N.E. Murugesa Chettiar vs T.S. Dawood and Another

R. Sengottuvelan, J.—The abovesaid two second appeals arise from the same suit in O.S. No. 676 of 1972 on the file of the 11th Assistant

City Civil Judge, Madras.

One T.S. Dawood (plaintiff in the suit O.S. No. 676 of 1972) filed the suit against the trustees of the Vasantha Mandapam Trust attached to Sri

Kandaswami Koil (first defendant in the suit O.S. No. 676 of 1972) and one N.E. Murugesan Chettiar alias Murugan (second defendant in the suit

O.S. No. 676 of 1972) who claimed to be a lessee, for specific performance by way of mandatory injunction directing the trustees to perform the

contract of lease by executing and registering a lease deed in favour of the plaintiff recognising him as a tenant to the premises bearing door Nos.

36 to 38 Nyaniappa Naicken Street, George Town, Madras, on a monthly rent of Rs. 200/-, for directing the second defendant to deliver

possession of the premises, for permanent injunction restraining the trustees from leasing out the suit premises to any other person and for costs.

The trial Judge passed a decree in favour of the plaintiff as prayed for. As against the said judgment and decree of the trial court the first defendant

viz., the trustees of the Vasantha Mandapam Trust attached to Sri Kandaswamy Koil, filed an appeal A.S. No. 226 of 1976 on the file of the

Court of the Second Additional City Civil Judge, Madras. The second defendant who claimed to be a lessee under the said judgment and decree

of the trial Court in A.S. No. 188 of 1976 on the file of the Second Addl. City Civil Judge, Madras. Both these appeals were heard together. The

lower appellate Court on a consideration of the oral and documentary evidence came to the same conclusion as that of the trial Court and

dismissed both the appeals. As against the judgment and decree in A.S. No. 226 of 1976 the trustees of the Vasantha Mandapam trust attached

to Sri Kandaswamy Koil, filed S.A. No. 964 of 1979. Similarly as against the judgment and decree in A.S. No. 188 of 1976 the alleged lessee

filed S.A. No. 2261 of 1978. Since the subject matter of both these appeals are same they were heard together.

The parties are referred to as per their rank in the suit.

The facts of the case are briefly as follows: The suit property comprising of three shops bearing door Nos. 36 to 38 in Nyniappa Naicken

Street, George Town, Madras, belongs to Sri Kandaswamy Koil Vasantha Mandapam Trust, represented by its trustee (the first defendant in the

suit). The father-in-law of the plaintiff one S.K. Mohamed Mohideen was originally the tenant in respect of the abovesaid premises under the first

defendant. The said S.K. Mohamed Mohideen committed default in payment of rent and also sub-let the premises which had resulted in the

trustees filing an application for eviction in H.R.C. No. 104 of 1967. The said application seems to have been dismissed by the Rent Controller. As

against the said order of dismissal the Trustee filed H.R.A. No. 84 of 1969. During the pendency of the said appeal the tenant S.K. Mohammed

Mohideen died and as per the will left by him, T.S. Dawood the plaintiff in the suit and the first respondent in both the second appeals, as well as

the wife of S.K. Mohammed Mohideen were brought on record as the legal representatives of S.K. Mohammed Mohideen in H.R.A. No. 84 of

1969. The plaintiff''s case is that during the pendency of the said appeal he approached and negotiated with the trustees for recognising him as a

tenant on the basis of certain terms on 26-3-1970. Exhibit A. 1 is the letter sent by the plaintiff to the trustees requesting them to lease out the suit

premises as per the terms and conditions set out in the letter. The trustees wrote to the plaintiff acknowledging the receipt of the letter Exhibit A. 1

and informing the plaintiff that they agreed to the terms suggested by the plaintiff subject to their getting favourable orders in H.R.A. No. 84 of

1969 and C.R.P. No. 2124 of 1970 and getting vacant possession of the premises, as per Exhibit A. 3. The case of the plaintiff is that there was a

concluded contract of lease evidenced by Exhibits A. 1 and A. 3. The said document Exhibit A. 3 was also impounded and the plaintiff had paid

the stamp duty leviable on the same. The case of the trustees of Vasantha Mandapam Trust attached to Sri Kandaswamy Koil is that the plaintiff

had failed to fulfil his part of the contract by which he had agreed to donate voluntarily for the construction of Kalyana Mandapam apart from the

condition mentioned in Exhibit A. 1 and that since the plaintiff failed to comply with the terms of the contract, the letter Exhibit A. 5 was sent by the

trustees cancelling the contract. The first defendant also denied the suggestion that the plaintiff and his mother-in-law remained ex parte in H.R.A.

