IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.10.2010 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL APPEAL SUIT NO. 177 OF 2000 and C.M.P.No.698 of 2010 K.Muthusamy ... Appellant Vs. The Commissioner, Udumalpet Municipality, Udumalpet, Coimbatore District. ... Respondent Prayer: The present appeal A.S.No.177 of 2000 is filed praying to set aside the Judgment and Decree dated 30.10.1998 made in O.S.No.498 of 1994 on the file of Sub Court, Udumalpet. For Appellant : Mr.R.Krishnan for M/s.A/Sivaji For Respondent : Mr.Vijayan for M/s.G.Sankaran J U D G M E N T The Appellant / Defendant has filed this present Appeal as against the Judgment and Decree dated 30.10.1998 in O.S.No.498 of 1994 passed by the Learned Sub Judge, Udumalpet. 2. The trial Court while passing Judgment in the main suit as among other things observed that 'on a consideration of totality of the facts, the Respondent / Plaintiff is entitled to claim the relief prayed for in the Plaint and the Appellant / Defendant is liable to pay the amount claimed by the Respondent / Plaintiff and has come to the resultant conclusion that the Appellant / Defendant is to pay the balance arrears of rent and further the Appellant / Defendant has been directed to pay the suit amount with interest at 12% per annum from the date of filing of the Plaint till date of realisation and accordingly decreed the suit with costs'. 3. Before the trial Court, three issues have been framed for adjudication in the main case. On the side of the Respondent / Plaintiff witness P.W.1 has been examined and Exs.A.1 to A.11 have https://hcservices.ecourts.gov.in/hcservices/ been marked. On the side of Appellant / Defendant witness D.W.1 has been marked and Exs.B.1 to B.10 have been marked. Also Ex. C1 – Commissioner's Report and Ex.C2 – Commissioner's Plan have been marked. 4. Feeling aggrieved against the Judgment and Decree of the trial Court passed in O.S.No.498 of 1994 on the file of the Learned Sub Judge, Udumalpet, the Appellant / Defendant as an aggrieved person has filed the present appeal before this Court. 5. The points that arise for consideration in this appeal are: (i)Whether the Respondent / Plaintiff is entitled to claim the suit sum of Rs.3,00,020/- as an Arrears of Rent along with interest at 12% per annum from the Appellant / Defendant? (iii) Whether the Appellant / Defendant is entitled to pay the suit amount with interest at 12% per annum from the date of filing of the suit till date of realisation? (v)Whether the Appeal preferred by the Appellant / Defendant is to be allowed? 6. The Contentions, Discussions and Findings on Point Nos. 1 to 3: According to the Learned Counsel for the Appellant / Defendant, the trial Court has failed to appreciate that the onus of proving the case of existence of Petty Shop No.1 in the suit property lies on the Respondent / Plaintiff and unfortunately, the trial Court has proceeded on the assumption / presumption that the Petty Shop No.1 is in existence when the same has not been proved in the manner known to law. 7. Further, it is the contention of the Learned Counsel for the Appellant / Defendant that due to an illegal removal of the Shop No.1 by the Respondent / Plaintiff, the Appellant / Defendant is not liable to pay the lease amount and as a matter of fact no finding has been rendered by the trial Court in regard to the non-existence of the Shop No.1 in the disputed area and indeed, it has come to an erroneous conclusion that it is not possible to hold that the Shop has been removed by the Municipality, which has resulted in serious miscarriage of justice. 8. Continuing further, it is the submission of the Learned Counsel for the Appellant / Defendant that the lease is in favour of the Appellant / Defendant in respect of all the three Shops, which includes the Petty Shop and due to the removal of the Petty Shop, the Appellant / Defendant is not in a position to pay the lease amount and as such the Respondent / Plaintiff's claim of the lease amount in https://hcservices.ecourts.gov.in/hcservices/ entirety at Rs.8,570/- per month for the three Shops is not valid and after the removal of the shop the Appellant / Defendant need not pay the lease amount and further prays for allowing the appeal, to promote substantial cause of justice. 