This appeal has been preferred against the judgment and decree dated 31.08.2007 passed in A.S.No.65 of 2007 by the VII Addl.Judge City Civil Court, Chennai, confirming the judgment and decree, dated 29.12.2004, passed in O.S.No.2333 of 1999 on the file of the VIII Asst.Judge City Civil Court, Chennai.
2. The following are the allegations in terse contained in the plaint:
2.(i) The premises at No.62, Sachidanandam Street, Kosapet, Chennai, belongs to the defendant. The plaintiff's husband T.K.Periasamy Mudaliar became a tenant under him in respect of the land in question and was paying rent, with a zinc sheet shed put up thereon for the purpose of carrying on business. The original rent was paid at the rate of Rs.17/- per month by him. Under Section 9(A) of the City Tenants Act, which gave opportunity to the tenant to purchase the land, even though no ejectment suit filed by the landlord, Periasamy filed O.P.No.346 of 1973 on the file of the I Assistant City Civil Court for a direction to the landlord to sell the land for the price to be fixed by this Court. The suit was dismissed on 06.01.1976 and an appeal in CMA.No.136 of 1976 on the file of the IV Additional City Civil Court, it was allowed by the Court below remitting back the matter to the trial Court for fresh disposal.
2.(ii) The trial Court declared the right of the tenant to purchase the land. In C.M.P.No.11201 of 1980, an Advocate Commissioner was appointed for valuation of the land. Pending such proceedings, T.K.Periasamy Mudaliar died on 21.06.1987 leaving the plaintiff as the sole surviving heir. The plaintiff filed an application in C.M.P.No.13893 of 1987 to bring her on record. It was contested by the defendant, but the petition was allowed. Aggrieved against the order, he preferred a civil revision petition before this Court. But, it was dismissed. In the meanwhile, the plaintiff complied with the direction of the trial Court and deposited the sale price and the same is lying in the Court deposit.
2(iii). The matter was referred to the High Court on the vires of amendment under the City Tenant Protection Act as regards Section 9 and the Division Bench of the High Court struck down the said provision, as one affecting the rights of the landlord, holding as violative of fundamental right of landlord. Hence, the defendant took out an application in C.M.P.No.3869 of 1995 for dismissal of O.P.No.346 of 1973 on the basis of the Division Bench judgment, which was reported in 1994 (1) Law Weekly,582, P.S.Balakrishnamaraja and Others Vs. S.K.Akigar Raja and others. Following the High Court's ruling, the trial Court dismissed the original petition. The plaintiff preferred C.R.P.No.1326 of 1997 before the High Court, but it was also dismissed.
2(iv) Since the date of death of her husband, this plaintiff had been sending the rent through money order, but it was refused by the defendant without any reason. She sent her letter through her Counsel requesting him to mention the mode of tender of the rent, but there was no reply. Hence, a sum of Rs.2,363/- for 139 months was sent by means of draft which was also not received by the defendant. Hence, the plaintiff has filed a suit for mandatory injunction directing the defendant to accept the accumulated arrears of rent and also future monthly rent for the suit premises or in the alternative to direct the mode of payment for the said rents to the credit of the defendant.
3. In the written statement filed by the defendant, it is stated as follows:
3.1. The suit is not maintainable. The plaintiff is not the wife of T.K.Periasamy Mudaliar. Her marriage with T.K.Periasamy Mudaliar has to be proved. It is false to state that 1,400 Sq.ft is put up with superstructure. A very meagre portion was used for running a firewood depot by T.K.Periasamy Mudaliar. After his demise, a flour mill was run in the demised premises without due permission of the defendant. Now, no business is carried on by the plaintiff in the demised premises. The plaintiff is not the tenant of the demised premises.
3.2. The plaintiff cannot rely upon the facts which took place in proceedings O.P.No.346 of 1973. The plaintiff is not the legal heir of the deceased T.K.Periasamy Mudaliar and therefore, she cannot claim any right through the deceased. She has also sublet the land to some other parties and she is not in physical possession. Since the alleged rent was sent in the name of the plaintiff, this defendant did not accept money orders.
3.3. The question of right claimed by the plaintiff under the City Tenants Protection Act cannot be decided directly or indirectly. Since the claim for the plaintiff as a tenant under the defendant is in question, she should have sought for a declaration from this Court that she is a tenant under this defendant. Without such declaration, the prayer for depositing the rent into Court does not arise. She has to establish that she is the tenant under this defendant. Since she has no right in the property, she cannot force the defendant to receive the rent. The defendant's refusal is lawful and no mandatory injunction can be granted in favour of a person who is not a tenant. Hence, the suit may be dismissed.
