M.K. Kaja Mohideen vs Dwadasi Annadhana Dharmakattalai

R. Mala, J.—The Defendant, who lost the Legal battle in both the Courts below, has filed the Second Appeal to set aside the Judgment and Decree dated 25.1.2006 passed by the Additional Sub-Judge, Tenkasi in A.S. No.95 of 2005, confirming the Judgment and Decree dated 15.3.2005 passed by the Additional District Munsif, Tenkasi in O.S. No.305 of 2004.

The Respondent, as Plaintiff, filed a Suit for recovery of possession and recovery of Rent arrears amount and claiming damages for use and occupation and costs stating that the property is belonging to the Respondent/Plaintiff and the Defendant/Appellant entered into a Rental Agreement from 1.7.1998 to 30.6.2001 for a period of three years fixing the Monthly Rent as Rs. 613 per month and that has been enhanced once in three years by 33.3% and accordingly, as on 30.6.2001. the Defendant has to pay a sum of Rs. 16,998 as arrears. Even though, the Plaintiff sent Demand Notice, the Defendant has not paid the same and Second Notice has also been issued. On receipt of the same, the Defendant sent a Reply Notice, not accepting the enhanced Rent. As on 31.12.2002, the arrears is Rs. 31,514. Since, the Defendant was in default of payment, the Plaintiff sent Termination Notice. Even though, the Defendant sent a Reply, neither he handed over the possession nor paid the Rent arrears the Plaintiff has constrained to file the Suit.

The Appellant, as Defendant, contesting the same, stating that the Plaintiff has to prove that the Defendant is a Public Trust and without his knowledge, the Rent has been enhanced and he has no Rent arrears and proper reply has been given and the Plaintiff is not entitled Rent arrears for more than three years and he is not entitled damages for use and occupation and prayed for dismissal of the Suit.

The Trial Court, after considering the Plaint and Written Statement, framed necessary issues and considering the oral and documentary evidence, decreed the Suit. Against which the Defendant preferred an Appeal, wherein, the first Appellate Court has allowed the Appeal, by confirming the Judgment and Decree of the Trial Court, against which, the present Second Appeal has been preferred by the Defendant.

At the time of admission, the following Substantial Questions of Law have been framed for consideration of the Second Appeal:

Whether the lower Courts are correct, in fixation of the Fair Rent, accepting that a hike in Rent could be made unilaterally by the Landlord, without the consent of the Tenant, the Defendant ?

Whether the lower Courts are correct in fixation of Rent, the quantum of Rent from Rs. 130 to Rs. 613 against the permitted increase of 33.3% in three years as per the G.O. the Tamil Nadu Government ?

Whether the Lower Appellate Court is correct in giving Judgment without making proper points for determination ?

Substantial Questions of Law 1 to 3:

The learned Counsel for the Appellant submits that it is true that the Appellant is Tenant and he is paying Rent regularly and without his consent, unilaterally, the Rent has been enhanced and it is arbitrary and the Notice is not valid under Section 106 of the Transfer of Property Act. He further submits that as per the Order of this Court, the entire Rent arrears has been paid up to June 2016 and hence, he prayed for setting aside the Judgment and Decree passed by the First Appellate Court

At this juncture, the learned Counsel for the Respondent would submit that even though the Fair Rent has been fixed and Notice has been issued, he has not challenged the same. After filing the Suit for eviction and recovery of possession, now, he has raised such a defence and he is default in payment. He further submits that in pursuant of the Order passed by this Court alone, he has paid the Rent an ear. He has also relied on the decision in Ram Bharosey Lal Gupta v. Hindustan Petroleum Corporation Ltd., 2013 (3) CTC 248 (SC) : 2013 (9) SCC 714 and submits that if the Lease is not renewed, there is no holding over and the Appellant is only a trespasser and prayed for dismissal of the Appeal.

I have considered the submissions made on either side and also perused the materials available on record.