9. Per contra, it is the contention of the Learned Counsel for the Respondent / Plaintiff that from 1992 to 1994, the Appellant / Defendant has failed to pay the amount and that the Respondent / Plaintiff is claiming an arrears of rent amount upto 1994 and initially the lease amount for Stall Nos. 2, 6 and Bunk No. 1 situated at Central Bus Stand owned by the Respondent / Plaintiff Municipality at Udumalpet Town have been fixed at Rs.3,000/- per month payable every English Calendar month on or before 10th and later the rent has been enhanced to Rs.8,572/- per month on mutual agreement from April 1990 and that the Appellant / Defendant has remitted the lease amount for the period ending with October 1991 and further the Appellant / Defendant has failed to pay the claim amount from November 1991 till date of filing of the suit on 31.10.1994 and as such the Appellant / Defendant is entitled to pay the suit arrears amount together with interest at 12% per annum from the date of filing of the suit till date of realisation. 10. According to the Learned Counsel for the Respondent / Plaintiff, the trial Court has taken note of all the relevant and attendant facts and circumstance of the case in a comprehensive manner and upon appreciation of oral and available documentary evidence on record it has come to a right conclusion that the Appellant / Defendant is liable to pay the suit arrears of rent amount along with interest at 12% per annum, which need not be disturbed by this Court at this stage of the Appeal. 11. It is the oral evidence of P.W.1 (Assistant in Municipality) that from the year 1974 the Appellant / Defendant is a tenant in respect of the suit property in respect of Stall Nos. 2, 6 and one Bunk and firstly, monthly rent has been fixed at Rs.3,000/- and at present, the monthly rent has been increased to Rs.8,000/- from 01.04.1994. 12. P.W.1 in his further evidence goes on to add that the monthly rent of Rs.8,572/- is for three shops and upto the date of filing of the suit the Appellant / Defendant has to pay the arrears of Rs.3,00,020/- and thereafter for the remaining months also the Appellant / Defendant has not paid the amount. 13. P.W.1 in his cross examination has categorically deposed that in the year 1977, three shops have gone in auction for Rs.36,020/- and the Stall Nos. 2 and 6 are inside the Bus Stand and the Bunk / Petty Shop has been situated in the place where traffic has been heavy. https://hcservices.ecourts.gov.in/hcservices/ 14. It is the evidence of P.W.1 (in cross examination) that before the year 1971 the Bunk has been auctioned separately and the Stalls have been auctioned separately and to a suggestion whether these two Stalls in the auction have gone for Rs.18,000/- per year, he has to look into the records and answer and later for their own convenience, the two Stalls and the Bunk have been put into auction in the year 1977 which went for Rs.36,020/- and he does not know that the business is not good in other two stalls because the Bunk / Petty Shop has been removed. 15. However, it is the evidence of P.W.1 (in cross examination) that it is wrong to state that on 27.11.1991 the Respondent / Plaintiff has taken the Petty Shop No.1 and that the Appellant / Defendant is liable to pay rent for the three shops which has gone in an auction. 16. It is the evidence of D.W.1 (Appellant / Defendant) that he has taken the Petty Shop No.1 for rent initially for a sum of Rs.18,010/- per year and also he has taken the Shop Nos. 2 and 6 for a rent of Rs.18,010/- and for one year the shops aforesaid have been let out separately and later in the next year the Petty Shop has not gone in for auction for the amount initially taken by him and subsequently Shop Nos. 1, 2 and 6 have been put into an auction jointly and he has taken the Petty Shop Nos. 1, 2 and 6 for initial rent amount of Rs.36,000/- and in the Bunk Shop alone more business has been transacted and the Stall Nos. 2 and 6 are near the Town Bus Stop and they have paid the rent for these shops properly and for the Petty Shop, Stall Nos. 2 and 6 electricity facility is in the name of Municipality Commissioner and they are paying the electricity charges and on 27.11.1991 the Petty Shop has been removed by the Municipality and that the electricity has been cut off at the instance of Municipality Commissioner and in the place of Bunk Shop No. 1, 16 new shops have been constructed. 17. D.W.1 in his further evidence has stated that he is ready to pay half the rent in respect of Stall Nos. 2 and 6 and for the three shops he has to pay per month a sum of Rs.8,570/- and since the Bunk has been removed / taken away he is prepared to remit the sum of Rs.4,286/- but this has been refused to be received by the Respondent / Plaintiff and further he is not liable to pay the interest as claimed by the Respondent / Plaintiff. 