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M. Manohara Chetty and ors. Vs. C. Coomaraswamy Naidu and Sons - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ466
AppellantM. Manohara Chetty and ors.
RespondentC. Coomaraswamy Naidu and Sons
Excerpt:
.....13(4)--sections 17(4), 13(4) ; [a.p. shan c.j.,f.m.ibrahim kalifulla & v. ramasubramanian, jj] appeal right of bank held, the right of the bank is not automatically suspended upon filing of an appeal by borrower under section 17 of the securitisation act and the bank as secured creditor can proceed to auction secured asset where no stay is granted by the tribunal. there is nothing in section 17 of the securitisation act which would indicate that the legislature intended that there would be automatic stay of recovery proceedings by bank under section 13(4) on filing an appeal by borrower under section 17. use of the expressions if and then under section 17 would not mean that the bank can take one or more measures laid down under section 13(4) only if the tribunal declares that the..........instructed in the law, could have legitimately rested its determination that possession of the suit verandah was with the respondent and not with the appellants at the time of the institution of the suit.10. the law by no means regards admission as conclusive proof of the matters admitted. this is because to a court of law admissions are but statements which do no more then suggest an inference as to some fact or facts in issue. (see section 31 and 17 of the indian evidence act, 1872). it is, therefore, important that the court should examine any given admission inside out to see if it suggests any clear inference on the fact in issue against the party making it. for a court to draw an adverse inference against a party on the basis of what he is stated to have admitted, the admission.....
Judgment:

V. Balasubrahmanyan, J.

1. This second appeal arises out of a suit for injunction. The subject-matter of the suit is a verandah in a building in N.S.C. Bose Road, Madras City. The first appellant Manohara Chetty, is the owner of the building. The building has a ground floor and a first floor. The first floor has four rooms and a verandah. The respondent, a book-selling firm, is a tenant of the appellant. According to the appellant, the respondent's tenancy comprised the four rooms on the first floor, excluding the varandah. The 1st appellant came to Court and asked for an injunction against his tenant, the respondent, because, according to him, the respondent was attempting to occupy even the first floor verandah which was not part of the tenancy in his favour.

2. The respondent resisted the suit, asserting that its tenancy comprised the whole of the first floor, and this included the verandah as well.

3. The trial Court recorded a finding that the respondents tenancy of the first floor included the verandah and hence there was no question of the respondent interfering with any one else's possession in that portion. On this basis, the trial Court dismissed the suit. On appeal, the appellate Court disagreed with this finding of the trial Court. The appellate Court found that only four rooms in the first floor had been let out to the respondent, and the verandah had always been retained with the owner. Notwithstanding this finding as to the subject-matter of the tenancy, the appellate Court proceeded to confirm the dismissal of the suit on another ground, namely on the aspect of possession. On this aspect the appellate Court recorded a finding that the first appellant was not in possession of the verandah on the date of the suit. According to the appellate Court, the verandah was in the possession of the respondent, as on the date of the suit, the respondent having earlier trespassed into that portion.

4. The first appellant's case had been that he had let out the verandah to the 2nd appellant. The appellate Court did not reject this case of the 1st appellant, but recorded a finding that the respondent had dispossessed the 2nd appellant from the verandah. This finding was sought to be supported by reference to what the appellate Court recorded as admissions made by the first and second appellants while giving evidence at the trial.

5. The finding, which the appellate Court has rendered in the manner aforesaid, is canvassed by he appellant-landlord in this second appeal. His learned Counsel, Mr. M.P. Subramanian, while relying on the appellate Court's favourable finding that the respondent had no claim on the verandah as a tenant, did not urge that that finding concluded the case in the appellant's favour. Learned Counsel was quite alive to the position that he had to dislodge the appellate Court's finding that the verandah was in the respondent's possession, for it was vital for the appellant to establish his own possession of the verandah as on the date of the suit in order to ask for an injunction from the Court in his favour.

6. Ordinarily, a finding as to possession must be regarded as a finding of fact, but even a finding of fact can be upset in second appeal on the score that there was no evidence to support it or that it was based on a misconception.

7. For recording the finding that neither the first appellant nor the second appellant was in possession of the verandah as the date of the suit, the appellate Court relied, out and out, on what it considered to be their admissions in the witness-box. Referring to the evidence of the 1st appellant the appellate Court observed:

P.W. 2 stated that the defendant had trespassed into the room (verandah).

Referring to the testimony of the 2nd appellant the appellate Court said:

In fact, P.W. 3 has admitted that he was driven out of the suit premises.

