2002 Supreme(SC) 636

2002(4) Supreme 134
SUPREME COURT OF INDIA
(From Chennai High Court)
R.C. Lahoti & Mrs. Ruma Pal, JJ.
A.V. G. P. Chettiar & Sons & Ors. -Appellants
versus
T. Palanisamy Gounder -Respondent
Civil Appeal No. 6888 of 1999
Decided on 8-5-2002
Counsel for the Parties :
For the Appellants : K. Rajendra Choudhary, Sr. Advocate, Krishnamurthi Swami, Advocate.
For the Respondent : P.S. Mishra, Sr. Advocate, K.K. Mani, Advocate.

VERY IMPORTANT POINT
The decision of the High Court cannot be sustained for eviction of appellants. The basic question to be decided (and which should have been decided by the High Court) was whether the Rent Controller could have determined his own jurisdiction finally not only with regard to the applicability of Tamil Nadu (Lease and Rent Control) Act, 1960 to the suit premises but also with regard to title of the respondent to the premises.

Headnote:(i) Constitution of India-Article 136-Appeal by Special leave against eviction order granted-At hearing of Civil Appeal, preliminary objection taken that appeal was not maintainable as appellant was granted time to vacate on giving an undertaking which he did not give-Whether sustainable? (No).

       Held : The objection is unsustainable. First, an objection to the maintainability of the appeal, like other points of demurrer, may be relevant at the time of the admission of the appeal. Once the appeal is admitted without reserving the issue of maintainability and the matter is heard on merits, such a preliminary objection does not survive. Second, the appellants had no doubt requested for a stay of the execution of the decree. That had been granted by the High Court subject to furnishing of an undertaking by the appellants to vacate the premises within a period of six months. The appellants did not in fact give any such undertaking. Even if they had, they could not be denied the right to appeal to this Court on any principle of estoppel unless the respondent could show that the appellants had thereby gained an advantage which was otherwise not available to them; for example, if the appellants had given an undertaking and obtained a stay of the order of eviction beyond the period allowed for preferring the appeal [Jagdish Lal v. Parma Nand 2000(5) SCC 44] or if the landlord had consented not to execute the decree of eviction in consideration of the appellants undertaking to vacate. [Order dated 1.8.1988 SLP (C) No. 6045, 6818 of 1988]. If such other like circumstances exist, this Court may have refused to exercise discretion in favour of the tenant under Article 136 of the Constitution. Otherwise merely giving an undertaking does not foreclose a tenant from availing of any statutory remedies available to him by way of appeal or revision or under the Constitution. [P.R. Deshpande v. Maruti Balaram Haibatti 1998 (6) SCC 507]. (Para 22)

       In this case, no undertaking was in fact given by the appellants. The question of deriving any advantage by the appellants on the basis of such undertaking therefore did not arise at all. In fact the application under Article 136 was filed well within the period of limitation. The preliminary objection raised by the respondent is misconceived and is accordingly rejected. (Para 23)

       (ii) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960-Sections 10(2)(i), 10(2)(vii), 10(3)(iii), 14(1)(b) -Eviction petition on grounds of wilful default in payment of rent, non-bona fide denial of title of landlord, need for non-residential purpose and demolition for reconstruction-Eviction ordered by R.C.-Confirmed by High Court-Appeal against to Supreme Court-Contention of appellant that none of these provisions are applicable because it was a religious endowment and religious endowments have been exempted from the Rent Act by G.O. No. 2000 dated 16.8.76 under Section 29 of Rent Act-Whether correct? (Yes) (C.P.C. 1908-Section 92-Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959-Sections 5, 6(16), 6(17), 108).

       Held : On the merits, we are of the view that the decision of the High Court cannot be sustained. The basic question to be decided (and which should have been decided by the High Court) was whether the Rent Controller could have determined his own jurisdiction finally not only with regard to the applicability of the Act to the suit premises but also with regard to title of the respondent to the premises. (Para 24)

       In the judgment impugned before us, the High Court relying upon three decisions came to the conclusion that in the earlier decision, no issue had been raised and therefore no decision had been taken with regard to the nature of the Trust so as to operate as res judicata between the parties. According to the High Court:

       "The issue raised in the decision in 1992-I-MIJ-109 (supra) is only as to whether the respondents are entitled for leave to file the suit, and that was rejected, and the apex court also confirmed the said order and so it cannot be said that the learned Judge has decided as to whether the trust in question is a public trust or not.

       This conclusion proceeds on a misreading of the earlier decision. In the revision application, it was the respondent who had specifically raised the issue that the Trust was covered by the Endowments Act and, therefore, Section 92 CPC did not apply. The High Court accepted this submission. The High Court was of the view that there was no necessity for any other evidence to be led for the purpose of deciding the character of the Trust as it was a pure question of law which depended on the terms of the Trust deed. It was because the High Court came to the conclusion that the Trust was a religious endowment or religious charity within the meaning of the Endowments Act that it dismissed the application filed by the appellants for leave under Section 92 of the Code of Civil Procedure. In fact, the only basis for rejecting leave under Section 92 CPC was that the Trust documents created a religious endowment or religious charity within the meaning of Endowments Act and, therefore, the provisions of the Endowments Act and not Section 92 of the CPC would apply. The decision on the construction of the deeds of Trust is res adjudicata and binds the parties. The three decisions referred to by the High Court for arriving at a contrary conclusion are inapposite and do not support the conclusion reached by the High Court. The first was a decision of the Full Bench of the Punjab and Haryana High Court on Article 141 of the Constitution [Punjab State Electricity Board v. Ashok Kumar Sehgal, 1990 Lab I.C.249]. The second was the minority view expressed at paragraph 55 of the Report [Most Rev. P.M.A. Metropolitan and Others v. Moran Mar Marthoma and Another AIR 1995 SC 2001] and the third [Manonmaniam Sundaranar University v. Kumaragurubara Swamigal Arts College, AIR 1997 Mad. 386] was not a decision on the principles of res judicata at all. In any event and at the very least, the earlier decision of the High Court on the construction of the Trust deeds could be said to have established a real possibility of the suit property being covered by the exemption notification and, therefore, outside the ken of the Rent Controller. However, it is also not for us in this appeal to decide the issue as to the applicability of the Act to the suit property finally. It is sufficient for the purposes of allowing the appeal on this issue to hold that there was prima facie support for the stand taken by the appellants in the form of the unimpeached documents relating to creation of a Trust, the admitted inclusion of the suit property in those documents and the unchallenged decision intra-partes that the suit property was part of a religious endowment or religious charity within the meaning of the Endowments Act. (Paras 34, 35 & 36)

