate to incorporate Order 41 Rule 27 of C.P.C., which is as follows: "Order 41 Rule 27 of C.P.C.: Production of additional evidence in Appellate Court- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, (or) (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." https://hcservices.ecourts.gov.in/hcservices/ (iv) (1) Those documents are produced before the trial Court, but the trial Court refused to receive the same. (2) Due diligence is unable to secure or produce the documents, but now produced. (3) Those documents are necessary for the disposal of the appeal. Admittedly, those documents were available at the time of trial, but there is no evidence to show that those documents were rendered before the trial Court, which was rejected or refused to receive by the trial Court. So the first ingredient is failed. Since the documents are with the appellant/first defendant, the second ingredient is also failed. The third ingredient and foremost is whether those documents are necessary for the disposal of the appeal. (v) Admittedly, those documents were marked in the earlier proceedings. The first document (i.e.) letter dated 04.06.1991 by the first respondent/plaintiff to the appellant/first defendant, filed before this Court was disputed by the first respondent/plaintiff in the previous proceedings. Even though at the time of trial, those documents were available. The appellant/first defendant has filed the certified copy of the deposition of the proceedings in the trial Court, but he has not choose to file the petitions and judgment copies. Now he come forward with M.P.No.1 of 2011. (vi) In such circumstances, as per the dictum of AIR 1957 SC 912 (State of U.P. v. Manbodhan Lal Srivastava) an additional evidence will not be admitted when a party had ample opportunity to produce it in trial Court. An evidence sought to be adduced "should have a direct and important bearing on the main issue of the case". The discretion given to the appellate Court to receive and admit additional evidence under Rule 27 is not an arbitrary one. It is a judicial one, circumscribed by the limitations specified in that provision. The true test to be applied in dealing with application for additional evidence is whether the appellate Court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced as per the dictum of AIR 1976 SC 1053 (Natha Singh v. Financial Commr., Taxation) An additional evidence can be taken only when the conditions and limitations laid down in this rule exist. The Court is not bound under the circumstances of this rule to permit additional evidence. The parties are not entitled as of right to admission of such evidence. The matter is entirely in the discretion of the Court. This discretion should be exercised judicially and sparingly as per the dictum of AIR 2001 SC 134 (136) (Mahabir Singh v. Naresh Chandra) (vii) At this juncture, it is appropriate to consider the facts of the case in hand, the first respondent as a plaintiff filed a suit for recovery of possession and for recovery of the damages for use https://hcservices.ecourts.gov.in/hcservices/ and occupation stating that he purchased the property under Ex.A1- sale deed and he made a construction. Since he was at Malaysia, the appellant/first defendant herein has trespassed upon the property. As soon as he came to know about the same, he made a request. Immediately, the appellant/first defendant herein has filed a suit in O.S.No.8440 of 1994 stating that he has lent Rs.2,00,000/- to the first respondent/plaintiff with the condition that "no rent for the building and no interest for the money paid". The appellant/first defendant has produced a letter regarding the same and that has been disputed by the first respondent/plaintiff herein. He putforth his case that he is a tenant and the trial Court has granted a permanent injunction restraining the first respondent/plaintiff herein has not to evict the appellant/first defendant herein, without due process of law, which was evidenced by Ex.B2-judgment copy of O.S.No.8440 of 1994. Against the judgment in Ex.B2, the first respondent/plaintiff herein has preferred an appeal in A.S.No.164 of 1997, which was dismissed under Ex.B3-judgment copy of A.S.No.164 of 1997. (viii) D.W.1-Panneerselvam, the appellant/first defendant herein has marked Ex.B4-the deposition of P.W.1, who is the first respondent/plaintiff herein. The first respondent/plaintiff herein has filed R.C.O.P.Nos.645 and 646 of 1997 for eviction and also for fixation of fair rent. During the trial, the first respondent/plaintiff "not pressed" the same. The appellant/first defendant herein has marked Ex.B5-the deposition of P.W.1 in R.C.O.P.No.645 of 1997, which shows that since he has "not pressed the same" and he filed the present suit for recovery of possession on the basis of the sale deed. The trial Court has decreed the suit and came to the conclusion that the appellant/first defendant is a trespasser. Against which, the present appeal has been filed. (ix) Now, the appellant/first defendant wants to mark those documents (i.e.) an additional evidence, to prove that he is a tenant under the first respondent/plaintiff. As it is a well settled proposition of law, since the documents were available at the time of trial, he has not filed