No. 84 of 1969 and C.R.P. No. 2124 of 1970 in pursuance of the contract. It is also the case of the trustees, that the alleged contract is opposed

to law and public policy and the same is not enforceable. It is also contended by the trustees that an agreement was entered into with N.E.

Murugesa Chettiar alias Murugan, the second defendant in the suit on 27-1-1972. Since the contract with the plaintiff was cancelled the trustees

are at liberty to lease out the suit premises to the second defendant. Hence it is contended by the trustees that the plaintiff is not entitled to the

reliefs claimed in the plaint.

The contention of the second defendant is that he applied to the trustees as he came to know of the vacancy of the suit premises and that his

offer was considered and accepted. The rent was fixed at Rs. 250/- per month. He had also paid the advance on 27-1-1972 and was put in

possession of the premises on the same date. The trustees also permitted the second defendant to effect necessary repairs and he spent Rs.

10,000/-for the repair of the premises. The further contention of the second-defendant is that he is a bona fide lessee in possession without any

knowledge of the agreement in favour of the plaintiff and that he is also entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent

Control) Act and hence the plaintiff cannot disturb the possession of the second defendant. In view of the abovesaid Act the Civil court has no

jurisdiction to entertain these proceedings. It is also his case that he was not put in possession after the interim injunction granted by the Civil Court,

that he was not aware of the proceedings and that he is a bona fide lease in occupation. He has also pleaded that he is not a necessary party to the

suit.

Both the Courts below rendered a concurrent finding that there was a concluded contract of lease between the plaintiff and the first defendant as

per Exhibits A. 1 and A. 3, the terms of which are as follows:

(a) payment of rent at the rate of Rs. 200/- per month from the date of taking possession of the suit premises;

(b) payment of advance of Rs. 400/-, being two months'' rent;

(c) payment of Rs. 100/- towards expenses incurred in H.R.A. No. 84 of 1969;

(d) payment of Rs. 200/- as advance towards future expenses and legal fees in respect of H.R.A. No. 84 of 1969 and C.R.P. No. 2124of 1970;

(e) payment of Rs. 1,328/- towards arrears of rent due by Shaik Mohideen and Rs. 72/- towards sun-shade tax.

Both the Courts below also found that the abovesaid amounts have been paid by the plaintiff to the first defendant. Both the Courts below did not

accept the legal contention raised relating to the enforceability of the agreement of tenancy. Both the Courts below also negatived the contention of

the second defendant that he is a bona fide lessee without notice of the agreement of lease in favour of the plaintiff. In view of the Government

Order passed by the State of Tamil Nadu exempting the properties of religious and public trusts from the operation of the provisions of the Tamil

Nadu Buildings (Lease and Rent Control) Act, both the courts below also negatived the case of the second defendant that he is a tenant as defined

in the Tamil Nadu Buildings (Lease and Rent Control) Act and that he can be evicted only under the provisions of the said Act and that the Civil

court has no jurisdiction. Aggrieved by the concurrent finding of both . the Courts below the above two second appeals are filed by the defendants

in the suit.

Mr. G. Ramaswami, learned Counsel for the appellant in S.A. No. 2261 of 1978 raised the following contentions in support of his argument that

the judgment and decree of the first appellate Court are not sustainable in law:

The modus operandi adopted by the plaintiff and the first defendant amounts to a compromise of the rent control proceedings between the first

defendant/ temple and the plaintiff and such a compromise without the sanction of the Commissioner, Hindu Religious and Charitable Endowments

Department u/s 43 of the Tamil Nadu Hindu Religious and Charitable Endowments Act is illegal and the same is not enforceable in law;

The understanding arrived at between the first defendant and the plaintiff is opposed to public policy and the same is not enforceable.

