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Judgment
M. Karpagavinayagam, J.—Having lost in the both courts below, the first defendant - V. Rangaswamy, since deceased, has filed this
Second Appeal seeking to set aside the judgment and decree in A.S. No. 100 of 1986 on the file of the Principal District Judge, Coimbatore,
confirming the judgment and decree in O.S. No. 2021 of 1982, on the file of the District Munsif Court, Coimbatore, granting a decree in favour of
the plaintiff - Devasthanam, the first respondent herein, for recovery of possession of the suit premises and for damages. The case of the plaintiff /
first respondent herein, is as follows:- The suit property is the absolute property of the plaintiff-Devasthanam. The first defendant became a tenant
under the plaintiff in respect of the suit premises on a monthly rent of Rs. 120/- on 1.7.1975. The rent was increased to Rs. 191/- from 1.5.1977.
The first defendant contrary to the terms of the tenancy had sublet a portion of the suit premises to the second defendant. The second defendant is
running a petty shop therein. Further, the tenemented portion is required by the plaintiff-Devasthanam for renovation of the temple by extending its
entrance.
On 5.6.1982, the plaintiff issued notice to the defendants 1 and 2 terminating the tenancy and asked them to vacate the suit premises. Despite
the receipt of the notice, the defendants did not vacate the premises, but sent a reply with false allegations, hence, the suit for delivery of vacant
possession and for payment of damages.
The case of the defendants is as follows:-The first defendant became a tenant of the suit premises as per the rental agreement executed on
1.7,1975 on a monthly rent of Rs. 40/-. The first defendant never sub-let the premises unauthorisedly to the second defendant. The second
defendant is only an employee working under the first defendant. The petty shop is solemnly owned by the first defendant, consequently, he has not
violated the terms and conditions of the tenancy. Requirement of vacant possession of the suit premises for renovation is utter falsehood. Hence,
the suit is liable to be dismissed.
On that basis of these pleadings, the trial Court framed the following issues:
(1). Whether the plaintiff is entitled for recovery of possession of the suit property from the defendants?
(2). Whether the plaintiff is entitled for damages at Rs. 191/- per month?
(3). To what relief the plaintiff is entitled?
During the course of trial, on behalf of the plaintiff, P.W. 1 - Subramaniam, Executive Officer was examined as P.W. 1. Ex. A.1, notice dated
5.6.1982 and ExA.2 reply notice dated 15.06.1982 were marked. On the side of the defendants, the first defendant examined himself as D.W.1,
through whom Exs.B1 to B21 were marked. Exs.B.22 and B.23 the salary receipts obtained from the second defendant were also marked.
After making considered all the materials, the learned District Munsif decreed the suit as prayed for with costs. Having aggrieved over the above
said judgment, the appellant, the first defendant, preferred the appeal in A.S. No. 100 of 1986 before the Principal District Judge, Coimbatore.
However, the second defendant had not chosen to prefer any appeal.
Before the first Appellate Court, the following questions were framed as the points for consideration.
(1). Whether the plaintiff is entitled to recover possession of the suit property from the defendants?
(2). whether the sub-letting of a portion of a suit premises by the first defendant in favour of the second defendant is true?
(3). whether the plaintiff is entitled to recover damages?
After having heard the counsel for the parties and on analysis of the materials and the reasonings given in the judgment of the trial Court, the
lower Appellate Court dismissed the first appeal and confirmed the judgment and decree of the trial Court, upholding the reasonings and
conclusions of the trial Court in favour of the plaintiff.
The first defendant being aggrieved by the judgment and decree of both the Courts below, has preferred the present Second Appeal.
At the time of admission of this Second Appeal, this Court formulated the substantial questions of law, which are given hereunder:
(1). Whether the Courts below were right in holding that the alleged sub-lease of the suit premises to the second respondent is contrary to the
terms of the agreement, even in the absence of production of rent agreement?
(2). Whether the Courts below were right in accepting the oral evidence with respect to the contents of the rent deed in the absence of its
production in Court and arriving at its conclusions thereon?
Elaborating these questions of law, Mr. K.M. Santhanagopalan, Learned Counsel appearing for the appellants would argue at length by
referring the relevant provisions of various Acts and pointing out the portions of the plaint, written statement and other records and would contend
that both the Courts below have, not arrived at a correct conclusion and consequently, the judgments and decrees are liable to be set aside and the
suit filed by the first respondent/plaintiff is liable to be dismissed.
