In the High Court of Judicature at Madras Dated: 19.08.2008 Coram The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN Second Appeal No.73 of 1999 M.K.Sathyamoorthi ..Appellant/plaintiff v 1.V.P.Ramasami Chetti 2.V.K.Sampangirama Chetti 3.J.N.Nagaraja Chetty 4.V.K.Venugopal 5.C.V.Krishnamoorthi ..Respondents/defendants This Second appeal filed u/s 100 of CPC against the judgment and decree dated 15.11.1996 made in A.S.No.169 of 1993 on the file of the Principal District Judge, Vellore confirming the Judgment and decree dated 5.8.1993 passed in O.S.No.641 of 1987 on the file of the District Munsif's Court, Gudiyatham. For Appellant : Mr.T.Dhanyakumar,Advocate For Respondents : Mr.J.Ramakrishnan,Advocate For M/s Sarvabhuman Associates R1 to R3 and R5 R4-died) JUDGMENT This appeal has been preferred against the concurrent findings of the Courts below. The plaintiff who has lost his case before the Courts below is the appellant herein. 2. The short facts of the averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows:The members of Sri Kanniga Parameswari Trust Board passed a resolution on 6.9.1985 to lease out the suit property/shop to the https://hcservices.ecourts.gov.in/hcservices/ plaintiff for carrying on his business. The rent was fixed by the members at the rate of Rs.30/- per month on the basis of the rent paid by the previous tenant. The plaintiff was put into the possession of the plaint schedule property on 6.9.1985. The plaintiff has spent a sum of Rs.10,000/- for improving the plaint schedule property by providing false ceiling , ceiling fans, electrical wiring,table, chairs, show case etc., The plaintiff has also spent about a sum of Rs.5,000/- in providing the above said infrastructure in his shop. The plaintiff had called upon the first defendant through his letter dated 4.7.1986 to furnish a copy of the resolution dated 6.9.1985 for the purpose of getting Pawn Broker licence and electricity services connection. In the reply dated 17.7.1986, the first defendant had admitted the resolution passed by the Trust Board members who refused to furnish the copy of the same to the tenant/ plaintiff. The plaintiff was enable to get licence of Pawn Broker business and to get electrical connections. The plaintiff has approached the first defendant on many times and tendered the rent to him. But the first defendant had refused to receive the rent from the plaintiff. Hence the plaintiff has sent a cheque for Rs.360/- bearing No.009577 dated 29.10.1986 being the rent for the month of September 1985 to August 1986 under Registered Post dated 29.10.1986. The said registered letter was returned with an endorsement " not claimed return to sender". The first defendant has wantonly refused to receive the rent sent by the plaintiff. Subsequently, the plaintiff sent a sum of Rs.720/- by way of money order on 1.12.1986 towards the rent for the month of September 1985 to August 1987. The first defendant refused to receive the money order also. The money order was returned to the plaintiff in December 1986" as refused". The plaintiff has asked the first defendant to inform the bank and the account number to enable the plaintiff to deposit the rent into the defendants' account. But the defendants have not sent any reply which necessitated the plaintiff to file R.C.O.P.No.17/1986 before the Rent Controller, Gudiyatham and was continuously depositing the rent into the said Court. On 19.4.1987, the defendants along with henchman with a malafide intention at about 3.00 p.m., demolished the shop which was in possession and enjoyment of the plaintiff. After knowing the said illegal and unlawful act of the defendants, the plaintiff rushed to the suit property but failed in his attempt to prevent the defendants from demolishing the suit shop. The defendants demolished the shop and damaged the false ceiling and electrical wiring which was done by the plaintiff at the cost of Rs.10,000/-. The defendants also removed the table, chairs, show case , two fans , measures and other materials of the plaintiff from the suit shop and the value of the same is Rs.5,000/-. Without considering the pendency of R.C.O.P.No.17 of 1986 on the file of the Rent Controller, Gudiyatham, the defendants have demolished the suit shop. The first defendant has not filed any counter in the said Rent Control Original Proceedings. The plaintiff has lodged a complaint on https://hcservices.ecourts.gov.in/hcservices/ 19.4.1987 before the Sub Inspector of Police, Gudiyatham Town and also filed a private complaint against the defendants before Judicial Second Class Magistrate, Gudiyatham and the same is taken on its file as C.C.No.287 of 1987 because of the illegal and unlawful act of the defendants, the plaintiff lost his reputation in public which led him to suffer ignominy and mental worries. The plaintiff issued