- (1.)PLAINTIFF in O.S. No. 260 of 1991 on the file of Principal Subordinate Judge at Pondicherry is the appellant before this Court. The suit filed by him was to direct the defendant to vacate and hand over possession of the suit shop to the plaintiff and also for mesne profits at the rate of Rs. 300/- per month from My 1991 and also subsequent mesne profits from October 1991 till date of handing over possession and to award costs.
(2.)IN the plaint it is averred that the plaintiff is the owner of the property. The schedule premises is a portion of the building, which the plaintiff claims as belonging to him. It is the further case of the plaintiff that the defendant came into occupation of the same on the basis of some arrangement with his father and after the death of his father the defendant continued to pay the rent to the plaintiff at the rate of Rs. 300/- per month. He paid the rent till January 1990. When he did not pay the rent, the plaintiff made a demand, and at that time, the defendant denied the rental arrangement. IN the reply given to the plaintiff, the defendant has stated that there is no landlord and tenant relationship either with the plaintiff or with his father, and therefore, he is not liable to surrender possession to the plaintiff. The suit was therefore filed for the reliefs stated above.
In the written statement filed by the defendant he put forward a contention that he is also a co-owner alongwith the plaintiff and therefore, not liable to be evicted.

The trial Court as per Judgment dated 22.11.1994, decreed the suit as prayed for. The trial Court found that the defendant is in permissive occupation and is also liable for mesne profits. The defendant was given two months' time to vacate the premises. Against the said Judgment, the defendant preferred appeal as A.S. No. 14 of 1995, on the file of the lower appellate Court. The lower Appellate Court found that the civil suit filed by the respondent (appellant herein) is not maintainable on the ground that he ought to have filed a petition under the Rent Control Act, and dismissed the suit allowing the appeal. It is against the said Judgment of the lower Appellate Court, the plaintiff has come to this Court in the Second Appeal.

The following substantial questions of law have been raised in the Memorandum of Second Appeal: " (A) Whether in view of the stand taken by the respondent in the earlier suit (Ex.A1) and in his Reply Notice (Ex.A4) that the Appellant is the owner of the suit property and he is only a permissive occupier of it under him and the mutually destructive claim made by him in his written statement that he is a co-sharer, the present suit filed by the appellant is not just, proper and maintainable" (B) Whether the Court below was right in holding that the appellant has failed to prove that the respondent is a permissive occupier of the suit property and hence, he is not entitled to a decree for recovery of possession of the same when (i) the appellant's title over the same is admitted/established, (ii) the respondent himself has admitted in Ex.A1 & 4 that the Appellant is the owner of it and he is the permissive occupier under him, and (iii) he failed to prove his belated, mutually destructive and vague claim that he is in possession of the same as a co-sharer" (C) Whether the admission made by the respondent himself in his earlier suit and Ex.A5 to 12 and the deposition of P.W.1 would not prove that the appellant is the absolute owner of the suit property and consequently, is the respondent not bound to prove his claim that he is a co-sharer of the suit property and he was permitted to be in possession of the same in the said capacity" (D) Whether the Court below was right in ignoring the entire oral evidence and not considering and discussing Ex.A1 to 12 in their correct perspective and the said mistake had not vitiated its Judgment" (E) Whether in view of the facts and circumstances of the case, law and materials on records, more particularly, the malafide conduct and attitude of the respondent, is he entitled to any indulgence or protection in a Court of law" (F) Whether the Court below was right in presuming facts and circumstances without there being any pleadings, materials, arguments etc. therefor and render findings in the A.S."

When the matter came up for admission, I ordered Notice of Motion. Since the respondent has also entered appearance, the entire matter was heard. The only question consideration is whether the civil suit filed by the appellant is maintainable. For the said purpose, a little more probe into the facts is necessary. Against the plaintiff herein, the respondent filed O.S. No. 606 of 1990, in respect of the very same premises. That was a suit for injunction restraining the defendant therein from interfering with his possession. In that case, the defendant herein alleged that he has been permitted to conduct the business in the schedule premises and that he has been conducting the business under the name "Balaji Stores" and the appellant herein attempted to dispossess him from the suit premises. In that case, the present plaintiff alleged that the defendant herein is a tenant and that he has been paying the rent at Rs. 300/- per month till January 1990, but failed to pay the rent thereafter. He also contended that the plaintiff in that suit is not a licencee or a permissive occupier and he also denied that he attempted to dispossess him. In the above suit two of the issues that came up for consideration were (1) what is the extent of the property that was leased out to the plaintiff"; and (2) Whether it is true that the defendant and his men are trying to dispossess the plaintiff of his lease-hold premises". On these two issues, the Court found that the extent of land under lease to the defendant herein is 8-1/2 13-1/2 feet and not 15 ft. 85 ft. as contented by the defendant herein. It is also found in that case that the defendant therein (appellant herein) did not make forcible attempt to dispossess the plaintiff from the leasehold premises. It was found that since the plaintiff in that suit has not proved the cause of action, the suit is liable to be dismissed.