The Learned Counsel for the appellants would also submit that subsequent to the filing of the Second Appeal, there was a compromise arrived
at between the parties, since the first respondent - plaintiff has entered into a fresh rental agreement with the son of the first defendant on his death
and on that basis, the first respondent-plaintiff had been receiving the enhanced rent. On the above ground also, the Second Appeal is liable to be
allowed.
Having regard to the subsequent developments, the appellants requested this Court by filing C.M.P. No. 15438 of 1999 under Order 41, Rule
27 of CPC to receive additional documents and also filed C.M.P. No. 15439 of 1999 under Order 41, Rule 2 and Section 151 of Civil
Procedure Code, to permit them to file additional grounds of appeal.
In reply to the said submission, Mr. T.L. Ram Mohan, learned senior counsel appearing on behalf of the counsel for the first respondent, would
contend that both the Courts below have meticulously considered the materials available on record and arrived at a correct conclusion that the
plaintiff-Devasthanam has proved its case by adducing acceptable materials, that they are entitled to the relief sought for and that the factual
findings rendered by both the Courts below cannot be disturbed in the Second Appeal by invoking Section 100 of Civil Procedure Code,
particularly, when there is no reason to hold that the findings of both the Courts below are perverse.
In addition to this submission, the Learned Counsel for the first respondent-Devasthanam, would also contend by filing counter in C.M.P.
Nos.15438 and 15439 of 1999 stating that there is no new contract entered into between the parties, which would nullify the decree for
possession granted in favour of the plaintiff-Devasthanam and that the unilateral offer made by the appellants cannot be construed as a concluded
contract. It is also submitted that the fresh contract can be entered into only after the approval of the competent authority, which has not yet been
made or concluded and as such, the fresh agreement made by the son of the first defendant would not be taken as a ground for setting aside the
valid decree passed by both the Courts below.
Both the counsel, in order to substantiate their respective pleas, would cite several authorities, which we shall examine at the appropriate stage.
Before launching discussion into the merits of the rival contentions, it would be relevant, at this stage, to note down the number of reasons given for
decreeing the suit of the plaintiff-Devasthanam, which are as follows: -
(i) The Plaintiff - Devasthanam is the owner of the suit property. The first defendant had become the tenant of the suit property by executing a
rental agreement on 1.5.1975. The monthly rent has been increased to Rs. 191/- on and from 1.5.1977. This is clear from the evidence of P.W. 1,
the Executive Officer of the Devasthanam.
(ii) Moreover, the tenancy is not disputed by the first defendant. One of the grounds for seeking ejectment of the defendants from the suit premises
is that it requires for renovation of the temple by extending the entrance of the temple. It is clearly pleaded in the plaint and also stated by P.W. 1 -
Executive Officer of the plaintiff-Devasthanam in his deposition that steps are being taken to erect Rajagopuram after demolition of the shops in
front of the temple. Though it is pointed out that this ground is not mentioned in the notice dated 5.6.1982, this aspect of the evidence has not been
seriously challenged. There is also no reason to disbelieve the evidence of P.W. 1 - Executive Officer that it was not mentioned as there was no
proposal for erection of Rajagopuram at the time when Ex. A.1 notice dated 5.6.1982 was issued.
(iii) As per the terms of the rental agreement, the first defendant should not sublet any portion to the suit premises to anybody. According to the
plaintiff Devasthanam, on coming to know about the sub-letting of a portion of the suit premises to the second defendant, they issued notice on
5.6.1982, terminating the tenancy for violation of the terms and conditions of the rental agreement. But, in the reply notice sent on behalf of the
defendants, it was stated that no portion of the suit premises was leased out to the second defendant but the second defendant was employed
under the first defendant and as such, there was no violation of the terms of the rental agreement. But, the premises was admittedly leased out only
for running a saloon by the first defendant. The existence of petty shop was also admitted by him. Though it is stated by the first defendant that
there are several persons working under him, including the second defendant, who has been employed by him to run the petty shop, Ex. B.22 and
B.23, salary receipts do not show that there are several employees working under the first defendant including the second defendant. Those
exhibits are only self-serving documents; therefore they cannot be accepted. Even according to the first defendant, the suit premises was leased out
to him only for conducting saloon and not for petty shop. Therefore, it is clear that the first defendant had sub-leased a portion of the suit premises
to the second defendant in violation of the terms and conditions of the rental agreement.