a registered notice to the first defendant on 20.5.1987 called upon him to pay the amount of Rs.15,000/- as damages towards the amount spent by him to decorate the suit shop. Hence the suit. 3. The first defendant has filed written statement adopted by the other defendants as follows: The suit shop was not let out to the plaintiff. There was a move to let out certain properties of the Trust ie., a portion of the shop bearing door No.115 of Santhapet Bazaar, Gudiyatham subject to certain conditions. Since the plaintiff has failed to comply with the said conditions, the said premises was not let out to the plaintiff. That is the reason why, the plaintiff could not take possession of the shop building on the date of the alleged resolution. Under such circumstances, the claim for damages of Rs.15,000/- on the ground that the plaintiff had spent making improvements in the plaint schedule shop is not sustainable. This defendant never handed over the possession of the plaint schedule premises to the plaintiff. The plaintiff is not a tenant under Kanniga Parameswari Devasthanam, so there was no necessity or need for this defendant to collect any rent from the plaintiff. The first defendant has filed a detailed counter in R.C.O.P.No.17 of 1987 on the file of the Rent Controller, Gudiyatham. The building in question was pulled down by the trust which was not in occupation of anybody, much less by the defendants. No immovable property in the said building was damaged as alleged in the plaint. On the alleged complaint preferred by the plaintiff, the police have not taken any steps against the defendants,since no belongings of the plaintiff was damaged by this defendant. A detailed reply dated 13.8.1987 was sent to the plaintiff for his notice. The plaintiff has no locus standi to file R.C.O.P.No.17 of 1987. Since the father of the plaintiff has resigned the Hereditary trusteeship and now the first defendant has become a Managing Trustee. R.C.O.P.No.13 of 1987 was filed by the plaintiff only at the instigation of his father in order to give trouble to this defendant. Hence the suit is liable to be dismissed with costs. 4. On the above pleadings, the trial Court had framed three issues for trial . The plaintiff has examined himself as P.W.1 besides examining Thiru M.N.Ranganathan and Thiru Chandrasekara Chetti as P.W.2 and P.W.3 respectively. On the side of the plaintiff Exs A1 to A33 were marked . The second defendant has examined as D.W.1 and Ex B1 was marked on the side of the defendants. After scanning the evidence both oral and documentary, scrupulously the https://hcservices.ecourts.gov.in/hcservices/ trial Judge has come to conclusion that the relief sought in the plaint cannot be granted to the plaintiff, has dismissed the suit which necessitated the plaintiff to prefer the first appeal in A.S.No. 169 of 1993 before the learned Principal District Judge, Vellore who, after finding no material to interfere with the Judgement and Decree of the learned trial Judge in O.S.No.641 of 1987 has dismissed the appeal thereby confirming the decree and Judgment of the learned trial Judge. Aggrieved by the findings of the first Appellate Judge in A.S.No.169 of 1993, the plaintiff has preferred this second appeal before this Court. 5. The substantial questions of law involved in this appeal are i) Whether the Courts below overlooked the legal position that a strong adverse interference must be drawn against the defendants for the non- production of the Minutes Book, which is the foundation for the plaintiff's claim? ii) Whether the Courts below erred in observing that there is no rent receipt overlooking the fact that with regard to the defendants refusal to receive the rent, the plaintiff was compelled to file documentary evidence for depositing the entire rent in the Rent Controller's Court? 6. The Points: It is the definite case of the plaintiff that the Trust Board viz., Sri Kannigaparameswari Temple Devasthanam Trust had passed a resolution for letting out the plaint schedule property in favour of the plaintiff in May 1986 and that on the basis of the resolution passed by the said Trust Board, he was handed over the possession of the plaint schedule shop in May 1986 for a monthly rent of Rs.30/- and on that score , he had made several improvements in the said shop building by decorating the same and also provided two ceiling fans and other infrastructure to the value of Rs.10,000/- and for the purpose of conducting Pawn Broker Shop, he has also provided the barrels, drawing board, calculator, drawing instruments etc to the tune of Rs.5,000/-. But the defendants who are the hereditary trustees of the said temple have demolished the said shop building thereby causing damage to the infrastructure provided by him in the said shop which values at Rs.15,000/- , the plaintiff has filed