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A. Karuppiah Vs. B. Vaithianathan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberL.P.A. No. 35 of 1996 and C.M.P. No 2840 of 1996
Judge
Reported in1999(2)CTC741
ActsCode of Civil Procedure (CPC), 1908 -- Sections 9; Pondicherry Buildings (Lease and Rent Control) Act, 1969 -- Sections 2(10), 10(1), 14 to 16 and 30; Transfer of Property Act, 1882 -- Sections 105; Constitution of India -- Article 14
AppellantA. Karuppiah
RespondentB. Vaithianathan
Appellant AdvocateMr. S.V. Jayaraman, Senior Counsel for ;M/s. N. Maninarayanan and ;P. Renuka, Advs.
Respondent AdvocateMr. AR.L. Sundaresan, Adv.
Cases ReferredEast India Corporation Ltd. v. Shree Meenakshi Mills Ltd.
Excerpt:
tenancy - eviction - section 9 of code of civil procedure, 1908 and sections 2 (10), 10 (1), 14 to 16 and 30 of pondicherry buildings (lease and rent control) act, 1969 - whether defendant tenant within meaning of section 2 (10) - section 2 (10) defines tenant as any person by whom or on whose account rent is payable for buildings - nature, contents and construction of agreement between defendant and plaintiff proved it to be lease deed - defendant declared tenant within meaning of section 2 (10). - - (iii) that the court below failed to see that the defendant got into possession of the two shops not as a tenant but as a licensee; (vi) that even otherwise the learned district judge failed to see that there is no bar in the civil court entertaining the suit for recovery of possession.....orderjudgement pronounced by v. kanagaraj, j.1. the above appeal is preferred under clause 15 of the letters patent challenging the judgment and decree dated 30.6.1995 made in a.s.no. 249 of 1989 by the single judge of the appellate forum of this court allowing the above appeal preferred by the respondent herein against the judgment and decree dated 5.4.1988 made in o.s.no. 4 of 1987 by the court of additional district judge, pondicherry at karaikal thereby dismissing the suit filed by the respondent herein praying 'for the recovery of possession of the suit property from the defendant, who is the appellant before us. 2. the respondent herein has filed the suit before the trial court contending that on.7.4.1980 he purchased a building site and for the purpose of constructing the building,.....
Judgment:
ORDER

Judgement pronounced by V. Kanagaraj, J.

1. The above appeal is preferred under Clause 15 of the Letters Patent challenging the judgment and decree dated 30.6.1995 made in A.S.No. 249 of 1989 by the single Judge of the appellate forum of this Court allowing the above appeal preferred by the respondent herein against the judgment and decree dated 5.4.1988 made in O.S.No. 4 of 1987 by the Court of Additional District Judge, Pondicherry at Karaikal thereby dismissing the suit filed by the respondent herein praying 'for the recovery of possession of the suit property from the defendant, who is the appellant before us.

2. The respondent herein has filed the suit before the trial Court contending that on.7.4.1980 he purchased a building site and for the purpose of constructing the building, he entered into Ex.A.1 agreement deed dated 20.3.1995 with the appellant thereby agreeing, on certain terms and conditions, to construct a shop structure in an extent of 16' x 17' and to lease out the same in favour of the appellant to make use of the same for his business.

3. As per the terms and conditions agreed under Ex.A.l by the respondent and appellant, an advance amount of Rs. 20,000 had been paid by the appellant in favour of the respondent with the assistance of which the respondent should finish constructing the building in three months and hand over possession of the same with the appellant; that from out of the amount of Rs. 20,000 paid in cash by the appellant, the respondent should return Rs. 10,000 in three months; that from the remaining amount retaining as advance, an amount of Rs. 5,000 the rest of the amount of Rs. 5,000 had to be adjusted from the monthly rents at the rate of Rs. 350 per mensum for the subsequent rental year; that in case of default in the return of Rs. 10,000 by the respondent in three months from the date of agreement, till the time of return of the same, the appellant need not pay any lease rent for the building to be occupied by him and that the appellant would have no right of subletting the building.

4. According to the above agreement, three shop structures were constructed in a row in the said vacant site, which came to be numbered as Door No. 64 in T.S. No. 6, Ward-F, Block 11, from out of which two shops were occupied by the appellant from September, 1985; that from out of the sum of Rs. 20,000, the respondent/plaintiff returned a sum of Rs. 10,000 to the appellant/defendant but there was no rental agreement entered into between the parties regarding the two shops occupied by the appellant herein; that there were also other transactions of purchase of bicycles etc. by the respondent from the appellant for certain amounts; that the appellant paid the respondent on variousdates ranging from 9.4.1986 to 27.5.1986, in cash, a total sum of Rs. 15, 859 including the sum of Rs. 10,000 retained by him from out of the original payment of Rs. 20,000; that the appellant in spite of having occupied the shops in September, 1985 did not choose to adjust the rents from out of the said sum of Rs. 15, 859 payable by the plaintiff, thus obviously showing that he is not a tenant and that the appellant agreed to vacate the two shops, which are in his possession, provided the respondent was prepared to return the sum of Rs. 15,859.

