SELVAMANI Vs. MOHAMMED FAMIN

JUDGEMENT

(1.) This second appeal has been directed against the impugned judgment and decree passed by the first appellate Court in A.S.No.16 of 2011 dated 2.4.2013, wherein the dismissal of the suit by the trial Court in O.S.No.54 of 2010 dated 20.9.2011 was reversed, and thereupon has decreed the suit. Aggrieved by the judgment, the defendant has brought this second appeal.

(2.) Learned counsel for the appellant/defendant, heavily attacking the findings and conclusions reached by the first appellate Court while reversing the reasoning given by the trial Court, submitted that when the respondent/plaintiff/landlord has approached the trial Court on two grounds, namely, (a) wilful default in payment of rent by the appellant/defendant/tenant and (b) usage of mud oven in the suit property and thereby causing damage to the suit property, the trial Court rightly, considering the case of the respondent that he has miserably failed to establish these two facts before the trial Court, dismissed the suit. Whereas, on appeal by the landlord, the first appellate Court, completely losing sight of the well reasoned judgment of the trial Court, has decreed the suit, therefore, the impugned judgment and decree passed by the first appellate Court are liable to be set aside. Adding further, he has contended that when the suit property, namely, the shop for which the lease deed was executed between the appellant and the respondent, was of the year 2009, admittedly, the appellant has been residing and continuing his business for the last three years by paying the rent regularly without causing any default whatsoever, the respondent, all of a sudden, filed the suit even without establishing the fact that the building is a new one. Therefore, the trial Court, finding that the respondent has miserably failed to establish his case that the suit shop is a new one, hence, the said suit shop is exempted under Section 30 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, has rightly dismissed the suit. Contrary to the well reasoned judgment of the trial Court, the first appellate Court, without dealing with the specific finding given by the trial Court on the provisions of the Tamil Nadu Buildings (Lease & Rent Control) Act, keeping in mind that the suit has been filed within five years from the completion of construction of the shop building, wrongly granted the decree sought for by the respondent herein, ignoring the fact that the appellant has been regularly paying the rent by way of deposit before the Rent Controller in R.C.O.P.No.1 of 2010, therefore, the impugned judgment is liable to be set aside. Concluding his arguments, the learned counsel further urged this Court to interfere with the impugned judgment by pleading that when the respondent, who approached the trial Court seeking eviction of the appellant, has not even proved that the suit building is exempted under Section 30 of the Tamil Nadu Buildings (Lease & Rent Control) Act, the suit ought not to have been entertained and decreed. On this basis, he prayed for setting aside the impugned judgment by allowing the second appeal.

(3.) In reply to the above submissions, the learned counsel for the respondent, heavily opposing the above prayer, contended that the appellant, who came into the suit property as a tenant on payment of monthly rent of Rs.4,000/- by executing the lease deed dated 1.8.2009, which was marked as Ex.A1, by filing a detailed written statement, has admitted the execution of the lease deed dated 1.8.2009 in respect of the suit property. Having admitted the execution of the lease deed, he has also further admitted the construction and completion of the new building in the month of June, 2009. When these significant facts have been admitted by the appellant in his own written statement, as per Section 58 of the Evidence Act, the admitted facts need not be proved by the other side viz., the respondent/plaintiff in the present case. Therefore, the only question needs to be answered in the present second appeal is, in the light of the two admissions made by the appellant, whether the suit shop, admittedly the construction of the same was completed in the month of June, 2009, is exempted under Section 30 of the Tamil Nadu Buildings (Lease & Rent Control) Act. As admitted by the appellant in his written statement that the construction of the suit building was completed in June, 2009, thereupon he had executed the lease deed dated 1.8.2009, which has been marked as Ex.A1, the fact remains to be seen is whether the suit building being a new one, the construction of which has been completed only in the month of June, 2009, is exempted under Section 30 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, hence, the provisions of the Tamil Nadu Buildings (Lease & Rent Control) Act would not apply to the suit building. This important, vital and legal aspect has been completely given a go-by by the trial Court, therefore, on appeal, the first appellate Court, after considering the error committed by the trial Court that it has ignored the two important admissions made by the defendant himself which are crucial for decreeing the suit, has given an answer on Section 30 of the Tamil Nadu Buildings (Lease & Rent Control) Act, on the basis of the execution of Ex.A1 lease deed dated 1.8.2009, under which the appellant was inducted as a tenant in the new building.