IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:29-04-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.376 of 2008 Dr.P.V.G.Patrudu .. Appellant. Versus C.P.Ramanathan .. Respondent. PRAYER: Appeal against the judgment and decree, dated 25.10.2007, made in A.S.No.470 of 2007, on the file of the VII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree, dated 21.07.2007, made in O.S.No.3818 of 2006, on the file of the VI Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.P.Jayaraman Senior Counsel for Mr.B.K.Singh For Respondent : Mr.T.S.Sivagnanam J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 25.10.2007, made in A.S.No.470 of 2007, on the file of the VII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree, dated 21.07.2007, made in O.S.No.3818 of 2006, on the file of the VI Assistant Judge, City Civil Court, Chennai. 2. For the sake of convenience, the parties in the appeal are referred to as they have been arrayed in the original suit in O.S.No.3818 of 2006. 3. The defendant in the suit O.S.No.3818 of 2006, is the appellant in the present second appeal. The plaintiff in the said suit is the respondent in the second appeal. The plaintiff had filed the suit before the VI Assistant Judge, City Civil Court, Chennai, in O.S.No.3818 of 2006, praying for a decree and judgment against the defendant directing him to quit and deliver vacant possession of the suit property, having a house and ground, bearing New Door No.45 (Old No.10), Devadi Street, Mylapore, Chennai, morefully set out in the schedule forming part of the plaint and for a direction directing the defendant to pay damages for the use and occupation of the suit property at the rate of Rs.5000/- per https://hcservices.ecourts.gov.in/hcservices/ month, from the date of the plaint till the date of handing over of vacant possession of the suit property to the plaintiff and for costs. 4. The brief facts of the case as stated by the plaintiff is as follows: The plaintiff is a retired Joint Director in the Information and Public Relations Department, Government of Tamil Nadu. The plaintiff had approached the Pachaiyappa's Trust for an accommodation in one of the properties under the administrative control of the Trust. The plaintiff was given a house at Old No.10, New Door No.45, Devadi Street, Mylapore, Chennai, on the condition that the plaintiff should renovate and repair the building at his cost and also pay the rent fixed by the Trust, which was Rs.1500/- per month. Having acceded to the request of the plaintiff, the Trust Board had allotted the property to the plaintiff, on 20.08.1996, for residential purpose with certain conditions. As per the conditions of the allotment order, dated 20.08.1996, the plaintiff had paid a sum of Rs.88,650/- by way of Voluntary Donation to Pachaiyappa's Trust and another sum of Rs.9,000/- towards the advance, amounting to a total sum of Rs.97,650/-. The plaintiff had also paid the necessary charges for restoration of electricity, water connection etc., for the said building allotted to him. After obtaining a no objection certificate from the Trust Board, on 20.09.1996, the plaintiff had renovated the building allotted to him at his cost and expense, spending an amount of Rs.3,27,280/-. He had also erected a bore well and provided water connection for the said building. Thus, the plaintiff had spent more than Rs.5,35,000/- towards renovation of the building and to provide other amenities therein. When the renovation works had been completed in the year 1997, the defendant had approached the plaintiff through a family friend, Prabhakaran, requesting for a temporary accommodation for a few months as the defendant was to complete the construction of his building in South Mada Street, Mylapore. At the time of occupation of the building by the defendant, he had given Rs.50,000/- to the plaintiff as caution money. Thereafter, the defendant had also given a sum of Rs.15,000/- for the same purpose. However, the defendant had obtained two receipts from the wife of the plaintiff for the said amounts, showing the amounts to be rental advance, stating that he had required such receipts for payment of income tax. 4.1. The allotment of the house made in favour of the plaintiff by the Board of Pachaiyappa's Trust was to end by the month of March 1998. The plaintiff had requested the defendant to vacate the premises. Since the plaintiff had pleaded for more time to vacate the premises as his wife was suffering from acute cancer, the plaintiff had permitted the defendant to occupy the premises for more time. While so, the defendant had written to the plaintiff, on 25.07.2001, claiming that he was a tenant and that he was paying a monthly rent of Rs.6750/- to the https://hcservices.ecourts.gov.in/hcservices/ plaintiff. In spite of further extensions of time for the defendant to vacate the premises, he had written to the Pachaiyappa's Trust, complaining about the plaintiff. 4.2. When the defendant had refused to allow the plaintiff to enter the premises in the Month of May 2004, the plaintiff had lodged a complaint before the police on 14.05.2004. On 31.03.2005, the plaintiff had retired from government service. By then the defendant had completed his construction of his building at No.43, Old No.20, South Mada Street, Mylapore, Chennai. Since the defendant had refused to vacate the premises even after the expiry of the extended time granted by the plaintiff, the plaintiff had caused a lawyers notice on 21.02.2006, determining the licence granted to the defendant. Even thereafter, the defendant had refused to vacate the premises in question, nor did the defendant cause a reply to the notice issued by the plaintiff. Since the plaintiff had been in unauthorised occupation of the suit property, the plaintiff had demanded payment of Rs.5,000/- per month from the defendant as damages. In such circumstances, the plaintiff had filed the suit in O.S.No.3818 of 2006. 