The offer on the part of the plaintiff by means of the letter Exhibit A-1 and the acceptance of the same by means of the letter Exhibit A-3 issued

on behalf of the first defendant had been found by both the courts below to constitute an agreement of lease. Both the Courts below found that the

terms of the lease are as found in Exhibit A-1 and Exhibit A-2. These concurrent findings of fact arrived at by both the courts below after

considering the oral and documentary evidence in this case cannot be challenged in the abovesaid two second appeals. Mr. G. Ramaswami,

learned Counsel for the appellant realising this situation, had raised the abovesaid two legal contentions in an attempt to show that the agreement of

lease between the plaintiff and the first defendant though found to be true by both the courts below is not enforceable in law.

On behalf of the plaintiff it is contended that the point having not been raised in the pleadings and before the courts below, it cannot be raised at

the stage of the second appeal. In the case reported in Smt. Surasaibalini Debi Vs. Phanindra Mohan Majumdar, the Supreme Court held that

where a contract or transaction is ex-facie illegal there need be no pleadings of the parties raising the issue of illegalities and the Court is bound to

take judicial notice of the nature of the contract or transaction and mould its relief according to the circumstances. In view of the above dictum laid

down by the Supreme Court the appellants, the defendants in the suit, are entitled to raise this point in the abovesaid second appeals.

The main contention raised by the learned Counsel for the appellant in both the abovesaid two second appeals (defendant) is that the conduct

of the respondents 1 and 2 in bringing about the lease agreement as aforesaid amounts to a compromise of the earlier rent control proceedings

between the plaintiff and the first defendant and such a compromise can be effected only under the orders of the Commissioner of the Hindu

Religious and Charitable Endowments Department as per Section 43 of the Tamil Nadu Religious and Charitable Endowments Act. Section 43 of

the abovesaid Act reads as follows:

No suit, application or appeal pending before a Court to which a religious institution is a party shall be withdrawn or compromised by the trustee of

the institution except with the previous sanction of the Commissioner.

10A. It is pointed out that the first defendant had instituted rent control application in H.R.C. No. 104 of 1967 for evicting the plaintiff and the sub-

tenant on the ground of arrears of rent and sub-letting. The said H.R.C. No. 104 of 1967 was dismissed. As against the said order of dismissal the

first defendant preferred an appeal in H.R.A. No. 84 of 1969 before the appellate authority and the said appeal was pending when the plaintiff

passed the letter Exhibit A-1 to the first defendant and the terms suggested in the letter Exhibits A-1 were accepted by the first defendant as per

Exhibit A-3. The terms agreed upon between the plaintiff and the first defendant are as follows:

(a) The rent for the premises is to be raised to Rs. 200/- per month;

(b) Two months'' rent amounting to Rs. 400/- is to be paid as advance

(c) Rs. 100/- is to be paid towards the expenses incurred by the first defendant in the rent control proceedings;

(d) Rs. 1,328/- is to be paid towards the arrears of rent due by Shaik Mohideen and Rs. 72/- towards sun-shade tax.

The finding of both the courts below is that the abovesaid amounts had been paid by the plaintiff. The first defendant in terms agreed to lease out

the abovesaid premises to the plaintiff as per Exhibit A-3 on their succeeding in the rent control appeal and taking possession of the premises

through court. There is an undertaking in Exhibit A-3 by the plaintiff to the following effect:

Myself and the first legal representative shall report to the Court that we are not opposing H.R.A. No. 84 of 1969, Small Causes Court, Madras.

The argument of the learned Counsel for the appellant in both the abovesaid two second appeals (defendant) is that this undertaking amounts to a

compromise and such a compromise is not valid in law as per Section 43 of the Tamil Nadu Hindu Religious and Charitable Endowments Act. In

this case it is seen that the plaintiff and the other legal representative of his father-in-law did not contest H.R.A. No. 84 of 1969. But H.R.A. No.

