High Court dismissed second appeal regarding validity of preemption deed without cross-objections and dismissed civil revision petition for eviction based on willful default of rent since 1992.
Tenant granted three months time to handover vacant premises to landlord.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 28.02.2017
Judgment pronounced on : 03.03.2017
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
S.A.No.344 of 2001
& C.R.P. (NPD) 253 of 2006
Versus
Rukija Beevi Rep. By her Power of Attorney Agent Mohamed Yusuf .. Respondent/Respondent/ Plaintiff(In both cases)(Land lord)
Prayer in Second Appeal: Petition filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 04.12.2000 made in A.S.No.133 of 2000 on the file of the Principal District Judge, Nagapattinam, reversing the judgment and decree dated 31.07.2000 and made in O.S.No.136 of 1992 on the file of Additional Subordinate Judge, Nagapattinam.
Prayer in Civil Revision Petition: The petition filed under Sec.25, Tamil Nadu Building, Rent & Lease Control Act, against the fair and decreetal order dated 11.11.2015 in R.C.A.No.1 of 2005 on the file of Rent Control Appellate Authority confirming the fair and decreetal order dated 02.12.2004 in RCOP No.3 of 2001 on the file of Rent Controller, District Munsif, Nagapattinam.
For Appellants : Mr.T.R.Rajaraman (In both cases) For Respondent : Mr.G.R.Swaminathan (In both cases)
COMMON JUDGMENT
The defendants are the appellants before this Court, in the suit for recovery of possession and mesne profit, which was dismissed by the Trial Court and confirmed by the First Appellate Court.
appeal as not maintainable. The lower appellate Court has further observed that the plaintiff has to approach the Rent Controller and get a finding whether the denial of tile by the tenant is bonafide or not and thereafter, based on the decision of the Rent Controller, the plaintiff has to take necessary decision about the Forum in which he should agitate his case.
....We hold that the respondent-defendant in an appeal can, without filing cross-objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose of sustaining the decree to the extent decree to the extent the lower court had dismissed the suit against the defendantsrespondents. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory. In other words, the law as stated in Venkata Rao's case by the Madras Full Bench and Chandre Prabhuji's case by this Court is merely clarified by the 1976 Amendment and there is no change in the law after the Amendment......
13. The fact of the case cited above is entirely different from the facts of the case in hand. In the case in hand, no decree in part was passed against the respondent. In fact, the suit was dismissed in favour of the defendant and the plaintiff was the appellant. Facts of the judgment cited in which the suit was partly allowed, under such circumstances, the respondent was permitted to defend the allowed portion and without cross appeal to sustain the decree to the extent lower court had dismissed the suit against the defendant / respondent. Therefore, the lower appellate court did not permit the respondent to raise the plea of Exhibit B5 validity without cross objections.
14. This Court find no reason to interfere with the judgment of the first appellate court. The question raised by the appellant is answered accordingly. In the result, Second Appeal dismissed. No order as to Costs.
15. Insofar as the revision petition is concerned, as pointed out earlier it is the categorical finding of the courts below that the appellant has not paid the rent since 1992, in spite of direction by the Court. Therefore, the wilful default is well proved.
16. The learned counsel for the appellant submitted that though the petition for eviction was filed on two grounds, viz., wilful default and owners occupation, without any discussion regarding owners occupation, the trial court has held in favour of the landlord.
17. No doubt there is no sufficient discussion regarding the plea of owners occupation of the landlord. However, the plea of wilful default is overwhelmingly proved by the conduct of the petitioner who has refused to deposit the rent in the Court, even after the direction of the court to deposit the rent.
18. For the said reason, I see no merit in the Revision Petition. Hence, the petition is dismissed. Three months time is granted to the petitioner to handover the vacant premises to the respondent. No costs.
Sd/Assistant Registrar
//True Copy//
Sub Assistant Registrar
pvs
To
3 issues framed by the court
Whether a tenant can challenge validity of a preemption deed without filing cross-objections when suit was dismissed in his favour.
Whether Civil Revision Petition under Section 25 of Tamil Nadu Building, Rent & Lease Control Act is maintainable for wilful default of rent.
Whether order of eviction is valid when wilful default is established despite inadequate discussion on alternative ground of owner's occupation.
Colour shows how this judgement treated each authority
AIR 1991 Supreme Court 1094Referred¶20
Shri Ravinder Kumar Sharma vs State of AssamDistinguished¶32
1999 (8) Supreme 62 SHRI RAVINDER KUMAR SHARMA V. STATE OF ASSAM & ORS
Venkata Rao's caseExplained¶32
Chandre Prabhuji's caseExplained¶32
4 provisions across 3 enactments
Maliq John and Kallell John
Rukija Beevi
G. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
