V. S. Rahmathullah vs A. Sivaperumal

Sathiadev, J.—Plaintiff is the petitioner and defendant is the respondent. O.S. 276 of 1984 was filed in the District Munsif''s Court, at

Salem, claiming that plaintiff is a tenant in respect of a vacant site belonging to defendant, and that the monthly rent is Rs. 100 and it was the

plaintiff, who had put up a thatched shed measuring 55 ft. ? 20 ft. in the north and another of the same measurement in the southern side, and that

on all four sides, the area covered by the in sheets, as he is dealing in scrap iron. Defendant filed R.C.O.P. 168 of 1981 for eviction, on the ground

of wilful default and other grounds, even though regularly rents have been paid. When plaintiff wanted to lay a new thatched roof in the place of the

existing one which had become worn out, defendant claimed higher rent, and motivatedly filed proceedings before the Rent Controller, even though

the provisions of the Act lit of 1960 would not apply to the suit property, and therefore he had filed this suit for permanent injunction to restrain

defendant from interfering with his rights to put up new thatched roof in the place of old thatched roof. Defendant, who is residing in the adjoining

property, stated that the suit property with the superstructure was leased out for Rs. 100 and it is not true to claim that only vacant site vas taken

on lease and the proceedings for eviction are pending and that the suit as filed is not maintainable, as the provisions of Act 18 of 1960 would apply

to the suit property. Pending disposal of suit, plaintiff had asked for the relief claimed in the suit as an interim relief. Originally, the trial court

rejected the petition, and on appeal in C.M.A.32 of 1984 the matter having been remitted by the sub court, on a consideration of the documents

filed, the petition was ordered, and on the appellate court holding that the court had no jurisdiction to hear the petition in view of Act 18 of 1960

being applicable to the suit property, this revision petition is preferred. Mr. Raghavan learned counsel for plaintiff, in his elaborate submission,

would submit that in view of the decision in Sanjeevi Naidu v. Chittibabu Mudaliar, the nature of legal right between the parties itself being at issue

and seriously disputed, and as plaintiff would suffer unless the relief claimed by him is granted; this is a fit case in which the appellate Court ought to

have proceeded on the basis that Ex.B.7 cannot be acted upon and that by granting interim relief, no prejudice could have been caused to

defendant, more particularly, when plaintiff had not asked for reimbursement of the cost incurred in replacing the thatched roof, from time to time,

during the pendency of the suit, as well as the Rent Control proceedings. He would also add that, when defendant was unable to prove by any

clinching document about teasing out a building as defined under Act 18 of 1960, the legal presumption that could be drawn is to hold that a civil

court alone had jurisdiction. On the scope of S.22 of the Act, he submits that, it has limited application and does not comprehend a circumstance

which is faced by the plaintiff.

Plaintiff has filed the suit only after defendant had instituted proceedings under Tamil Nadu Act 18 of 1960. He was fully aware that relating to

the superstructure over the site, a claim had already been put forth that it belongs to defendant. In spite of it, he had chosen to file the present suit.

No doubt, he has already resisted the proceeding before the Rent Controller, and instead of availing of remedies under the said Act, he had chosen

to file the present suit, not for a declaration nor for any other substantial relief, but only for an interim injunction to restrain defendant, from

preventing plaintiff from replacing the thatched roof. What he had prayed for in the main suit, is the relief which he had asked for, in the

interlocutory application. Unless the extraordinary circumstance are made out, what could be granted in the main suit, cannot be given by way of

interim relief.

Further, the document filed viz., Ex.B7, which is a rent deed between plaintiff and defendant, contains a recital that as early as January, 1980, a

thatched superstructure had existed. According to the plaintiff, he took the vacant site on lease in 1969. Yet in Ex. B7 this factor having not been

disclosed, the burden is upon plaintiff to show that this document cannot be acted upon. The only plea put forth is that, it does not bring about the

truthful position and cannot be acted upon. A Court could only act upon at this stage on a prima facie material placed before it, and there is no

warrant to hold at this stage that Ex. B7 is not a genuine document. This aspect would suffice for the purposes of this petition to hold that the

superstructure belongs to defendant, and if so, then prima facie the only conclusion that could be drawn is that provisions of Act 18 of 1960 apply

to the plaint property. That being so, the petition as filed, is not maintainable in the civil court.

Mr. Raghavan, learned counsel for the plaintiff, had relied upon Sanjeevi Naidu v. Chittibabu Mudaliar 1953-1-M.L.J. 260, which dealt with

S.7(1) of Act XXV of 1949 and in which it was held that, if the Controller decides that the denial of title is bona fide, and records a finding to that

effect, then the landlord will be entitled to sue for eviction of tenant in a civil court.

Salay Md. Satt v. J.M.S. Charity1, holds that, both the form and substance of the transaction between the parties must be taken into account to

find out whether a lease is in respect of a vacant land or of a building within the meaning of Act 18 of 1960. Therefore, the appellate Court had

taken into account the form and substance of Ex.B-7. Hence no objection could be taken to the conclusion arrived at by it.

It is made clear that the conclusions and findings arrived at by the appellate Court and this Court can never be looked into, while disposing of

the suit or the Rent Control proceedings, and in respect of each proceeding, the dispute between the parties will have to be decided on the merits

of the matter. Hence, this revision petition is dismissed with costs.