(iv) Ex. A.1, is the copy of the notice to quit was issued to the defendants, whereby the tenancy of the first defendant had been terminated.
Therefore, it is a valid notice to quit u/s 106 of the Transfer of Property Act.
(v) Admittedly, the rate of rent is Rs. 191/- per month. Therefore, the plaintiff-Devasthanam would be entitled for damages at the rate of Rs. 191/-
per month from the date of the suit till the date of recovery of possession.
Mr. T.L. Ram Mohan, learned senior counsel appearing on behalf of the counsel for the first respondent incidentally would raise one more
point on the basis of the notification issued by the Government in G.O.Ms. No. 1998 Home, dated 12.8.1974 by which all the building owned by
the Hindu, Christian and Muslim religious trusts and Charitable Institutions exempt from all the provisions of the Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) and as such the plaintiff-Devasthanam may desire eviction of the tenants for the
purpose of carrying out major or substantial repairs or for the purpose of demolition even without being required to fulfil other onerous conditions
by showing reasons for the same, when they seek eviction for such purposes.
The learned senior counsel cited two authorities in support of the aforesaid proposition:
(1). S. Kandaswamy Chettiar v. The State of Tamil Nadu (98 L.W.1.); and
(2). Venkataraman Chettiar v. Rangiah Chettiar (1983(1) M.L.J. 349).
Though the powers of the Government of Tamil Nadu in exempting the pubic trust like temple from any of the provisions of the Rent Control
Act have been accepted and upheld by the Apex Court, in my view, those decisions would not be relevant for deciding the substantial questions of
law formulated in the instant case.
The present suit has been filed by the plaintiff- Devasthanam seeking for ejectment of the defendants from the suit premises on two grounds.
(1) Requirement of the suit premises for renovation of the temple; and (2) Violation of the terms and conditions of the rental agreement. Under
these circumstances, it has to be seen whether those grounds have been established so as to arrive at the conclusion that the plaintiff-Devasthanam
would be entitled to the relief sought for by it. Under the above circumstances, I do not propose to go into the benefits being accrued to the
plaintiff-Devasthanam by virtue of the notification referred to above.
Now, let us come to the various grounds'' urged by the Learned Counsel for the appellants. Mr. K.M. Santhanagopalan, Learned Counsel for
the appellants would vehemently contend that the plaintiff-Devasthanam has not adduced admissible evidence in relation to violation of the terms
and conditions of the rental agreement entered into between the parties, in order to prove that there was a specific condition in the rental agreement
that the suit premises shall not be sub-leased to anybody by the first defendant.
According to the Learned Counsel for the appellants, in the absence of production of the rental agreement, which is in writing, as has been
evident from the plaint pleadings and the deposition of P.W. 1-Executive Officer of the plaintiff-Devasthanam, the oral evidence in respect of the
contends of the rental agreement regarding restriction for subletting, cannot at all be admitted and accepted as per Section 91 of the Evidence Act.
Once, the oral evidence relating to the violation of the terms and conditions of the rental agreement has been eschewed, then there would be no
reason to hold that there is a cause of action for ejectment. The Learned Counsel has cited the following authorities in support of the above
proposition:
(1). Janardan Panda v. Prandhan Das (AIR 1940 Patna, 246);
(2). Chanan Singh v. Sham Lal (AIR (37) 1950 Pepsu, 34);
(3). Bai Hira Devi and Others Vs. The Official Assignee of Bombay, and
(4). Hargyan and Another Vs. Banwari Lal and Another, .
From a perusal of the above authorities the following principles with reference to Section 91 of the Evidence Act would emerge. Section 91 of
the Evidence Act deals with the exclusion of oral evidence by documentary evidence. Section 91 of the Evidence Act provides that when the terms
of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any
matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other
disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence
is admissible under the provisions hereinbefore contained.
Section 91 is based on what is some times described as the ""best evidence rule"". The best evidence about the contents of a document is the
document itself and it is the production of the document that is required by Section 91 in proof of its contents. In ,a sense, the rule enunciated by
Section 91 can be said to be an exclusive rule in as much as it excludes the admission of oral evidence for proving the contents of the document.
