IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.04.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.330 of 2011 and M.P.No.1 of 2011 Narayana Nadar .. Appellant/Appellant/ 1st Defendant vs. P.K.Ramakrishnan .. Respondent/Respondent/ Plaintiff This second appeal is filed against the judgement and decree dated 01.12.2010 passed by the learned Subordinate Judge, Udumalpet in A.S.No.12 of 2010 confirming the judgment and decree dated 31.03.2008 passed by the learned District Munsif, Udumalpet in O.S.No.317 of 1996. For Appellant : Mr.M.V.Venkataseshan For Respondent : Mr.S.Vadivel Murugan JUDGMENT This second appeal is filed by the first defendant inveighing the judgement and decree dated 01.12.2010 passed by the learned Subordinate Judge, Udumalpet in A.S.No.12 of 2010 confirming the judgment and decree dated 31.03.2008 passed by the learned District Munsif, Udumalpet in O.S.No.317 of 1996. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. A recapitulation and resume of the relevant facts, absolutely necessary and germane for the disposal of this second appeal would run thus: https://hcservices.ecourts.gov.in/hcservices/ a. The plaintiff filed the suit seeking the following reliefs: - to direct the defendants to put the plaintiff in possession of the properties. - to direct the defendants to pay a sum of Rs.15,000/- for past damages for use and occupation. - to direct the defendants to remove the superstructures before delivery of possession of the properties, by passing a decree for mandatory injunction. - to determine the future damages and to direct the defendant to pay the same from the date of suit till the date of delivery of possession to the plaintiff and - for costs. (extracted as such) b. The defendants filed the written statement resisting the suit. c. Whereupon issues were framed and on the side of the plaintiff, he examined himself as PW1 along with PW2 and marked Exs.A1 to A4. On the defendants' side, the first defendant examined himself as D.W.1 and marked Exs.B1 to B16. d. Ultimately, the trial court decreed the suit. As against which, the first defendant preferred appeal for nothing but to be dismissed confirming the judgment and decree of the trial court. e. Challenging and impugning the judgments and decrees of both the courts below, the first defendant has preferred this second appeal on various grounds and also suggesting the following substantial questions of law: 1. Whether the courts below are right in decreeing the suit when subsequent suit is bar under provision of the CPC ? 2. Whether the courts below are right in decreeing the suit when the mandatory notice under Section 106 of transfer of property act was not issued by the respondent? 3. Whether the courts below are right in decreeing the suit when the respondent come out with false case of dispossession when the appellant wa already in possession? 4. Whether the courts below are right in decreeing the suit when admittedly notice under Section 11 of City Tenants Protection Act was not issued? (extracted as such) 4. Heard both sides. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned counsel for the appellant/first defendant would put forth and set forth his argument, which could tersely and briefly be set out thus: i] Though an order was passed under Section 9 of the City Tenants Protection Act in I.A.No.1161 of 1996 in O.S.No.317 of 1996 dated 11.09.2006 in favour of the first defendant, he could not pay the amount contemplated therein and avail the benefits passed in that order. Subsequently, the court from the available materials, decided wrongly the issues in favour of the plaintiff and as against the defendants. ii] Both the courts below fell into error in treating the defendants as trespassers and accordingly ordered eviction. Iii] The suit was bad for want of a termination notice under Section 106 of the Transfer of Property Act. Iv] The plaintiff earlier filed a suit for injunction and after failing to succeed in his attempt to get injunction, he did chose to file the suit for possession. Accordingly, the learned counsel for the appellant/first defendant prays for setting aside the judgments and decrees of both the courts below and for dismissing the original suit. 6. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant/ first defendant, the learned counsel for the respondent/plaintiff would develop his argument thus: a] No doubt, the order dated 11.09.2006 passed in I.A.No.1161 of 1996 in O.S.No.317 of 1996 was passed by the learned District Munsif, Udumalpet under Section 9 of the City Tenants Protection Act. But that order was based on the consent given by the plaintiff and there was no finding on merits by the trial court while deciding the said I.A that the occupation of the suit property by the defendants was that of a tenant. b] The plaintiff at one point of time wanted even to sell the property to the defendants because he found it very difficult to evict the defendants; and he also felt that much time would be taken to recover possession; wherefore, he agreed for such a measure contemplated under Section 9 of the said Act but, even that arrangement did not get fructified. The defendants failed to comply with the order dated 11.09.2006 passed by the learned District Munsif, Udumalpet in I.A.No.1161 of 1996 in O.S.No.317 of 1996. https://hcservices.ecourts.gov.in/hcservices/ c] Therefore, both the courts below de hors the aforesaid order, independently looked into the matter and gave a categorical finding of fact to the effect that the defendants were not at all the tenants under the plaintiff or under Balasubramaniam. Accordingly, he would pray for dismissing the second appeal. 