(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure to set aside the judgment and decree made in A.S.No.30 of 1998, dated 04.04.2001 on the file of the Subordinate Judge, Poonamallee, confirming the judgment and decree in O.S.No.1235 of 1986, dated 20.09.1996 on the file of the District Munsif, Poonamallee.)
1. The plaintiff, claiming to be the tenant of the property measuring 57 feet east to west and 35 feet north to south, opted to purchase the property in accordance with the offer given by The Commissioner of HR and CE Department, the second defendant, and having failed in his attempt, approached the Court by filing pauper O.P. in O.P. No.29 of 1985 seeking direction to the defendants to execute and register the sale deed.
2. The suit was decreed, as against which the first defendant filed the first appeal in A.S.No.30 of 1998. The appeal was dismissed, thereby the trial court's judgment was confirmed. As against the dismissal, second appeal has been filed. The following substantial questions of law have been raised:-
"1. Whether the Courts below were right in not dismissing the suit for want of notice under Section 80 of C.P.Code, which goes to the root of the matter?
2. Whether the respondent/plaintiff had a right to approach the Courts below for specific performance in view of the admitted allotment of the land by the HR and CE Dept. to one Subramani?
3. Whether the suit for specific performance is not liable to be dismissed in the absence of pleadings and evidence regarding any agreement in favour of the plaintiff, the sale consideration for such agreement, the financial capacity and the readiness and willingness of the respondent/plaintiff to perform him part of the contract?"
3. The brief facts:-
The suit was filed informa-pauperis and the court fee payable is Rs.900.50. The suit has been valued at Rs.12,000/- which is said to be the market value of the property. The property is situated in Chengalpet District, Saidapet Taluk, in Velacherry Village, in R.S.No.192/2 an extent of 57 feet east west and 35 feet north south. The plaintiff claims that the suit property belongs to Arulmigu Yoga Narasimhar Devasthanam of Vellachery Village. The suit property was taken on lease by one Subramani and who in turn leased out the same to the plaintiff. The plaintiff put up a residential hut in the suit property and he was paying rents to the first defendant.
4. The second defendant passed an order under proceedings No.25/1984, dated 25.08.1984, proposing to sell the property in favour of the persons who are in actual possession of the respective portion in the suit survey number, R.S.No.192/2. Even though the plaintiff satisfied all the requirements and entitled to purchase the property, but as per the order made by the second defendant, the option to purchase the property has been mistakenly given to Subramani who was not the tenant of the aforesaid property.
5. The plaintiff issued a notice under Ex.A-1 to the second defendant informing that, (a) it is he, who put up the super structure in the suit property, (b) the erstwhile tenant, Subramani, did not pay the rents and it is he, who paid the arrears of rents for fifteen months, which was payable by Subramani and (c) as a poor person having no other property, the suit property must be sold to him.
6. Under Ex.A-4 notice dated 25.09.1984, which is purported to have been issued under Section 80 CPC, the plaintiff has set-out all those facts stated above and has made it specific that the plaintiff is entitled to purchase the property from the defendants and that any sale, if made in favour of Subramani will be invalid. Though the notice has been received by the second defendant (Ex.A-5 acknowledgement), there was no reply. Notice has been returned by the first defendant under Ex.A-6. Under Ex.A-8 the plaintiff has reminded the defendants informing them that the enhancement of rent from Rs.25/- per month to Rs.50/- per month, as per Ex.A-25, dated 05.08.1985, may not be justifiable as he was unable to withstand the financial burden of paying even Rs.25/- per month. When the defendants refused / neglected to receive rents from the plaintiff, he has paid it by way of demand draft as evidenced by Ex.A-23. For obtaining electricity service connection, the first defendant has given consent letter under Ex.A-26 wherein the first defendant has admitted that the plaintiff is a tenant.
7. It is peculiar to note that the first defendant remained exparte before the trial court without filing written statement, but he has chosen to give evidence as D.W.1. Though the proceedings, dated 25.08.1984, is the prime document, both sides have not chosen to file it.