8. The argument of Mr. Subramanian before me was that the so-called admissions, which the appellate Court has attributed to the 1st and 2nd appellants, do not amount to proof, in law, that on the date of the suit it was the respondent who was in possession of the verandah, and not the appellants. According to learned Counsel the 1st appellant's statement that the respondent 'had trespassed into the room' cannot be equated to a full-scale admission on his part that the respondent having trespassed into the verandah, had held fast to it and remained in possession as on the date of the suit. Referring to the evidence of the 2nd appellant, Mr. Subramanian submitted that all that the 2nd appellant had admitted was that he was physically manhandled out of the verandah. This statement, according to learned Counsel, cannot amount to a comprehensive admission that the second appellant was altogether dispossessed of the verandah, under his tenancy.

9. I find considerable force in learned Counsel's argument. Manifestly, the appellate Court's finding on the vital issue of possession is based wholly and exclusively on what it regarded as self-defeating admissions on the part of the 1st and 2nd appellants. The Court did not find, and did not rely on, any other piece of evidence or material on record to support its conclusion. It is, therefore, pertinent to examine, in this second appeal, whether the appellant's admissions, such as they were, constitute evidence on which any judicial Tribunal, properly instructed in the law, could have legitimately rested its determination that possession of the suit verandah was with the respondent and not with the appellants at the time of the institution of the suit.

10. The law by no means regards admission as conclusive proof of the matters admitted. This is because to a Court of law admissions are but statements which do no more then suggest an inference as to some fact or facts in issue. (See Section 31 and 17 of the Indian Evidence Act, 1872). It is, therefore, important that the Court should examine any given admission inside out to see if it suggests any clear inference on the fact in issue against the party making it. For a Court to draw an adverse inference against a party on the basis of what he is stated to have admitted, the admission must be unequivocal. It must also be comprehensive. It must go the whole-hog, as it were, on the point at issue. If a party's admission falls short of the totality of the requisite evidence needed for legal proof of a fact in issue, such an admission would be only a truncated admission. It follows that in such a case it cannot support a valid judicial determination, unless it be that the Court is in a position to find other evidence before it to make up for the deficiencies in the admission.

11. Turning to the so-called admissions relied on by the appellate Court in the present case, the first appellant's statement to the effect that the respondent had trespassed into the verandah can by no means lead to the one and only inference that at the time of the institution of the suit, the 1st appellant was still out of possession. This is because the 1st appellant did not say that the respondent's act of trespass occurred just before the suit or that it persisted till that date. As for the 2nd appellant's statement that he was 'thrown out' from the verandah, this cannot amount to an all-out admission that he was dispossessed of the verandah, lock stock and barrel. I am accordingly satisfied that the admissions relied on by the appellate Court, even accepting them at their face value, cannot support its determination of the issue as to possession.

12. If we disregard the appellate Court's interference from the so-called admissions of the appellant, as I have demonstrated we should, what else is there to support the appellate Court's determination on the question of possession? The answer is, nothing.

13. The respondent had filed a cross-objections to the second appeal. In the memorandum of cross-objections the respondent seeks to canvass the appellate Court's finding that the respondent's tenancy did not include the suit verandah. I think that the procedure adopted for filing the cross-objections is based on a misconception of the respondent's forensic rights in this appeal. Under our law of civil procedure, the respondent to an appeal has no need to file a regular cross-appeal or even a cross-objections, if all that he desires is to support the lower Court's decree in his favour on a ground decided against him by that Court. For, it is open to him to urge in the other party's very appeal that the finding of the Court below against him on any given aspect ought to have been in his favour. (See Order 41, Rule 22, Civil Procedure Code. I, threfore, reject the cross-objections filed by the respondent in this case as unnecessary and misconceived, but I proceed nevertheless to consider, on the merits, the respondent's contention that the appellate Court was in error in recording a finding that the tenancy in the respondent's favour did not comprehend the suit verandah.

I4. The appellants Court had set out in its judgment the materials on the basis of which it had arrived at a finding on the issue as to the subject-matter of the tenancy-a conclusion which differed from that of the trial Court. The appellate Court had referred to, and relied on, a number of documents such as property tax assessment registers, account-books and rent receipts, and these included a document or two which had been marked on the respondent's side as well. The appellate Court had also gone in to the relevant oral evidence on the subject. On a consideration of the entire evidence, the appellate Court concluded; 'Therefore, the theory of the defendant that the defendant is a tenant of the entire premises has got to be rejected'. This conclusion based as it is on the evidence on record, cannot be regarded as erroneous in point of law. It has not been, and it cannot be, urged that the appellate Court's finding is perverse or is otherwise vitiated by any legal flaws in reasoning.

15. In the result, the second appeal is allowed. The judgments and decrees of the Courts below are set aside. The appellants will have a decree for permanent injunction as prayed for by them against the respondent. The cross-objections filed by the ressondent is dismissed. I make no order as to costs, both in the second appeal and in the cross-objections.


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