The moment an oral contract is reduced to writing, it is not open to any of the parties thereafter to prove the terms of the contract by referring
to any original oral agreement. Section 91, Evidence Act, would stand in his way and he would be precluded from proving the terms of the
transaction otherwise than by the deed itself. Thus, u/s 91 of the Evidence Act, the plaintiff is debarred from adducing oral evidence to prove the
contract as the terms of it were embedded in writing.
As correctly pointed out by the Learned Counsel appearing for the appellants, Section 91 of the Evidence Act would make it obligatory for the
party to produce the document in writing, in order to prove the terms of the contract, if its violation, would give rise to cause of action in question.
Admittedly, in the instant case, even though it is mentioned in the plaint that the rental agreement was executed by the first defendant in favour
of the plaintiff and P.W. 1 admits its execution in his deposition, the plaintiff-Devasthanam did not chose to file the same in the Court as one of the
exhibits. In that context, the question that would arise is whether the oral evidence given by P.W. 1 relating to the violation of the terms of the rental
agreement would be relevant to arrive at a conclusion with reference to the issues framed in the suit.
Although, outwardly this point looks attractive, a deep probe into the materials and provisions of the Act and other judgments would clearly
show that the said point would certainly fall.
No doubt, it is true that in the plaint allegations as well as in the deposition of both parties, there is a reference about the execution of rental
agreement. According to the plaintiff-Devasthanam, it is written in the rental agreement that the first defendant should not let out any portion of the
suit premises to anybody. If that be so, the sub-letting of a part of the suit premises to the second defendant was a clear violation of the terms of
the tenancy. But, a reading of the written statement would not show that this has been specifically denied by the defendants.
The relevant portion of the plaint reads as follows:
Now the 1st defendant contrary to the terms of tenancy had sub-let unauthorisedly a portion of the tenemented premises to the 2nd defendant
herein. It is a clear violation of the terms of the tenancy.
The relevant portion of the written statement is as follows:
The allegations mentioned in para 4 of the plaint are stoutly denied by these defendants. As alleged the 1st defendant never sub-let the premises
unauthorisedly to the 2nd defendant. The 2nd defendant is an employee working under the 1st defendant and the petty shops solely owned by the
1st defendant.
So, the above extract would show that there was no specific denial with respect to the restrictions on sub-letting mentioned in the rental
agreement. But, the first defendant simply denied the fact of sub-letting the suit premises unauthorisedly to the second defendant. In other words,
he did not deny such a term provided in the rental agreement. Ex. A.1 notice also contains the words which are relevant on the above issue, which
reads thus:
You No. 1''s attitude in sub-letting the premises to you No. 2 is illegal and contrary to the terms of the tenancy. You are liable to be evicted.
In reply to the above notice, the defendants'' counsel states in his reply notice, which reads as follows:
But the allegation that our client No. 1 sublet the premises to No. 2 of our client is untenable. As alleged no sub-letting is done and the allegations
are invented for the purpose of the notice.
Even a perusal of the deposition of P.W. 1 would show that there is an assertion by P.W. 1 that through the rental agreement, the first
defendant was restricted from subletting the suit premises. There is no challenge for this evidence. The only suggestion in the cross-examination of
P.W. 1 is that the first defendant has not sublet the premises to the second defendant and nothing more.
On the other hand, the first defendant in the cross-examination would specifically admit that there is a restriction for subletting the premises in
the rental agreement. The relevant portion of the cross-examination reads as follows:
Under those circumstances, the learned senior counsel appearing for the first respondent would contend that the decision cited with reference
to Section 91 of the Evidence Act would not be applicable to the facts of the present case. He has also brought to the notice of the Court the
Order 8, Rules 3, 4 and 5 of Civil Procedure Code.
Order 8 provides for the filing of a written statement, the particulars to be contained therein and the manner of doing so. Rules 3, 4 and 5
thereof are relevant to the present enquiry and they read:
Order 8, Rule 3, it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the
defendant must deal specifically with each allegation of fact of which he does not admit the truth, except, damages.
Rule 4. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus if it is
alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he
received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be
sufficient to deny it along with those circumstances.