(3.)IT is thereafter the present suit is filed, asking the defendant to surrender vacant possession. Before the suit was instituted a notice was issued on 24.6.1991. The first paragraph of the notice reads thus: "
"IT is represented to me that you have taken the schedule mentioned property, namely a shop bearing Door No. 96-C, Chetty Street, Pondicherry to an extent of East to West 8-1/2 feet and South to North 13 -1/2 feet situate in the front portion of the house bearing door No. 96, Chetty Street, Pondicherry, from my client's father on 1.2.1985 for non-residential purpose of running a business in rice and paddy undertaking to pay a sum of Rs. 300-00 every month regularly as rent on or before 5th. As you are closely related you have not paid any amount as advance."
In the notice it is further stated that rent was paid only up to January 1990, and a demand is made to pay the entire arrears of rent from January 1990 at Rs. 300/- per month.
A reply was sent by the respondent denying the rental arrangement. Thereafter in the plaint, which was instituted by the appellant, in paragraph 3, it was stated thus: "

"The Plaintiff further submits that since the suit shop was taken by the defendant during the lifetime of his father he honestly believed that the defendant had taken the said shop from the plaintiffs father on oral lease. After the death of the plaintiff's father the defendant was paying a sum of Rs. 300-00 every month to the plaintiff till January 1996. Now the defendant denied that he had never paid any amount as rent to the plaintiff."
From the facts extracted above, it is clear that the definite case of the plaintiff is that the defendant is a tenant in respect of the building and there was a default in paying rent from January 1990. This allegation is also recognised in the suit filed by the defendant for permanent injunction. In that suit even though the tenant claimed to be in possession of a larger extent the trial Court held that the defendant is in possession of a smaller area (the schedule premises in this case) and that is a leasehold premises. It was further found in that case that the plaintiff did not make any attempt to interfere with the leasehold premises of the plaintiff therein. What is the effect of this admission and the consequence of the finding in the suit" The only conclusion that could be arrived at is that the defendant is a tenant of the building. Eve in the present plaint, the plaintiff does not deny that the statement made by him earlier is not correct. He only pleads in paragraph 3 of the plaint that the rent was paid only upto January 1990, but since the defendant denies these transactions, he wants to get the possession of the property, as if the defendant is in permissive occupation. In such cases, I do not think the plaintiff can institute a civil suit and recover possession without resorting to proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act.
A similar question came up for consideration before the Hon'ble Supreme Court in the decision reported in 1991 (3) S.C.C. 230 = A.I.R. 1991 S.C. 1094 = 1991 2 L.W. 654 ( East India Corporation Ltd. v. Shree Meenakshi Mills Ltd.). In that case, a suit was instituted for recovery of the Building with arrears of rent. The defendant denied the tenancy arrangement and contended that he was in occupation as a co-owner and the suit was decreed and affirmed upto High Court. The matter was taken up before the Hon'ble Supreme Court, wherein a contention was taken that without resorting to the Rent Control proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, initiation of civil suit for recovery of property is not maintainable. This question was considered elaborately by the Hon'ble Supreme Court. A further contention was taken before the Hon. Supreme Court, that only actual eviction of the tenant is prohibited and not the initiation of a suit, and the civil Court has jurisdiction to pass a decree. In paragraph 4 of the Judgment, this contention was reiterated by the counsel for the respondent before the Hon'ble Supreme Court, which reads thus: "

"4. Dr. Y.S. Chitale, appearing for the respondent, however, submits that the decree passed by the civil court in the present case is not a nullity, for, the Act has not barred the jurisdiction of the civil Court, but only prohibits execution of a decree for eviction otherwise than in accordance with the relevant statutory provisions. Such a decree, he says, is not void, but is merely under an eclipse, and will become executable as and when the bar is removed. He refers to Section 10 of the Act which re ads: "Eviction of tenants. " (1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 14 to 16." In paragraphs 7 to 10, their Lordships of the Supreme Court have held thus: "
"7. Section 10 of the Act, as seen above, prohibits eviction of a tenant whether in execution of a decree or otherwise, except in accordance with the provisions of that Section or Sections 14 to 16. These provisions as well as the other provisions of the Act are a self-contained Code, regulating the relationship of parties, creating special rights and liabilities, and, providing for determination of such rights and liabilities by tribunals constituted under the statute and whose orders are endowed with finality. The remedies provided by the statute in such matters are adequate and complete. Although the statute contains no express bar of jurisdiction of the civil court, except for eviction of tenants "in execution or otherwise", the provisions of the statute are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it, and their competence to administer the same remedy as the civil courts render in civil suits. Such tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure, the clear and explicit intendment of the legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals constituted under it. Although the jurisdiction of the civil court is not expressly barred, the provisions of the statute explicity show that, subject to the extraordinary powers of the High Court and this Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute. See in this connection the principle stated by this Court in Dhulabhai v. State of M.P. (1968 (3) SCR 662 = AIR 1969 SC 78). See also Secretary of State v. Mask & Co. (AIR 1940 PC 105) Raleigh Investment Co. Ltd. v. Governor General in Council (AIR 1947 PC 78) and Barraclough v. Brown (1897 AC 615 : 66 LJQB 672 (HL).