S.A. No. 940 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.09.2022

CORAM:

THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

S.A. No. 940 of 2013

Sri Karivaratharaja Perumal Temple,

rep. by its Executive Officer

... Appellant

Vs.

C.Kither Mohamed,

S/o. Cinnappa Rowther

... Respondent

PRAYER: Second Appeal filed under Section 100 of Code of Civil

Procedure, to set aside the judgment and decree dated 26.02.2013 in

A.S.No.105 of 2011 on the file of Hon'ble Principal Subordinate Judge at

Coimbatore against the judgment and decree dated 24.09.2007 in

O.S.No.1272 of 2004 on the file of Hon'ble District Munsif Court,

Coimbatore.

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S.A. No. 940 of 2013

For Appellant

: Mrs.V.S.Usha Rani

For Respondent

: Mr.I.Abrar Md. Abdulla

JUDGMENT

The appellant herein is the plaintiff filed the suit in O.S.No. 1272

of 2004 on the file of District Munsif Court, Coimbatore against the

respondent/defendant contending that as per the lease, the defendant is

the tenant of the suit property, not agreed for the fair rent fixed by the

temple authority. Hence, a notice was issued terminating the tenancy,

which was replied with false allegations and also not paid the enhanced

rent. Hence, the suit.

2. The defendant admits that he entered into a lease with the

plaintiff temple, but contended that no notice of demand prior to fixation

of fair rent was served on him and also not given any opportunity to the

defendant as required under Sec.34-A and 34-B of the Tamil Nadu Hindu

Religious and Charitable Endowment Act (hereinafter called as 'Act') and

the notice as such issued by the plaintiff also not maintainable under law.

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S.A. No. 940 of 2013

3. For the sake of convenience, the parties are referred as per the

ranking in the suit.

4. Before the trial court, evidences were adduced on both sides

along with documents and on framing separate issues, the trial court held

that fair rent proposal was not intimated to the defendant as per Sec.34-A

and 34-B of the Act and the notice issued by the plaintiff seeking eviction

of defendant by terminating the tenancy by invoking Sec.106 of Transfer

of Property Act (hereinafter called as 'T.P. Act'), as such it is not

maintainable in law. Accordingly, the suit was dismissed. Aggrieved over

that, the plaintiff preferred an appeal in A.S.No.105 of 2011, wherein the

appellate judge analysed the facts and evidence held that fair rent was not

fixed by complying the provisions under Sec.34-A and 34-B of the Act,

and proper procedure was also not followed, besides, the notice of

termination of lease issued under Sec.106 of T.P. Act also not

maintainable. Accordingly, the first appellate court confirmed the findings

of the trial court by dismissing the appeal.

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S.A. No. 940 of 2013

5. Challenging the concurrent findings of the courts below, the

plaintiff temple preferred this appeal contending that both the courts

below miserably failed to note that Secs.34-A to 34-D had been inserted

by way of Amendment Act 25 of 2003 and the same came into force only

on 10.05.2003, but the suit was filed in the month of January 2003 before

the said amendment. But, without appreciating those legal aspects, both

the courts below erroneously dismissed the plaintiff's claim, as such, it is

perverse in nature. Accordingly, the plaintiff temple prayed to set aside

the findings and filed this Second Appeal. This Second Appeal is admitted

on the following question of law :-

“i) Whether the courts below were right in holding that the

suit for eviction filed contrary to Sec.34-A of the Tamil Nadu

Hindu Religious and Charitable Endowment Act is not

maintainable, without appreciating the fact that the suit was

filed on 23.04.2003 and Sec.34-A introduced by amendment

Act, 25 of 2003, came into effect only on 10.05.2003.

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