IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.12.2009 CORAM THE HONOURABLE MR. JUSTICE K. RAVIRAJA PANDIAN AND THE HONOURABLE MR. JUSTICE M.M. SUNDRESH ORIGINAL SIDE APPEAL NOS.406 TO 408 OF 2009 AND 412 TO 416 OF 2009 AND M.P.NOS.1 OF 2009 (3 COUNTS) IN OSA.NOS.406 TO 408/2009 AND M.P.NOS.1 OF 2009 (5 COUNTS) IN OSA.NOS.412 TO 416 OF 2009 Bombay Tool Centre No.97, Broadway Chennai – 600 108. ... Appellant in OSA.Nos.406 & 407/09 M/s.South India Trading Company, No.97, Broadway, Chennai 600 108. ... Appellant in OSA.No.408/09 B.K.Jain, No.97, Broadway, Chennai 600 108. ... Appellant in OSA.No.412/09 Utpal B. Mehta No.97, Broadway, Chennai 600 108. ... Appellant in OSA.No.413/09 G.Prakash Kumar No.97, Broadway, Chennai 600 108. ... Appellant in OSA.No.414/09 Tmt.Sarala Ranga No.97, Broadway, Chennai 600 108. ... Appellant in OSA.No.416/09 Ismail A. Loandawala No.97, Broadway, Chennai 600 108. ... Appellant in OSA.No.415/09 Vs. https://hcservices.ecourts.gov.in/hcservices/ Official Trustee of Tamil Nadu High Court Campus Chennai – 600 104. ... Respondent in all Appeals Original Side Appeals filed under Order XXXVI Rule1/11 of O.S.Rules r/w Clause 15 of the Letters Patent Act against the common order passed in Application Nos.2514, 2515, 2516, 2519, 2520, 2522 and 2523 of 2009 respectively in C.S.No.15 of 1967, dated 13.10.2009. For Appellants in OSA.Nos.406 to 408 of 2009 : Mr. S.Senthil Nathan For Respondent in all the OSAs. : Mr. Adhi Narayanan and Mr.V.Perumal COMMON JUDGMENT (Judgment of the Court was delivered by K. Raviraja Pandian, J.) As against the common order passed by the learned single Judge in Application Nos.2514 to 2523 of 2009 in C.S.No.15 of 1967 granting the direction directing the respondents/appellants herein to deliver the vacant possession of the schedule mentioned premises to the Official Trustee for the purpose of demolition of the building and reconstruction of the same, the present appeals are filed. 2. These matters have been heard for some time and they have been adjourned without admitting the same. So far no interim order has also been granted in these appeals. 3. The Official Trustee of the Tamil Nadu filed a report to the effect that possession of the building bearing Door No.97, Broadway, Chennai-108 comprised in R.S.No.5645 has been taken from the erstwhile tenants, who are ten in numbers and 9 are the appellants herein. Three of them have handed over possession on 16.12.2009 and the remaining tenants have handed over possession on 18.12.2009 and the report further reads that the AG & OT has handed over the possession of the said premises to the Advisory Board of Late.Hajee Miran Mehdi Ispahani Charities, "Ispahani Centre", II Floor, 123 & 124, Nungambakkam High Road, Chennai-600 034 on 18.12.2009 itself to enable them to construct Multi Specialty Diagnostic Centre after demolishing of the existing structure. This https://hcservices.ecourts.gov.in/hcservices/ is the factual situation on 18.12.2009 itself. 4. The learned counsel appearing for the appellants in O.S.A.Nos.412 to 414 of 2009 despite the fact that the possession has been handed over by the appellants, sought to contend that the order of the learned single Judge is not correct as it is admitted by the AG & OT himself that the Transfer of Property Act would be applicable to the instant case and he further contended that the notice period given by the learned single Judge has not been given proper adherence by the AG & OT in issuing notice for eviction. Having raised such a contention, he fairly admitted that the first point has never been raised but the second point though raised, it is not reflected in the order of the learned Judge. But the order of the learned single Judge did not reflect the point and no finding has been given to that effect. 5. We heard the arguments of the learned counsel on either side. We are not able to countenance the arguments because the first point has not been admittedly raised before the learned single Judge, as such, there was no occasion for the learned Judge to adjudicate the issue. In respect of the second point, if the statement made by the learned counsel across the bar is correct, his remedy is elsewhere. Usual reference can be made to the judgment of the Division Bench of this Court in AYYAMUTHU AND OTHERS VS. THE STATE OF TAMIL NADU, 2005(3) CTC 241 and to the judgment of the Supreme Court in MOHD.AKRAM ANSARI VS. CHIEF ELECTION OFFICER AND OTHERS, 2007(8) Supreme 581. 6. A Division Bench of this Court in the case of AYYAMUTHU AND OTHERS VS. THE STATE OF TAMIL NADU, 2005(3) CTC 241 has observed as follows: "...4. It is well settled that the presumption in law is that a Judge deals with all the points which are pressed before him. It often happens that, say, ten points are taken in the memorandum of petition or appeal but only three of those points are pressed before the Judge. Naturally in this situation the Judge will deal with only those three points which were pressed before him and the presumption will be that the other seven points were never pressed before him. This is, however, a rebuttable presumption, and if the learned counsel contends that in fact he pressed other points also although they have not been deal with in the judgment by the learned single Judge, then the party should move an application before the same Judge who delivered the judgment and try to satisfy him that he had in fact pressed that point though it has not been considered in his judgment, vide C.Shanmugham v. Tamil Nadu Housing Board, 2005(1) CTC 555, in which reliance has been placed on the Supreme Court decisions https://hcservices.ecourts.gov.in/hcservices/ in Ram Bali v. State of Uttar Pradesh, 2004 (10) SCC 598 and Bhavnagar University v. Palitana Sugar Mills (P) Ltd., and others, 2003(2) SCC 111." 7. The Honourable Apex Court in the case of MOHD.AKRAM ANSARI VS. CHIEF ELECTION OFFICER AND OTHERS, reported in 2007(8) Supreme 581, held thus: ".....14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with....." 8. In addition to the above point, three months' period of time granted by the learned single judge has already been over. Hence in any point of the view of the case, the appellants have not made out any case for entertaining the appeals. At the risk of repetition, we record that the possession of the building has already been taken from all the tenants and handed over to the charity for demolition and construction of the Multi Specialty Diagnostic Centre on 18.12.2009 itself and as such as on date the appellants are not in possession of the Trust property. They have no legal right for enforcement in these cases. https://hcservices.ecourts.gov.in/hcservices/ 9. On an earlier occasion, when the matter was argued, the AG & OT has come forward to say that as and when the new construction has been completed in Door No.6, Philips Street, the person who has been evicted from the present premises would be considered for accommodation in that building. The same is re-recorded in this order. 10. For the foregoing reasons, the original side appeals are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed. kb Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Official Trustee of Tamil Nadu High Court Campus, Chennai – 600 104. 2.The Sub Assistant Registrar, Original Side, High Court, Madras.104. + 3 ccs to Mr. S. Senthilnathan, Advocate SR No.71169 + 5 ccs to M/s.Shah & Shah, Advocate SR Nos.71655, 71654, 71634, 71633 and 71632 + 1 cc to Mr. V. Perumal, Advocate SR No.71296 RSN(CO) SR/11.1.2010 O.S. A.NOS.406 TO 408 OF 2009 AND 412 TO 416 OF 2009 https://hcservices.ecourts.gov.in/hcservices/