84 of 1969 was prosecuted by the sub-tenant who was a party respondent and the said H.R.A. was allowed only on consent. As against the

orders of the appellate authority in H.R.A. No. 84 of 1969 the sub-tenant also filed C.R.P. No. 2124 of 1970 on the file of this Court and the

same was heard and dismissed by Ramanujam, j., on 21-4-1971. Under the circumstances we will have to consider whether the provisions of

Section 43 of the Tamil Nadu Hindu Religious and Charitable Endowments Act are attracted. The said section is enacted to prevent the trustees

from bartering away the rights of the religious institutions by means of compromise or withdrawal of claims pending before the Courts. A division

bench of this Court in the case reported in P. Sangili and Others Vs. Ramakrishnan and Others, , observed as follows:

The object of Section 43 is to see that no fraud is practised or no loss is caused to the religious institutions concerned and this object can be

achieved by investing the Commissioner, who has to the power of superintendence over all religious institutions in the State, with authority to

scrutinise the proposals for compromise or withdrawal of suit and on the basis of such scrutiny to give or refuse to give sanction, based on his

opinion that the said compromise or withdrawal was for the benefit of the institution or not.

The Division Bench held that the provision contained in Section 43 of the said Act is mandatory and any compromise arrived in contravention of

Section 43 of the Tamil Nadu Hindu Religious and Charitable Endowments Act is null and void.

A compromise or an adjustment involves give and take between both the parties. In a litigation if one of the defendants chooses not to contest

the claim it cannot be termed as a compromise coming u/s 43 of the Tamil Nadu Hindu Religious and Charitable Endowments Act. Though the

plaintiff initially agreed to report to the Court that he, is not contesting H.R.A. No. 84 of 1969 yet he only absented himself. Even if the plaintiff is

to report to the Court that he is not contesting H.R.A. No. 84 of 1969 it may not amount to a compromise within the meaning of Section 43 of the

said Act. A litigant has always got a right either to prosecute the case or leave it uncontested. The motive of the plaintiff in leaving H.R.A. No. 84

of 1969 uncontested namely securing the tenancy will not amount to a compromise of the claim which is the subject matter of H.R.A. 84 of 1969.

Further the first defendant has succeeded in obtaining the reliefs asked for in the rent control proceedings. No interest of the first defendant is

parted away by the trustees. Further in this case the proceedings did not terminate on the plaintiff not contesting the H.R.A. No. 84 of 1969. The

sub-tenant carried on the proceedings to its logical end by contesting H.R.A. No. 84 of 1969 and on the same being allowed he filed C.R.P. No.

2124 of 1970 before this Court which was eventually dismissed. Hence, there is no scope for construing that there was any compromise between

the plaintiff and the first defendant within the meaning of Section 43 of the Tamil Nadu Hindu Religious and Charitable Endowments Act. Hence,

the first contention of the defendants will have to be rejected.

The next point urged by Mr. G. Ramaswami, learned Counsel for the appellant in both the abovesaid second appeals (defendant ), is that the

understanding arrived at between the plaintiff and the first defendant is invalid in law and as such the contract is void as per the provisions

contained in Section 23 of the Contract Act. Reliance is placed upon the case reported in Sita Ram Vs. Radhabai and Others, , where the

Supreme Court has held that the Court shall refuse to enforce an illegal agreement at the instance of the person who is himself a party to an illegality

or fraud. In the case reported in N.V.P. Pandian Vs. M.M. Roy, , Padmanabhan, J., held that the money paid for securing a seat in the medical

college is not recoverable since the agreement is illegal and tends to injure the public policy, I have already held that Section 43 of the Tamil Nadu

Hindu Religious and Charitable Endowments Act is not attracted in the present case and the contract cannot be said to be opposed to the

provisions contained in Section 43 of the Tamil Nadu Hindu Religious and Charitable Endowments Act and hence the same cannot be said to be

void u/s 23 of the Contract Act. Hence, the principles laid down in the above decision are not attracted in so far as the facts of this case are

concerned.

