K N GOPAL Vs. A BHANUMATHY

JUDGEMENT

(1.) THIS Second Appeal arises out of the Judgment in A.S.No.48/1995 dated 20.04.1995 reversing the Judgment of the trial court and dismissing the Plaintiff's suit for Permanent Injunction. Unsuccessful Plaintiff is the Appellant in this appeal. Pending Second Appeal, Appellant K.N. Gopal died and his legal representatives wife, son and daughter were brought on record as Appellants 2 to 4. For convenience, the parties are referred as per their array in the suit.

(2.) UNDISPUTED facts obtaining from the materials on record is that the deceased first Appellant/Plaintiff K.N. Gopal was a tenant of the shop under the Respondent/Defendant at No.5, Manali Road, Gopal Reddiar Nagar, Korukkupet, Madras-21 and he was carrying on business in the sale of Aluminium articles in the demised premises. Originally the rent was Rs.200/- which was subsequently increased. Plaintiff was regularly paying electricity and water connection charges. Defendant/Land lady sent ultimatum calling upon the Plaintiff to vacate the shop on or before 10.01.1990. Apprehending forcible dispossession, Plaintiff had filed the suit for Permanent Injunction restraining the Defendant from interfering with the possession and enjoyment of the tenanted shop. After filing of the suit, alleging dispossession on 28.01.1990, Plaintiff amended the plaint including prayer for delivery of vacant possession of tenanted shop.

(3.) IN the appeal preferred by the Defendant, lower Appellate court held that even prior to the filing of the suit, on 21.01.1990 itself the Plaintiff was out of possession which was suppressed by the Plaintiff at the time of filing of the suit. The lower Appellate court disbelieved the version of the Plaintiff that the Defendant had taken forcible possession on 28.01.1990. Referring to Ex.A19 F.I.R. in Cr.No.125/1990, lower Appellate court held that possession of the tenanted premises was taken even on 21.01.1990 and while so, the Plaintiff could not have been dispossessed on 28.01.1990 as alleged by the Plaintiff. The lower Appellate court also pointed out that for the relief of possession, Plaintiff has not paid the court fee.