Dismissed

M/S Obbai Brothers v. Yelsuru Venkatakottiah Chariti

Madras HC9 Jan 2023SA/514/2006

Case brief

AI extract

What is this about?

This second appeal challenged the confirmation of a lower appellate decree which fixed enhanced rent for a suit property. The High Court dismissed the appeal, rejecting objections regarding the admissibility of additional evidence establishing the plaintiff as a public trust and accepting the lower courts’ rent fixation and finding that the appellant was no longer in possession.

What did the court decide?

The second appeal was dismissed with no costs; the judgment and decree of the lower appellate court were confirmed.

M/S Obbai Brothers Vs Yelsuru Venkatakottiah Chariti — Property and Title | Madras HC (2023)

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S.A.No.514 of 2006

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 09.01.2023

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CORAM:

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THE HONOURABLE MS.JUSTICE P.T.ASHA

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S.A.No.514 of 2006

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M/s. OBBAI Brothers

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Represented by its partners

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Venkateswaralu

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Y.Balasubramaniam

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P.S.Maheswari Carrying on business at No.37, Anna Pillai Street, Chennai – 600 001

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.. Appellant

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Vs.

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Yelsuru Venkatakottiah Charities Management of Knnikaparameswari Devasthanam and Hindu Religious and Charitable Endowments by its Trustee and President C.V. Chandrasekar S/o.Gunniah Chettiar Having its office at No.1, Adhiappanaicken Street, Kothawalchavadi, Chennai – 600 001.

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T.V.S.Gupta

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Pappi Chetty Sriramulu

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https://www.mhc.tn.gov.in/judis

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S.A.No.514 of 2006

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P.Muthukrishnan

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V.Srinivasan

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P.Madhusudhanan

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Ummidilakari

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G.M.Ramachandran, Secretary of first respondent .. Respondents

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Prayer : The Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 19.04.2005 made in A.S.No.203 of 2003 on the file of the 7^th Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 28.06.2002 made in O.S.No.10398 of 1988 on the file of the 11^th Assistant Judge, City Civil Court, Chennai.

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For Appellant : Mr.R.Agilesh For Respondent 1 : Mr.P.K.Sivasubramaniam(died) For Respondents 2 to 8 : No appearance (served)

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J U D G M E N T

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The unsuccessful defendant before the Courts below is the appellant before this Court, challenging the judgment and decree passed by the learned 7^th Additional Judge, City Civil Court, Chennai in A.S.No.203 of 2003 in and by which the learned Judge has confirmed the judgment and decree passed by

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the learned 11^th Assistant Judge, City Civil Court, Chennai in O.S.No.10398 of 1988.

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The facts in brief are herein below set out and in the narration the parties are referred to in the same rank as before the Trial Court.

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The plaintiff-Trust had filed the above referred suit for a direction to the defendant to vacate and deliver the possession of the suit schedule property and to pay damages for use and occupation at the rate of Rs.3600/-

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from the date of the plaint till the date of delivery of possession. It is their case that the plaintiff-Trust which is a public charitable institution exempt from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, had leased out the premises to the defendant for carrying on their business on a monthly rental of Rs.801/- the tenancy being according to the English Calender month. The plaintiffs would contend that the defendant had occupied an extent of 600 sq.ft. in the suit property which would easily fetch a sum of Rs.3600/- per month as lease rental. By their legal notice dated

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06.02.1987, the plaintiff-Trust had called upon the defendant to pay the enhanced rent with effect from 01.01.1987, failing which, they were requested to deliver the vacant possession to the plaintiff-Trust. But, the defendant failed to comply with the demand. Therefore, the plaintiff-Trust had issued yet another notice dated 05.11.1987 determining the tenancy with effect from 30.11.1987 and calling upon the defendant to vacate the portion and the said notice was received by the defendant on 09.11.1987. However, the defendant did not come forward to vacate the premises, therefore, the plaintiffs had filed the above suit.

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The defendant on entering appearance has filed a written statement, in which, they had admitted the relationship of landlord-tenant, but however would submit that the property would not fetch a monthly rental of Rs.3600/and the same was an exaggerated figure. The defendant would deny that the plaintiff institution is a public charitable institution. An additional written statement has also been filed, in which, the defendant had taken a plea that the remedy available to the plaintiff-Trust was only to file a fresh suit since

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the original cause of action was not subsisting, particularly, when the entire

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Board of Management of Trustees have retired and new trustees have been inducted in their place.