Rule 5. Every allegation of fact in the plaint, if not denied specifically, or by necessary implication or stated to be not admitted in the pleadings of
the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any
fact so admitted to be proved otherwise than by such admission.
While referring the above Order and Rules, the Apex Court in Badat & Co. v. East India Trading Co. (1965) 1 S.CJ. 747) observed that the
facts not denied but accepted must be admitted in evidence and no other proof is necessary and held as follows:
These three rules form an integrated code dealing with the manner in which allegations of facts in the plaint should be traversed and the legal
consequence flowing from its non- compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a
defendant denies any such fact, he must not do so evasively, but answer the point of substance, If his denial of a fact is not specific but evasive, the
said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.
In the light of the above observation of the Apex Court, in this case, Section 91 of the Evidence Act cannot come into play in view of the fact
that the pleading in the plaint regarding the violation of the terms and conditions of the rental agreement was not only not denied but also admitted
the fact existence of restriction for subletting by the first, defendant in his cross-examination.
All the decisions cited supra by the Learned Counsel for appellant will not be of any help to him. Section 91 of the Evidence Act is no bar to
test the veracity of admission made by the first defendant in his deposition, which in turn, helps to determine the nature and terms of the tenancy.
This may be looked at from yet another angle also. Regarding the issue and the point for determination framed by the Courts below as to
whether the first defendant has sublet the suit premises to the second defendant, it is the case of the plaintiff-Devasthanam that the suit premises
was subleased to the second defendant without permission from the plaintiff-Devasthanam and contrary to the terms and conditions of the rental
agreement. It is not the case of the defendants that there is no restriction for subletting.
On the other hand, the case of the first defendant is that he has not sublet the suit premises to the second defendant and that the first defendant
himself put up a petty shop in the suit premises and the second defendant has been employed by him to look after the said petty shop. Under those
circumstances, both the courts had no occasion to consider whether the oral evidence let in by P.W. 1, examined on behalf of the plaintiff-
Devasthanam would attract a bar contained u/s 91 of the Evidence Act. In other words, the question relating to Section 91 has been raised only
before this Court.
It is also to be noted, in this context, that both the courts below have analysed the factual aspects over the question as lo whether there was
any sublease or not. By virtue of invoking Section 91 of the Evidence Act, the leaned counsel appearing for the appellants would request this Court
to set aside the factual findings given by both the Courts below and to eschew the oral evidence regarding the terms of the tenancy in relation to the
restriction for subletting. In view of the facts and circumstances of the present case, which would reveal that the first defendant himself would admit
the restriction regarding sublease, and in the light of the discussion above, Section 91 of the Evidence Act would not apply to the present case.
The Learned Counsel for the appellants would cite the decision rendered in Surjit Singh v. Rattan Lal (AIR P&H 319), wherein it has been
held that u/s 108 of the Transfer of Property Act, the lessee is authorised to sublease the whole or part of his interest in the property unless there is
an expression of prohibition to the effect that the tenant cannot sublease the property. This also would not be of any help for the appellants, since it
is the case of the first defendant that he did not sublet and that he was running a petty shop in the same premises by employing the second
defendant.
One more vital features has to be taken note of in this context. It is the consistent case of the first defendant from the beginning that the second
defendant was employed under him and the petty shop was owned by him and the first defendant alone is the owner of the petty shop. Both in the
reply notice sent on behalf of the defendants 1 and 2 and in the written statement filed by them, it has been clearly stated that the second defendant
is an employee working under the first defendant and the petty shop is solely owned by the first defendant. On the very same line, the first
defendant has deposed that apart from the second defendant he employed 3 or 4 persons, also under him. However, he had chosen to file
Exs.B22 and B.23, the note books containing the salary -receipts singed by the second defendant alone.
A perusal of Exs.B.22 and B.23, salary receipts would show that the second defendant had signed in the receipts from July 1981 to March
1986. But, they do not show that the first defendant was the employer and the second defendant was working in the petty shop owned by the first
defendant. In the absence of those details, the second defendant ought to have been examined to prove the case as projected through the written
statement. The Apex Court in Vidhyadhar Vs. Manikrao and Another, , while dealing with a similar situation, would observe as follows:
Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by
the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High
Courts and the Privy Council beginning from the decision in AIR 1927 230 (Privy Council) . This was followed by the Lahore High Court in Kirpa
Singh v. Ajaipal Singh AIR 1930 Lah. 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR
1931 Bom, 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawal AIR 1970 MP, 225 also followed
the Privy Council decision in Sardar Gurbakhsh Singh case (cited supra). The Allahabad High Court in Arjun Singh v. Virendra Nath (AIR 1971
All, 29) held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division
Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand (AIR 1974 P & H, 7) drew a presumption u/s 114 of the
Evidence Act, 1872 against a party who did not enter the witness-box.
