S ISMAIL Vs. RAJKUMAR BHAGWAT SARAN

JUDGEMENT

(1.) THIS appeal is by defendants 3 and 4 against the judgment and decree dated 15-3-1983 passed in C.S. No. 73 of 1979 on the file of the Original Side of this Court, as amended on 1-2-1995 pursuant to an order made in Application No. 2239 of 1983. The first respondent in the appeal is the plaintiff. In the cause title in the Memorandum of Appeal, immediately below the name of the first respondent, the names of. All India Training Co. by its Partner and Salebhai are shown. With regard to the firm, it is typed within brackets "Partnership firm, dissolved". With reference to Salebhi, it is typed within brackets "deceased". The Memorandum shows 11 persons as respondents 2 to 12 and below their names it is typed "Respondents 2 to 12 are not necessary parties since the claim in the suit against these respondents had been given up by the plaintiff in C.S. No. 73/79". Thus, the plaintiff is the only respondent in the appeal.

(2.) He filed the suit on 22-7-1974 for judgement and decree against defendants 1 to 4 for recovery of possession of the leased portion, namely Block No. 4 in the second floor of the premises bearing Municipal Door No. 57, Linghi Chetty Street, G.T. Madras-1, for judgement and decree against all the defendants jointly and severally for recovery of the movables described in the Schedules "A" to "H", or in the alternative, for payment to the plaintiff of the sum of Rs. 11,15,100/- being the value of the said movables recoverable from all the defendants jointly and severally and for judgement and decree against all the defendants for Rs. 10,000/- towards damages for malicious trespass and conversion committed by all the defendants recoverable jointly and severally. The substance of the plaint is as follows:- The plaintiff was a lessee of a portion of the premises in Door No. 57, Linghi Chetty Street, Madras-1 from 1-9-1972 on a monthly rent of Rs. 200/- for a period of five years. He had kept in the said premises all his movables, books, documents and other belongings fully and particularly described in Schedules "A" to "H" in the plaint. There were certain disputes between him on the one hand and the defendants on the other, which led to a police complaint by the plaintiff on 2.9.1973 that defendants 1 to 4 were criminally and unlawfully restraining him from entering into and using the suit portion and also threatened to shoot him down with a gun. There were some proceedings in the Court of Small Causes i ncluding a petition for eviction filed by the first defendant against the plaintiff under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. In December 1973, defendants 5 and 6 accompanied by one Madani, an advocate and two other persons, met the plaintiff and negotiated for a settlement. Thereafter, the defendants brought in the 15th defendant to put pressure on the plaintiff in order to succeed in the bargain. The plaintiff rejected the offer. On 26-1-1974, when the plaintiff went as usual to the leased premises for collecting his letters from the letter box, he was shocked to note the disappearance of the letter box as well as his name board and he found that the portion leased out to him was under a different lock and there were marks indicating tampering with the door as well as the padlock used by him. On enquiry he was told that defendants 1 to 4 had locked his premises with the help of other defendants and they were giving out a version to the visitors that the plaintiff had vacated. He lodged a complaint with B-1, North Beach Road Police Station, but no action was taken. When the police made an enquiry, it was represented by the defendants that the Tahsildar, North - East Taluk, Madras, had broken open the lock and distrained the movables for the purpose of collection of court-fees due in a court proceeding. The plaintiff found out on a correspondence with the Tahsildar that it was not true. According to the plaintiff, the defendants deliberately, maliciously and wrongfully committed trespass into the portion leased out to him by breaking open the lock and removing all his belongings described in Schedules "A" to "H" and converting the same into their own property, thereby causing irreparable loss to the plaintiff. The plaintiff is, therefore, entitled to not only recover possession of the portion leased to him, but also restoration of his belongings described in Schedules "A" to "H" or recover the value thereof being Rs. 11,15,100/- and for damages suffered by him on account of the defendants' tortious acts of trespass and conversion, nominally assessed at Rs. 10,000/-. In the cause of action paragraph it is stated that the cause of action arose on 22nd January, 1974 when the defendants committed tortious acts of trespass into the premises and wrongfully dispossessed the plaintiff and took over the movables kept therein. In Schedule "A" to the plaint, two items are described, the first being documents for C.S. No. 127 of 1970 for a claim of Rs. 5,00,000/- and the second being documents relating to claim of Rs. 5,00,000/- against the estate of Raja Kandaswamy Mudaliar of Hyderabad including all other valuable documents and papers handed over to the plaintiff by V. Kandaswamy, the agent of the heirs of the said Raja. The said items are valued at Rs. 5,00,000/- each. Schedule "B" refers to complete and entire files and bundles of relevant papers and documents pertaining to about 200 Civil, Criminal and other cases. The numbers of several of such cases have been set out. They are valued at Rs. 1,00,000/- approximately. Schedule "C" contains a list of about 132 Law Books and other books approximately valued at Rs. 1150/-. Schedule "D" refers to books of account, rubber stamps, photographs etc., valued at Rs. 1605/-. Schedule "E" refers to 62 clip files approximately valued at Rs. 5000/-. Schedule "F" values the furniture including the electric sub-meter and framed pictures of Gods and Goddesses, valued at Rs. 3190/-. Schedule "G" refers to 260 photographs and negatives relating to various documents etc., approximately valued at Rs. 400/-. Schedule "H" values one telephone set and one telephone directory at Rs. 155/-. The plaintiff obtained leave to file the suit in forma pauperis.

(3.) SUMMONS was served on defendants 1 to 6, 12 and 15. Defendants 5 and 6 filed a common written statement on 30-10-1979 denying all the allegations contained in the plaint. The 12th defendant filed a separate written statement on 21-7-1979 denying the allegations in the plaint. The plaintiff made an endorsement of the docket of the plaint on 29-1-1983 withdrawing the suit as against defendants 5, 6 and 12 and prayed for dismissal of the suit as against them without costs. No orders were, however, passed on the said endorsement. The suit was taken up for trial on 15-3-1983. On that date, the plaintiff made an endorsement on the docket of the plaint giving up defendants 5 to 15 and praying for dismissal of the suit as against them. The plaintiff examined himself as P.W. 1 and marked Exs. P-1 to P-9 on his side. As defendants 1 to 4 were absent, they were set ex parte and the court passed a judgement the relevant portion of which reads as follows:-