Sivalingam vs Kallakurichi Municipality

A. Kulasekaran, J.—Defendant is the appellant in this second appeal.

The respondent herein has filed the suit in O.S.No.494 of 1979 for recovery of an amount of Rs.3056-95 in respect of arrears of rent against

the appellant herein. The trial court dismissed the suit on the ground that the plaintiff has not produced any account to prove the claim. Against that

the respondent herein has filed A.S.No.68 of 1985, which was partly allowed. Aggrieved by the judgment and decree the defendant has filed the

second appeal.

The second appeal was admitted on the following substantial questions of law:

1.Whether in law the lower appellate court was right in relying on Ex.A2 and Ex.A5 to determine the period of lease and the monthly rent.

2.Whether in law, the lower appellate court was right in overlooking that the onus of proving the date of vacating the premises was not discharged

by the plaintiff, despite the categorical admission by P.W.1 and P.W.2 that there were account books maintained by the plaintiff to prove the

same.

Under Ex.A1, the appellant herein has approached the respondent to let out shop No.7 for a period of 3 years and under Ex.A2 necessary

resolution has been passed by the respondent to let out the shops to the petitioner and also other tenants. In Ex.A2 it is categorically mentioned

that the quantum of the rent was Rs.155/- and the duration of tenancy was three years. It is the case of the appellant that the respondent has not

produced any lease agreement or the accounts relating to the arrears of rent, hence notice was issued by the counsel to produce the same. It is also

the case of the appellant that they have vacated and delivered the vacant possession of the shop on 14.7.76 itself as such they are not liable to pay

any arrears much less the arrears demanded by the respondent. Ex.A3 is the notice dated 26.12.78 issued by the respondent to the appellant

wherein it is clearly mentioned that the tenancy was in respect of Shop No.7, the quantum of Rent was Rs.155/- and the period of lease was from

1.4.75 to 31.3.78, that the appellant was in arrears of a sum of Rs.3056.95 and called upon him to pay the said amount forthwith. After receipt of

the said notice, the appellant has issued a reply notice Ex.A4 through advocate on 25.1.79 and in the said reply notice it is alleged that earlier a

notice was issued by the respondent on 26.12.78 and necessary reply was sent on 14.6.77 by the appellant and requested to adopt the said reply

notice as part and parcel of the present reply notice. Admittedly in the said reply notice Ex.A4, the respondent has not specifically denied the

liability and also the period of lease. Admittedly the appellant has not produced the copy of the notice dated 14.6.77 of the respondent and also

their reply notice dated 28.7.77. Since the appellant has not specifically denied the liability and the period of tenancy, there was no necessity for

the respondent to produce the accounts and the other documents.

Ex.A5 the resolution of the council permitting the

A. Kulasekaran, J.,

Auction of shops for the period 1973 to 1976. I am satisfied that Exs.A1 to A5 clearly prove the case of the respondent as such I am convinced

with the findings made by the first appellate court. The first appellate court was right in determining the period of lease relying on Ex.A2 & A5. The

plaintiff also proved that the defendant has not vacated the shop on 14.7.76 as alleged by him and non production of the accounts no way affected

the plaintiff case, since the defendant not disputed his liability under Ex.A4. Hence, both the substantial questions of law are answered in favour of

the respondents. With the result, the second appeal is liable to be dismissed and accordingly dismissed. Considering the circumstances of the case,

there will be no order as to costs.