Similarly, the Apex Court in Iswar Bhai C. Patel @ Bachu Bhai Patel Vs. Harihar Behera and Another, , has made the following observation:
Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against
him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872.
Applying the principles stated above to the case on hand, it is the second defendant, who is stated to be an employee of the first defendant had
abstained from the witness-box and had not made any statement on oath in support of his pleading in the notice as well as in the written statement.
Under those circumstances, an adverse inference has to be drawn against the defendants.
It is also noticed, as indicated above, that the second defendant, against whom a decree had been passed by the trial Court, had not chosen to
file any appeal in the first Appellate Court, as had been done by the first defendant.
Incidentally, it is pointed out that the trial Court had given a finding with reference to the different users, even though, there is no pleading. A
careful reading of the judgment does not show that the decree was passed upon such a finding. The trial Court casually referred that the first
defendant has no right to run the petty shop when he himself admitted that the lease deed dated 1.7.1975 entered into between the plaintiff-
Devasthanam and the first defendant was only for running a Saloon. Furthermore, subsequent discussion made by the trial Court would clearly
show that there was a finding that the second defendant was not an employee under the first defendant and that the first defendant has not
established that it was not a sublease. Hence, this contention also, in my view, does not merit acceptance.
As noted above, the suit was filed for recovery of possession on two grounds, i.e., on the ground of sub-lease of the suit premises and of
renovation of the temple. It is true that the renovation has not been mentioned in the earlier notice dated 5.6.1982. But, those facts have been
clearly mentioned in the plaint filed on 20.09.1982. These details have been spoken by P.W. 1, the Executive Officer of the plaintiff-Devasthanam,
in his evidence. Both the trial Court as well as the lower Appellate Court have believed the evidence of P.W. 1 and the pleadings and arrived at a
factual finding that the plaintiff-Devasthanam would be entitled to the recovery of possession on this ground as well. I do not find any infirmity in the
reasonings given for such a finding.
The above findings of facts arrived at by the lower Appellate Court while concurring with the judgment of the trial Court, in my opinion, cannot
be said to be wrong, since the same are borne out from the records of the case. Once this Court comes to a conclusion that the findings of facts
are based on the materials on record and there is no infirmity in arriving at the said findings, then the logical conclusion is that this Court, while
entertaining an appeal u/s 100 of Civil Procedure Code, would be committing an error, if those findings are absurd.
Therefore, the Court of Second Appeal is competent to entertain a substantial question of law and decide whether the findings of facts by the
trial Court are perverse or not. But, the Court of Second Appeal would not be competent to entertain the question, as to the soundness of the
finding of fact by the Courts below. The Apex Court in the following cases:
(1). Sundra Naicka Vadiyar (dead) by LRs. and another Vs. Ramaswami Ayyar (dead) by his LRs., ;
(2). Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal Ganeshkar and others, and
(3).Sukhdei (Smt) (dead) by Lrs. v. Bairo (dead) and others. (1994) 4 S.C.C.262.
would clearly hold that the High Court has no jurisdiction to interfere in the Second Appeal with the finding of fact given by the first Appellate
Court based upon the appreciation of relevant evidence.
The last but not the least is the point related to the subsequent developments after the filing of the Second Appeal. As noted above, the counsel
for the appellants have filed two petitions i.e., C.M.P. Nos. 15438 and 15439 of 1999 requesting this Court to receive documents as additional
evidence and to permit them to file additional grounds of appeal, on the ground that subsequently, a fresh agreement has been entered into between
the first defendant, since deceased, and the first respondent/ plaintiff-Devasthanam.