8. In the written statement of the second defendant, it is stated as follows:-
(i) The suit property belonging to the first defendant was leased out only to Subramani and the status as tenant and possession of the suit property in the capacity as tenant as claimed by the plaintiff is not admitted.
(ii) The second defendant decided to sell the property in favour of one Subramani and when objections were called for from the interested persons, the plaintiff did not raise any objection, and therefore necessary order under Section 34 of the Tamil Nadu HR and CE Act, 25/1984, dated 25.08.1984 was passed.
(iii) The Trust Board of the temple did not recognise the plaintiff as the tenant. There is no contract between the plaintiff and the second defendant and the plaintiff is a stranger.
9. The District Munsif Court framed the following issues:-
"(i) Whether the plaintiff was entitled for a direction as prayed for?
(ii) To what other relief?
(i) Whether the suit property is properly valued for the purpose of court fees?"
10. The trial court has given a finding that as admitted by D.W.1 in his evidence, during the year 1984, the second defendant has passed an order to sell the temple lands to the tenants who are in occupation, and the plaintiff, who has proved his possession, as per Exs.A-14 to A-22-rental receipts, and the defendants having recognised the status of the plaintiff, as tenant, is entitled to get the sale of the property from the defendants. so holding, the suit was decreed.
11. In the appeal the appellate court has framed the following issues:-
(i) Whether the plaintiff is entitled to a decree for specific performance?
(ii) Whether the suit has been properly valued and proper court fees has been paid?
(iii) To what other relief?
12. The appellate court has also given a finding that the plaintiff is the tenant of the suit property. Having regard to the fact that the monthly rent was Rs.25/- per month, the property valued at Rs.12,000/- is fair and proper. On these findings, the appeal has been dismissed, confirming the decree of the trial court.
13. In the second appeal the learned counsel for the appellant has raised the following substantial questions of law:-
(i) The first contention of the learned counsel for the appellant is that in any suit for specific performance, readiness and willingness to perform the contract is quintessential and the plaintiff, having no capacity even to pay the court fees, could not have been ready and willing to perform his part of the contract and therefore the specific performance cannot be granted.
(ii) It is further contended that the pre-suit notice under Section 80 CPC, which is the statutory requirement, has not been issued by the plaintiff and therefore the suit itself is not maintainable.
(iii) The third contention is that as per proviso to Section 34 of the HR and CE Act, the sale can be sanctioned by the Commissioner,
(a) Only if the sale is for the benefit of the temple and
(b) Previous approval of the Government had been obtained.
Since both requirements are not complied with, even if any order had been passed by the Commissioner, that order is invalid.
14. The object of Section 80 CPC is to give advance notice to the Government as to the nature of the litigation that would be filed and also affording an opportunity to the Government to redress the grievances of the litigant so that the litigation could be avoided. With this benign objective, Section 80 CPC was brought on the Statute.
15. It is contended that no notice under Section 80 CPC was issued. A perusal of documents would go to show that notice specifically mentioning that it is issued under Section 80 CPC, has been issued under Ex.A-4 and it has been received by the second defendant and it is returned by the first defendant. When the learned counsel for the respondent pointed out the same, the learned counsel for the appellant contended that the relief that is sought for under Ex.A-4 notice and that under the suit are totally different and therefore, Ex.A-4 notice though issued in terms of Section 80 CPC will not amount to notice in respect of the suit claim, and therefore the suit is bad for want of notice under Section 80 CPC.
15.1. This contention cannot be accepted for more reasons than one. In the notice, the specific contention is that the second defendant has to pass an order to sell the suit land to the plaintiff and the first defendant has to furnish necessary information to the second defendant. It is further stated that if any other arrangement is made to sell the land to one Subrmani, it is not valid. This notice has been received by the second defendant and an acknowledgement has been filed. The first defendant has chosen to return the notice which is filed as Ex.A-5 and a copy of the enclosure is marked as Ex.A-7.
