In this Second Appeal against eviction decrees, the High Court held that the non-notice of unexhibited lease documents was not fatal since the lease had expired, negating any need for specified reasons for eviction beyond issuing a valid Section 106 notice.
Time for handing over vacant possession of the suit property granted till end of October 2011.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2011
Coram:
THE HONOURABLE MR.JUSTICE G. RAJASURIA
S.A.No.1583 of 2008 and M.P.No.1 of 2008
Syed Zadi .. Appellant/Defendant
This Second Appeal is filed under section 100 of CPC against the judgment and decree dated 11.01.2008 in A.S.No.434 of 2006 on the file of the IV Additional Judge, City Civil Court, Chennai confirming the judgment and decree passed in O.S.No.1752 of 2001 dated 22.12.2005 on the file of the VII Assistant Judge, City Civil Court, Chennai.
For appellant : Mr.T.Murugamanikkam
For Respondent : Mr.K.P.Ashok
JUDGMENT
This Second appeal is focussed by the defendant animadverting upon the judgment and decree dated 11.01.2008 passed in A.S.No.434 of 2006 by the IV Additional Judge, City Civil Court, Chennai, confirming the judgment and decree of the VII Assistant Judge, City Civil Court, Chennai in O.S.No.1752 of 2001. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
(a) The plaintiff filed the suit seeking the following reliefs:
"(i) For ejectment/eviction of the defendant from the suit schedule mentioned premises; and
(iii) For costs."
(b) The defendant filed the written statement resisting the suit.
(c) Whereupon issues were framed by the trial Court.
(d) The plaintiff-Jayachander examined himself as P.W.1 and Exs.A1 to A4 were marked. On the side of the defendant, the husband of the defendant, namely Mr.I.Mohideen was examined as D.W.1 and Exs.B1 to B3 were marked.
"(a) Whether the Judgments of the Courts below are vitiated in that, they have rendered findings based on documents which have not been exhibited before the court?
(b) Whether the Courts below are correct in decreeing the suit for ejectment when there was sufficient proof with regard to the existence of the superstructure in the leased out vacant land?
(c) When the tenancy is sought to be terminated on grounds of violation of the terms of the lease, and, such violation has not been proved, then, whether a decree can be passed in favour of the plaintiff?
(d) Whether the impugned decree is valid in law considering that the suit schedule set out a vacant land as the suit property, whereas admittedly there is a superstructure on the suit property?."
(extracted as such)
Whether the judgment of the court below are vitiated that they have rendered findings based on documents, which have not been exhibited before the court below.
(extracted as such)
(a) No doubt, the defendant filed I.A.No.20258 of 2001 under Section 9 of the Tamil Nadu City Tenant Protection Act, 1921 and in that I.A., the lease agreement was exhibited as Ex.P2. In the said lease agreement there is a clause to the effect that the defendant shall not put up superstructure and since the defendant without the permission of the plaintiff had put up superstructure, the Court held that he was not entitled to any protection under the Tamil Nadu City Tenants' Protection Act. However, the said Ex.P2 marked in I.A.No.20258 of 2001 was not exhibited during trial on the side of the plaintiff and in such a case, the plaintiff had not proved that the defendant committed violation of the terms and conditions contained in the lease agreement.
(b) Further more, the Commissioner's Report also was not exhibited during trial.
Accordingly, the learned counsel for the defendant would submit that the judgments of both the Courts below are based on no evidence.
(a) The trial Court in I.A.No.20258 of 2001 passed a considerate order rejecting the plea of the defendant that the defendant was not entitled to the protection under the Tamil Nadu City Tenants' Protection Act, as against which no further steps were taken and the order attained its finality.
(b) The law is to the effect that after the expiry of the lease period, the question of citing any specific reason by the landlord for evicting the tenant would not arise and it is not a case covered under the Tamil Nadu Buildings (Lease and Rent Control) Act.
(c) The only question that could be raised was only relating to the sufficiency of notice issued under Section 106 of the Transfer of Property Act. Here, the defendant has not raised any substantial question of law pertaining to the alleged insufficiency of the notice issued under Section 106 of the Transfer of Property Act.
(d) The lease itself was for enabling the defendant to park the vehicles which would be coming to his nearby Kalayana Mandapam and in such a case, absolutely there is no merit in this Second Appeal.
(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL.
(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
(iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI]
A mere poring over and perusal of those judgments would convey and portray, that the High Court while exercising power under Section 100 of CPC should see as to whether there is any substantial question of law in involved in the matter. However, after framing such substantial question of law, interference would be possible. Hence, it s the paramount duty of the Court to find out as to whether there is any perversity or illegality on the part of the Courts below in deciding the factual issues involved in the matter.
tautologus, I would like to point out that what are all required is that the plaintiff/landlord should issue a notice for eviction. Hence it is turned out to be a valid one and it is beyond challenge. Wherefore no other point need to be considered. In this case, both the Courts below additionally gave some reasons for ordering eviction which are not germane for the ultimate result arrived at by them. It is not the case of the appellant/defendant also that before the expiry of the lease period the plaintiff sought for eviction. Hence, I am of the view that non marking of the lease deed during trial is not fatal. Further, the Commissioner's Report is part of record and therefore specific marking is also not required.
(Here attached the Xerox Copy of Affidavit of the petitioner)
Sd/Asst. Registrar
//True Copy//
Sub Asst. Registrar
To
Copy to:
The Section Officer, VR Section, High Court, Madras.
3 issues framed by the court
Whether the judgments and decrees of the Courts below are vitiated for rendering findings based on documents which were not exhibited before them.
Whether the non-marking of the lease deed during trial is fatal when the lease had expired.
Whether time should be granted for the appellant to vacate the premises.
Colour shows how this judgement treated each authority
Hero Vynoth (Minor) vs. SeshammalReferred¶44
(2006) 5 Supreme Court Cases 545
Kashmir Singh vs. Harnam Singh and AnotherReferred¶45
2008(4) SCALE 300
State Bank of India & Others vs. S.N.GoyalReferred¶46
2009-1-L.W.1
Vijay Kumar Talwar vs. Commissioner of Income Tax, DelhiReferred¶47
(2011) 1 SCC 673 · Who else cites this
3 provisions across 3 enactments
Syed Zadi
Jayachander
G. Rajasuria
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
G. Rajasuria
Parties & counsel
