Landlord church trust sued to eject long-term tenants after lease expired by efflux of time and termination notice issued when tenants refused enhanced rent. Tenants argued invalid termination, non-joinder of sub-tenants, and suppression. Division Bench upheld decree for possession with damages and dismissed the appeal.
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OSA.No.223/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 05.09.2024 Delivered on 04.10.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE K.RAJASEKAR
| OSA.No.223/2023 & CMP.No.26165/2023 | |
|---|---|
| 1.K.Abdul Samad 2.K.M.Saleem |
|
| 3.K.Nizmaudeen | |
| 4.K.Razia Veerankutty | |
| 5.K.Zareena | |
| 6.K.Fathima | |
| 7.K.Mumtaz | |
| 8.K.Zainudeen | ... Appellants |
| Vs. | |
| 1.St.Peters Church, Royapuram rep.by its Board of Trustees 1.T.Gokulachandran 2.L.James |
|
| 3.K.S.Barnabas | |
| 4.K.M.Irudhayaraj | |
| 5.B.Peter Vijayan | |
| Having office at No.19, West Mada | |
| Church Street, Royapuram, Chennai 600 013. | |
| 2.K.Muneerudeen . |
.. Respondents |
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**Cause Title accepted vide order dated 17.10.2023 in CMP.No.18005/2023 in OSA.SR.No.6929/2023
Prayer : Original Side Appeal filed under Order 36 Rule 1 of Original Side Rules read with Clause 15 of Letters Patent Act to set aside the judgment and decree dated 04.11.2022 in CS.No.121/2003 passed by this Court.
For Appellants : Mr.M.K.Kabir, Senior counsel for M/s.Surana and Surana For R1 : Mr.B.Ullasavelan
JUDGMENT
S.S.SUNDAR, J.,
The above appeal is directed against the judgment and decree of the learned Single Judge dated 04.11.2022 decreeing the suit in CS.No.121/2003.
2.The defendants in the suit in CS.No.121/2003 are the appellants in
the above Original Side Appeal preferred as against the judgment and decree dated 04.11.2022 in CS.No.121/2003, directing the appellants/defendants to vacate the suit premises and hand over vacant
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possession of the premises to the plaintiffs after removing all the constructions put up therein within three months and to pay past damages to the tune of Rs.1,75,000/- for occupation of the property from 01.07.2002 to 31.01.2003 and to pay future damages at the rate of Rs.25,000/- per month from 01.02.2003 till the date of handing over the vacant possession of the suit property.
3.The 1st respondent as plaintiff, filed the suit in CS.No.121/2003 against the appellants herein, who are the legal heirs of late Mr.K.N.Kutty representing the Estate of Mr.K.Muhammed Kutty. The 1st respondent / plaintiff in CS.No.121/2003, prayed for a judgment and decree directing the defendants to quit and deliver the vacant possession of the land after removing the superstructure put up by the defendants within the time to be fixed by the Court and to direct the defendants to pay the plaintiff Trust a sum of Rs.3,26,064/- being past damages for wrongful use of property from 01.07.2002 to 31.01.2003 and to direct the defendants to pay the plaintiff Trust future damages at Rs.50,000/- per month for the wrongful use and occupation of the property from 01.02.2003 till the date of delivery of
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vacant possession.
4.The suit property is a vacant land measuring an extent of 24,310 sq.ft within the compound of St.Peters Church, Royapuram, bearing Door Nos.13 and 14, South Mada Street, Royapuram comprised in RS.No.287/1, Block No.9. In the suit, the 1st defendant, M/s.Samad and Co., was shown as the Estate of K.Muhammed Kutty constituting the legal heirs of Late Sri.K.N.Kutty represented by one of the legal heirs of Mr.K.Muhammed Kutty. It is not necessary to elaborate the other particulars about other defendants who are all the other legal heirs of late Sri.K.Muhammed Kutty
as no other issue relating to the relationship arise for consideration.
5.The case of the 1st respondent is that the 1st respondent as plaintiff, is a public charitable and religious Trust governed by the Scheme framed by the High Court of Madras in CS.No.10/1949 dated 12.03.1953. Though the Scheme decree was confirmed in OSA.No.63/1953, it is admitted that the Scheme was subsequently modified in CS.No.134/1973 as per the order dated 26.04.1988 passed in OSA.No.94/79.