the same and no reason has been assigned. So the appellant/first defendant is not entitled to an opportunity to fill up the gaps and lacunas in his case. Furthermore, he has filed the deposition of the parties in earlier proceedings before the trial Court. But he has not assigned any reason that what prevented him not to file those documents available at the time of trial, before the trial Court. (x) At this juncture, it is appropriate to consider the arguments advanced by the learned counsel for the first respondent/plaintiff that no person will be given an opportunity to file an additional evidence to fill up the lacunas in their case. Considering the same, even if those documents were taken into account, from the beginning itself the first respondent/plaintiff herein has taken the plea that the appellant/first defendant is a trespasser. Since the first respondent/plaintiff was injuncted not to https://hcservices.ecourts.gov.in/hcservices/ evict the appellant/first defendant except under due process of law in O.S.No.8440 of 1994, with the wrong advise, he filed the petition for eviction before the rent control Court, subsequently, he has "not pressed the same" in R.C.O.P.Nos.645 and 646 of 1997 and filed the suit. The genuinety of the first document (i.e.) the alleged letter written by the first respondent/plaintiff to the appellant/first defendant has been disputed by the first respondent/plaintiff in O.S.No.8440 of 1994. In such circumstances, I am of the view that the documents to be filed now are not necessary for the disposal of this appeal. Furthermore, no opportunity can be given to the parties to fill up the lacunas in their case. So I am of the view that the appellant/first defendant herein has not entitled to mark the documents. Hence M.P. No.1 of 2011 deserves to be dismissed and hence, it is dismissed. Point No.5 is answered accordingly. 7. Points No.1 to 3: (i) The learned counsel for the appellant/first defendant submitted that in earlier proceedings, the first respondent/plaintiff has filed R.C.O.P.Nos.645 and 646 of 1997 for eviction and also for fixation of fair rent. In the above said petitions, the first respondent/plaintiff was accepted that the appellant/first defendant was a tenant under him, but he has withdrawn the same during the trial, after the examination of witness. Then he has come forward with the suit for recovery of possession stating that the appellant/first defendant herein is a trespasser. (ii) Since the first respondent/plaintiff herein has disputed that there is no landlord-tenant relationship between both of them, it is the duty of the appellant/first defendant to prove that he is a tenant under the first respondent/plaintiff. But he has not filed any documents to prove the same before the trial Court, he has filed only the deposition. (iii) It is true, after the disposal of the suit in O.S.No.8440 of 1994 on the file of XII Assistant City Civil Court, Chennai, a permanent injunction has been granted in favour of the appellant/first defendant as per Ex.B2. Ill advise of the advocate only, the first respondent/plaintiff filed the R.C.O.Ps., wherein the first respondent/plaintiff has mentioned that the appellant/first defendant is a tenant. But subsequently, he has withdrawn the same and filed the present suit. In such circumstances, except his statement in R.C.O.P.No.645 of 1997, no documentary evidence is available to show that the appellant/first defendant is a tenant. (iv) Now this Court has to decide whether the first respondent/plaintiff has estoppled from claiming that the appellant/first defendant is a trespasser, since he made a pleading in R.C.O.P.Nos.645 and 646 of 1997 that the appellant/first defendant herein is a tenant? But during the pendency of the R.C.O.Ps., he has withdrawn both the R.C.O.Ps. In such circumstances it is non-est in the eye of law. Even in the earlier proceedings, the defence of the https://hcservices.ecourts.gov.in/hcservices/ appellant/first defendant is that he has paid a sum of Rs.2,00,000/- to the first respondent/plaintiff and he was permitted to reside in the suit property, without rent and no interest for the amount he paid. Admittedly, there is no document was marked to prove that there was a landlord-tenant relationship. (v) On perusal of Ex.B2-judgment in O.S.No.8440 of 1994, it was specifically mentioned in para-8 of the judgment that the defendant in the said suit, who is the first respondent/plaintiff herein, has not taken any steps to send Ex.A1-letter written by him to Panneerselvam, to handwriting experts to prove that the signature in Ex.A1 in O.S.No.8440 of 1994 is not belonging to him. (vi) Another version taken by the Court is that the first respondent herein, who was the defendant in O.S.No.8440 of 1994 has not filed any document to show that in the year 1991, he has not travelled to Chennai. In Ex.B3-judgment in A.S.No.164 of 1997, in which, it is stated that the first respondent/plaintiff has not filed his passport to prove that in the year 1991, he was not at Chennai. But in Ex.A3-passport of the first respondent/plaintiff, which shows that he was at Malaysia in between 26.06.1990 to 26.01.1993. At this juncture, it is appropriate to consider the defence raised by the appellant/first defendant