SAROJA VARADARAJAN Vs. KONDAH KASI SEETHARAMAN

JUDGEMENT

(1.) This second appeal was admitted on the following substantial questions of law:

(2.) The plaintiff, who lost in both the courts below, is the appellant. In O.S.No. 7582 of 1980, on the file of the City Civil Court, Madras, she claimed a declaration that she is a tenant under the defendant in respect of a portion in premises No. 6, Lakshmi-kanthan Street, T. Nagar, Madras-17 and consequential injunction restraining the defen-dent (respondent herein) from executing the order of eviction in H.R.C. No. 273 of 1979, Small Causes Court, Madras. In the earlier part of the plaint, she has alleged that her husband was a tenant, that after her husband she became the tenant under the defendants vendor Kondiah and that she had been paying the rents regularly. In the later portion, she has stated that the tenancy has survived to her after the death of her husband and that under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the definition of the tenant includes 'surviving spouse or any son or daughter, or the legal representatives of a deceased tenant, who in the case of a residential building (in the instant case a residential building) had been living with the tenant in the building as a member of the tenants family upto the death of the tenant and that, therefore, the order of eviction will not affect her above right. Thus, the plaintiff has rested her claim on two bases (1) after the death of her husband she became the tenant and (ii) by virtue of the definition of the tenant, quoted above, the statutory protection guaranteed under the Act is available to her. It is necessary to notice that the said eviction petition was laid by the respondent purchaser against her son. Thus, it turns out that she has come forward with two inconsistent bases. If she had become the tenant after her husbands demise it would mean that his son was not a tenant.but such a position is opposed to the other basis. The significance of such an inconsistent plea will be referred to at the appropriate place.

(3.) Immediately, it is relevant to notice that the respondents vendor represented to the respondent that the defendants son alone was the tenant as borne out from the sale deed Exhibit B.1 dated 30th November, 1977. It is also seen from Exhibit A-2 dated 12th December, 1977, Exhibit A-5 dated 11th January, 1978 Exhibit A-6 dated 24th January, 1978 Exhibit A-7 dated 24th January, 1978 and Exhibit A-9 dated 6th February, 1978, all written by the plaintiffs son, that her son never stated that his mother also is etitled to the statutory tenancy. Above all it is revealing to note that in Exhibit A-10 dated 9th February, 1978, which is very much pressed into service by the learned counsel for the appellant it was not alleged that the appellant is claiming her right as one of the legal representatives of her husband, the deceased statutory tenant, on other hand what was alleged is that both herself and her son are tenants. Quite rightly the respondent was bona fide carried away by his vendors statement, reinforced by the conduct of the appellant, as explicit from Exhibits. A-2, A-5 to A-7 and A-9. These apart, the appellant remained mute spectator till the order of eviction was passed and such order was confirmed on 22th August, 1980, on the appeal preferred by her son. It is relevant to notice that the present suit was filed on 29th November, 1980. Nothing prevented the appellant from impleading herself in rent controt proceeding instituted by the respondent as against her son alone or at least from filing the suit as soon as she came to know of the said eviction proceeding. It is not her case that she became aware of the said proceeding just before the presentation of the present action. The fact that she was able to produce the correspondence between her son and the then landlord is ample evidence to suggest that this is a concerted action brought out by the mother in collusion with her son and the sole purpose is to thwart the respondent from reaping the fruits of the rent control proceeding which was fought, but lost by her son is all the three Courts including this Court. After all, what is claimed is a statutory guarantee of the deceased tenant. It is relevant to notice that eviction was sought for by the respondent under section 10 (3) (i) of the Act. It is already noticed that the appellants son challenged such claim of the respondent in all the three Courts. If so, I am unable to comprehend what prejudice was caused to the appellant. In the above circumstances, I am clearly of the opinion that to accept the appellants claim will but breed abuse of process of law. It is here the inconsistent plea plays a vital role. This Court is entitled to take advantage of such a vital defect in the appellants claim to non-suit her to avoid abuse of process of law and to promote justice instead.