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6.It is stated in the plaint that the 1st defendant became a tenant under the plaintiff Trust in respect of the suit property in S.No.287/1 under a registered Lease Deed dated 06.09.1996 for a period of five years. However, there is no dispute with regard to the ownership and the Lease Deed dated 06.09.1996 even though it is stated that the original Lease Deed was from an earlier date. It is admitted by the defendants even in the written statement that the 1st defendant became tenant under the plaintiff Trust from 1948 and continued to be a tenant for about six decades.
7.As per the latest Lease Deed under which the lease was extended for a period of five years from 06.09.1996, it is stated by the plaintiff that the Lease Deed expired on 31.08.2001 by efflux of time. As per Clause 4[1] of Lease Deed dated 06.09.1996, there is a provision for renewal of lease. It is the case of the plaintiff that the rent payable has to be mutually agreed upon by the plaintiff Trust and the 1st defendant for extension of lease. In the plaint, it is stated that the plaintiff by letter dated 22.08.2001, gave an offer to renew the lease by increasing the rent to 90 paise per sq.ft for the
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first thirty months and at Rs.1/- per sq.ft., for the next thirty months for renewal of lease. Since the 1st defendant is not agreeable for increase of rent as expected by the plaintiff Trust and the defendant wanted only a marginal increase, it is stated by the plaintiff Trust that the plaintiff had no other option but to terminate the lease by the end of June 2002 , i.e., 30.06.2002, as per the Legal Notice dated 29.05.2002. After the termination of the lease, it is contended by the plaintiff that the defendants have no legal right to continue in possession from 01.07.2002. Therefore, the suit was laid for ejectment/eviction of defendants and for directing the defendants to pay the rental arrears and for damages for use and occupation.
8.In the written statement, the defendant, though admitted the tenancy, disputed the averments in the plaint and put the plaintiff to strict proof of allegations that are stated therein. The defendant questioned the plaintiffs' right to unilaterally fix the rent as the defendant had made huge investments by putting up constructions and letting out the property to several tenants for reasonable rent. In the written statement, the defendant has expressed his disappointment, as the suit has now been instituted by the
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plaintiff for eviction of tenant by claiming unreasonable rent, affecting the status and image of the plaintiff which is a Charitable Religious Institution.
9.The points in defence raised by the appellants/defendants in the
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building was constructed by the defendant even in 1948. It was the defendant who helped the plaintiff to save the land from being grabbed by encroachers and therefore, the plaintiff is bound to be reasonable in the matter of fixing quantum of rent.
possession from 1948 as lessee and the suit is liable to be dismissed for such suppression.
(g)The land is not at all required for any legitimate use of the plaintiff Trust and therefore, the plaintiff cannot dictate unreasonable and unjustifiable terms, forgetting the fact that the defendant is in
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possession as lessee in respect of the vacant land for six long decades.
cost and gave protection to the land which was obtained by the plaintiff from the Government free of cost.
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which is not a separate legal entity is not maintainable. The Resolution dated 09.10.2002 relied upon by the plaintiff to file a suit is invalid and inoperative.
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and Sixty Four only) being the past damages for wrongful use and occupation of the property from 01.07.2002 to 31.01.2003 ?
vii.To what other reliefs, the parties are entitled to ?
11.On behalf of the plaintiffs, one of the Trustees by name T.Gokulachandran was examined as P.W.1 and through him, Exs.P1 to P18 were marked. The 1st defendant was examined as D.W.1 and Exs.D1 to D14 were marked on the side of the defendants.
12.Since all the persons who are interested in the 1st defendant were already brought on record, the 3rd issue, regarding non-joinder of necessary parties, was held unnecessary by Trial Court.
13.On the 1st issue, the learned Single Judge held that the suit is maintainable. Since the original lease deed under Ex.P5 dated 06.09.1996 is
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only for a period of five years and the lease had been terminated by efflux of
time as well by issuing a notice for termination by plaintiff, the learned Single Judge held that the suit is maintainable.
14.One of the contentions raised by the defendant was by claiming right under the City Tenants Protection Act. Since the plaintiff is a religious Trust, the learned Judge held that properties belonging to temples, mosques, churches and public Trust are exempted from the operational purview of the City Tenants Protection Act.
15.Regarding Court fee, the learned Single Judge found that the Court fee has been correctly paid. The learned Single Judge also held that the defendants are also liable to pay damages for their continued occupation of the building. Considering the narrow scope of the litigation, on the admitted facts, the learned Single Judge did not find any legal ground raised in the written statement. The suit for ejectment, was therefore, decreed. Though the plaintiff filed documents to show that the rent for other portion
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of same premises subsequently is Rs.2/- or Rs.3/- per square feet, the
learned Judge fixed the quantum of damages at Rs.25,000/- per month from 01.02.2003.