4. The trial Court after scrutiny of the pleadings, evidence and other materials, dismissed the suit by observing that landlord and tenant relationship does not arise, that without tenancy attorned, and that though the plaintiff is in possession of the suit property as legal heir after death of T.K.Periasamy Mudaliar, she is not entitled to the relief for mandatory injunction, since there was no relief of declaration sought for. The appellant carried the matter in Appeal No.65 of 2007, on the file of the VII Additional Judge, City Civil Court, Chennai and the appellate Court confirmed the judgment and decree of the trial Court. Hence, the appellant is before this Court with this appeal.
5. At the time of admitting the second appeal, the following substantial question of law has been framed by this Court:
Whether the trial Court is correct in dismissing the suit in O.S.No.2333 of 1999 on the ground of want of declaratory prayer having given a finding in para 15 of the judgment dated 29.12.2004 passed in O.S.No.2333 of 1999 holding that the plaintiff / appellant is the legal heir of the deceased T.K.Periasamy Mudaliar and is in continuous possession and enjoyment of the suit property after the death of T.K.Periasamy Mudaliar?
6. The main grounds on which the suit was dismissed by the trial Court are that there was no relationship of landlord and tenant between both parties and even though she is in possession of the demised premises as legal heir to T.K.Periasamy Mudaliar and since no declaratory relief was prayed for, mandatory injunction could not be granted. This Court is called upon to decide whether the appellant could become tenant under the respondent though there was no attornment of tenancy and whether the relief of declaration that she is the tenant ought to be prayed for.
6.1. It has been settled by this Court that she is the legal representative of T.K.Periasamy Mudaliar even though Ex.B.1, Death Register Extract pertaining to one Kalyaniammal's Death Certificate was produced to show that she was the wife of the said T.K.Periasamy Mudaliar. In a proceedings to decide the appellant as his legal representative, she got succeeded. The facts which are beyond debate are C.M.P.No.13893 of 1987 was filed in the proceedings before the trial Court and the same was contested by the respondent, which was the petition to implead her as legal representative of T.K.Periasamy Mudaliar and the said petition was allowed. The said order was challenged before this Court in civil revision petition and this Court has confirmed the order of the trial Court by holding that she is the legal representative for the deceased T.K.Periasamy Mudaliar. Hence, it has to be seen after the demise of T.K.Periasamy Mudaliar, whether this appellant could be termed to be the tenant under the respondent.
7. The learned counsel for the appellant would contend that inasmuch as it has been held by this Court that the appellant is the legal heir of the deceased T.K.Periasamy Mudaliar, she steps into the shoes of her ancestor and inherits the tenancy right as his estate in the land, that she gets inchoate right to apply for purchasing the landlord's right under Section 9 of the Act and that this proposition has been well settled.
8. In support of his contention, he placed much reliance upon a decision of the Constitution Bench of the Apex Court reported in AIR 1985 SC 796, Smt.Gian Devi Anand Vs Jeevan Kumar and others, wherein Their Lordships were pleased to observe as follows:-
36. Accordingly, we hold that if the, Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed', the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted promises and the tenancy rights both in respect of residential promises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act. The Legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenency rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and commercial tenancy. It is, however, entirely for the Legislature to decide whether the Legislature will make such provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession.
9. The said decision has also been followed in the subsequent decisions of the Supreme Court. In (1990) 3 SCC 526, Tara Chand and another Vs. Ram Prasad, it has observed that the tenancy rights would devolve on the heirs under the ordinary law of succession. It is further held as follows:-
16. On her death, the rights to succession to an estate of the deceased owner vested immediately on his/her than (sic then) nearest heirs and cannot be held in abeyance except when a nearer heir is then in the womb. The vested right cannot be divested except by a retrospective valid law. The appellants by virtue of intestate succession under Hindu Succession Act, being Class I heirs, succeeded to the heritable interest in the leasehold right of a demised premises held by Smt.Anandi. They, thereby, stepped into the shoes of the tenant. They continued to remain in possession as on the date of the suit as statutory tenants. Thereby, they are entitled to the protection of their continuance as a statutory tenant under the Act.