On behalf of the plaintiff (first respondent in both the second appeals) it is urged that the alleged lease agreement between the first defendant

and the second defendant was brought about collusively after coming to know of the order of interim injunction granted by the Court. It is pointed

out that the order of interim injunction was passed on 29-1-1972 and the meeting fixed for considering the leasing out suit property on 31-1-1972

was advanced to 26-1-1972 and the lease in favour of the said defendant was finalised. This action on the part of the trustees, it is pointed out will

amount to contempt of court and the plea of a person guilty of contempt of court shall not be heard by any court till he purged himself of the

contempt. Reliance is placed upon the case reported in Hadkinson v. Hadkinson (1952)2 All E.R. 567 where it has been observed as follows:

The Court would only refuse to hear a party to cause when the contempt impeded the course of justice by making it more difficult for the court to

ascertain the truth or to enforce its orders and there was no other effective means of securing his compliance. The Court might then in its discretion

refuse to hear him until the impediment was removed or good reason was shown why it should not be removed.

In the case reported in Palaniappa Chetty Vs. Raman Chetty and Others, , a Division Bench of this Court held that a person in contempt cannot be

heard in prosecution of his own appeal until he purges his contempt. My attention is also drawn to paragraph 106 in page 64 of Halsbury''s Laws

of England (Fourth Edition Volume No. 9), which is extracted below:

The general rule is that a party in contempt, that is a party against whom an order for committal has been made, cannot be heard or take

proceedings in the same case until he has purged his contempt nor while he is in contempt can be heard to appeal from any order made in the

cause.

Relying on the observations quoted above it is contended that the Court cannot hear the defendants 1 and 2 since the lease brought about in favour

of the second defendant can only be said to be an action in contempt of Court. On behalf of the appellant in both the second appeals (defendant)

reliance is placed upon the case reported in Dr. Madan Gopal Gupta Vs. The Agra University and Others, , where it has been held that:

(1) Unless the disobedience of a party impedes the course of justice in the case, making it difficult for the Court to ascertain the truth or to enforce

its orders it would not be proper exercise of discretion to refuse the party in contempt any hearing;

(2) Under the Contempt of Courts Act, there is no provision for striking off the defence of a party in contempt. There is, however, a well

established principle that a party in contempt should not be heard in the same cause until that party has purged the contempt. The striking out of

defence and denial of hearing to a party is a serious matter which entails serious consequences to a litigant. The Courts have, therefore applied this

rule rarely against a party in contempt;

(3) The drastic step of striking out the defence and denial of hearing to a party in contempt is an extreme penalty which is enforced only in those

cases where an act of a party in contempt impedes the course of justice or that justice in the cause cannot be done without compliance of the

court''s order.

The contention of the plaintiff can be considered only if he established beyond doubt that the defendants have committed contempt of court. In this

case apart from the suggestion it has not been established by positive evidence that the defendants 1 and 2 had the knowledge of the interim

injunction passed by the Civil Court. The defendants will be guilty of contempt of Court only if they had the knowledge of the order of interim

injunction passed by the Civil Court restraining them from entering into a contract of lease. Since there is no conclusive proof in this regard the

defendants cannot be considered to be guilty of contempt of Court and hence the argument that the plea of the defendants should not be heard will

have to be negatived.

Before parting with this case mention must be made about the violation of the provisions of the Tamil Nadu Hindu Religious and Charitable

Endowments Act and the rules made thereunder in this case. As per the rules framed under the Tamil Nadu Hindu Religious and Charitable

Endowments Act the lease of Immovable property belonging to a religious Institution shall be made by public auction and a lease by private

negotiation can be made only after obtaining the sanction of the appropriate authority. In this case the provisions of the Tamil Nadu Hindu Religious

and Charitable Endowments Act and the rules framed thereunder are applicable to the first defendant. The leases in favour of the plaintiff as well as

the second defendant do not appear to be in conformity with the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act

and the Rules framed thereunder. No plea is raised in this regard by both the parties for the obvious reason that it is not to their interest to raise

such a plea. It is open to the authorities to apply the relevant provisions and see that the properties of the religious institutions are not fittered away.

In the result, in view of the conclusion arrived at on both the points raised by the appellant I find there are no merits in these second appeals

and they are dismissed. However, there will be no order as to costs.