5. The further case of the respondent/plaintiff is that in spite of the said amount having been offered, the appellant did not come forward to surrender possession of the two shops on receipt of the said sum but wanted the respondent to agree for a usufructuary mortgage of the two shops for which the respondent was not agreeable and hence the respondent issued Ex.A.2 Lawyer's Notice dated 5.10.1986 thereby calling upon the appellant to vacate the premises on receipt of the amount of Rs. 15,859 due to him and the appellant issued the reply in Ex.A.3. dated 21.10.1986 alleging that besides the advance amount of Rs. 20,000 paid on the date of agreement, he had also made further payments upto Rs. 27,000 to the respondent which the respondent would deny vehemently besides ascertaining that even from out of the amount of Rs. 20,000, he had returned Rs. 10,000 as agreed upon.

6. The respondent would further contend that he was always ready and willing to pay the amount of Rs. 15,859 but the appellant does not come forward to vacate the building handing over vacant possession and that for the damage caused to the building, the amount should be adjusted from out of the said amount of Rs. 15,859; that there was no rental agreement between them and since on the date of agreement, on 20.3.1985, the property was a vacant site, the said agreement cannot be relied upon as a tenancy agreement and hence the appellant has no legal right to continue to be in possession of the premises and hence the suit for recovery of possession.

7. On the contrary, the appellant, as per his written statement, besides generally denying the allegations of the plaint, would also specifically allege that the trial Court had no jurisdiction to adjudicate on the suit since the subject was relating to the eviction of a tenant from the building in his occupation at Karaikal; that he occupied the building only as a tenant; that the Civil Court's jurisdiction in the matter of eviction has been expressly taken away by the special statute 'The Pondicherry Buildings (Lease and Rent Control) Act, 1969; that the plaintiff was therefore liable to be non-suited on the question of jurisdiction; that further it was false to allege that this defendant paid only an amount of Rs. 20,000, but a total amount of Rs. 47,000 and only to suppress this fact, the plaintiff had come forward to file the suit; that having categorically admitted in the suit notice that the construction was completed as per the agreement, it was not open for the plaintiff then to take a different stand; that the said agreement was fully acted upon.

8. It was further contended by the appellant that though the debit entries, subject to their accuracy are admitted, the assurance said to have been orally given by the defendant, had been emphatically denied; that there had been two independent jural relationship, namely (i) as the landlord and tenant of the building and (ii) as the shop keeper and customer; that the liability of the plaintiff to the defendant had to be worked out in a separate suit since large amounts of money advanced by the defendant were held by the plaintiff for adjustment towards rent and under such express understanding, the question of non-payment of rent did not at all arise, further denying the other allegations, such as that the plaintiff was prepared to pay the amount of Rs. 15,859, the unauthorised putting up of a tin sheet roof and the apprehension of action by Municipality, the defendant would specifically allege that there was no cause of action either before the Trial Court or before the Rent Controller since the defendant had not rendered himself liable to be evicted either under the common law or under the special enactment; that the suit was not properly valued for the purpose of court fees and jurisdiction since at any rate, the market value of the building was not less than Rs. 75,000 and on such grounds, the defendant would pray to dismiss the suit with costs.

9. Based on the above pleadings by parties, the trial Court had framed seven issues for determination of all the questions involved in the suit and had held the trial, in which the plaintiff would examine himself as the only witness on his behalf as P.W.1 and would mark four documents as Exs. A.1 to A.4, Ex.A.l being the agreement dated 20.3.1985, Ex.A.2 being the Lawyer's Notice dated 5.10.1986, Ex.A.3 being the reply notice dated 21.10.1986 and Ex.A.4 being the statement of accounts and of the part of the defendant, he would not only examine himself as D.W.1, but also would examine yet another witness viz., Jayakrishnan as D.W.2 and the documents marked on the part of the defendant was nil. The Trial Court, in consideration of the facts and circumstances as pleaded and broughtforth by the parties and in the further consideration of the oral and documentary evidence placed on record and upon hearing both the parties fully, would ultimately dismiss the suit with costs holding the defendant a statutory tenant and further holding that the trial Court cannot pass a decree for eviction in a suit for recovery of possession.

10. Aggrieved, the plaintiff had preferred an appeal in A.S.No. 249 of 1989 on certain grounds offered as per the Memorandum of Appeal submitted before the single Judge of this Court and the main grounds of appeal are: (i)that Ex.A.l does not create any tenancy and that there is no relationship of landlord and tenant; (ii) that there was no fresh tenancy after completion of the building since there cannot be any tenancy agreement in respect of a building to come into existence; (iii) that the Court below failed to see that the defendant got into possession of the two shops not as a tenant but as a licensee; (iv) that parties to Ex.A.l contemplated creation of tenancy in future and there was no fresh agreement after the building was erected; (v) that the learned District Judge erred in holding that the defendant would be a tenant within the meaning of Pondicherry Buildings (Lease and Rent Control) Act and the reasons therefor areerroneous; (vi) that even otherwise the learned District Judge failed to see that there is no bar in the Civil Court entertaining the suit for recovery of possession and granting a decree and that the bar under Section 10(1) of the Pondicherry Buildings (Lease and Rent Control) Act will not prevent the Civil Court from entertaining the suit and (vii) the learned District Judge ought to have seen that the defendant cannot be deemed to be a tenant and that he is bound to surrender possession one the plaintiff paying him the amount due as per Ex.A.l and inasmuch as the plaintiff is willing to pay the sum of Rs. 15,859 the defendant is bound to surrender possession. The appellate Court upon hearing the counsel for the appellant and the respondent therein and appreciating the evidence pertaining to the facts and circumstances of the case in its own way, has ultimately allowed the appeal setting aside the judgment and decree dated 5.4.1998 passed by the trial Court further passing a decree as prayed for in favour of the plaintiff but without costs.

