V.S. RAHMATHULLAH Vs. A. SIVAPERUMAL

JUDGEMENT

(1.) Plaintiff is the petitioner and defendant is the respondent. O.S. 276 of 1984 was filed in the District Munsif's Court, at Salem, claiming that plaintiff is a tenant in respect of a vacant site belonging to defendant, and that the monthly rent is Rs. 100 and it was the plaintiff, who had put up a thatched shed measuring 55 ft. X 20 ft. in the north and another of the same measurement in the southern side, and that on all four sides, the area covered by the tin sheets, as he is dealing in scrap iron. Defendant filed R.C.O. P. 168 of 1981 for eviction, on the ground of wilful default and other grounds, even though regularly rents have been paid. When plaintiff wanted to lay a new thatched roof in the place of the existing one which had become worn out, defendant claimed higher rent, and motivatedly, filed proceedings before the Rent Controller even though the provisions of the Act 18 of 1960 would not apply to the suit property, and therefore he had filed this suit for permanent injunction to restrain defendant from interfering with his rights to put up new thatched roof in the place of old thatched roof. Defendant, who is residing in the adjoining property, stated that the suit property with the superstructure was leased out for Rs. 100 and it is not true to claim that only vacant site was taken on lease and the proceedings for eviction are pending and that the suit as filed is not maintainable, as the provisions of Act 18 of 1960 would apply to the suit property. Pending disposal of suit, plaintiff had asked for the relief claimed in the suit as an interim relief. Originally the trial court rejected the petition, and on appeal in C.M.A. 32 of 1984 the matter having been remitted by the sub-court, on a consideration of the documents filed, the petition was ordered, and on the appellate court holding that the court had no jurisdiction to hear the petition in view of Act 18 of 1960 being applicable to the suit property, this revision petition is preferred.

(2.) Mr. Raghavan learned counsel for plaintiff, in his elaborate submission would submit that in view of the decision in Sanjeevi Naidu Vs. Chutibabu Mudaliar, 1953(1) MLJ 260 the nature of legal right between the parties itself being at issue and seriously disputed, and as plaintiff would suffer unless the relief claimed by him is granted; this is a fit case in which the appellate Court ought to have proceeded on the basis that Ex. B.7 cannot be acted upon and that by granting interim relief, no prejudice could have been caused to defendant, more particularly, when plaintiff had not asked for reimbursement of the cost incurred in replacing the thatched roof, from time to time, during the pendency of the suit, as well as the Rent Control proceedings. He would also add that, when defendant was unable to prove by any clinching document about leasing out a building as defined under Act 18 of 1960, the legal presumption that could be drawn is to hold that a civil court alone had jurisdiction. On the scope of Sec. 22 of the Act, he submits that, it has limited application and does not comprehend a circumstance which is faced by the plaintiff.

(3.) Plaintiff has filed the suit only after defendant had instituted proceedings under Tamil Nadu Act 18 of 1960. He was fully aware that relating to the superstructure over the site a claim had already been put forth that it belongs to defendant. In spite of it, he had chosen to file the present suit. No doubt, he has already resisted the proceeding before the Rent Controller, and instead of availing of remedies under the said Act, he had chosen to file the present suit, not for declaration nor for any other substantial relief, but only for an interim injunction to restrain defendant, from preventing plaintiff from replacing the thatched roof. What he had prayed for in the main suit, is the relief which he had asked for, in the interlocutory application. Unless the extraordinary circumstance are made out, what could be granted in the main suit, cannot be given by way of interim relief.