       (iii) Tamil Nadu Buildings (Lease & Rent Control) Act, 1960-Section 10(2)(vii)-Eviction petition on ground of non bona fide denial of landlord s title by the tenant-Decreed by RC-Confirmed by High Court-Appeal to Supreme Court-Appellant assailing the decision of High Court on two grounds viz. that there was no relationship of tenants and landlord between the appellants and the respondent and that the denial of the respondent s title by the appellant was bona fide and as such the Rent Controller had no jurisdiction to try or determine the suit-Whether correct? (Yes)-Result-Appeal allowed-(Evidence Act, 1872 - Section 116 - Estoppel) - Liberty given to respondent to approach Civil Court.

       Held : Our decision on the second and third questions raised by the appellants relating to the denial of the respondent s title to the suit property under Section 10(2)(vii) of the Act follows to a large extent from the discussion in the previous paragraphs. If the suit property was covered by the Trust deeds, as the High Court itself has held, the next step would necessarily be to find out how in the suit property came to be in the hands of Gowthaman. What the appellants were challenging was not only the immediate title of the respondent but also the title of his predecessor-in-interest, Gowthaman, to the suit property. This they were entitled to do without offending Section 10(2)(vii). (Para 37)

       It is nobody s case that the appellants were inducted by Gowthaman from whom the respondent derived his interest in the property. The High Court noted that "the rent receipts were given originally in the name of E. Venkata Naicker Trust, Erode/E.V. Krishasami Sons (management)". Therefore, the appellants were inducted as tenants by the Trust. If the suit property was part of the Trust, the appellants could validly raise the questions viz. how did the property come to be transferred by the Trust to Gowthaman? What was the validity of the transfer, if any? What was the nature of the interest which Gowthaman had in the suit property? Was it qua trustee or qua owner? If it was that of a trustee, could he have, legally and in terms of the Trust deed, transferred the suit property to the respondent? Yet the Rent Controller refused to go into any of these questions although they were squarely raised by the appellants before him. Instead he decided the title of Gowthaman on the basis of a partition deed between the heirs of Venkata Naicker and rent receipts granted to the appellants by Gowthaman as proprietor. The Rent Controller could have only decided (i) whether there was a dispute regarding the landlord s title raised by the tenant and (ii) whether the dispute was bona-fide - the bona fides being established prima facie, by evidence in support of the tenant s stand. The Rent Controller could not have ignored the questions relating to the derivative title of the respondent. He could not have finally decided the issue of title of the respondent to the suit property, nor could he have, on that basis, find that the appellants denial of the respondents title not bonafide. "To operate against the tenant as proving a ground for eviction under Section 10 of the Act, a mere denial of the title of the landlord is not enough; such denial has to be "not bona fide". "Not bona fide" would mean absence of good faith or non-genuineness of the tenant s plea" [J.J. Lal Pvt. Ltd. and Others v. M.R. Murali and Another, 2002(3) SCC 98]. The High Court upheld the title of the respondent on the basis of the definition of "landlord in the Act which reads:

       " landlord includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant.

       The impugned judgment is erroneous. It failed to consider that the appellants had denied the derivative title of the respondent and that this would not afford a ground for eviction under Section 10(2)(vii) of the Act. The High Court also failed to examine the issue from the perspective and from within the confines of the Rent Controller s limited jurisdiction. (Paras 39, 40 & 41)

       The High Court s reasoning was far removed from the pleadings of the respondent. The respondent had claimed that Gowthaman was the absolute owner of the suit property and that such absolute interest had been purchased by the respondent. Given this pleading the respondent could not be allowed to set up a different case and take shelter behind the definition of landlord in the Act. The definition of landlord is an enabling provision in the sense that it enables persons who are not the owners to ask for eviction under the Act. But it does not mean that a person who has claimed to be the landlord qua owner can jettison his case as pleaded in his eviction petition and establish his claim on the basis that he was otherwise entitled to claim as landlord of the suit premises. As held in M/s. Trojan & Co. v. RM N.N. Nagappa Chettiar AIR 1953 SC 235 p. 22. "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found". (Para 43)

       Held finally : To sum up: we hold that there was a bona fide dispute as to title raised by the appellants and, therefore, the Rent Controller did not have jurisdiction to hear and finally adjudicate upon the application filed by the respondent before it. However we clarify that this finding is limited to the issue of the Rent Controller s jurisdiction and shall not preclude the respondent from approaching a competent Civil Court for determination of the issue finally and no observations made in this judgment will prejudice the trial of this or any other issue that the respondent may raise on merits. Subject to this observation, for all the reasons stated earlier, we set aside the impugned decision of the High Court and allow the appeal. There will be no order as to costs. (Para 44)