Ramasamy @ Solaiyapillai vs Vengatachalam @ Kanagaraj

S.S. Subrmani, J.—Plaintiff in O.S. No. 260 of 1991 on the file of Principal Subordinate Judge at Pondicherry is the appellant before this

Court. The suit filed by him was to direct the defendant to vacate and hand over possession of the suit shop to the plaintiff and also for mesne

profits at the rate of Rs. 300/- per month from July 1991 and also subsequent mesne profits from October 1991 till date of handing over

possession and to award costs. In the plaint it is averred that the plaintiff is the owner of the property. The schedule premises is a portion of the

building, which the plaintiff claims as belonging to him. It is the further case of the plaintiff that the defendant came into occupation of the same on

the basis of some arrangement with his father and after the death of his father the defendant continued to pay the rent to the plaintiff at the rate of

Rs. 300/- per month. He paid the rent till January 1990. When he did not pay the rent, the plaintiff made a demand, and at that time, the defendant

denied the rental arrangement. In the reply given to the plaintiff, the defendant has stated that there is no landlord and tenant relationship either with

the plaintiff or with his fattier, and therefore, he is not liable to surrender possession to the plaintiff. The suit was therefore filed for the reliefs stated

above.

In the written statement filed by the defendant he put forward a contention that he is also a co-owner alongwith the plaintiff and therefore, not

liable to be evicted.

The trial Court as per Judgment dated 22.11.1994, decreed the suit as prayed for. The trial Court found that the defendant is in permissive

occupation and is also liable for mesne profits. The defendant was given two months'' time to vacate the premises. Against the said Judgment, the

defendant preferred appeal as A.S. No. 14 of 1995, on the file of the lower appellate Court. The lower Appellate Court found that the civil suit

filed by the respondent (appellant herein) is not maintainable on the ground mat he ought to have filed a petition under the Rent Control Act, and

dismissed the suit allowing the appeal. It is against the said Judgment of the lower Appellate Court, the plaintiff has come to this Court in the

Second Appeal.

The following substantial questions of law have been raised in the Memorandum of Second Appeal :-

(A) Whether in view of the stand taken by the respondent in the earlier suit (Ex.A1) and in his Reply Notice (Ex.A4) that the Appellant is the

owner of the suit property and he is only a permissive occupier of it under him and the mutually destructive claim made by him in his written

statement that he is a co- sharer, the present suit filed by the appellant is not just, proper and maintainable?

(B) Whether the Court below was right in holding that the appellant has failed to prove that the respondent is a permissive occupier of the suit

property and hence, he is not entitled to a decree for recovery of possession of the same when (i) the appellant''s title over the same is

admitted/established, (ii) the respondent himself has admitted in Ex.A1 & 4 that the Appellant is the owner of it and he is the permissive occupier

under him, and (iii) he failed to prove his belated, mutually destructive and vague claim that he is in possession of the same as a co- sharer?

(C) Whether the admission made by the respondent himself in his earlier suit and Ex.A5 to 12 and the deposition of P. W.1 would not prove that

the appellant is the absolute owner of the suit property and consequently, is the respondent not bound to prove his claim that he is a co-sharer of

the suit property and he was permitted to be in possession of the same in the said capacity?

(D) Whether the Court below was right in ignoring the entire oral evidence and not considering and discussing Ex.A1 to 12 in their correct

perspective and the said mistake had not vitiated its Judgment?

(E) Whether in view of the facts and circumstances of the case, law and materials on records, more particularly, the malafide conduct and attitude

of the respondent, is he entitled to any indulgence or protection in a Court of law?

(F) Whether the Court below was right in presuming facts and circumstances without there being any pleadings, materials, arguments etc. therefore

and render findings in the A.S.?

When the matter came up for admission, I ordered Notice of Motion. Since the respondent has also entered appearance, the entire matter was

heard. The only question consideration is whether the civil suit filed by the appellant is maintainable. For the said purpose, a little more probe into

the facts is necessary. Against the plaintiff herein, the respondent filed O.S. No. 606 of 1990, in respect of die very same premises. That was a suit

for injunction restraining the defendant therein from interfering with his possession. In that case, the defendant herein alleged that he has been

permitted to conduct the business in the schedule premises and that he has been conducting the business under the name ""Balaji Stores"" and-the

appellant herein attempted to dispossess him from the suit premises. In that case, the present plaintiff alleged that the defendant herein is a tenant

and that he has been paying the rent at Rs. 300/- per month till January 1990, but failed to pay the rent thereafter. He also contended that the

plaintiff in that suit is not a licencee or a permissive occupier and he also denied that he attempted to dispossess him. In the above suit two of the

issues that came. up for consideration were (1)what is the extent of the property that was leased out to the plaintiff?; and (2) Whether it is true that

the defendant and his men are trying to dispossess the plaintiff of his lease-hold premises?. On these two issues, the Court found that the extent of

land under lease to the defendant herein is 8-1/2 x 13-1/2 feet and not 15 ft. x 85 ft. as contented by the defendant herein. It is also found in that

case that the defendant therein (appellant herein) did not make forcible attempt to dispossess the plaintiff from the leasehold premises. It was found

that since the plaintiff in that suit has not proved the cause of action, the suit is liable to be dismissed.