Admittedly, the properties are originally belonging to the Respondent. The Appellant is a Tenant from the year 2001. But, he was in default in payment. Fair Rent has been fixed and the Appellant was directed to pay the said amount. But, he has not paid the same Section 34-A of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 deals with fixation of Lease Rent, which is extracted hereunder:

"34-A. Fixation of Lease Rent - The Lease Rent payable for the Lease of immovable property belonging to or given or endowed for the purpose of, any Religious Institution, shall be fixed by a Committee consisting of the Joint Commissioner, the Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the Religious Institution and the District Registrar of the Registration Department in the District concerned taking into account the prevailing marker rental value and the guidelines, as may be prescribed and such Lease shall be refixed in the like manner once in three years by the said Committee."

Section 34-B of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 deals with termination of Lease of unmovable property, which is extracted hereunder:

"34-B. Termination of Lease of immovable property -

(1) The Lease of immovable property belonging to, or given or endowed for the purpose of, any Religions Institution shall be liable to be terminated on the nonpayment of the Lease Rent after giving a reasonable opportunity of being heard.

(2) No proceeding to terminate the Lease shall be initiated, if -

(i) the time for Appeal or Revision under sub-section (3) of sub-section (5), as the case may be, of Section 34-A has not expired; or

(ii) the Order has been made the subject of such Appeal or Revision till the disposal of the matter.

(iii) the Order has been made the subject of such Appeal or Revision till the disposal of the matter.

(3) On the termination of the Lease under sub-section (1) the property shall vest with the concerned Religious Institution free from all encumbrances and the Executive Officer, the Trustee or the Chairman of the Board of Trustees, as the case may be, of such Religious Institution shall take possession of the property including the building, superstructure and trees, if any."

As per Section 34-B(1) of the Act, the Lease is liable to be terminated on the non-payment of the Lease Rent, after giving a reasonable opportunity of being heard to the Defendant Because, admittedly, on the date of filing the Suit, Notice of Termination has been issued.

The learned Counsel for the Appellant would submit that once fair Rent has been fixed, that has to be challenged before the Commissioner of the Hindu Religious and Charitable Endowment Board and if he has not satisfied, he shall prefer Revision against the same before the competent Court. But, admittedly, here, the Order of Fair Rent has not been challenged till the filing of the Suit for recovery of possession and the Suit has been filed only after issuance of Statutory Notice. In such circumstances, I am of the view that without challenging the fixation of fair Rent amount and committing default in payment of the amount, the Appellant cannot entitle to question the same as if the enhancement of Rent amount is excessive or arbitrary. Therefore, the argument advanced by the learned Counsel for the Appellant does not merit acceptance.

It is pertinent to note that Notice has been issued wider Section 106 of the Transfer of Property Act. Since the Appellant neither cleared the arrears of Rent nor handed over the possession, the Suit has been filed by the Respondent. During the pendency of the Second Appeal, as per the Order of this Court, the Appellant was directed to pay the Rent arrears. Therefore, the argument advanced by the learned Counsel for the Appellant that since he paid the Rent arrears on 3.5.2016, 6.6.2016 & 1.7.2016, he may be permitted to continue the possession does not merit acceptance.

The learned Counsel for the Appellant would submit that no proper points have been framed for determination in the Appeal in the Appellate Court. It is true. Even though, proper points have not been framed for determination, omnibus points for determination have been framed and discussed all the points and given reasoning for decision, as per Order 41, Rule 31 of C.P.C. Hence, I am of the view that the first Appellate Court has not committed any mistake while deciding the Appeal and it follows the procedure laid down under Order 41, Rule 31 of C.P.C. In such circumstances, I am of the view that the first Appellate Court has considered all the aspects in proper perspective and came to the correct conclusion that the Respondent is entitled for recovery of possession. The Substantial Questions of Law 1 to 3 are answered accordingly and the Second Appeal deserves to be dismissed.

Accordingly, the Second Appeal is dismissed with Cost. The Judgment and Decree of the First Appellate Court is hereby confirmed. Since during the pendency of the Appeal, even though this Court directed the Appellant to pay a suit of Rs. 76,489 the Appellant has paid only a sum of Rs. 75,000, with a Calculation Memo, the same can be given credit to. The Appellant/Defendant is directed to handover the possession to the Respondent/Plaintiff within a period of two months from the date of receipt of copy of this Judgment. No costs. Consequently, connected Miscellaneous Petition is closed.