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2017 Supreme(Mad) 308
High Court of Judicature at Madras
PUSHPA SATHYANARAYANA, J.
M/s. Raj Trust, Rep. by one of the Beneficiaries through his Power of Attorney Raghava & Another - Petitioners
Versus
M/s. Ferani Hotels (P) Limited, Rep. by its Director Gopal L Raheja, Mumbai & Others - Respondents
CRP (PD) Nos. 634 & 680 of 2017 & C.M.P. Nos. 3245 & 3443 of 2017
Decided On : 16-03-2017
For the Petitioners: T.V. Ramanujam, for M/s. S. Subashiny
For the Respondents: P.S. Raman, for M/s. Rank Associates
Important Point: It is the case of the plaintiff that the originals were destroyed while the building was demolished. However, they had obtained notarization of the documents, two days before the said demolition took place. Therefore, the plaintiff cannot be permitted to take advantage of his own wrong.
Headnote:Civil Revision Petition--- Indian Evidence Act,1872---Section 65---Section 91--- A mere un-authenticated photocopy of a document cannot be produced as evidence--- Normally a certified copy of the document can be produced as secondary evidence--- A true copy of the document will not be admissible under Section 63 unless it is shown that it had been made from or compared with the original---There must also be sufficient proof of the search for the original to render the secondary evidence admissible--- Once an oral contract is reduced to writing, it is not open to any of the parties thereto to prove the terms of the contract by referring to any original oral agreement as Section 91 would stand in the way and would preclude the party from proving the terms of the transaction otherwise than by the deed itself---The lease agreements entered into between the parties, if they are registered documents, the same may be permitted to be marked as evidence, however, subject to its proof, admissibility and relevancy.
Result: Petition Disposed
1. Since the issue involved in both these Civil Revision Petitions are one and the same, both were tried together and are disposed of by this common order.
2. The CRP.PD.No.634/2017 has been filed against the fair and final order dated 02.12.2016 passed by the learned I Additional Subordinate Judge, Coimbatore in I.A.No.879/2016 in O.S.No.65/2012 C/w O.S.No.747 of 2009 and O.S.No.699/2009.
3. The CRP.PD.No.680/2017 has been filed against the fair and final order dated 02.12.2016 passed by the learned I Additional Subordinate Judge of Coimbatore in rejecting the memo in I.A.No.254/2016 in O.S.No.747 of 2009 c/w O.S.Nos.699/2009 and 65/2012.
4. The short facts of the case are as follows:
(i) The petitioner in CRP PD.No.634 of 2017 is a sub-lessee in respect of the Schedule-B property under the 2nd respondent. As per the order passed by the Bombay High Court on 16.11.2016, Mr. Justice R.G. Vaidyanatha (Retired) has been appointed as an Administrator of all the assets of the Raj Trust (Petitioner) including the premises sub-leased to the petitioner.
(ii) It is stated that on 01.04.1992, the 2nd respondent entered into a Lease Agreement of the suit Schedule ''A'' property with the 1st respondent. The lease is without any limitation. It is to be noted that the Lease Agreement did not stipulate the tenancy period. The respondents 2 and 3 continued to be in possession of the suit property and the rent was regularly received by the 1st respondent till February, 2009.
(iii) While so, in March 2009, the 1st respondent refused to accept the payment of rent. In this regard, notices were exchanged between both the parties. Later on, on 09.06.2009, the 1st respondent herein issued a Legal Notice stating that the suit schedule property is in its possession whereas the 2nd respondent has given a reply notice dated 10.07.2009 that suit schedule property is in the possession of the 2nd respondent and the tenancy has not been terminated and in fact, they have been paying the rent for the suit schedule property till date.
(iv) Therefore, the 2nd respondent has filed a suit in O.S.No.699/2009 on the file of the I Additional Subordinate Judge, Coimbatore against the 1st respondent seeking for permanent injunction restraining the respondent herein from evicting them without due process of law. In the mean time, the 1st respondent also filed I.A.No.549/2009 seeking the same relief in which an order of status quo was granted in respect of the suit schedule property. Subsequently, the said order was set aside by the appellate court.
(v) The 2nd respondent had also filed I.A.No.550 of 2009 in O.S.No.699 of 2009 for appointment of an Advocate Commissioner to take inventory of the physical features of the suit property which was ordered. Based on the Advocate Commissioner's Report, O.S.No.747/2009 was filed against the 1st respondent seeking a relief of declaration of their tenancy rights.
(vi) Subsequently, the petitioner, being a sub-tenant of the 2nd respondent herein, has filed a suit in O.S.No.65 of 2010 on the file of the District Munsif, Coimbatore and as per the orders of this Court in Tr.C.M.P.No.214 of 2011, all the three suits are being tried together jointly before the learned I Additional Sub-Judge, Coimbatore.
(vii) Whereas, the petitioner in CRP PD No.680 of 2017 is the lessee in respect of the suit schedule property under the first respondent and this petitioner sub-let the property in favour of the petitioner in CRP PD No.634 of 2017.
(viii) The petitioner filed a civil suit in O.S.No.747 of 2009 against the first respondent seeking declaration to establish their tenancy rights and permanent injunction restricting the first respondent from trespassing into the suit property and construct any building.
(ix) It is stated that the petitioner as well as the second respondent had kept all the documents in their custody at the suit scheduled prop