16.Aggrieved by the same, the defendants have preferred the above Appeal.
17.Mr.M.K.Kabir, learned Senior Counsel appearing for the
appellants, has made the following submissions :
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by the Scheme framed by Hon'ble High Court in C.S.No.10 of 1949, any modification regarding terms of lease including rate of rent should be determined only by the High Court.
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(i)
joinder of those sub-tenants.
18.In response to the submissions made by the learned Senior Counsel appearing for the appellants, the learned counsel for the 1st respondent highlighted the following facts on merits and submitted that none of the grounds raised by the appellants and the submissions made by the learned Senior Counsel for the appellants can be sustained on the admitted facts :
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Institutions by getting Government aid and has various Charities without making any profit.
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sq.ft. for a few decades.
(g)The defendant is the tenant under the plaintiff. There is no privity of contract between the sub-tenants and the plaintiff. The defendant cannot create sub-tenancy beyond the period of tenancy as per the Lease Deed which is binding on the tenant. Since the sub-tenants, who are claiming tenancy under the defendant, are also bound by the decree of ejectment, albeit not being made as a party to the suit, the contention that the suit is bad for non-joinder of sub-tenants, cannot be sustained.
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19.The learned counsel for the respondent stated that the appellant has not handed over vacant possession, nor paid damages as awarded. It is to be noted that the damages at the rate of Rs.25,000/- per month from 01.02.2003 till date comes to Rs.65,00,000/-. When Execution Petition was filed in E.P.No.64 of 2023, the Execution Petition was also allowed by the Master and warrant of eviction was issued on 09.08.2023. Since the subtenants who are residing obstructed the bailiff from executing the warrant, under the instigation of the appellant herein, the bailiff returned the warrant earlier as he could not evict 35 sub-tenants of the appellant. Thereafter, an application was filed for Police aid in A.No.6066 of 2023 and to break open in A.No.6067 of 2023. It is stated by the landlord that the appellant is collecting more than Rs.5 Lakhs per month from sub-tenants, but refused to pay a small amount towards rent even on the enhanced rent.
20.Having regard to the submissions made by the learned Senior Counsel appearing for the appellants/defendants and the learned counsel for the respondent/plaintiff, this Court is required to frame the following points
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for determination :
Issue Nos.(i) , (ii) and (v) :
21.The lease though was renewed under Ex.P5 for a period of five years from 06.09.1996, was not subsequently renewed and the notice of termination was also issued subsequently. After the termination of lease,
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though the learned counsel for the appellants, in the course of arguments, submitted that the appellants are tenants holding over, this Court is unable to countenance such an argument on the admitted fact that it was never the case of the defendant before the trial Court that he was continuing in possession by paying the contractual rent as per the original lease. Therefore, the status of the defendant as on date is an encroacher or a tenant at sufferance.
22.Learned Senior Counsel appearing for the appellant did not question the manner in which the lease was determined. In this case, on the admitted facts, that there was no subsequent renewal or extension of lease. Therefore, the lease has come to an end by efflux of time. Despite the lease had come to an end by efflux of time, cautiously, the plaintiff issued a notice of termination, terminating the lease. This Court, on the admitted facts, hold that the lease has come to an end by efflux of time and it is validly terminated by issuance of notice.
23.This Court is unable to countenance the submissions of the learned
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Senior Counsel appearing for the appellants regarding enhancement of rent, for multiple reasons. The appellant took the property on lease long back and the lease amount was not enhanced for a long period. The enhancement sought for is reasonable. This Court can take judicial notice of the market value of the suit property having regard to its location and commercial utility. Such a vast extent of land is taken on lease for a paltry sum in the year 1948. Comparing to the value of the property in 2002, the enhancement of rent at the rate of 90 paise per sq.ft. is nothing but pittance. The complaint by the appellant that the termination of lease on the ground of enhancement of rent, cannot be considered as arbitrary or inequitable. Even otherwise, though the tenant cannot be unilaterally asked to pay more rent, it is the legal right of a landlord to terminate the lease, if there is no consensus reached between the landlord and the tenant as regards the rent. From the written statement, this Court is able to see that the defendant has been so unfair and every contention he has raised in the written statement would show that the plaintiff, who got assignment of the entire land free of cost, is not entitled to get market rent or any rent which is reasonable. As stated by the respondent/plaintiff, the defendant appears to be collecting a
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huge amount as rent by granting licence to so many persons. We are not surprised, for such huge area, the appellant must be collecting huge amounts as rent or premium or licence fee for using a portion of the premises. It is admitted that more than 35 persons are inducted as sub-tenants and granted licence allowing them to use portions of premises for a limited period. After dragging the matter for more than 20 years, this Court finds no equity in favour of the appellant to show any indulgence. As pointed out earlier, the landlord is not seeking any discretionary or equitable relief while asking the tenant to hand over possession after expiry of lease or after termination of lease.
