Suit filed for mandatory injunction not barred by provisions of rent control Act.

1. This revision is filed by the defendant in O.S. No. 3877 of 1987, on the file of V Assistant City Civil Court, Madras.

2. The respondent herein filed a suit for mandatory injunction directing the petitioner to remove all the new constructions put up in the suit property described in the schedule and to restore the same to its original condition by replacing all the fittings removed by him from the suit property, for permanent prohibitory injunction restraining the defendant, his men and agents from proceeding with the construction or altering the superstrcutre or additions to the suit property and further to direct the defendant to pay damages of Rs. 19,000/- caused by him together with interest at 12% p.a., from the date of plaint till date of payment, and for costs.

3. In the body of the plaint, it is stated that the plaintiff is the owner of the premises at No. 127, Audiappa Naickan Street, Madras-1 and the petitioner is the tenant of the shop measuring 25 40 in the ground floor portion, on a monthly rent of Rs. 750/-. It is said that the petitioner is carrying on the kirana business under the name and style of ‘Jeep Traders’. When the plaintiff was away from Madras for 15 days, the petitioner demolished the portion occupied by him. It is also said that the petitioner removed the iron shutter, teak wood and glass show case and teak wood rafters, the value of which is estimated to Rs. 10,000/-. He has further demolished several portions of the said shop and put up new constructions. In spite of objection raised, the petitioner is proceeding with the construction, without the permission of the plaintiff. It is under the above circumstances, the plaintiff filed the suit for mandatory injunction to remove the new constructions and to restore the shop to its original condition and for recovery of the damages.

4. An application was filed as I.A. No. 3668 of 1997, by the petitioner to reject the plaint under Order 7, Rule 11, C.P.C. In the affidavit filed in support of the said interlocutory application, it is stated that the plaint has not stated the cause of action and the plaint is barred by the provisions of the Rent Control Act, which over-rides the right of a Civil remedy under the Transfer of Property Act. It is further said that when the Rent Control Act is in operation, the General Law of Landlord and Tenant has to give way to the Special Act on that behalf. It is also said that detailed particulars have not been given and the plaintiff has also not filed any document under Order 7, Rule 14(1) or 14(2) C.P.C. It is also stated that there is no material alteration, which gives him a cause of action.

5. For the said application, the respondent filed a detailed counter, stating that this is an attempt on the part of the petitioner to drag on the proceedings. It is stated that ex parte decree was passed earlier and set aside on payment of cost, and again when the petitioner was declared ex parte and when the case was posted for ex parte evidence, an application was again filed to set aside the ex parte order and it is now more than ten years since the suit is filed, and no ground has been made out under Order 7, Rule 11 of the Code of Civil Procedure, to reject the plaint. It is further said that the suit filed is perfectly correct and is not barred by the provisions of Rent Control Act, and the reliefs sought for in the suit cannot be granted by a Rent controller.

6. After hearing the arguments, the Lower Court dismissed the said application. It is against the said order; this revision is filed under Article 227 of the Constitution of India.

7. I do not find any merit in the revision. It cannot be said that the lower Court has acted illegally in passing the impugned order. Learned counsel for the petitioner submitted that the averments made in the plaint can at the most be a ground for eviction and therefore, the Rent Control Act alone has to be taken into consideration, and the Civil Suit cannot be maintained.