10. There is no specific stipulation in the Tamil Nadu City Tenancy Protection Act that in case of death of the statutory tenant or in case of the property being transferred to any other person, attornment of tenancy has to be made. In the absence of such specific provision in the Act, it has to be held that the tenancy right is heritable which is an estate to be derived by the legal heir of the ancestor, namely, the tenant and the heirs step into the shoes of the tenant, who become the tenants under the landlord. It is conceded that the tenanted premises is a commercial premises and there is no mention in the statute regulating the rights of the heirs of the tenant to inherit the tenancy rights and hence, it is to be held that the legal heir of the tenant would inherit the rights of the deceased tenant.
11. The above said decision in Gian Devi Anand's case has been followed by the Supreme Court in Sarwan Kumar and another Vs. Madan Lal Aggarwal, reported in (2003) 4 Supreme Court Cases 147. In the Constitution Bench decision, it was declared that the commercial tenancy is heritable and as such, after the death of statutory tenant, his successor in interest would continue to have estate in the tenanted premises.
12. The learned counsel for the respondent would cite a decision of the Supreme Court reported in 2007 (1) CTC 334, Gurdev Kaur and others and Kaki and others, in which the powers of the High Court have been dealt with as decided in various decisions of the Court. The following are the relevant paragraphs, which are as follows:-
53. In Thiagarajan v. Sri Venugopalaswamy B. Koil , 2004 (2) CTC 354 : 2004 (5) SCC 762, this Court has held that the High Court in its jurisdiction under Section 100, C.P.C. was not justified in interfering with the findings of fact.
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55. This Court again reminded the High Court in Commissioner, Hindu Religious & Charitable Endowments v. P. Shanmugama, 2005 (9) SCC 232, that the High Court has no jurisdiction in Second Appeal to interfere with the finding of facts.
56. Again, this Court in the case of State of Kerala v. Mohd. Kunhi , 2005 (10) SCC 139, has reiterated the same principle that the High Court is not justified in interfering with the concurrent findings of fact. This Court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure.
57. Again, in the case of Madhavan Nair v. Bhaskar Pillai , 2005 (10) SCC 553, this Court observed that the High Court was not justified in interfering with the concurrent findings of fact. This Court observed that it is well settled that even if the first appellate Court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.
58. Again, in the case of Harjeet Singh v. Amrik Singh, 2005 (12) SCC 270, this Court with anguish has mentioned that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate Court. In this case, the findings of the Trial Court and the lower Appellate Court regarding readiness and willingness to perform their part of contract was set aside by the High Court in its jurisdiction under Section 100 C.P.C. This Court, while setting aside the judgment of the High Court, observed that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the Courts below.
59. In the case of H.P. Pyarejan v. Dasappa , 2006 (2) CTC 778 : 2006 (2) SCC 496, delivered on 6.2.2006, this Court found serious infirmity in the judgment of the High Court. This Court observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the Courts below as confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes reappreciation of evidence. This Court found that the impugned judgment of the High Court was vulnerable and needed to be set aside.
13. The High Court is precluded from interfering with the factual concurrent findings recorded by the Court below, but while it is found that a substantial question of law is involved which is sought to be decided by the High Court, then it can do so. As far as the present case is concerned, the substantial question of law which has arisen is, whether the right of tenancy is heritable or not? It has been illuminated by the Supreme Court as above. In such situation, no question of attornment of tenancy in the present suit would arise. The Court below though observed on the decision of this Court as to the fact that the appellant is the legal heir to deceased from T.K.Periasamy Mudaliar, they have not further proceeded to ascertain her legal right as regards her inheritance of the estate of her husband in the tenancy. The substantial question of law is answered that the tenanted premises being commercial one and the right of tenancy has been inherited on the death of the statutory tenant and the appellant had inherited the estate of her husband, the statutory tenant on his death in the tenancy and she has to be termed to be a tenant under the respondent.
14. In such view of this matter, the appeal deserves to be allowed and the judgment and decree of the Court below have to be set aside and accordingly, they are set aside.
15. In fine, the Second Appeal stands allowed. The suit in O.S.No.2333 of 1999 is decreed as prayed for. Consequently, connected M.Ps. are closed. No costs.
ssm To
1.VII Addl.Judge, City Civil Court, Chennai.
2.VIII Asst.Judge, City Civil Court, Chennai