IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.660 of 2010 and M.P.No.1 of 2010 R.Mohan Singh .. Appellant/Appellant vs. Hajjani Noorjehan Begum Saheba Wakf represented by its Joint Mutavallis Md.Kaleemullah Md.Abdul Matheen Badsha, Md.Abdul Mubeen Badshi, Fathima Akthar and Fathima Azhar .. Respondents/Respondent This second appeal is filed against the judgment and decree dated 10.12.2009 in AS No.74 of 2009 on the file of Additional District Judge (Fast Track Court – V) Chennai, dismissing the appeal and confirming the judgment of the trial Court dated 18.03.2008 in O.S.No.833 of 2007 on the file of the I Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.T.Viswanatha Rao For Respondent : Mr.V.Raghavachari J U D G M E N T This second appeal is focussed animadverting upon the judgement and decree dated 10.12.2009 passed in A.S.No.74 of 2009 by the Additional District Judge (Fast Track Court – V) Chennai, confirming the judgment and decree of the learned I Assistant Judge, City Civil Court, Chennai in O.S.No.833 of 2007. 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: https://hcservices.ecourts.gov.in/hcservices/ (a) The respondent/plaintiff filed the suit seeking the following reliefs: "(a) Directing the defendant to vacate and deliver vacant possession of Sho Old No.303B, New No.122, Qaide Millath Road also known as Triplicane High Road, Chennai 600 005 on a date to be fixed by this Court. (b) Directing the defendant to pay arrears of rent for October 2006 amounting to Rs.500/- (c) Directing the defendant to pay damages for use and occupation at Rs.6,000/- for November 2006 and December, totalling Rs.12,000/-." (extracted as such) (b) The defendant filed the written statement resisting the suit. (c) Whereupon issues were framed. (d) On the side of the plaintiff, one Mr.Md.Kaleemullah was examined as P.W.1 and Exs.A1 to A5 were marked. The defendant examined himself as D.W.1 and Exs.B1 to B12 were marked. (e) Ultimately the trial Court decreed the suit as against which appeal was filed for nothing but to to be dismissed confirming the judgment and decree of the trial Court. 3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various ground inter alia to the effect that the competent forum was only the Wakf Tribunal and not the civil Court; even after the alleged termination of tenancy by issuing notice by the plaintiff, rent was paid by the defendant which was received by the plaintiff; thereby there was renewal of tenancy and in such a case both the Courts were wrong in deciding the lis in favour of the plaintiff. 4. The following proposed substantial questions of law are found suggested in the memorandum of Second Appeal: "(1) Whether the suit filed by the respondents for eviction of the appellant/tenant in O.S.No.833/2007 is premature as there was no valid determination of tenancy of the appellant in the petition premises? (2) Whether the notice – Exhibit A2, dated 18.09.2006 purportedly issued by the plaintiff to the defendants satisfy the requirement, as notice https://hcservices.ecourts.gov.in/hcservices/ of termination of tenancy, as there was no tenancy created between the plaintiff and the defendants as on that date?" (3) Can the tenancy of the appellant in respect fo the petition premises created subsequently to the result in interpleader suit – Exhibit B9 dated 29.09.2006 be determined even earlier by Exhibit A2, notice dated 18.09.2006? (4) Even otherwise whether the purported notice of termination dated 18.09.06 – Exhibit A2 be treated to have been waived by acceptance of rents subsequently under Exhibits B1 and B2 as well as other receipts marked as exhibits? (5) Is not the suit dispute reference to the relating to the Wakf property which could be decided only by Wakf tribunal? (6) Is not the suit bad for want of jurisdiction and ought to have been dismissed? (7) Are the courts below rightly appreciated and applied the ratio of judgment reported in 2009 (4) CTC – 313 as well as 2007(1) MLJ 138? (8) Are the courts below justified in awarding damages with exorbitant rate as fixed in the Trial Court against the appellant? (extracted as such) 5. Heard both sides on the question as to whether there is any substantial question of law is involved in this case. 6. The learned counsel for the appellant/defendant would reiterate the grounds of appeal as found in the memorandum of appeal. However, on the side of the defendant, the learned counsel has stressed upon the fact that absolutely there is no perversity or illegality in the judgments passed by both the Courts below. 7. At this juncture, my mind is redolent and reminiscent of the following decision of the Hon'ble Apex Court: (2010) 8 SCC 726 [Ramesh Gobindram (Dead) through Lrs v. Sugra Humayun Mirza Wakf], an excerpt from it would run thus: "35. In the cases at hand, the Act does not https://hcservices.ecourts.gov.in/hcservices/ provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the civil court and not before the Tribunal." A mere perusal of the said judgment would exemplify and demonstrate that Muthavalli of a Wakf should resort to the civil Court for evicting the tenant and strictly in accordance with the trite proposition of law the suit was filed in the civil Court and not before the Tribunal. Hence the judgments and decrees of both the Courts below cannot be found fault with because they entertained the civil suit. 8. The contention on the side of the defendant/appellant that the rent was paid by the defendant in favour of the plaintiff even after the alleged termination tenancy has not been pleaded specifically in the written statement. 9. At this juncture, I recollect the maxim: "Judicis est judicare secundum allegata et probata – It is the duty of a Judge to decided according to the facts alleged and proved" In the absence of any specific plea the Court cannot entertain any argument in that regard. In the Second Appeal for the first time such a plea based on factual position cannot be canvassed. Hence, I am of the view that even that plea cannot be entertained. 10. The learned counsel for the appellant/defendant also would make an extempore submission that the damages for use and occupation as assessed by the Courts below, is on the higher side. Even that point was not pleaded before the trial Court or before the appellate Court. Hence in such a case, I am of the considered view that even such a plea is not tenable. In this view of the matter I could see no substantial question of law involved in this case. 11. 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. https://hcservices.ecourts.gov.in/hcservices/ A mere perusal of those judgments would amply make the point clear that unless there is any substantial question of law involved the question of entertaining the Second Appeal would not arise at all. Hence, the Second Appeal is dismissed. However, there shall be no order as to costs. 12. Taking into consideration the fact that the defendant is occupying a small area and doing Bunk shop business, I am of the view that six months' time could be granted for handing over possession of the property concerned in favour of the plaintiff subject to payment of damages for use and occupation without any default every month. An affidavit shall be filed within fifteen days from this date to that effect. Gms Sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar To 1. The Additional District Judge (Fast Track Court – V) Chennai. 2. The I Assistant Judge, City Civil Court, Chennai. + 1 cc to Mr.T.Viswanatha Rao, ADvocate Sr.4693 NM(CO) RRI/10.3.2011 S.A.No.660 of 2010 https://hcservices.ecourts.gov.in/hcservices/