24.In a suit for ejectment, the plaintiff landlord is entitled to recovery of possession after valid termination of lease. The landlord is not seeking a relief in equity. It is the right under the common law for the landlord to eject the tenant by following due process. When the suit is filed after the expiry of lease or after the termination of lease, the same cannot be dismissed merely because the defendant tenant is put to inconvenience. The Court has no discretion to refuse relief. The contention that the plaintiff
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filed 1st suit suppressing the commencement of lease from 1948 has no merit. First of all, the plaintiff has pleaded what is necessary for relief. The fact that the lease had commenced long earlier has no relevance when suit is filed after termination of lease.
Issue Nos.(iii) and (iv) :
25.The case of the appellant that the suit is bad for non-inclusion of sub-tenants as defendants, has no legal basis on the admitted facts. It is the admitted position in law that the appellants cannot create a right more than what they had under the original lease agreement. After the expiry of lease and termination of lease agreement, the defendant has no right to extend the period of tenancy in favour of others. It is well settled that a judgment against chief tenant is binding on the sub-tenant, even though he is not made as party to the suit. It is to be seen that there is no privity of contract between the plaintiff and the sub-tenants or sub-lessees. It is to be seen that the defendant appears to have put up a huge storage yard and given licence to many people to use the premises as warehouse for their goods on payment of charges. When the defendant has never raised the ground in the
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written statement, after 23 years, the appellant cannot be permitted to raise a new plea without disclosing the facts. The appellants cannot created a lease or grant permission to 3rd parties beyond the period of lease. Since several persons are permitted for temporary period, the plaintiff may not even know who are all the licensees or sub-tenants. Any license or subtenancy created after expiry of lease, is not binding on plaintiff.
26.First of all, it is seen that, in the written statement, the defendant has not given the details of sub-tenants. Having regard to the nature of enjoyment of property by the defendant, this Court is of the view that the persons, who are given sub-lease, are not given any specific building on lease, but permitted to have temporary occupation. Having regard to the well settled legal principles, the plaintiff cannot be non-suited on a plea which was never raised by the defendant before the trial Court. Even this cannot be taken as a legal submission, as the sub-tenants are not necessary parties in a suit for ejectment against the chief tenant, which arises under the contract of tenancy between the landlord and tenant. Therefore, this Court is unable to appreciate the arguments of the learned Senior Counsel
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appearing for the appellants.
27.The learned Senior Counsel appearing for the appellants relied upon the judgment of the Hon'ble Supreme Court in the case of Tirath Ram Gupta v. Gurubachan Singh and others reported in 1987 1 SCC 712 . The principles stated in the said judgment should be considered with reference to the facts of the case. In a suit filed under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, against the tenant and the sub-tenant, who are respondents 1 and 2 before the Supreme Court in respect of two different premises, there was a compromise between the landlord and the tenant and in terms thereof, the Rent Controller decreed eviction of the subtenant from the premises subleased to him. Even though the trial Court ordered eviction, on a revision petition filed by the sub-tenant, the High Court allowed the revision holding that no order of eviction can be passed under Section 13(2) of the Act, as the sub-tenancy had been created before the Act came into force in the Union Territory of Chandigarh. Even though an argument was advanced that a sub-tenant does not have rights independent of the tenant, and as such, when 2nd respondent has suffered an
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order of eviction, the 1st respondent was equally bound by the order, from the facts, it is also learnt that the Hon'ble Supreme Court considered the right of sub-tenant as transferee from lessee. On the basis of the lease, the tenant is entitled to convey such right in favour of anyone. A sub-tenant who steps into the shoes of tenant has a right to protect his possession in terms of the main tenancy in favour of the lessee. Section 115 of the Transfer of Property Act provides that a surrender of lease cannot prejudice an under-lease of the property. Taking note of the fact that the right of a person under sub-lease is protected under Section 115 of the Transfer of Property Act, the Hon'ble Supreme Court held that the lessee, who parted with a part of interest in favour of the sub-lessee, cannot surrender that part of the property which is in the possession of the sub-lessee, as he cannot restore possession of the same to the lessor. Therefore, the case before the Hon'ble Supreme Court was a case where the lessee, during the subsistence of lease, after creating a lease in favour of a sub-lessee, surrendered possession which was found be to as a result of collusion. Therefore, the said judgment has no application to the facts. It is to be noted that the Hon'ble Supreme Court, even in the same case, has accepted the view
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expressed in several judgments that the eviction as against the tenant is valid as against the sub-tenant also.