herein. In para-2 of Ex.B3-judgment in A.S.No.164 of 1997, which has stated as follows: "The plaintiff is a tenant under the defendant for the entire portion of the suit property since April 1991. In April 1991, the defendant borrowed Rs. two lakhs from the plaintiff for the construction of the building. The defendant handed over the building to the plaintiff and the plaintiff is running mushroom firm in one of the portions -------" The above para shows that the first respondent/plaintiff herein has received Rs.2,00,000/- in April 1991. But in Ex.A3, it was already stated that the first respondent/plaintiff was at Malaysia between 26.06.1990 to 26.01.1993. In such circumstances, the arguments of the learned counsel for the appellant/first defendant that he paid a sum of Rs.2,00,000/- to the first respondent/plaintiff has not been proved. So it is pertinent to note that even though he was given an opportunity to take steps to file in previous proceedings, he wantonly not filed in the earlier proceedings that too alleged letter given by the first respondent/plaintiff. But now he has come forward with the petition for reception of additional evidence. In point no.5, it was decided that he was not entitled to fill up the lacunas in his case. (vii) Furthermore, in para-3 of the written statement filed by the appellant/first defendant has stated as follows: https://hcservices.ecourts.gov.in/hcservices/ "3.The first defendant submits that the plaintiff has borrowed Rs.2,00,000/- from the first defendant and that he is a tenant under the plaintiff on the understanding that "No rent for tenancy and no interest for money borrowed". The above para shows that the first respondent/plaintiff had borrowed Rs.2,00,000/- with understanding that "no rent for tenancy and no interest for money borrowed". In such circumstances, I am of the view that in receipt of Rs.2,00,000/-, the appellant/first defendant was permitted to reside in the suit property alleged to be occupied the suit property which will not presumed that there is a landlord-tenant relationship. So the trial Court has correctly considered this aspect. (viii) D.W.1-the appellant/first defendant in his evidence he has stated as follows: " fl;olj;ij vd;Dila bghWg;gpy; xg;gilj;J tpl;L knyrpahtpw;F brd;whh;/ nfs;tpapy; nfl;l midj;Jk; vjph;tHf;Fiuapy; ,y;iy vd;W brhd;dhy; jtW/ ehd; khefu chpikapay; ePjpkd;wj;jpy; xU epue;ju cWj;Jfl;lis nfl;L tHf;F bjhlh;e;njd;/ mjpy; 1990 khh;r; my;yJ Vg;uypy; gzk; bfhLj;jjhf brhy;ypa[s;nsd;/ U:/2.00.000/- gzkhf bfhLj;njd;/ ve;j njjpapy; bfhLj;njd; vd;W bjhpahJ/ 1990y; ehd; gzk; bfhLj;njd;/ vf;!;gpl; gp/2y; cs;sJ bgha; vd;why; jtW/ gzk; bfhLj;jjw;fhf vJt[k; vGjp th';ftpy;iy/ ehd; gznk bfhLf;fhjjhy; vGjp th';ftpy;iy vd;W brhd;dhy; jtW/ U:/2 yl;rk; bfhLj;jjw;Fk; RthjPdk; bgw;wjw;Fk; ve;j MtzKk; vd;dplk; ,y;iy vd;W brhd;dhy; rhp/ mth; xU knyrpa rpl;ord; vd;W vdf;F bjhpa[k;/ " The above para shows that the evidence of D.W.1 has clearly proved that he has not paid any amount. Furthermore, he is not having any document to show that he was put in possession. He himself clearly conceded that he is not having any document to show that he has paid a sum of Rs.2,00,000/- for obtaining possession of the property. Considering the evidence, I am of the view that the appellant/first defendant herein has not proved that he is a tenant under the first respondent/plaintiff. (ix) At this juncture, it is appropriate to consider the evidence of P.W.1-first respondent/plaintiff, he himself stated that he has not received Rs.2,00,000/- and he has not handed over the possession. In his cross-examination, he has fairly conceded that he has filed the petitions before the Rent Controller for eviction as well as for fixing of fair rent. Subsequently, he has withdrawn the same. In such circumstances, I am of the view that even though the https://hcservices.ecourts.gov.in/hcservices/ first respondent/plaintiff has purchased the property and made a construction for his personal use, since he was at Malaysia and taking advantage of his absence, the appellant/first defendant herein has trespassed upon the property and squatting the property. Then he gave a complaint. While perusing Ex.B1-complaints given by the appellant/first defendant against the first respondent/plaintiff before V2-Virugambakkam police station, which show that the dispute arose in the year 1994. In Ex.B1, the following complaints are given, which are as follows: (a) On 27.10.1994, the gist of the complaint given by the appellant/first defendant against the first respondent/plaintiff is as follows: " kDjhuhplk; vjph;kDjhuhpd; tPL bghWg;gpy; ,Ug;gjhft[k; , J fl;oa neuj;jpy; mjw;fhf U:/2.00.000/- (,uz;L yl;rk;) th';fpajhft[k; mij nfl;ljw;F vjph;kDjhuh; tPl;od; g{l;il gyhj;fhukhf cilf;ft[k;. thl;Rnkd;fis kpul;o tpul;lt[k; moahl;fSld; te;J kpul;Ltjhft[k; g[fhh;/ " The above para shows that the first respondent/plaintiff has given the responsibility of his house to the appellant/first defendant, after receipt of Rs.2,00,000/- for construction and when he demanded the repayment of the amount, then the first respondent/plaintiff has broke open the house with henchmen and threatened the watchman, which are alleged to be happened on 27.10.1994. In the above complaint, he never whispered that he