11. It is only testifying the validity of the judgment and decree dated 30.6.1995 passed by the appellate Court in A.S.No. 249 of 1989, the defendant in the suit has come forward to prefer the above Letters Patent Appeal on certain grounds, such as, (i) that the learned Judge erred in holding that there is no relationship of landlord and tenant established under Ex.A. 1; (ii) that the language used and terms employed in Ex.A.l clearly establish the relationship of landlord and tenant and the very suit filed for eviction in the Civil Court is not maintainable; (iii) that the learned Judge erred in holding that there was no single material or legal evidence to show that the defendant was in occupation of the building as tenant; (iv) that the learned appellate Judge was in error in holding that Ex.A.1 is merely an agreement and not a rent deed; (v) that the learned Judge was equally in error in further holding that simply because the rent and rentals have been referred to in Ex.A.l, it cannot be held that it is a rent deed; (vi) that the learned Judge having rightly held that the intentions of the parties have to be gathered and ascertained, failed to note that the possession of the defendant was only as a lessee and not otherwise much less as a licencee as advocated by the plaintiff; (vii) that the learned Judge has lost sight of the fact that clauses 2 to 4 of Ex.A.1 agreement clearly make out the purpose and object of getting the defendant into possession is only as tenant and hence admittedly when Ex.A.l has been acted upon, the status of the defendant is only that of a tenant; (viii) that the learned Judge was in error in holding that looking at the recitals of Ex.A.l, it is merely an agreement and not a rent deed; (ix) that the learned Judge was in error in holding that in substance the recitals of Ex.A. 1 contemplate only the mode of repayment and the term 'rent' and 'rental' are only casual and do not indicate the relationship of landlord and tenant; (x) that the learned Judge was in error in holding that the conditions contemplated under Section 105 of the Transfer of Property Act has not been satisfied; (xi) that the learned Judge has further failed to note that the defendant satisfied the requirements of definition of 'tenant' under the Pondicherry Buildings (Lease and Rent Control) Act, 1969 and therefore the existence of the relationship of landlord and tenant between parties cannot be denied' (xii) that the learned Judge was in error in accepting the evidence ofP.W.1 and rejecting that of D.Ws. 1 and 2; (xiii) that the learned Judge had again erred in not considering the decisions cited on the part of the appellant herein.

12. During arguments, the learned counsel appearing for the appellant besides laying emphasis on the grounds as broughtforth in the Memorandum of this Letters Patent Appeal, would further contend that the questions that are to be decided by this Court are (1) whether the defendant is the tenant within the meaning of Section 10 of the Pondicheny Buildings (Lease and Rent Control) Act, 1969? and (2) whether the plaintiff has proved that the defendant was allowed to occupy the building as a permissive occupier? The learned counsel would exhort that under such circumstances, unless the tenant abdicates his right of tenancy, Section 10 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 does operate and in such event, the answer is only a petition under the provisions of the said 'Act' and not a suit as it had been instituted before the trial Court. The learned counsel would then cite the relevant passages from the plaint pleadings in support of his contention that the contract entered into is only a rent deed and not a mere agreement, as it had been wrongly held by the first appellate Court. The learned counsel would also contend that the Law is settled long back to the proposition that without pleading, no evidence could be let in. The learned counsel would further contend that the jurisdiction of the Civil Court in the present case is barred and would cite a judgment of the Supreme Court in M/s. East India Corporation Ltd. v. Shree Meenakshi Mills Ltd., : [1991]2SCR310 wherein it is held that

'Section 10 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 lo 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.'

'... 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 explicitly show that, subject to the extraordinary powers of the High Court and the Supreme Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute.'

It is further held that

'in a suit for eviction, the procedure stipulated in the second proviso to Section 10 was not complied with. At the time of the institution of the suit, the building in question did not come within the ambit of the Act, owing to the exclusionary provision contained in Cl. (ii) of Section 30, but after leave to appeal was granted by the Supreme Court the applicability of the Act was extended to thebuilding by reason of the decision of the Supreme Court declaring the invalidity of Cl. (ii) of S. 30 on account of its inconsistency with Article 14 of the Constitution.

Held, whatever be the consequence of the said declaration - Whether it has rendered the statutory provision null and void and of no effect, or, merely inoperative unenforceable and dormant to be revitalised on subsequent removal of the constitutional ban in either event, the Civil Court acting without the aid of the exclusionary provision in CC (ii) of Section 30, during the period of invalidity, has become coram non judice (Court having no jurisdiction to decide the matter) and its proceedings resulting in the decree a nullity.'