5. In the written statement filed by the defendant, it is stated as follows: The averments and allegations made by the plaintiff in the plaint filed by him, in the suit O.S.No.3818 of 2006, are denied. The plaintiff had got the suit property from Pachaiyappa's Trust without proper sanction from the Trust and from the Court. The defendant was given the property not on lease and licence basis, but on a monthly rent of Rs.6750/- and on payment of an advance of Rs.65,000/-. The defendant had also paid huge amounts of money to the plaintiff. The suit property was given to the defendant by the arrangements made through Prabhakaran. The property was given by the plaintiff to the defendant only on lease, as it is seen from the rental receipts issued to the defendant. The defendant had never requested that the lease should be only upto March, 1998 as alleged by the plaintiff. Further, the defendant had not made a request to grant time till December, 2002, as claimed by the plaintiff. It is the defendant who had spent huge amounts of money for maintaining the property and for providing the amenities therein. The suit filed by the plaintiff is not maintainable as the Court before which it has been filed has no jurisdiction to try the suit. Further, no cause of action has arisen for filing the suit as claimed by the plaintiff. 6. Based on the averments in the plaint filed by the plaintiff and in the written statement filed by the defendant, the trial Court had framed the following issues for consideration: 1) Whether the plaintiff is entitled to possession of the suit property as claimed in the plaint? 2) Whether the plaintiff is entitled to the damages as claimed in the plaint? https://hcservices.ecourts.gov.in/hcservices/ 3) Whether the suit is not maintainable as stated by the defendant? 4) To what other relief the plaintiff is entitled to? 7. Based on the averments made on behalf of the plaintiff, as well as the defendant and on the basis of the evidence, both documentary as well as oral, the trial Court had found that the plaintiff had taken the suit property from the Pachaiyappa's Trust for residential purpose and that the said fact has not been denied by the defendant. The plaintiff had filed necessary documents to prove the same. The defendant had stated that he had taken the suit property from the plaintiff on rent. However, the plaintiff had claimed that the suit property was given to the defendant only on licence and not on lease. Therefore, the main issue that was to be decided by the trial Court was whether the suit property was given by the plaintiff to the defendant on licence or on lease. To prove that the suit property was given to the defendant on lease, the defendant had filed the receipts signed by the wife of the plaintiff. The defendant has not filed any receipt signed by the plaintiff for payment of the rental amounts in respect of the suit property. The plaintiff had marked Ex.A-16, which is a letter addressed by the defendant to the plaintiff requesting for time upto the month of December, 2002, for vacating the premises due to the ill-health of his wife. The trial Court had also found that the defendant has not filed any other receipts, except the receipts signed by the plaintiff's wife and son for payment of rent. Even though the defendant has claimed that he has been residing in the suit property from the year, 1997, the defendant had filed only Exhibits B-1, B-5 and B-6 as receipts for the months of March, April, May, June, July and August, 1998, and for the month of February 1999. 7.1. The trial Court had also found that the defendant has been writing letters to various authorities stating that the suit property has been given to the plaintiff unauthorisedly and illegally by the Pachaiyappa's Trust, without obtaining the necessary permission either from the Board of the Pachaiyappa's Trust or from the Court. The defendant has not shown any proof that he has taken the suit property from the plaintiff on lease on a monthly rental basis. The defendant has also not shown that he has been paying the rents regularly without default. The claim of the defendant that he has taken the suit property on oral lease has not been proved by the defendant. Even in the written statement, such a plea has not been advanced. Even though the defendant has been requesting the Pachaiyappa's Trust to recognise him as a tenant in the suit property such request has not been accepted by the said Trust. The rental amounts sent to the Trust by the defendant has not been accepted. In spite of his claim that he has been paying the rental amount to the plaintiff, no other document has been filed to show that the defendant is in the suit property as a tenant, except the three receipts filed by the defendant, marked as Exhibits B1, B5 and B6. https://hcservices.ecourts.gov.in/hcservices/ 7.2. The trial Court had also found that the defendant had denied the rights of the plaintiff in the suit property. Though, the defendant had stated that he was paying Rs.6750/- as rent for the suit property, it was found that the defendant had not been paying the rental amount to the plaintiff as claimed by him. Based on such finding, the trial Court had decreed the suit directing the defendant to hand over possession of the suit property to the plaintiff and also by directing the defendant to pay Rs.5,000/- per month, as damages, to the plaintiff for the use and occupation of the suit property. 