18. In his cross examination, the D.W.1 (Appellant / Defendant) has stated that the arrears of rent has been claimed in the suit is in respect of the Petty Shop No.1 and the Petty Shop No.1 has been situated on the upper side of the Bus Stand main gate and now the said Petty Shop / Bunk is not available and in the said place, a building is there. https://hcservices.ecourts.gov.in/hcservices/ 19. The stand of the Appellant / Defendant as seen from the written statement is that since the Respondent / Plaintiff has removed the Petty Shop No.1 his business has been affected and therefore he has sustained a big loss and hence he is not entitled to pay any amount to the Respondent / Plaintiff and all the more the Respondent / Plaintiff has no justification to claim a sum of Rs.8,570/- towards rent per month, from the Appellant / Defendant. 20. At this juncture, the Learned Counsel for the Appellant / Defendant submits that the trial Court in its entire Judgment in the main suit has referred to the evidence of D.W.1 (Appellant / Defendant) but there is no whisper of the evidence of P.W.1 (Assistant in Municipality) and in short the trial Court has not indulged in an exercise of forensic skills to appreciate the factual aspects in an analytical way and in the absence of the same the Judgment of the trial Court needs to be set aside by this Court. 21. It is the duty of a Court of Law to appreciate the oral evidence tendered by the parties as well as the documentary evidence available on record in a threadbare fashion. 22. Further it is observed that in a case open to an appeal, the trial Court should embark upon a judicial analysis in respect of the oral and documentary evidence tendered and marked by the parties. The real object of delivering a Judgment by a Court of Law is that all issues for determination will have to be framed by it to clear up the pleading and project the contention of the Court and of the parties on the specific and rival contentions which arise for a finding / decision. In short, the controversies / disputes set out in the pleadings and projected in the evidence by the parties are to be looked into by the appropriate Court. The issues for determination, the decision there on and the reason for the decision are to be spelt out by the concerned Court in its Judgment so as to enable the Appellate Court to appreciate the subject matter in a proper perspective. To put it differently, the trial Court being the Writer / Author of the Judgment should not fail to discharge its obligation enjoined as per the relevant provisions of the Civil Procedure Code. It is true that failure to formulate issues for determination will be an irregularity, where no prejudice shown to have been caused in the considered opinion of this Court. 23. Admittedly, the parties on either side have not marked relevant documents on their side to show that the Appellant / Defendant has been a tenant in the suit property from the year 1974, also whether Petty Shop No.1 / Bunk has been removed / taken away, there is no finding rendered by the trial Court. 24. It is the evidence of the P.W.1 that for 3 shops namely Stall Nos. 2, 6 and Bunk No. 1 at Central Bus Stand at Udumalpet https://hcservices.ecourts.gov.in/hcservices/ Town, the rent is Rs.8,572/- as per Agreement / contract. Earlier the three Shops / Stalls / Bunk have gone in an auction for Rs.36,020/- in the year 1977. It is the categorical evidence of P.W.1 that it is wrong to state that in the Petty Shop place / Bunk there is a shop and that shop remains only as a vacant one and on the upper side there are seven shops and he does not know the monthly rent amount of each shop and further it is the evidence of P.W.1 that it is wrong to state that in the place of the Petty Shop those new shops have been built. 25. The Advocate Commissioner in his Ex.C.1 Report has inter alia stated that among the Petty Shops which have been removed, one such shop of the Appellant / Plaintiff has been in existence at the Bus Stop which is informed by both the parties. 26. The trial Court in its Judgment in para-9 as among other things observed that 'it is to be construed that from the year 1974, the Appellant / Defendant has taken Shop Nos. 2, 6 and Petty Shop No. 1 for rent and is conducting business in the Bus Stand belonging to Municipality at Udumalpet. Even during October 1991, the Appellant / Defendant has paid the lease amount to the Respondent / Plaintiff, as per the Agreement. The Advocate Commissioner has inspected the suit properties on 19.12.1997 at about 4.00 p.m'. 