It is thereafter the present suit is filed, asking the defendant to surrender vacant possession. Before the suit was instituted a notice was issued on

24.6.1991. The first paragraph of the notice reads thus:-

It is represented to me that you have taken the schedule mentioned property, namely a shop bearing Door No. 96-C, Chetty Street, Pondicherry

to an extent of East to West 8-1/2 feet and South to North 13 -1/2 feet situate in die front portion of the house bearing door No. 96, Chetty

Street, Pondicherry, from my client''s father on 1.2.1985 for non-residential purpose of running a business in rice and paddy undertaking to pay a

sum. of Rs. 300-00 every month regularly as rent on or before 5th. As you are closely related you have not paid any amount as advance.

In the notice it is further stated that rent was paid only up to January 1990, and a demand is made to pay the entire arrears of rent from January

1990 at Rs. 300/- per month.

A reply was sent by the respondent denying the rental arrangement. Thereafter in the plaint, which was instituted by the appellant, in paragraph

3, it was stated thus:-

The Plaintiff further submits mat since the suit shop was taken by the defendant during the lifetime of his father he honestly believed that the

defendant had taken the said shop from the plaintiff''s father on oral lease. After the death of the plaintiffs father the defendant was paying a sum of

Rs. 300-00 every month to the plaintiff till January 1990. Now the defendant denied that he had never paid any amount as rent to the plaintiff.

From the facts extracted above, it is clear that the definite case of the plaintiff is that the defendant is a tenant in respect of the building and there

was a default in paying rent from January 1990. This allegation is also recognised in the suit filed by the defendant for permanent injunction. In that

suit even though the tenant claimed to be in possession of a larger extent the trial Court held that the defendant is in possession of a smaller area

(the schedule premises in this case) and that is a leasehold premises. It was further found in that case that the plaintiff did not make any attempt to

interfere with the leasehold premises of the plaintiff therein. What is the effect of this admission and the consequence of the finding in the suit? The

only conclusion that could be arrived at is that the defendant is a tenant of the building. Eve in the present plaint, the plaintiff does not deny that the

statement made by him earlier is not correct. He only pleads in paragraph 3 of the plaint that the rent was paid only upto January 1990, but since

the defendant denies these transactions, he wants to get the possession of the property, as if the defendant is in permissive occupation. In such

cases, I do not think the plaintiff can institute a civil suit and recover possession without resorting to proceeding''s under the Tamil Nadu Buildings

(Lease and Rent Control) Act.

A similar question came up for consideration before the Hon''ble Supreme Court in the decision reported in M/s. East India Corporation Ltd.

Vs. Shree Meenakshi Mills Ltd., . In that case, a suit was instituted for recovery of the Building with arrears of rent. The defendant denied the

tenancy arrangement and contended that he was in occupation as a co-owner and the suit was decreed and affirmed upto High Court. The matter

was taken up before the Hon''ble Supreme Court, wherein a contention was taken that without resorting to the Rent Control proceedings under the

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, initiation of civil suit for recovery of property is not maintainable. This question was

considered elaborately by the Hon''ble Supreme Court. A further contention was taken before the Hon. Supreme Court, that only actual eviction

of the tenant is prohibited and not the initiation of a suit, and the civil Court has jurisdiction to pass a decree. In paragraph 4 of the Judgment, this

contention was reiterated by the counsel for the respondent before the Hon''ble Supreme Court, which reads thus:-

Dr. Y.S. Chitale, appearing for the respondent, however, submits that the decree passed by the civil court in the present case is not a nullity,

for, the Act has not barred the jurisdiction of the civil Court, but only prohibits execution of a decree for eviction otherwise than in accordance with

the relevant statutory provisions. Such a decree, be says, is not void, but is merely under an eclipse, and will become executable as and when the

bar is removed. He refers to Section 10 of the Act which reads:

Eviction of tenants. -- (1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions

of this Section or Sections 14 to 16.