8. Aggrieved by the judgment and decree of the trial Court, dated 21.07.2007, the defendant had filed an appeal in A.S.No.470 of 2007, before the VII Assistant Judge, City Civil Court, Chennai. 9. The First Appellate Court had framed the point for consideration as to whether the appeal filed by the appellant is to be allowed. 10. Based on the rival contentions and on analysing the evidence available on record, the first Appellate Court had come to the conclusion that the trial Court was right in its findings. The first Appellate Court had dismissed the first Appeal in A.S.No.470 of 2007, confirming the judgment and decree of the trial Court. The first Appellate Court had found that there is no dispute as to the fact that the defendant has been in occupation of the suit property with the permission of the plaintiff. The plaintiff had claimed that the defendant has been in occupation of the suit property only as a licensee, since there was no lease agreement entered into between the plaintiff and the defendant granting the status of a lessee to the defendant. It was also stated by the plaintiff that there was no landlord-tenant relationship between the plaintiff and the defendant and the defendant was not paying any rent as a tenant in the suit property. 10.1. The first Appellate Court had also found that the defendant had denied the plaintiff's right in the suit property stating that the Pachayappa's Trust had given the property to the plaintiff, wrongly, without obtaining the necessary permission or approval from the Trust, as well as from the Court. Such denial of the plaintiff's right in the suit property has not been done with good intentions. Further, the trial Court had held that the defendant has not been in a position to prove, by acceptable evidence, that he is a tenant in the suit property paying monthly rental amounts to the plaintiff on a regular basis. In such circumstances, the first Appellate Court had confirmed the findings of the trial Court, by its judgment and decree, dated 25.10.2007. 11. Aggrieved by the judgment and decree of the Courts below, the defendant had filed the present second appeal before this Court, in S.A.No.376 of 2008. https://hcservices.ecourts.gov.in/hcservices/ 12. The second appeal has been preferred based on the various grounds forming part of the memorandum of grounds of the second appeal. The defendant in the suit, who is the appellant in the second appeal, had stated that the trial Court had failed to frame the specific issue for determination as to whether the appellant was a lessee or a licensee. Both the Courts below had come to the conclusion that the appellant was only a licensee and not a lessee on an erroneous consideration of the documents marked as Exhibits and on the oral evidence adduced. While coming to the conclusion that the defendant is only a licensee, both the Courts below had failed to consider the fact that the plaintiff had got the allotment of the suit property from Pachaiyappa's Trust Board in the year, 1996, by using undue influence, without proper sanction being obtained for the purpose of allotment. In spite of having received the rental advance and additional sums of money for completion of the construction in the suit property, the plaintiff had not issued the necessary receipts to acknowledge the payments made by the defendant. The oral agreement between the plaintiff and the defendant regarding the lease had not been considered by both the Courts below. In spite of the fact that the defendant has been paying the monthly rent of Rs.6,750/- to the plaintiff in respect of the suit property, it has been erroneously held that the defendant is not a tenant under the plaintiff in the suit property. The Courts below had committed a serious error in considering the Exhibit A.16, dated 25.7.2001, as evidence of the fact that the defendant was only a licensee and not a lessee. By the letter marked as Exhibit A.16, the defendant had only requested for time till December, 2002, to continue as a lessee in the suit property due to the illness of his wife. Ex.A-16 is the letter sent by the defendant to the plaintiff requesting for time to continue in the suit property as a licensee. Having granted the time requested by the defendant, the plaintiff cannot turn back to state that the extension of time was granted to the defendant only as a lessee. Ex.B-4, which is an advertisement in the daily newspaper `The Hindu' relates only to the suit property and it does not relate to a different property as claimed by the plaintiff. The evidence of Prabhakaran, examined as P.W.2, cannot be taken as conclusive proof to show that the advertisement made by the plaintiff by way of Ex.B-4 does not relate to the suit property. The Courts below have not appreciated the evidence in Exhibits B-1, B5 and B-6 in respect of the claims made by the defendant that he has been paying the rental amounts on a regular basis. The recovery of possession decreed by the Courts below and the direction to pay the damages for use and occupation are contrary to the facts and circumstances of the case. 13. The Courts below had erred in holding that the suit is maintainable, contrary to the claims made by the defendant. Since the defendant is a tenant, a civil suit as filed by the plaintiff cannot lie. The plaintiff can only initiate necessary proceedings in