13. On the other hand, the learned counsel appearing on behalf of the respondent besides confirming the pleadings, would also justify the lower appellate Court's Judgment regarding the vital aspects such as (1) that there is no relationship of landlord and tenant established under Ex.A.l; (2) that the suit as framed and filed before the trial Court is maintainable on the question of jurisdiction and on the point of maintainability even admitting the contents and averments of Ex-A.l agreement; (3) that the defendant failed to establish that he was in occupation of the premises as a tenant; (4) that Ex.A.l is merely an agreement and not a rent deed; (5) that the status of the appellant was only that of a permissive occupier and not a tenant; (6) that in riot complying with the conditions contemplated under Section 105 of the Transfer of Property Act, under no circumstance, the agreement under Ex.A. 1 could be termed as a lease deed; (7) that the Pondicherry Buildings (Lease and Rent Control) Act, 1969 is not applicable to the case in hand and hence it is false to allege on the part of the other side that for eviction of a tenant; recourse should have been made under the said Act but under Ex.A.l, the appellant was only permitted to occupy the building on a mere agreement and with understanding that the moment the amounts received from the appellant had been returned by the respondent, the appellant should vacate the building since the permission to occupy the building comes to an end with the return of the amount, thereby meaning that the permission is withdrawn and the same could be made only in a suit before the Civil Court.

14. So far as the evidence adduced by parties is concerned, on the part of the plaintiff, the plaintiff himself has appeared as the sole witness as P.W.1 and on the part of the defendant, besides himself adducing evidence as D.W.1, the defendant would also examine one S. Jaya Krishnan as D.W.2.

15. So far the evidence of P.W.1 Vaithianathan is concerned, he would speak about the purchase of the suit site in the year 1980 for the purpose of constructing the shop structures. He would further depose that the defendant approached him with the request to lease out two shops constructed on the Northern side and since he revealed his requirements of funds for the said construction, the defendant offered to pay a sum of Rs. 20,000 as advance resulting which Ex.A. 1 agreement was entered into in between them. This witness would then speak about the terms and conditions of the rental agreement furthersaying that after completion of the shop structures, they intended to enter into a regular rental agreement; that he completed construction of the shop structures in August, 1985 that there after the defendant wanted him to hand over the key of the shop to store some stock further agreeing to reach at the regular rental agreement at a relevant point of time, but till date, there was no rental or lease agreement executed between them in respect of the suit property; that no other terms or conditions of lease regarding the term of tenancy such as payment of electricity charges and property tax; that on his part, he required the defendant to agree for a usufructuary mortgage and the defendant wanted only to advance the amount as loan and to adjust the interest towards rent, which was not agreeable to him and out of the advance amount, only a sum of Rs. 5,000 was with him and that he owed a sum of Rs. 850 on sundry items and would mark Exs.A.2 to A.4; that as per Ex.A.4, the defendant had debited a sum of Rs, 5,000 on his own accord as advance; that there was no rental or lease agreement between them and the defendant was not a tenant of the suit property at all; that the defendant was only permitted to keep his articles in the suit property and that nothing was done according to the recitals of Ex.A.I; that the defendant started making use of the premises providing tin sheet projection in front of the shop without his permission thus remaining in unauthorised occupation. This witness would ultimately pray to decree the suit as prayed for.

16. In the cross examination, this witness would admit that the negotiations between himself and the defendant got reduced into writing as Ex.A.1, excepting which there was no other agreement, that one of the attestors to Ex. A. 1 one Jayakrishnan was brought by the defendant and the other witness Balakrishnan was his father; that receiving a sum of Rs. 20,000 from the defendant, he constructed the building and the delay in completion of the said construction was only due to him and not due to the fault of the defendant; that the suit had been filed on the basis of Ex.A.l and on his instructions and that he did not maintain any account except Ex.A.4. He would deny the suggestions that the defendant occupied the building as a tenant as per the terms of Ex.A. 1 and that since he could not him under the provisions of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, he filed the suit vexatiously further denying the payment of sum of Rs. 27,000 by the defendant at a later stage. He would admit that the allegation that the defendant asked him to create the usufructuary mortgage was only oral.

17. Among the defence witnesses, the defendant appearing as D.W.1 would depose that he got acquaintance with the plaintiff through one Jayakrishnan of Karaikal and expressed his desire to start a cycle shop at Karaikal, himself being a a native of Sivaganga District and he informed him that there was no building for his ready occupation but a suitable vacant site was available and if he was willing to finance the construction, the owner will construct the building and lease it out to him; that on approaching the plaintiff,he demanded a sum of Rs. 20,000 as advance further saying that he would construct the shop structure in three months and will lease it for his occupation; that other terms and conditions were also agreed upon and on such terms, the lease agreement was reduced into writing on 20.3.1985 under Ex.A.1 and the said agreement was drafted by one Raghavachari Iyyangar, the plaintiff's clerk and the agreement was attested by the father of the plaintiff and Jayakrishnan; that in August, 1985, completing the construction, he got inducted into possession of two shops and inaugurating the same in the traditional manner, he stocked the goods worth Rs. 3,00,000 in the shop.