16. The sum and substance of the averment in the plaint is that the defendants should execute and register the sale deed in favour of the plaintiff. The prayer in the plaint is not circutous, like the one made in the notice. What is claimed in the notice is that the Executive Officer should furnish necessary information to the Commissioner and the Commissioner in turn should pass an order permitting sale of property in favour of the plaintiff. Going a step ahead, finding that the defendants are not willing to do that, the plaintiff has asked for the execution of the sale deed itself by the second defendant in the plaint. The sum and substance of the prayer are one and the same. Therefore the contention that there was no notice under Section 80 CPC is unsustainable.
17. When the plaintiff has issued notice under Section 80 CPC, it is expected of the defendants to give reply. The failure to respond has necessitated the plaintiff to rush to the court. Having remained mute to the reasonable request of the plaintiff and after having received the notice issued under Section 80 CPC, blindly contending that there is no notice under Section 80 CPC, is unfair on the part of the defendants.
18. It could be visualised that the defence taken by the defendants are vexatious. There are unimpeachable documents to show that the plaintiff's status as tenant has been admitted by the defendants. But only during the litigation, the second defendant has filed the written statement, denying the status of the plaintiff as the tenant. The first defendant, who is the more competent person to speak about the status of the plaintiff, did not file any written statement. Under Ex.A-13, dated 17.03.1983, the plaintiff has been called upon to execute the new lease deed inter-alia contending that the plaintiff is a sub-tenant under one V.Subramani. The defendants have not come forward with any consistent case.
19. The first and foremost contention is that the suit for specific performance is not maintainable as the plaintiff has not made necessary averments as required under Section 16 (1) (c) of the Specific Relief Act, as to the readiness and willingness. This contention is obviously incorrect. There was no agreement executed by the vendors/defendants to sell the suit property in favour of the plaintiff. The plaintiff is not seeking performance as per the terms and conditions of any sale agreement. Sale consideration was not fixed by mutual consent . It is not a sale out of free volition and negotiation between both parties, i.e., vendor and vendee. The parties do not have equal bargaining power. The plaintiff is at the mercy of the defendants. Throughout, the plaintiff is seeking the helping hands of the defendants, to get the sale deed in his favour. Specifically contending that, as per the policy decision taken to sell the suit property in favour of tenants, who are in actual possession and also contending that as a tenant in actual possession he is entitled to get the sale deed in his favour, the plaintiff is making fervent request to execute the sale deed in his favour. This is the sum and substance of the prayer in the plaint also.
20. Even after assuming that the suit is for specific performance, the contention that the plaintiff did not aver that he was ready and willing to perform his part of the contract cannot be accepted. Even prior to the suit and during the trial consistently the plaintiff is crying that he is ready and willing to purchase the property and that his offer to purchase the property should not be turned down and that the sale should not be effected in favour of one Subramani. Just because the plaintiff is a pauper, it does not mean that he would not be capable of mobilising money for the transaction. No doubt the suit has been filed informa-paupries but that does not mean that the plaintiff has no capacity to raise the money. The plaintiff may borrow or make his own arrangement to purchase the property and that cannot be questioned by the defendants. It is surprising to hear the defendants pointing out the penurious circumstances of the plaintiff. Only because the plaintiff is under penurious circumstances he is fighting to get the sale deed in his favour, for a meagre extent of 57 x 35 feet, for a period crossing silver jubilee.
21. Therefore the filing of the suit informa-paupries cannot be a ground to conclude that the plaintiff will never have the financial capacity to purchase the property. The suit is for a mere direction to the defendants to execute the sale deed in favour of the plaintiff. The plaintiff is justified in his contention because the plaintiff has satisfied the expected requirements of the defendants. According to the defendants, if the plaintiff is in actual possession of the property, then he is entitled to seek sale of property in his favour.
22. The last contention is that the plaintiff cannot seek to enforce the proceedings dated 25.08.1984, as the order passed is not valid by virtue of the provisions of Section 34 of the HR and CE Act. The learned counsel for the defendants relied upon the following decisions:-
(i) (2007) 4 MLJ 476 (Executive Officer, Arulmighu Thiruvalleswarar Tirukkoil, Chennai and another v. Jagathambigai Nagar Co-operative House Site Society, Rep. by its President, Chennai and others), where-under it has been held as follows:-
"(i) With regard to the lands belonging to religious institutions, without compliance of the conditions prescribed in Section 34, no sale, mortgage or lease exceeding a period of five years is permissible.