In paragraphs 7 to 10, their Lordships of the Supreme Court have held thus:-

Section 10 of the Act, as seen above, prohibits eviction of a tenant whether in execution of a decree or otherwise, except in accordance with

the provisions"" of that Section or Sections 14 to 16. These provisions as well as the other provisions of the Act are a self-contained Code,

regulating the relationship of parties, creating special rights and liabilities, and, providing for determination of such rights and liabilities by tribunals

constituted under the statute and whose orders are endowed with finality. The remedies provided by the statute in such matters are adequate and

complete. Although the statute contains no express bar of jurisdiction of the civil court, except for eviction of tenants ""in execution or otherwise"",

the provisions of the statute are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it, and their

competence to administer the same remedy as the civil courts render in civil suits. Such tribunals having been so constituted as to act in conformity

with the fundamental principles of judicial procedure, the clear and explicit intendment of the legislature is that all questions relating to the special

rights and liabilities created by the statute should be decided by the tribunals constituted under it. Although the jurisdiction of the civil court is not

expressly barred, the provisions of the statute explicity show that, subject to the extraordinary powers of me High Court and this Court, such

jurisdiction is impliedly barred, except to me limited extent specially provided by the statute. See in this connection the principle stated by this

Court in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, . See also AIR 1940 105 (Privy Council) Raleigh Investment Co.

Ltd. v. Governor General in Council (AIR 1947 PC 78) and Barraclough v. Brown (1897 AC 615 : 66 LJQB 672 (HL).

Judged by this test, the jurisdiction of the civil court in respect of eviction of tenants is barred except to the extent and subject to the conditions

prescribed u/s 10. The second proviso to Section 10 (1) reads:-

Provided further that where the tenant denies the tide of the landlord or claims right of permanent tenancy, the Controller shall decide whether the

denial or claims is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil court

and the court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the court finds that -such

denial does not involve forfeiture of the lease or that me claim is unfounded.

What is stated in the second proviso to Section 10 (1) is the sole circumstance in which the civil court is invested with jurisdiction in matters of

eviction. But this jurisdiction cannot be invoked otherwise than as stipulated in the second proviso. This means that the condition precedent to the

exercise of jurisdiction by a civil court is that the tenant should have denied that title of the landlord or claimed right of permanent tenancy and me

Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide. Upon such decision, the

Controller must record a finding to that effect, In that event, the landlord is entitled to sue for eviction of the tenant in a civil Court. Where these

conditions are satisfied, the civil court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections

14 to 16, notwithstanding that the court has found that the tenant''s denial of the landlord''s title does not involve forfeiture of the lease, or, his claim

of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the civil court in matters of eviction of a tenant is

completely barred and the jurisdiction in such matters is vested in tribunals set up under the statute.

Significantly, the jurisdiction of the civil court can be invoked only where the Controller comes to a decision, and records a finding, that the

denial or claim by the tenant, as aforesaid, is bona fide. If the Controller were to come to the opposite conclusion, no question of invoking the

jurisdiction of the civil court would arise. But the decision of the Controller is concerned solely with the bona fides, and not the correctness or

validity, of the denial or claim, for these difficult questions of title are by the statute reserved for decision by the appropriate civil court which is the

more competent forum in such matters. (See the principle discussed in Magiti Sasamal Vs. Pandab Bissoi, . In such an event, the civil court will

become competent to pass a decree for eviction on any of the grounds mentioned in Section 10 or Sections 14 to 16. On the other hand, if the

decision of the Controller is that the tenant''s denial or claim is not bona fide, the jurisdiction of the civil court cannot be invoked by the landlord

and the Controller will then be the competent authority to order eviction, after affording the parties a reasonable opportunity of being heard, on any

one of the grounds specified under the statute, including the ground that the tenant has, without bona fide, denied the landlord''s title or claimed

right of permanent tenancy. What is significant is that the decision of the Controller, duly recorded by him, as regards the bona fide denial or claim

by the tenant is the condition precedent to the invocation of power of the civil Court. Any suit instituted by the landlord for eviction of a tenant from

a building felling within the ambit of the, Act, otherwise than as stipulated by the section, is, therefore, incompetent for lack of jurisdiction of the

court and any decree of the court in such a suit is null and void and of no effect.

The said decision was followed by a learned Judge of this Court in the decision reported in Natesan Pillai Vs. Sethumani Ammal, . In that case

the landlord filed an application before the Rent Controller. The alleged tenant filed a counter denying the landlord and tenant relationship, But

without waiting for a finding of the Rent Controller regarding the bona fide nature of denial of title, the landlord withdrew the application and filed a

civil suit. Both the trial Court as well as the first appellate Court decreed the suit. The matter was taken up before this Court. The learned Judge,

following the decision of the Supreme Court (cited supra) held that so long as there is no finding of the Rent Controller as to the denial of the title to

the property, the Civil suit filed by him is not maintainable. The finding of the Rent Controller is a condition precedent for instituting a civil suit, and

it was held that the suit is liable to be dismissed as not maintainable. Paragraphs 6 and 7 of the Judgment are relevant for our purpose and the same

reads thus:-

It is the definite case of the plaintiff that the defendant is a tenant. Now, as per Sec. 10 (1) of the Act a tenant shall not be evicted whether in

execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 14 to 16. Therefore, it is imperative that

the plaintiff has to initiate proceedings for eviction against the defendant in a Rent Control Proceeding, To this Sec. 10(1) an exception is provided

under the second Proviso according to which where the tenant denies the title of the landlord or claims right or permanent tenancy, the Controller

shall decide whether the denial of title is bona fide, and if he records a finding to that effect the landlord shall be entitled to sue for eviction in civil

court and the Court may pass a decree for eviction on any of the grounds mentioned in the said Section notwithstanding, that the court finds that

such dental does not involve forfeiture of the lease or that the claim is unfounded.

