IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.03.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.1583 of 2008 and M.P.No.1 of 2008 Syed Zadi .. Appellant/Defendant vs. C.Jayachander .. Respondent/Plaintiff This Second Appeal is filed under section 100 of CPC against the judgment and decree dated 11.01.2008 in A.S.No.434 of 2006 on the file of the IV Additional Judge, City Civil Court, Chennai confirming the judgment and decree passed in O.S.No.1752 of 2001 dated 22.12.2005 on the file of the VII Assistant Judge, City Civil Court, Chennai. For appellant : Mr.T.Murugamanikkam For Respondent : Mr.K.P.Ashok JUDGMENT This Second appeal is focussed by the defendant animadverting upon the judgment and decree dated 11.01.2008 passed in A.S.No.434 of 2006 by the IV Additional Judge, City Civil Court, Chennai, confirming the judgment and decree of the VII Assistant Judge, City Civil Court, Chennai in O.S.No.1752 of 2001. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit seeking the following reliefs: "(i) For ejectment/eviction of the defendant from the suit schedule mentioned premises; and (iii) For costs." https://hcservices.ecourts.gov.in/hcservices/ (b) The defendant filed the written statement resisting the suit. (c) Whereupon issues were framed by the trial Court. (d) The plaintiff-Jayachander examined himself as P.W.1 and Exs.A1 to A4 were marked. On the side of the defendant, the husband of the defendant, namely Mr.I.Mohideen was examined as D.W.1 and Exs.B1 to B3 were marked. 3. Ultimately the trial Court decreed the suit, as against which appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. 4. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been focussed by the defendant on various grounds inter alia to the effect that without properly producing the documents before the trial Court and marking them, the plaintiff canvassed his case, which was accepted by the trial Court and the first appellate Court also did not take note of all these deficiencies on the side of the plaintiff and simply decreed the suit, warranting interference in the Second Appeal. 5. As such, suggesting the following substantial questions of law, this Second Appeal was filed: "(a) Whether the Judgments of the Courts below are vitiated in that, they have rendered findings based on documents which have not been exhibited before the court? (b) Whether the Courts below are correct in decreeing the suit for ejectment when there was sufficient proof with regard to the existence of the superstructure in the leased out vacant land? (c) When the tenancy is sought to be terminated on grounds of violation of the terms of the lease, and, such violation has not been proved, then, whether a decree can be passed in favour of the plaintiff? (d) Whether the impugned decree is valid in law considering that the suit schedule set out a vacant land as the suit property, whereas admittedly there is a superstructure on the suit property?." (extracted as such) https://hcservices.ecourts.gov.in/hcservices/ 6. Whereupon, my learned Predecessor framed the following substantial question of law: Whether the judgment of the court below are vitiated that they have rendered findings based on documents, which have not been exhibited before the court below. (extracted as such) 7. Heard both sides. 8. The learned counsel for the appellant/defendant placing reliance of the grounds of appeal and the typed set of papers would develop his arguments, which could succinctly and pithily be set out thus: (a) No doubt, the defendant filed I.A.No.20258 of 2001 under Section 9 of the Tamil Nadu City Tenant Protection Act, 1921 and in that I.A., the lease agreement was exhibited as Ex.P2. In the said lease agreement there is a clause to the effect that the defendant shall not put up superstructure and since the defendant without the permission of the plaintiff had put up superstructure, the Court held that he was not entitled to any protection under the Tamil Nadu City Tenants' Protection Act. However, the said Ex.P2 marked in I.A.No.20258 of 2001 was not exhibited during trial on the side of the plaintiff and in such a case, the plaintiff had not proved that the defendant committed violation of the terms and conditions contained in the lease agreement. (b) Further more, the Commissioner's Report also was not exhibited during trial. Accordingly, the learned counsel for the defendant would submit that the judgments of both the Courts below are based on no evidence. 