(ii) The lessees cannot either compel the religious institutions to sell or seek direction from the competent authority to accord sanction under Section 34 of the HR and CE Act."
(ii) (2007) 5 MLJ 87 (T.Subbaraman and Others v. Sri Vedantha Desikar Devasthanam, Mylapore, Madras and another), wherein it has been held as follows:-
"(i) The High Court cannot issue a writ either to compel the Devasthanam to alienate or to direct The Commissioner, Hindu Religious and Charitable Endowments or the State Government to accord approval for sale of property of religious institution, unless the mandatory requirement under Section 34 of Tamil nadu Hindu Religious and Charitable Endowements Act are satisfied.
(i) The mandatory requirement under Section 34 (1) of the Tamil nadu Hindu Religious and Charitable Endowments Act have to be complied with by the Commissioner before according sanction for exchange / sale / mortgage / lease, for a term exceeding five years, of any immovable property belonging to any religious institution.
(iii) It is the bounden duty of the trustees of the temple to secure maximum advantage to the trust / temple."
23. No doubt, protection of the interest of the temple property is of paramount importance. The holding of the property by the temple (Idol) is often compared with the holding of the property by a minor, as contended by the learned counsel for the appellant. However, it has been held in ILR 1958 Mys. 367 (K.Govrrdhana Bhat v. Venkatramana Temple) that the sanction under Section 34 can be obtained either prior to the transaction or subsequent to the transaction. Even otherwise, the contention that the order passed by the Commissioner under Section 34 of the HR and CE Act is not valid, cannot be appreciated for the simple reason that it is only the second defendant, who passed the order. If this contention is true, then the Government would be under a necessity to initiate departmental proceedings against the second defendant for having violated the provisions of law. But this court believes that this contention regarding the validity of the order would have been taken only for the purpose of this case because, in the written statement such a defence has not been taken. The defence taken in the written statement is extracted here-under for convenient reference:-
"The second defendant decided to sell the property in favour of one Subramani and when objections were called for from the interested persons the plaintiff did not raise any objection, therefore necessary order under Section 34 of the Tamil Nadu HR and CE Act, 25/1984, dated 25.08.1984 was passed"
23.1. This defence clearly go to show that the order passed by the second defendant should have been a valid order in terms of Section 34 of the HR and CE Act. But the order had been passed, to confer benefit one Subramani, who was a defaulter in payment of rent and who was not in possession of the property. That compelled the plaintiff to approach the court, seeking for a direction to the defendants to execute the sale deed in favour of the plaintiff. The defendants for reasons best known has blown hot and cold by taking inconsistent defences. Therefore, it is a case, where the plaintiff is entitled to such a direction from the Court, to the defendants, directing them to execute the sale deed in favour of the plaintiff.
24. In the result, the second appeal is dismissed with costs throughout, confirming the dismissal of the appeal passed in A.S.No.30 of 1998 which confirm the judgment and decree passed in O.S.No.1235 of 1986.
C.M.P.No.701 of 2012 in
Second Appeal No.2105 of 2001
1. Learned counsel for the petitioner / respondent in the second appeal filed this petition under Order 41 Rule 27 of the Code of Civil procedure seeking permission of this Court to receive the seventeen documents mentioned in the above petition, as additional evidence.
2. Learned counsel for the respondent herein / appellant in the second appeal submitted that a week's time is required to file counter and to verify the validity of the order passed by the Commissioner, HR and CE Department, which is one of the document that is sought to be filed as additional evidence.
3. Having regard to the fact that the matter is pending for nearly twenty-six years and the Original Suit having been filed in the year 1986, this Court is not inclined to entertain the above petition at this stage, more especially when the receiving of documents is opposed by the other side. Hence, the above CMP stands dismissed.
4. As the judgment in Second Appeal No.2105 of 2001, is ready, it is being pronounced today.