7. I would like to fumigate my mind with the following principles as found enunciated and enshrined in the following decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL 24. . . . (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." The other decisions emerged in this regard are as under: (i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." https://hcservices.ecourts.gov.in/hcservices/ (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 It is therefore crystal clear from the mere poring over and perusal of the aforesaid precedents that unless there is any perversity or illegality in the rendering of the finding of facts by both the courts below, the question of interfering by the High Court under Section 100 of the Code of Civil Procedure would not arise. 8. As correctly and appropriately argued by the learned counsel for the plaintiff, the order dated 11.09.2006 passed in I.A.No.1161 of 1996 in O.S.No.317 of 1996 emerged only on consent and that only the quantum was fixed by the court below after taking into account various factors; but the defendants did not make use of it. As such, the plaintiff cannot be found fault with for having proceeded with his suit further. There is nothing to indicate as correctly pointed out by the learned counsel for the plaintiff that the defendants were tenants either under the said Balasubramaniam, the vendor of the plaintiff or under the plaintiff. In such a case, as against the concurrent finding of facts by both the courts below, there is no necessity for this court to interfere with the same, unless there is any perversity or illegality. 9. My discussion supra from the available materials on record would display and demonstrate that the plaintiff on his side marked the title deed establishing the title over the property; but on the defendants side, there is nothing to indicate that they entered into possession as tenants either under Balasubramaniam, the vendor of the plaintiff or the plaintiff. The fact also remains that the earlier suit was withdrawn by the plaintiff as according to him during the pendency of the suit, the defendants barged into the property and put up the saw Mill. As such, after getting permission from the court, he withdrew the suit and filed a fresh suit, for recovery of possession, so to say, the present suit, over which, the second appeal has arisen. 10. I could see no perversity in the approach of both the courts below and the first defendant cannot try to capitalise his own fault and in the meantime try to pin down the plaintiff from proceeding further with his own case as found set out in the plaint. 11. As such, I am of the view that there is no question of approbating and reprobating (qui approbat non reprobat – he who approbates does not reprobate, i.e., he cannot both accept and reject the same thing) on the part of the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 12. I also recollect and call up the following maxims: (i) nul prendra advantage de son tort demesne – No one shall take advantage of his own wrong. (ii) Nullus commodum capere potest de injuria sua propria – No one can obtain an advantage by his own wrong. 13. The first defendant lulled the plaintiff into the belief that he would purchase the property and thereby got the consent from him and ultimately he got the order dated 11.09.2006 passed by the trial court and after non-compliance with the said order, the first defendant cannot veer round and having a volte face contend that his status should be recognised as that of a tenant. As such, the first defendant is having no vested right to pin down the plaintiff to stick on to his earlier consent. 14. As such, I could see no question of law much less any substantial question of law involved in this second appeal. Accordingly the second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. 15. At this juncture, the learned counsel for the appellant/first defendant would make an extempore submission to the effect that at least a year's time might be granted to vacate and hand over vacant possession of the suit property by the first defendant to the plaintiff as there are some legal formalities to be completed before shifting the Saw Mill to some other place. However, the learned counsel for the plaintiff would vehemently oppose such a prayer for granting one year's time as ever since 1983, the plaintiff is waiting to get back his property. 16. Hence, by way of striking a balance between the rival submissions, I would like to grant six months' time from this date to the first defendant to vacate and hand over vacant possession after removal of the super structure to the plaintiff and to that effect, the first defendant shall file an affidavit within a period of three weeks'. If no such affidavit is filed, the first defendant cannot avail the time granted supra. Sd/ Assistant Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vj2 To 1. The Subordinate Judge, Udumalpet 2. The District Munsif, Udumalpet 3. The Section Officer, V.R. Section, High Court, Madras. + 1 cc to Mr.M.V. Venkataseshan, SR.23572 + 1 cc to Mr. S. Vadivel, Murugan, Sr.23675 S.A.No.330 of 2011 SA(CO) Eu 30.5.11 https://hcservices.ecourts.gov.in/hcservices/