9. In a bid to torpedo and pulversie the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would advance his arguments, which could tersely and briefly be set out thus: (a) The trial Court in I.A.No.20258 of 2001 passed a considerate order rejecting the plea of the defendant that the defendant was not entitled to the protection under the Tamil Nadu City Tenants' Protection Act, as against which no further steps were taken and the order attained its finality. (b) The law is to the effect that after the expiry of the lease period, the question of citing any specific reason by the landlord for evicting the tenant would not arise and it is not a case covered under the Tamil Nadu Buildings (Lease and Rent Control) Act. https://hcservices.ecourts.gov.in/hcservices/ (c) The only question that could be raised was only relating to the sufficiency of notice issued under Section 106 of the Transfer of Property Act. Here, the defendant has not raised any substantial question of law pertaining to the alleged insufficiency of the notice issued under Section 106 of the Transfer of Property Act. (d) The lease itself was for enabling the defendant to park the vehicles which would be coming to his nearby Kalayana Mandapam and in such a case, absolutely there is no merit in this Second Appeal. 10. I fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL. (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL (iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI] A mere poring over and perusal of those judgments would convey and portray, that the High Court while exercising power under Section 100 of CPC should see as to whether there is any substantial question of law in involved in the matter. However, after framing such substantial question of law, interference would be possible. Hence, it s the paramount duty of the Court to find out as to whether there is any perversity or illegality on the part of the Courts below in deciding the factual issues involved in the matter. 11. The order passed by the lower Court in I.A.No.20258 of 2001 indubitably and indisputably achieved its finality and as against which no grievance has been aired in subsequent proceedings. The law is well settled that after the expiry of the lease period, the landlord is not enjoined to cite any reason for evicting the tenant/lease holder unlike the one which is contemplated under the Tamil Nadu Buildings (Lease and Rent Control) Act. Here peculiarly, the sufficiency of the notice issued under Section 106 of the Transfer of Property Act was not under challenge. In such a case, it has to be seen as to whether the non marking of the lease deed during trial is fatal. No doubt, the Courts below placed reliance on certain clauses in Ex.P2 and held that the defendant violated the stipulation that he should not put up structure, but the defendant had put up structure and thereby violated the terms and conditions. In my opinion that is not at all germane for deciding the case. 12. To the risk of repetition and pleonasm, but without being https://hcservices.ecourts.gov.in/hcservices/ tautologus, I would like to point out that what are all required is that the plaintiff/landlord should issue a notice for eviction. Hence it is turned out to be a valid one and it is beyond challenge. Wherefore no other point need to be considered. In this case, both the Courts below additionally gave some reasons for ordering eviction which are not germane for the ultimate result arrived at by them. It is not the case of the appellant/defendant also that before the expiry of the lease period the plaintiff sought for eviction. Hence, I am of the view that non marking of the lease deed during trial is not fatal. Further, the Commissioner's Report is part of record and therefore specific marking is also not required. 13. Wherefore, the aforesaid substantial question of law is decided to the effect that the judgments and decrees of the Courts below are not vitiated though they have rendered findings based on documents which have not been exhibited before them. 14. Accordingly, I could see no merit in this Second Appeal and the same stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. 15. The learned counsel for the appellant would make an extempore submission that time might be given till December 2011 for vacating the premises. Whereas, the learned counsel for the respondent would object to it. I am of the considered view that till the end of October 2011 time could be granted for handing over possession because holus bolus the appellant who is running a Kalayana Mandapam in the nearby place cannot get any other place for parking and he might take some time to find suitable alternative place for parking. Hence, time for handing over vacant possession of the suit property is granted till end of October 2011. An affidavit of undertaking shall be filed by the appellant to that effect within a period of fifteen days from the date of receipt of a copy of this order. (Here attached the Xerox Copy of Affidavit of the petitioner) Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The IV Additional Judge, City Civil Court, Chennai. 2. The VII Assistant Judge, City Civil Court, Chennai. Copy to: The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. T. Murugamanikkam, Advocate SR No.17429 + 1 cc to Mr. K.P. Ashok, Advocate SR No.17207 CK(CO) SR/20.5.2011 S.A.No.1583 of 2008 https://hcservices.ecourts.gov.in/hcservices/