28.The learned Senior Counsel appearing for the appellants also relied upon the judgment of the Hon'ble Supreme Court in the case of Shyam Babu v. District Judge, Moradabad and others reported in 1984 (1) SCC 411 . In the said case, the Hon'ble Supreme Court considered the eviction proceedings under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It is well settled that the statutory protection available to tenants is available to sub-tenants and a person who is in possession of a building irrespective of the fact whether he is a tenant or sub-tenant is entitled to protection under Rent Control legislation. Therefore, the eviction proceedings cannot be initiated without impleading the sub-tenant. The position is not different even under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Question before the Hon'ble Supreme Court itself is whether the sub-tenant is entitled to the protection under 4th proviso to Section 21 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. After taking note of
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Section 3(j) of the said Act, which defines the term “tenant” as a person in
relation to a building, denotes a person by whom a rent is payable, the Hon'ble Supreme Court held that a sub-tenant who pays rent to the tenantin-chief would also be the tenant under the Act. However, the landlord who has not entered into any agreement, can get an order of eviction as against the chief tenant and an order of eviction is binding on the sub-tenant who has no independent right than the right of a tenant. In this case, the tenant is the contesting defendant who has questioned only the authority of the landlord to terminate the tenancy on a trivial ground of enhancement of rent.
29.Order I Rule 13 of Code of Civil Procedure reads as follows :
“ 13. Objections as to non-joinder or misjoinder.
All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.”
30.The objection related to non-joinder of necessary parties is always
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considered as a technical objection under Order I Rule 13 of CPC. Such an objection regarding non-joinder should be raised at the earliest stage of the proceedings, as the plaintiff, in such situation should have a fair opportunity to cure the defect. In the absence of a plea at the earliest stage, the defendant cannot be allowed to raise the same at a later stage just to defeat the rights of the plaintiff. Therefore, this Court is unable to entertain the plea. The plea of non joinder was raised by defendant only on the ground that legal heirs of lessees were not impleaded. After impleading all the legal heirs, that plea does not survive.
31.In the course of arguments, the learned Senior Counsel appearing for the appellants relied upon the Doctrine of res extra commerciam . The Doctrine relied upon by the learned Senior Counsel cannot be applied to a situation like this. The term 'res extra commerciam' is a latin phrase to mean “outside commerce”. The termination of lease after expiry of lease cannot be treated as something which can be termed as “outside commerce”. May be, the Hon'ble Supreme Court had applied this expression while dealing with trade of alcohol which is always considered to be a commodity
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to be banned in tune with the directive principles of State policy. Similarly, the Doctrine can also be applied in relation to tobacco products to curb tobacco consumption. This Court, therefore, rejects the argument of the learned Senior Counsel appearing for the appellants using the Doctrine of res extra commerciam .
32.For all the reasons stated above, this Court finds no merit in this appeal. Accordingly, this Original Side Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [K.R.S., J.] 04.10.2024
AP/mkn Internet : Yes Neutral Citation: Yes
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S.S. SUNDAR, J., and K.RAJASEKAR, J.,
AP/mkn
Judgment in OSA.No.223 of 2023
04.10.2024
31
3 issues framed by the court
Whether the lease was validly terminated on expiry by efflux of time and notice after parties failed to agree on enhanced rent?
Whether a suit for ejectment is bad for non-joinder of sub-tenants not impleaded?
Whether a plea of non-joinder can be raised for the first time on appeal under Order I Rule 13 CPC?
Colour shows how this judgement treated each authority
Tirath Ram Gupta v. Gurubachan Singh and othersDistinguished¶27
1987 1 SCC 712 · Who else cites this
Shyam Babu v. District Judge, Moradabad and othersDistinguished¶28
1984 (1) SCC 411 · Who else cites this
1 provisions across 1 enactments
K.Abdul Samad
K.M.Saleem
K.Nizmaudeen
K.Razia Veerankutty
K.Zareena
K.Fathima
S.S. Sundar
K. Rajasekar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