In this case, in feet, the plaintiff has filed R.CO.P. No. 17 of 1981, but, however, stating that the defendant has denied the tenancy and claimed

right to the property by virtue of an alleged agreement of sale. sought to withdraw the petition and the petition was accordingly dismissed as

withdrawn. There was no finding of the Rent Controller as to whether there was denial of title by the defendant and that denial is bona fide.

Therefore, at that stage the landlord need not have withdrawn the petition and ought to have pursued it. This being the case the present suit is not

competent.

In this case, all along, the claim of the plaintiff is that the defendant is a tenant and he has agreed to pay Rs. 300/- per month as rent. The same

was also paid till January 1990, and thereafter he has defaulted. The said contention was also judicially recognised in the earlier suit between the

parties, though the Judgment will not be a res judicata, the finding therein cannot be said as irrelevant. In this case also, the plaintiff does riot say

that the defendant is not a tenant, but he says that he has filed the suit for recovery only because the defendant denied the rental arrangements.

Following the above two decisions, I have to hold that the suit filed by the appellant was rightly dismissed by the lower Appellate Court. I may

not be justified if I do not consider the decisions relied on by the learned counsel for appellant also. The decisions are:-

(1) Judgment in A.S. No. 344 of 1983 decided on 10.7.1991 (Division Bench of this Court);

(2) Marrepu Venkata Ramana Murthi Vs. The Deity of Sri Rama Mandiram,

(3) R.S.D.V. Finance Co. Pvt. Ltd. Vs. Shree Valllabh Glass Works Ltd.,

(4) 1972 (II) M.L.J. 77 = 85 L.W.484 (K.Jagan Mohan Rao v. K. Swarup); and

(5) Veeraswamy Naicker and Another Vs. Alamelu Ammal and Others,

I do not think that the decision of the Supreme Court, which I have already extracted was ever considered in any of these decisions. In the first

decision, the suit was one for declaration of title and recovery of possession and also for damages for use and occupation. In that case the

defendant has taken a categorical stand that he is in possession and occupation on the basis of an agreement for sale and he is also owner and he

took further contention that he is a tenant under the Rent Control Act. The contention of the defendant was found against and a decree was

granted. The same was challenged before this Court. The contention now raised was not raised before the Division Bench, nor it was decided. In

fact, from the pleading in that case it could not be said that the plaintiff has admitted the defendant as a tenant. In that case it was found that when

the defendant denied the tide of the plaintiff and claimed ownership, it is not possible for him to turn down and put forward a claim of tenancy

under the Rent Control Act. In that view of the matter, the decision of the courts be low was confirmed and the decree for recovery of possession

was granted. The said decision has no bearing to the facts of the present case.

In so far as the second decision, is concerned learned counsel for the appellant placed reliance on paragraph 22, wherein it was held that ''an

objection as to jurisdiction must be raised at the earliest possible stage so that the other party, if so minded, might abandon the proceedings in the

Civil Court and approach the appropriate forum'' and since the objection was not raised at the initial stage, the same was not allowed to be raised

in Second Appeal. The said decision also has no bearing to the facts of this case. The Hon''ble Supreme Court has interpreted the law that there is

a statutory bar for instituting a suit before getting a finding from the Rent Controller, which is a condition precedent, according to the Supreme

Court, If that is the law, mere omission to plead will not give jurisdiction to civil court to pass a decree.

In the third case also, the Hon''ble Supreme Court considering the scope of Section 21 of the CPC decided the case on place of jurisdiction,

viz., the place where the suit was instituted and not absence of jurisdiction of a civil Court. The fourth decision was also a case u/s 21 of C.P.C.

The fifth case relied on by counsel for the appellant was under the Madras City Tenants Protection Act, and therefore, the said decision has also

no relevance in so far as this case is concerned. As I have said already, the scope of Section 10 of the Rent Control Act came up for consideration

in 1991 (3) SCC 230 (supra), which has been followed by a learned Judge of this Court in the other decision cited supra. The said decision alone

could be applied to the facts of this case, when the plaintiff has admitted that the defendant is a tenant of the building. Since I am dismissing the

Second Appeal on preliminary ground itself, I do not want to consider the other substantial questions of law raised in the Memorandum of Appeal.

The Second Appeal is dismissed. No costs.