18. This witness would further depose that besides the said advance amount of Rs. 20,000 paid under Ex.A. 1 on the request of the plaintiff for some more advance for the completion of the building work promising to return the same in a year, he also lent it and those amounts have been returned to him; that as per Ex.A. 1, he is liable to pay rent only after the return of the moneys advanced, but without returning the said advance, the plaintiff asked him to pay the rent and obliging his landlord he paid rent for six months at the rate of Rs. 350 per month and thereafter stopped payment since the money advanced was not returned as promised; that in respect of the building the relationship between himself and the plaintiff was one of the landlord and tenant and no other relationship of any kind existed; that neither he is liable to surrender possession nor to be evicted from the premises; that the trial Court had no jurisdiction to pass a decree for possession nor to be evicted from the premises; that the trial court had no jurisdiction to pass a decree for possession since he was a statutory tenant. In the cross examination, this witness would affirm all the material particulars that he deposed in the chief-examination.

19. One of the attesting witnesses to the agreement under ex.a.l viz. S. Jayakrishnan appearing as D.W.2 would depose to the effect that he attested the contract under Ex.A. 1 in between the plaintiff and the defendant since being well known to both; that for the construction of the building, a sum of Rs. 15,000 was given and it was agreed that the defendant should pay a rent of Rs. 350 per month, the rent was actually fixed only at Rs. 350 per month, that under the name and style of 'Jyothi Cycle Company' a cycle shop was inaugurated by the Regional Sales Manager of T.L.S. Cycles, inviting about 500 people. He would deny the suggestion that the defendant took the key from the plaintiff for having a look at the shops and occupied it and then refused to vacate. In the cross examination, this witness would depose that 15 days- prior to the opening of the shop, the defendant occupied the shop; that he does not know the exact date of tenancy agreement; that it was further agreed that the defendant should pay the rent on the date on which the key was handed over and the period of tenancy was not fixed nor the payment of electricity or property taxes; that according to him Ex.A.l is alone the rental agreement and that he does not know whether the terms and conditions of Ex.A.l came into effect or not.

20. With the facts and circumstances as pleaded by parties and the evidence let in by both and appreciating the same in its own way, the trial Court dismissed the suit. Then the first appellate Court had allowed the appeal and passed a decree as prayed for. In consideration of all these and in further consideration of the grounds of the Letters Patent Appeal and upon hearing the learned counsel for both, the main points that arise for determination are:

1. Whether the trial Court had jurisdiction to entertain the suit in the light of Ex.A.l and during the existence of the Pondicherry Buildings (Lease and Rent Control) act, 1969?

2. Whether the defendant is the tenant within the meaning of Section 2(10) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 as a result of which to hold that only an eviction petition would lie under Section 10. of the said Act?

3. Whether the agreement under Ex.A. 1 was acted upon?

4. Whether the plaintiff has proved that the defendant was allowed to occupy the building on a mere permission with condition that oh return of the amount received from the defendant, he should vacate the premises?

5. Whether the lower appellate Court is right in holding that Ex.A.l was merely an agreement and the same is not a rent deed, thereby justifying the suit filed by the plaintiff seeking delivery of possession of the suit properties?

POINTS NO.1TO3:

21. The suit is for recovery of possession of the suit building from the occupation of the appellant on receipt of a sum of Rs. 15,859 that is due to the defendant by the plaintiff and for costs. The entire case revolves around Ex.A.l agreement dated 20.3.1985 entered into in between the plaintiff and the defendant. Regarding the contents and coming into being of this exhibit, there is absolutely no controversy among parties. It is an admitted case on the part of the plaintiff that on receipt of an advance amount of Rs. 20,000 from the defendant, he constructed the suit property and yet another shop in a row on a vacant site that was already belonging to him. In the pleading of the plaint, it is barely stated that from September, 1985, the defendant was in occupation of the building though the plaintiff, of late would suggest to the defence witnesses that possession was not handed over by him, but under the pretext of looking at the shop, the defendant got the key and started dumping his stocks and refused to go out. On the contrary, the defendant's case is that from the date of execution of Ex A.1, he was a statutory tenant within the meaning of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 and the allegations that he was only a permissive occupier of the building and on return of the amount due, he must vacate the premises, as set up by the plaintiff are not only false and untenable but also without proof or evidence. Therefore, it is paramount on the part of the Court to go into the question, whether the defendant is a tenant within the meaning of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 so as to urge that only a rent control application underthe relevant provisions of the 'Act' before the competent Court of jurisdiction would lie and not a suit as it had been filed by the plaintiff, treating the tenant a permissive occupier of the premises and seeking eviction offering to return the amount of Rs. 15,859 due to the defendant.

22. It is the firm case of the defendant that he is a tenant of the premises and not a permissive or licesced occupier and he would greatly rely on Ex.A.1 agreement and would argue that a plain reading of the averments contained in Ex.A.l would more clearly reveal that the said agreement is only a rent deed and not a mere agreement as it is dubbed by the plaintiff to suit his convenience. But the plaintiff would persist that according to Ex.A.l, the defendant occupied the building, having advanced an amount of Rs. 20,000 and further having agreed to vacate the building the moment the amount was returned to him. The plaintiff greatly relies on the non-existence of the building itself, which is the subject matter of the dispute at the time that the said agreement had been entered into and hence would argue that even admitting the agreement, the relationship between the parties is not landlord -tenant but the owner-permissive occupier and the moment the amount that is due to the defendant is paid back, the defendant is bound to vacate the premises. The defendant would point out that still the plaintiff is only saying that he is prepared to either pay the amount of Rs. 15,859 as arrived at by him or ready to deposit the same into Court, if he is so ordered, but has not repaid even the admitted amount of Rs. 15,859. Further more, the defendant would allege that he had advanced Rs. 27,000 on some other occasion and had also paid six months' rent besides having deposited the advance and paid some other monies, which are borne by Ex.A.l agreement.