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The Trial Court on considering the pleadings on either side had

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framed the following substantial questions of law;

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On the side of the plaintiff-Trust one of their official

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Mr.GM.Ramachandran had adduced evidence and marked Ex.A1 and A2. On

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the side of the defendant, Managing partner Mr.Venkateswaralu had been

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examined as D.W.1 and Ex.B1 was marked.

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The learned Trial Court returned a finding that the plaintiff-Trust is a public charitable institution and has properly instituted the said suit, that the defendant had entered tenancy in the year 1975 on a monthly rental of Rs.801/-, which he continued till the notice was issued by the plaintiff-Trust. The learned Judge had held that the rent of Rs.801/- was rather low and the same has to be enhanced. The learned Judge on considering the evidence and the location of the property held that a rent of Rs.1500/- could be fixed and since the defendant had not been paid the rents from the date of notice, the suit has to be decreed. The defendant had challenged the said judgment and decree before the 7^th Additional Judge, City Civil Court, Chennai in A.S.No.203 of 2003, the learned Appellate Judge has also concurred with the judgment and decree of the Trial Court. Challenging the same, Second Appeal has been filed.

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The second appeal has been admitted on the following substantial

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questions of law;

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1) Is the Lower Appellate Court correct and justified in allowing C.M.P.No.368 of 2005 especially after holding that the reason given for non-production earlier cannot be accepted?

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2)Is the Lower Appellate Court correct and justified in allowing the appeal on the basis of Ex.P3 additional evidence received at the appellate stage without following the procedure laid down in Order 41 Rule 27 C.P.C., and without giving an opportunity to appellant to rebut the name?

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The learned counsel appearing for the appellant would submit that the Trial Court had received an additional document in Appeal, but however not granted any time and opportunity to the defendant to cross examine the plaintiff-Trust. He also submitted that the plaintiff-Trust was not a public trust. As regards the first substantial questions of law, a perusal of the judgment and decree of the Trial Court would indicate that the plaintiff-Trust has filed additional document based on the order passed by this Court in O.P.No.543 of 1999 dated 15.11.1999 and the same has been taken on record

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and marked as Ex.P3. This Court had passed the order holding that the plaintiff trust was a public trust. The additional document being a Court order wherein the plaintiff was characterised as public trust, no serious objection can be taken to the marking of document. This document was now produced only on account of the fact that the defendant had opposed the suit filed by the plaintiff on the ground that the plaintiff is not a public charitable trust. Therefore, the first argument has to definitely fail. Both the Courts below have considered the fact that the property in question had fetched the monthly rental of Rs.801/- in the year 1975 and the property is situated in a busy commercial area where rents are high. Though the plaintiff had demanded a rent of Rs.3600/- the Courts below had only fixed rent of Rs.1500/-. Therefore, this Court does not find any reason to interfere with the judgment and decree of the Court below and the substantial questions of law (i) and (ii) is answered against the plaintiff-Trust.

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After the arguments were heard, the learned counsel for the appellant would inform that the letter addressed by him to his client has been

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returned with the endorsement “no such addressee” and he would submit that

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it appears that the defendant is no longer in possession of the suit property.

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Consequently, the second appeal stands dismissed and the judgment and decree of the learned VII Additional Judge, City Civil Court, Chennai in A.S.No.203 of 2003 stands confirmed. No costs.

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09.01.2023

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Index : Yes / No Speaking/Non-speaking Order nti

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S.A.No.514 of 2006

P.T.ASHA, J.

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The 7^th Additional Judge, City Civil Court, Chennai.

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2.The 11^th Assistant Judge, City Civil Court, Chennai.

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S.A.No.514 of 2006

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09.01.2023

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M/S Obbai Brothers v. Yelsuru Venkatakottiah Chariti

Case brief

What is this about?

What did the court decide?

M/S Obbai Brothers v. Yelsuru Venkatakottiah Chariti

Case brief

What is this about?

What did the court decide?

What the court decided

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