27. The stand of the Appellant / Defendant is that on 27.11.1991, the Petty Shop / Bunk has been removed / taken away by the Respondent / Plaintiff and in that place a new building has been constructed wherein the new shops have been built and as such from the date the Bunk Shop has been removed, the Respondent / Plaintiff is not entitled to claim the lease amount in respect of Bunk Shop. 28. Admittedly, the trial Court has not rendered a finding in regard to the non-existence of the shop in issue in the disputed area. However, Ex.C.1 - Commissioner's Report and Ex.C.2 – Commissioner's Plan pointed out about the non-existence of the Petty Shop / Bunk. Therefore, the observation of the trial Court in para-11 in the main suit is to the effect that based on the evidence of D.W.1 (Appellant / Defendant) it is not possible to come to a clear conclusion that the Respondent / Plaintiff has removed the Shop No. 1 because of the fact that the evidence of D.W.1 (Appellant / Defendant) is an interested one, this observation of the trial Court so to say is in negation of Ex.C.1 – Commissioner's Report and Ex.C.2 – Commissioner's Plan. 29. That apart, the conduct of the trial Court in not marshalling the evidence of P.W.1 and not discussing the same to arrive at a particular conclusion in a comprehensive manner are clearly unfavourable circumstance in favour of the Respondent / Plaintiff. In short, this Court is of the considered opinion that there is no judicial analysis / discussion of the evidence of P.W.1, with a forensic ability coupled with the Commissioner's Report and https://hcservices.ecourts.gov.in/hcservices/ Commissioner's Plan. It is the duty of the trial Court to consider the points raised on the side of the parties. 30. As far as the present case is concerned, the non consideration of evidence of P.W.1 by the trial Court coupled with Ex.C.1 - Commissioner's Report and Ex.C.2 – Commissioner's Plan go to clearly point out that the trial Court has not appreciated the factual matters of controversies / disputes in proper perspective. It has also not framed the proper issues, whether the Petty Shop No. 1 has been removed / taken away by the Respondent / Plaintiff and basically the trial Court has not assigned effect and efficacious reasoning for the decision arrived at by it on the basis of oral and documentary evidence available on record. To put it precisely, the trial Court has failed to decide the case on merits in a real perspective and therefore the Judgment of the trial Court is an inadequate and unsustainable one, which is not Per Se correct in the eye of Law and therefore this Court without going into the merits of the matters interferes with the Judgment and Decree dated 30.10.1998 in O.S.No.498 of 1994 passed by the Learned Sub Judge, Udumalpet by setting aside the same to prevent an aberration of justice and resultantly remands the same to the trial Court for fresh consideration and allows the Appeal without costs and viewed in that perspective this Court leaves the point Nos. 1 and 2 open, (undecided). 31. Since this Court has allowed the appeal and remitted the matter back to the trial Court for fresh consideration in accordance with law, this Court grants liberty to the Appellant / Petitioner to project the letter dated 09.04.1997 of the Respondent / Plaintiff Municipality before the trial Court by proving and examining the same in the manner known to law and in that view of the matter the C.M.P.No.698 of 2010 filed by the Appellant / Defendant under Order 41 Rule 27 Civil Procedure Code praying permission of this Court to receive the letter dated 09.04.1997 of the Respondent / Plaintiff the Municipality Commissioner as an additional document is closed. 32. In the result, the appeal is allowed. The Judgment and Decree dated 30.10.1998 in O.S.No.498 of 1994 passed by the Learned Sub Judge, Udumalpet are set aside. The suit is remanded back to the trial Court for fresh consideration in accordance with law. It is open to the parties to adduce further oral and documentary evidence and also to examine further additional witness (including the Advocate Commissioner, who has submitted his Report and Plan as Exs. C.1 and C.2 respectively) in the manner known to law and the trial Court is directed to permit them in this regard. Since the suit is of the year 1994, the trial Court is directed to dispose of the main suit within a period of six months, by giving utmost priority, from the date of receipt of a copy of this Order. No costs. Consequently, the connected miscellaneous petition is closed. Refund of Court Fee https://hcservices.ecourts.gov.in/hcservices/ is ordered in favour of the Appellant / Defendant in Appeal as per Rules. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar va To 1 The Sub Court, Udumalpet. +1 CC to Mr.A. Sivaji Sr No. 74800 +1 CC to Mr.G. Sankaran Sr No. 74745 A.S. No. 177 of 2000 and C.M.P.No.698 of 2010 MBS – CO KV- 09/12/2010 https://hcservices.ecourts.gov.in/hcservices/