23. On such grounds, it is the defendant's contention that there had been two independent jural relationship existed between himself and the plaintiff, viz. (i) as the landlord and tenant of the building and (ii) as the shop keeper and customer, since certain sundry transactions had also existed in between them. The defendant would further reserve his right to file a separate suit pertaining to the liability of the plaintiff to the defendant since according to him, large amounts of money had been advanced by him and held by the plaintiff, besides adjusting certain amounts towards the rent. Hence, the defendant's specific stand is that there is no cause of action either before the trial Court or before the Rent Controller for the plaintiff since the defendant had not rendered himself to be evicted either under the common law or under the special enactment.

24. Leave it as it may, so far as this Court is concerned, it is to decide the question, whether it is a case which would fall under the scheme of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 so as to conclude that for the eviction of the tenant, the proceeding should be initiated in the appropriate Rent Control Tribunal or whether it is the trial Court, which is having competent jurisdiction to entertain the suit in a case of such nature, as one in hand. The trial Court itself has concluded that it has no jurisdiction to entertain the suit of the sort since it is the Pondicherry Buildings (Lease and Rent Control) Act, 1969, which is attracted to the facts and circumstances of the case adducing valid reasons forsuch conclusions to be arrived at. On the contrary, the first appellate Court could decide that a suit as it had been framed and instituted before the trial Court is proper in the circumstances of the case giving such interpretations to Ex.A.1 agreement and ultimately concluding that it is mere agreement and not a rental deed.

25. In order to solve the above questions, two aspects have to be decided; the first one a legal and the second factual. So far as the first aspect is concerned, the definition Section 2(1)) which defines the term 'tenant' and Section 10(1) which deals with the 'eviction of tenants' both under the Pondicherry Buildings (Lease and Rent Control) Act, 1969 are relevant to be considered and hence the relevant parts of these two Sections are extracted hereunder:

'Section 2(10) 'tenant' means any person by whom or on whose account rent is payable for a building...'

'Section 10(1): A tenant shall be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 14 to 16:

Provided that where the tenant denies the title of the landlord or claims rightof permanent tenancy...'

26. So far as the above Section 2(10) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 is concerned, the wording of the Section is simple and positive. The term 'tenant' has not been made to restrict strictly to mean only certain categories but has been liberally construed as 'any person by whom or on whose account rent is payable for a building.'

27. On the contrary, Section 10(1) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 dealing with 'eviction of tenants' is negative in approach and rigid in its construction stating that 'a tenant (who is described under Section 2(10) of the 'Act') shall not be evicted whether in execution of a decree or otherwise, except in accordance with the provisions of Sections 14 to 16 of the Act unless the tenant denies the title of the landlord or claims right of permanent tenancy.' The case in hand does not fall under the proviso to Section 10(1) since there is no denial of title of landlord by the tenant nor does the tenant claim right of permanent tenancy, so as to bring the case in hand under the purview of the said proviso. Hence, Section 10(1) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 is operative, so far as the case in hand is concerned, provides, the defendant falls within the meaning of 'tenant' described in Section 2(1)) of the 'Act' that 'any person by whom or on whose account rent is payable for a building.

28. Hence, so far as these two sections are concerned, the only point left with for proof is whether the defendant would fall within the meaning of the 'tenant' described under Section 2(1)) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969. As mentioned supra, the Section is liberal in itsconstruction in permitting all those, by whom rents are payable for a buildingto be brought under the purview of the Act.

29. At this juncture, it is relevant to focus our attention on the case of theApex Court, cited by the appellant, as discussed in para No. 12 supra i.e. the casereported in M/s. East India Corporation Ltd. v. Shree Meenakshi Mills Ltd., : [1991]2SCR310 wherein Section to of the Tamil Nadu Buildings (Lease andRent Control) Act is found to prohibit the eviction of a tenant whether in executionof a decree or otherwise except in accordance with the provisions of that Section orSections 14 to 16. The scheme of the Tamil Nadu Buildings (Lease and RentControl) Act discussed supra in the above cited decision is applicable to thePondicheny Buildings (Lease and Rent Control) Act, 1969 and the provisions ofboth the Acts are similar and the language employed under both the Acts is generaland for Sections 10 and 14 to 16 in particular are identical to each other. Hence, theabove cited decision applies to the Pondicherry Buildings (Lease and Rent Control)Act, 1969, more particularly so far as the jurisdiction of the Civil Court isconcerned.

30. To apply the above norms enunciated in the above judgment by the Apex Court, we have to necessarily discuss the intention and conduct of parties in entering into the agreement under Ex,A.l, which could be inferred from the recitals of the said document in order to decide whether it is a rental deed so as to, be brought under the purview of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 or to conclude that it is a mere agreement or a licence as it is argued on the part of the plaintiff so as to justify the suit filed before the Civil Court for the eviction of the occupant.