As per the affidavit filed in these petitions, the first defendant/first appellant filed the present appeal before this Court and obtained interim stay
of operation of the Judgment and decrees of the Court below on 14.01.1988. Subsequently, the first appellant died on 7.12.1992. The present
appellants 2 to 4 were brought on record as legal representatives as per the order dated 31.03.1W5. During the pendency of the appeal,
settlement talks were going on and consequently, the entire rental arrears have been paid and the appellants agreed for the enhanced rent of Rs.
750/- per mensem and later, I was further enhanced to Rs. 825/-. In order to show the subsequent development during the pendency of the
appeal, these petitions have been filed.
However in opposing these petitions, the first respondent/plaintiff filed a counter denying the said facts. In paragraph seven of the counter
affidavit, it is stated as follows:
I deny the averments made in paras 20 to 23 and state that no new contract has been entered into between the parties to nullify the decree for
possession granted in favour of the respondent. Unilateral offer made by the appellants cannot be construed as the concluded contract. I
respectfully submit that under the provisions of H.R. & C.E. Act and the Rules made thereunder, the Trustees are obliged to obtain the approval of
the Authority before entering into any fresh contract for them. No suit or legal proceedings can be withdrawn or compromised without the consent
of the Commissioner.
While considering the petitions and the counter, it is brought to my notice that some compromise talks were going on and legal notices were
also exchanged. It is pointed out by the Learned Counsel for the appellants that already an undertaking letter was executed by the appellants dated
23.12.1993 as agreed by the first respondent-plaintiff. But, it is noticed that the letter dated 23.12.1993 executed by P. Sivabalan, one of the
appellants, addressed to the Executive Officer of the plaintiff-Devasthanam that they are willing for a compromise and so, they would not pursue
S.A. No. 51 of 1988, pending before this Court.
It is seen from those records on the basis of these letters that there was some proposal for compromise. The records further would show that
enhanced rent was received by the plaintiff-Devasthanam, subject to the approval of the Commissioner, Hindu Religious and Charitable
Endownment Board. Under those circumstances, I cannot decide over the said issue on the basis of these documents, at this stage. Moreover, as
held by the Supreme Court in N.M. Ponniah Nadar Vs. Kamalakshmi Ammal, the mere increase 01 reduction of rent will not necessarily import a
surrender of an existing lease and the grant of a new tenancy.
As pointed out by the senior counsel appearing for the first respondent/plaintiff, the decree in question, could not be said to have been nullified,
especially when there is no new contract entered into between the parties. If there is any actual proposal for fresh contract and on the basis of
which the enhanced rent was accepted by the Devasthanam administration, it is for the appellants to pursue the matter further in order to enter into
a fresh contract. Therefore, the mere acceptance of enhanced rent would not be a ground to hold that the judgment and decree passed by the
Courts below are liable to be set aside.
In Laxmi and Co. Vs. Dr. Anant R. Deshpande and Another, and M/s. Variety Emporium v. V.R.M. Mohd. Ibrahmin ( AIR 1985 SC, 207 ;
98 L.W.26) the Apex Court held that the Court can have regard to events as they present themselves at the time when it is hearing the proceedings
before it and mould the relief in the light of those events. This can be done only in appropriate cases. In those cases, the Apex Court found that
because of altered circumstances, it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the
Court can take notice of such changes. If the Court finds that the judgment of the Court cannot be carried into effect because of change of
circumstances, the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such
event. If the property which is the subject matter of suit is no longer available, then the Court will take notice of such event. In short, the Court
takes notice of subsequent events to shorten litigation to preserve rights of both the parties and to subserve the ends of justice.
By these principles, it is manifest that in view of the stand taken by the first respondent/plaintiff, subsequent events brought to my notice would
not, in any way, help the appellants. as the. controversy still continues.
Before parting with this case, I shall mention that if really there is any proposal to take the present appellants as fresh tenants in respect of the
suit premises, it would be desirable to consider the request of the appellants for entering into a new contract on the basis of the agreed enhanced
rent by forgetting the past events. To put it in a nutshell, for the ''sin'' committed by the deceased, i.e., the head of the family, his legal
representatives need not be punished.
For the reasons indicated above, I find no merit either in C.M.P. Nos.15438 and 15439 of 1999 or in the Second Appeal. In the result, the
Second Appeal as well as C.M.P. Nos. 15438 of 15439 of 1999 are dismissed. The Judgment and decree of the Courts below are confirmed.
No costs.