the suit. 6a) P.W.3 is one of the erstwhile Trustees of Kannigaparameswari Devastham Temple Trust. In his evidence, P.W.3 would depose that his father was the hereditary trusteeship of the said temple and he https://hcservices.ecourts.gov.in/hcservices/ resigned on 10.8.1988 and after him, the defendants became the hereditary trustees of the temple and P.W.3 would state that the case of the plaintiff is to the effect that he had applied for lease for the plaint schedule shop building and in September 1985, there was an Administrative Committee Meeting was conducted and in the said meeting, the plaintiff's application was considered and as per the resolution of the Committee, it was decided to let out the plaint schedule shop building on rental basis to the plaintiff. He would further depose that he is running a shop near the plaint schedule building bearing door No.115 which was subsequently been erased to the ground by the defendants in April 1987. But in the cross examination, he would admit that he has not signed in the above said resolution passed by the Administrative Committee of the said temple Trust and that there was no rent was fixed for the plaint schedule shop building let out the same to the plaintiff and that there was no rental agreement entered into between the plaintiff and the defendants and that he is not aware whether, the plaintiff had paid any rent for the impugned building to the defendants. It is the admitted case of the plaintiff that the defendants have refused to receive the rent from him. He has produced Exs A1 and A2 to show that the rents tendered by him for the period from11.8.1985 to 11.5.1986 were refused by the defendants. Subsequently, he has filed R.C.O.P.No.17 of 1986 under Section 8(5) of the Tamil Nadu Buildings( Lease and Rent Control) Act for depositing the rent into Court. Even though, the first defendant would state that he has filed counter in R.C.O.P.No.17 of 1986 under Ex A5, there is no material placed by the plaintiff to show that the said R.C.O.P.No.17 of 1986 ended in his favour permitting him to deposit the rent for the suit building in the said R.C.O.P. The learned counsel appearing for the appellant would also admit that the said R.C.O.P.No.17 of 1986 was dismissed as not pressed. It is the bounden duty of the plaintiff/appellant to prove that he was in possession of the plaint schedule shop building as a tenant under the defendants and that he had made improvements and provided infrastructure worth to the value of Rs.15,000/-. But absolutely , there is no material placed before the trial Court to show that the defendants have handed over the possession of the plaint schedule shop building to the plaintiff for running his Pawn Broker Business in No.139/79 ie., in respect of running his Pawn Broker Business at Premises No.19, Annaji Rao Street, Santhapet, Gudiyatham and not for door No.115 the suit shop. Further, the alleged minutes book of the resolution dated 6.9.1985 passed by the Sri Kannigaparameswari Devasthanam Trust Board was also not sent for by the plaintiff. Even there was any resolution the plaintiff is bound to prove in pursuance of the said resolution passed by Sri Kannigaparameswari Trust Board, dated 6.9.1985 door No.115 ie., the suit shop building was handed over to the plaintiff for a monthly rent of Rs.30/- Both the Courts below have weighed the evidence properly meticulously and have concurrently come to a conclusion that https://hcservices.ecourts.gov.in/hcservices/ the plaintiff is not entitled to the relief asked for in the plaint. Under Section 114(g) of the Evidence Act, the Court can take adverse inference against the plaintiff for the non production of the minutes books. Unless the plaintiff shows that inspite of his steps being taken, the plaintiff has refused to produce the minutes books, adverse inference against the plaintiff cannot be taken in this case for the non production of the minutes books. The burden is on the plaintiff to show that the defendants have caused damages to the tune of Rs.15,000/- in the plaint schedule shop building Door No.115. 7. In view of my discussion and finding in the earlier paragraph, I do not find any reason to interfere with the well founded Judgment of the learned Courts below to warrant any interference. 8. In fine, this second appeal is dismissed confirming the decree and Judgment in A.S.No.169 of 1983 on the file of the Court of Principal District Judge, Vellore. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Sg To 1. The Principal District Judge, Vellore 2. The District Munsif , Gudiyatham 3. The Section Officer, V.R.Section, High Court, Madras + 1 CC To Mr.T.Dhanyakumar, Advocate SR NO.46667 + 1 CC To M/s.Sarvabhauman Associates, Advocate SR NO.46278 Second Appeal No.73 of 1999 CK {CO} TP/8.9.08 https://hcservices.ecourts.gov.in/hcservices/