accordance with the provisions of Tamil Nadu Buildings (Lease and Rent) Control Act, 1960. https://hcservices.ecourts.gov.in/hcservices/ 14. The defendant had also stated that the request made by the defendant to implead Pachaiyappa's Trust Board in the present second appeal in M.P.No.2 of 2008 is valid and necessary for this Court to come to the right conclusion and to render complete justice. It was also contended that Order I Rule 10 of the Civil Procedure Code, 1908, provides that impleading can be made at any stage of the proceedings, including at the appeal stage. Such impleading prayed for by the defendant was necessary in the interest of justice for effective and proper adjudication of the issues involved. The learned counsel for the defendant/appellant had relied on the decision in S.Krishnan Vs. Rathinavel Naicker and 22 others (2007(2) CTC 73) and Pichaimani Vs. C.Selvarani and another (2007 (1) CTC 304) in support of his contentions. 15. It was also contended that this Court can interfere with the concurrent findings of the Courts below, under Section 100 of the Civil Procedure Code, 1908, if such findings are based on no evidence or the findings are found to be perverse and also on the ground that the documents which are available have not been properly considered or appreciated. The learned counsel appearing on behalf of the defendant/appellant had relied on the various decisions of this Court and of the Supreme Court, including the following decisions: 15.1. In C.M.Beena and another Vs. P.N.Ramachandra Rao (2004(3) SCC 595), the Supreme Court had held as follows: "Generally speaking, the difference between a "lease" and "licence" is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful. A few principles are well settled. User of the terms like "lease" or licence", "lessor" or "licensor", "rent" or licence fee" is not by itself decisive of the nature of the right created by the document. An effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property or what has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intention." https://hcservices.ecourts.gov.in/hcservices/ 15.2. In Hero Vinoth (Minor) Vs. Seshammal (2006(4) CTC 79), the Supreme Court had held that the High Court in a second appeal filed under Section 100 of the Civil Procedure Code, should be satisfied that the case involves a substantial question of law and not a mere question of law. A question of law having a material bearing on the decision of the case will be a substantial question of law. Even though the general rule is that the High Court will not interfere with the concurrent findings of the Courts below, some of the well recognized 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 (ii) 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. 15.3. In Manicka Poosali (D) by LRs and others Vs. Anjalai Ammal and another (2005 (3) CTC 233), it has been held that the findings of fact recorded by the Courts below should not be disturbed though the High Court coming to the conclusion on second appeal that the findings recorded were perverse and they were based on material evidence and based on no evidence. 15.4. In Ramlal and another Vs. Phagua and others (2005(5) CTC 282), it has been held by the Supreme Court that the High Court can interfere in exercise of second Appellate jurisdiction with unreasonable and unjust findings of the Courts below especially where such Courts have not appreciated the evidence on record, both oral and documentary. The High Court can in exercise of its right reverse the error and remove injustice done by Courts below. 15.5. In Mst.Sugani Vs. Rameshwar Das and another (2006(3) CTC 108), it has been held that the High Court should not liberally and generously construe and apply Section to interfere with concurrent findings by two Courts, unless factual finding is perverse, contrary to material on record. 15.6. In Krishnan Vs. Backiam and another (2008(1) CTC 446), it has been held that the High Court in second appeal cannot interfere with the findings of fact recorded by the Appellate Court. The High Court cannot re-appreciate the findings of fact in exercise of its jurisdiction under Section 100 of the Civil Procedure Code, though the findings can be challenged under Section 100 if it is based on no evidence or are perverse. 15.7. In Ciddagunta Subrahmanyam Reddy Vs. Namakari Muni Reddy and others (2007(5) CTC 239), the Supreme Court had held that it is the duty of High Court to specifically frame the question of law at the time of admission of the second appeal and thereafter, at the time of hearing https://hcservices.ecourts.gov.in/hcservices/ the question so framed should be decided by the Court hearing the appeal. 16. The learned counsel for the defendant had submitted that the Courts below have arrived at the wrong conclusion stating that the defendant is not a tenant in the suit property. Both the Courts below have wrongly concluded that the defendant has not shown sufficient evidence to prove that he was paying rent to the plaintiff in respect of the suit property. Even though a letter had been issued by the defendant, on 25.07.2001, marked as Exhibits B-7, the suit had been filed by the plaintiff only in the year 2006. This would clearly show that the plaintiff had accepted the defendant as a tenant in the suit property and since there was no claim by the plaintiff it has to be accepted that the tenant has been paying the rental amounts to the plaintiff regularly. The rental receipts filed by the defendant as Ex.B- 1, B-5 and B-6 have not been contradicted by the plaintiff by