31. From the construction of the very preamble itself, the intendment of parties to the agreement has been brought out in plain terms that it is a 'lease agreement regarding the shop' followed by recitals to the effect of parties agreeing to construct a shop structure measuring '16 x 17' and to lease it to the second party namely A. Karuppiah (the defendant) for payment of rent for the purpose of setting up business as seen in the second para of Ex.A.l agreement deed. In the third para it is seen that an amount of Rs. 20,000 has been paid by the defendant as advance followed by the recital that from out of the said amount an amount of Rs. 5,000 has to be retained as deposit amount and another Rs. 5,000 has to be deducted from the monthly rents from the date of his occupation of the building at the rate of Rs. 550 per month and at the rate of Rs. 400 per month as rent for the subsequent year. In the last but one paragraph it is again specifically stated that till the rest of the amount of Rs. 10,000 is repaid to the second party (the defendant) from out of the total amount of Rs.20,000 paid as advance by him, the second party (the defendant) need not pay the rent at all.

32. From the very wording of Ex.A.l hardly there could be any other rent deed reduced into writing in more clear terms than that of Ex.A. 1 right from the beginning to the end not only adopting the nomenclature 'lease agreement'regarding the shop but speaking all about as to how the monthly rents have to be deducted for the first year and the second year from out of the advance money paid by the tenant. There is absolutely no ambiguity occurred anywhere throughout the document so as to go into the 'depth and length' of the same as done by the first appellate Court. From the plain and simple language employed it is patently revealed in no uncertain terms that the Ex.A.l agreement is nothing but a rent deed wherein the terms and agreements of lease have been clearly established. Even from the narration of the mode of deduction of the monthly rents from the advance money, in the document it is revealed that the tenant is to occupy the building for two years or at least till the entire amount of Rs. 5,000 is deducted from the amount of Rs. 10,000 retained by the plaintiff. Just for the simple reason that the term of tenancy is not specified in the agreement, the lease agreement cannot be treated as a mere agreement or could it be said that the defendant is only a licencee or permissive occupier of the building. The theory, of late advanced regarding forcible possession by the defendant, is only a fare and an element of afterthought since in the plaint itself, the formal handing over possession to the defendant is not denied.

33. So far as the evidence of parties are concerned, on both sides, sticking to their respective stands taken in the pleadings, they would attempt to slightly enlarge the scope of their respective cases on facts. On the part of the plaintiff, he would only examine himself and in spite of his father being one of the attestors to Ex.A.1, he did not choose to examine either that witness or any other independent witness in support of his case. On the contrary, the defendant besides examining himself, had also examined the other attesting witness to Ex.A.l agreement. So far as the material particulars of the case are concerned, the evidence of both these witnesses is unequivocal. In short, the evidence of D.Ws. 1 and 2 is seen in adherence with the recitals of Ex.A.1 agreement. On the contrary, the evidence adduced by the plaintiff as P.W.l is quite contradictory and antagonistic to the recitals of Ex.A.1 agreement in spite of himself admittedly being a party to the said document. Less discussed about the evidence would serve the purpose better since the above case primarily is to be decided on points of Law at this stage.

34. Regarding appreciation of evidence by the lower Courts, the trial Court giving paramount consideration to the recitals of Ex.A.l document and in consideration of the intention of parties to the said document had ultimately held that the case would not be brought under the common Law before the Civil Court since according to the nature, contents and construction of the vital document Ex.A.1, it is a lease agreement deed and the defendant is a tenant and hence the only scope left with for the plaintiff is to file a petition with the Rent Controller under the Pondicherry Buildings (Lease and Rent Control) Act, 1969 and would reject the claim of the plaintiff for eviction of the defendant, not only on the point of jurisdiction but also adhering to the facts.

35. On other hand, the first appellate Court giving different interpretation to the recitals of Ex.A.1 agreement in para No. 13 of its judgment, would decide that the landlord-tenant relationship between parties has not been established in this case. We extract the said paragraph:

'If the language adopted in granting the lease is defective so as to fail to bring out the real intention of the grant or whatever that intention may have been, the grantee cannot be made to suffer for the effect. What was contemplated in substratum of the recitals found in Ex.A.1, was only the mode in which the respondent/ defendant is to be repaid the amount which has been paid already to the plaintiff as advance and that therefore, in my respectful considered view, the words of reference in Ex.A.l as 'rent' and 'rentals' is only 'casual' and do not in any way amount to a real rent and that therefore the landlord and tenant relationship between the parties herein has not at all been established in this case.'

36. We are further able to find that the first appellate Court has discussed the facts of the case as per the pleadings of parties from paragraph 1 to 10. It has further gone into the definition of 'lease' as defined under Section 105 of the Transfer of Property Act in para No. 11 and further offering the implications of the said definition in para No.12, would immediately jump to the conclusion in para No. 13 of its judgment that the landlord-tenant relationship between the parties has not at all been established in this case. It is only after arriving at this conclusion, in the subsequent paragraphs, the lower appellate Court starts discussing the merits of the case in the context of the judgment of the trial Court and application of the facts to the position of law in order to arrive at the final conclusion to allow the appeal holding that there was no single material and legal evidence to show that the defendant was in occupation of the suit property as a tenant. This is nothing short of proving the dictum 'play the game and frame the rules' since the first appellate Court having arrived at precondition had then discussed the merits of the case to suit the conclusions already arrived at, which is time and again discredited by the Apex Court.

