S. Venkataraman vs M.V. Krishnaswamy

S. Suryamurthy, J.—This is a civil revision petition against the judgment of a Bench of the Small Causes Court, Madras, allowing the appeal

against the judgment of a single Judge of the Court of Small Causes, Madras.

S.C. Suit No. 1082 of 1972 was fifed by the respondent herein for the recovery of a sum of Rs. 1,260. The plaintiff claimed the same as arrears

of rent. The plaintiff was in occupation of the building bearing No. 26 (No. 1) T.P. Koil Street, Triplicane, Madras, as the tenant of Sri

Parthasarathy Swami Temple, Triplicane, Madras. He permitted the defendant to use a portion of the property for two hours every day in the

evening on the defendant agreeing to pay every month Rs. 35. According to the plaintiff, the defendant was only a licensee, who was permitted to

use the premises during the said two hours every day on the aforesaid terms. Alleging that for the period from 1st November, 1967 to 31st

December, 1971, the defendant did not pay and that a sum of Rs. 1,750 was due, the suit was filed only for the sum of Rs. 1,260, as the claim for

the balance was barred limitation.

The defendant contended that there was no privity of contract between him and the plaintiff, that he became a sub-tenant under ore V.V.

Ranganathan, the plaintiff''s uncle, on 6th February, 1961, on a monthly rent of Rs. 35, that Ranganathan has issued receipts for the payment of

rent for the months of March, April and May, 1962, that subsequently, the son of Ranganathan has issued receipts, that Ranganathan has received

rent up to the end of May, 1968, that the rent subsequently sent by money order was refused by Ranganathan, that Ranganathan has also received

an additional sum of Rs. 200 by way of advance, that after the notice dated 14th October, 1968, issued by the plaintiff revoking the licence, he is

no longer a licensee under the plaintiff and that the suit for the alleged arrears of licence fees is not maintainable.

Though in the notice Exhibit P-2 dated 14th October, 1968, the plaintiff had contended that he had permitted the defendant to use a portion of

the suit premises for two hours every day in the evening, deposing as P.W. 1, he had endeavoured to make out that he permitted the use of the

building every day in the morning for two hours and in the evening for two hours. P.W. 1 also admitted that his uncle was in occupation of the

premises as a tenant of the Devasthanam and deposed that subsequently he got a transfer of the rights in his favour.

The learned trial Judge has observed that the plaintiff had failed to file any receipt or communication from the Devasthanam in support of his

case that he was the tenant of the Devasthanam. The learned trial Judge held that there was absolutely no proof on the side of the plaintiff to show

that the plaintiff was entitled to the property obviously, meaning that the plaintiff was entitled to be in possession of the property as the tenant of the

Devasthanam. There was also no evidence to prove that the leasehold right of Ranganathan was transferred to the plaintiff. Ranganathan also was

not examined as a witness to support the case of the plaintiff. No employee of the Devasthanam was examined in support of the case of the

plaintiff. The other circumstance, on which the learned trial Judge has relied is the notice, Exhibit P-2 in which there was no reference to any

transfer of the leasehold right of Ranganathan in favour of the plaintiff. The learned trial Judge came to the conclusion that the plaintiff has miserably

failed to establish his case. He, therefore, dismissed the suit.

The learned appellate Judges have, however, reversed the judgment of the trial Court because of their view that,

...the oral testimony of applicant is Very much there. His oral evidence is entitled to acceptance since the legal status of the applicant has been

established by the production of Exhibit P-1 series. Even if it is taken for the purpose of argument that the applicant had not inducted the

respondent in to possession of the premises as a licensee at the first instance, the applicant having become the main lessee under the Devasthanam

has succeeded and stepped into the shoes of V. Ranganathan who was the main lessee under the Devasthanam and by continuing in possession of

the portion of the premises as a sub-tenant, the implied legal relationship of licensor and licensee has been brought into existence between the

applicant and respondent. The respondent has not chosen to adduce the evidence of V. Ranganathan who according to the respondent is stated to

be the main lessee even today. In our view, the applicant has established that he is the main lessee of the premises and that as licensor he is entitled

to collect the licencee-fee for the suit period from the respondent.

In this view, the learned Judges have erred. Admittedly, the lease by the Devasthanam was in favour of Ranganathan, the uncle of the plaintiff. The

receipts, Exhibit P-1 series, have been issued by the Devasthanam for the sums received from the plaintiff towards the rent for the premises. This is

not sufficient to prove that the Devasthanam has inducted the plaintiff into the premises as a lessee in the place of Ranganathan. The leasehold right

could not be transferred by any arrangement between Ranganathan and the plaintiff. The lease could be granted only by the Devasthanam. No

doubt, the employees of the Devasthanam have received the rent from the plaintiff for the premises. The employees of the Devasthanam would

have been prepared to receive the rent for the premises from any one. Obviously under the impression that the rent was being, paid on behalf of

Ranganathan, the rent was received. The receipt of rent by any member of the staff of the Devasthanam office would not be tantamount to

recognition of the plaintiff as the tenant. The Executive Officer alone could validly represent the Devasthanam and grant a lease. The plaintiff has

not proved that such a lease was granted.

After the alleged transfer of the leasehold right in favour of the plaintiff, the defendant has not paid him any money towards the alleged licence

fee. Even this licence was revoked by the plaintiff by his notice Exhibit P-2 dated 14th October, 1968. Therefore, there is no privity of contract

between the plaintiff and the defendant. In the circumstances, the learned appellate Judges were not justified is relying on the oral evidence of

P.W.1, the plaintiff. The learned trial Judge was right in rejecting the case of the plaintiff. There was no misappreciation of evidence by the learned

trial Judge. Even if there was such misappreciation of evidence by the learned trial Judge, that would not entitle the Judges hearing the New Trial

Application to interfere with the findings of fact arrived at by the trial Judge, because the Judge of the Small Causes Courts exercising powers u/s

38 of the Presidency Small Cause Courts Act, do not constitute a Court of Appeal and their powers are substantially in the nature of revisional

jurisdiction, though those powers are not so restricted as those u/s 115, Civil Procedure Code. Therefore, they bad no jurisdiction to interfere with

the findings of fact arrived at by the learned trial Judge on a proper appreciation of the evidence.

In Madras Cine Service by Sole Proprietor T.S. Lakshmi Vs. Shyamala Pictures Private Ltd. by Managing Director AR.M.AN. Annamalai

Chettiar, , Ramaprasada Rao, J., has held that u/s 38 of the Presidency Small Cause Courts Act, the Full Bench has no jurisdiction to reverse

findings of fact, as their jurisdiction is purely revisional and not appellate in character. However, the learned Judge also observed that,

...where the new trial Bench definitely is of the opinion that the findings of fact of the trial Court cannot be sustained, it can remit the matter to the

trial Court for a reconsideration of the entire issue. The new trial Bench has power in such circumstances to direct a new trial of the case by

remitting the matter to the trial Court. It is possible that they can give their mind and indicate their views as well in the order of remittal. This is,

however, left to the discretion of the Bench trying the matter.

That situation, however, does not arise here, because the judgment of the learned trial Judge is based on a proper appreciation of the evidence in

the case, and there is no justification for interference in revision.

In the circumstances, the Civil revision petition is allowed, the judgment of the learned appellate Judges is set aside and the judgment of the

learned trial Judge is restored, and the suit is dismissed. There will be no order as to costs.