C RAMAKRISHNAN Vs. CORPORATION OF MADRAS

JUDGEMENT

(1.) THESE two appeals are connected. A. S. No. 122 of 1971 is against the judgment and decree of the learned VIII Asstt. Judge, City Civil court, Madras in O. S. No. 6659 of 1968 on his file and A. S. No. 123 of 1971 is against the judgment and decree of the same learned Judge in O. S. No. 3273 of 1968, which was for the recovery of property tax under the Madras City municipal Corporation Act for the first half year 1965-66 and in which the corporation of Madras as plaintiff seeks for charge on the property which has to bear the said property tax. It is common ground that the defendants paid some amounts towards the property tax, but failed to pay the arrears as claimed for the said half year. O. S. No. 6659 of 1968, which we shall call the second suit, is against a suit for recovery of a sum of Rs. 8, 725. 34 being the arrears of property tax after giving credit to the amounts paid by the owners for the second half year 1965-66. first half year 1966-67 and the first half year 1967-68. Hero also, the Corporation of Madras, as plaintiff, seeks for a charge on the property which is liable to pay the property tax. In the first suit as well as in the second, the important facet of the defence of the defendants as owners and who are the appellants in both the appeals, is that the suit property was vacated by Messrs George Oaks Limited, who were the prior occupants and tenants thereof, on 30th April, 1965, and that the premises were thereafter vacant. This was intimated to the plaintiff under Ex. B-5 dt. 7th july, 1965. According to the defendants, the property so remained vacant and unlet till 31st August, 1966, when Messrs National Grindlays Bank occupied a portion of the premises and till November, 1966 when the other portion of developed premises was occupied by a hotelier who began to run his hoteliering business under the name and style of Gaylord Restaurant. Consequent upon such vacancy and unletting of which the defendants claim that they have given due notice, the defendants would say that, having regard to their statutory entitlement as to vacancy remission and taking into consideration the various payments made by them from time to time towards property tax due and payable by them in respect of the suit premises, there would not be any amount due by them to the plaintiff. A special defence was raised in O. S. No. 6659 of 1968. According to the defendants, the first suit which was filed on 9th July, 1968 should have included the claim made under the second suit as well which was filed on 12th december, 1968 and the cause of action in both the suits being the same in the sense that the Corporation of Madras was demanding the property tax due and payable on the same property, the second suit was barred under order II R. 2 civil Procedure Code.

(2.) THE learned trial Judge framed the material issue, the defendants are liable to pay the tax as claimed in the suit and the general issue as to what relief are the parties entitled to. THE suits were tried together. THE plaintiff did not let in any oral evidence, THE defendants examined three witnesses. D. W. 1 being the lessee of the hotel portion of the building, D. W. 2, and Engineer who looked after the improvement done to the quondam premises then occupied by Messrs George Oaks Limited and D. W. 3 being one of the defendants and the owners of the suit premises. THE learned Judge mainly rested his case of Exs. A-1 and A-2. In the said letters written by D. W. 1 as the prospective tenant of the premises, he expressed that he has taken on lease of suit property from December 1965 and therefore, it cannot be said that during the relevant period with which the suits are concerned, there was vacancy and much less unletting of the premises within the meaning of the provision of the Madras City Municipal Corporation Act, hereinafter referred to as the Act. He would of course discountenance the sworn testimony of both D. Ws. 1 and 3 who asserted that the former did not pay and the latter did not receive any rent towards the occupation of one of the other portions referred to above till August 1966 in one case and November 1966 in other. He would uncharitably characterise the testimony of these witnesses as untrue and would say that they were not willing to speak the truth. THE learned Judge also would unreasonably reject the import of recitals in the registered lease deed Ex. B1 dt. 27th july, 1966 entered into between the landlord on the one hand and the National grindlays Bank on the other, wherein it is made clear that the rent become payable only from 16th August, 1966. He would also reject the material placed before him in the matter of opening of the hotel portion (Gaylord) in the premises as and from 3rd November, 1966. He would however, assign no acceptable reason for not placing any reliance upon the registered lease deed Ex. B-1 or on the material which appeared to be plausible and acceptable in relation to the occupancy of Gaylord Hotel in the other portion of the premises. Having thus rejected the oral testimony let in by the defendants, he would solely, as we said already, rely upon a causal communication made by one of the tenants under Exs. A-1 and A-2 to effect that he has taken the premises on leave from december 1965 and negative the claim for vacancy remission as was done by the corporation of Madras under Ex. B-13. In the result, therefore, he rejected the defence, accepted the claim and decreed the suit as prayed for.

(3.) WE shall now refer to the oral evidence. D. W. 1 is a partner of the Gaylord Restaurant. He says that he is a lessee of the suit building from 1st November, 1966 and he has taken on lease a portion of the building prior to November 1966. He refers to the repairs done to the premises and in chief-examination he would say that his portion was ready only on 1st november, 1966 and that he started the restaurant on 3rd November, 1966. He categorically states that he started to pay the rent from 1st November, 1966. he refers to Exs. A-1 and A. 2 and explained that what he meant was that the defendants promised to give the premises on lease to them and that the lease actually commenced only from 1st November, 1966. In cross-examination, nothing very serious was brought out. He reiterated in cross-examination that what he meant by saying that he has taken on lease was that he wanted to take the portion and there were negotiations for it. He denied the suggestion that, as from early September 1965, he has occupied the premises and that he started to pay the rent to the landlords. He would also admit that the air-conditioning and further repairing to the premises was undertaken by the landlords and he had nothing to do with it. D. W. 2 is the civil engineer who was obviously examined on the side of the defendants to speak about the renovations carried on to the premises and he says that when he began the work, the premises was not fit for occupation and that the first defendant met all the bills for the repairs. In cross-examination he would support the defendants by saying that between September, 1965 and April, 1966, it was vacant and that D. W. 1 was occupying it now in the sense that on the date when he was examined and that the Grindlays Bank portion was also vacant from September 1965 to April 1966. He would no doubt say that, when he was supervising the work, D. W. also was frequenting there. D W. 3 who the joint owner of the premises has sworn in the witness box that during the period from 1st May, 1965. to August 1966, the Suit premises was not rented to anybody and that the Grindlays bank started paying rent from August, 1966, and D. W. 1 from November, 1966. He would also say that they met the bill for repairing and renovation of the suit premises. Nothing very telling was brought out in cross-examination of this witness. It is in the background of the above oral and documentary evidence that the present action should be viewed.