37. The court below while discussing about the contents of Ex.A.l agreement remarks that the trial Court has considered 'casually but not to its depth and length and probed the matter accordingly' and therefore has interpreted the contents of the said document in a different manner and has arrived at a different decision than what had been arrived at by the trial Judge, So far as the language and construction of Ex.A.l is concerned, it is very simple and lucid and there is absolutely no place for any ambiguity or doubt to be entertained so as to go deep to know the meaning of the contents, which is a wasteful exercise and the meaning of the same as understood and adopted by the trial Judge is the exact and apt meaning that had been intended by parties at the time of entering into the said agreement. It is only the plaintiff, to suit his convenience, at a later stage has shifted his stance for which the defendant is not to be blamed. The interpretation given for the contents of Ex.A. l by the first appellate Judge to arrive at the conclusion that Ex.A.1 was a mere agreement under which the defendant was only a licencee and not a tenant and that no landlord-tenant relationship existedamong them is not only wrong but also contrary to the accepted norms by parties.

38. For all the above discussions, the Point No.3 above, whether the agreement under Ex.A.l was acted upon, in answered in the affirmative not only in consideration of the facts and circumstances of the case, especially to the recitals of the documents but on paramount consideration that the appellant/defendant had been inducted into possession of the suit properties immediately after their construction, in September, 1985, which is a strong point in favour of the appellant especially in the absence of any evidence to the plaintiff's version that the appellant/defendant on receipt of the key, stored his materials inside and refused to vacate thereafter. Absolutely no evidence comes fourth in support of this version much less in an independent manner. Hence, for Point No.3, it is hereby answered that Ex.A.l agreement is acted upon.

39. So far as Point No.2 is concerned, the defendant is declared a tenant within the meaning of Section 2(10) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 and hence for his eviction, only an application under Section 10 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 before the Rent Controller is proper. Point No.2 is answered accordingly.

40. So far as point No.l is concerned, it could be answered only in result of the answers obtained for Points No.2 and 3 and as such, since Point NOS. 2 and 3 have been answered in favour of the defendant to the effect that Ex.A.l has been acted upon and that an application under Section 10 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 would only lie before the Rent Controller and it goes without saying that it is not the trial Court, which has jurisdiction to entertain the suit and hence filing of the suit before the Civil Court (Trial Court) is improper and out of jurisdiction. Point No. 1 is answered accordingly.

POINT NO 4:

41. So far as Point No.4 is concerned, though it is the contention of the plaintiff that the defendant is a licencee or a permissive occupier, even to that extent the plaintiff does not stick to since in his evidence he has differed from the said stand and has stated that getting the key to look into the shops, the defendant occupied the same for storing his materials, never to vacate the same thereafter. If it is true, such an act is nothing but wrongful possession by the defendant and an illegal act, against which not the least step seems to have been taken on the part of the plaintiff to vacate the defendant from the date of occupation. But, at the same time, only admitting his Occupation of the building, the plaintiff has cdme forward to file the suit for recovery of possession of the suit building in order to evict the defendant. Not an iota of evidence has been placed in proof of the plaintiff's contention nor is the version of the plaintiff true regarding the occupation of the suit premises by the defendant. Moreover, evidence is available in abundance including certainadmission made on the part of the plaintiff not only in his deposition in having treated the defendant as a lessee but also bnly haying fully agreed for the lease of the building on various terms, the plaintiff had duly entered into Ex.A.1 lease agreement. The defendant oh his part has established that he is a legal tenant and at no stretch of imagination, he could be termed either as a licencee or as a permissive occupier of the premises so as to order him to vacate the premises on receipt of the amount offered. Moreover, the plaintiff is only giving an assurance to pay the sum of Rs. 15,859 without either paying the same or depositing in the Court. Hence, it is decided that the plaintiff has failed to prove that the defendant is not the tenant of the suit property but a licencee or a permissive occupier on a mere agreement. This point is answered accordingly.

POINT NO.5

42. In view of the answers arrived at to the above four points, it is hereby held that the lower appellate Court is wrong in holding that Ex. A. 1 was a mere agreement and not a rent deed and that the Civil Court had jurisdiction to entertain the suit thus finally allowing the appeal and decreeing the suit filed by the plaintiff for delivery of possession of the suit property. We further hold that the trial Judge is right not only in his approach but also on its conclusions arrived at holding the defendant a tenant and accepting Ex.A-1 as a rental agreement and finally dismissing the suit. We see nopatent error or perversity in approach so far as the judgment and decree of the trial Court is concerned, so as to give way for the first appellate Court to interfere with the same. The line of approach and appreciation of evidence by the trial Court is on the expected legal norms and hence no interference has been warranted with the well considered and well merited judgment of the trial Court.

43. In result, the above Letters Patent Appeal succeeds and the same is allowed with costs throughout. The judgment and decree dated 30.6.1995 made in A.S.No. 249 of 1989 by the single Judge of this Court is hereby set aside. The judgment and decree dated 5.4.1998 made in O.S.No.4 of 1987 by the Court of Additional District Judge, Pondicherry at Karaikal in dismissing the suit filed by the plaintiff for eviction of the defendant from the suit premises with costs is upheld and restored.

44. Consequently, C.M.P.No.2840 of 1996 is closed.


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