1. This is a deft's. appln. to revise the judgment & decree in a suit filed by the resp. Under Section 9, Specific Relief Act, for the recovery of the possession of the plaint schedule property on the ground that the dispossession was otherwise than in due course of law.
2. Briefly stated the facts leading to the suit are as under: The pltf. was a tenant in occupation under the deft. For the arrears of rent due, the deft, obtained a decree in the Ct. of Small Causes & in execution thereof obtained an order for attaching the moveables belonging to the pltf. by breaking open the look of the premises in the occupation of the pltf. The warrant of attachment of moveables was duly executed by the Amin who, in addition to the articles attached, is said to have given vacant possession of the premises to the deft, under a surety bond obliging the deft, to comply with the further orders of the Ct. The pltf's appln. to the Ct. of Small Causes for restitution of possession is said to have been resisted by the deft. & the deft, is alleged to have otherwise refused to restore the premises to the pltf. The pltf., therefore, filed this suit.
3. The plea of the deft, is that the pltf. cannot be consd. to have been a tenant in occupation of the premises at the time when the delivery was given to him, as a notice to quit had been served upon him terminating the tenancy by 1-1-1949, & he, having obtained possession of the premises in a lawful manner from an officer of the Ct. cannot be held to have dispossessed the pltf. otherwise than in due course of law & that the suit as at present brought is, therefore, not maintainable.
4. The circumstances in which the deft. got possession of the suit house are not disputed. Admittedly, the pltf. was not present at the spot as the house was found looked. No consent, implied or express, of the pltf. in respect of the delivery of possession could, therefore, be inferred. The authority to the Amin was merely to attach the moveables & if he has delivered possession of the house, he has done so in excess of his authority & the deft, getting possession of the house in that way cannot be deemed to have obtained possession in due course of law.
5. The object of Section 9, Specific Relief Act, is to protect peaceful possession against the illegal dispossession by persons who take the law into their hands. The possession of the property obtained through the medium of an officer of the Ct. not authorised to act in that direction will not be less a dispossession caused without consent of the person in control of the property than in due course of law contemplated under the Specific Relief Act. I am, therefore, of opinion that the trial Ct. has rightly found that the suit is maintainable & the pltf. is entitled to relief claimed.
6. The next contention raised is regarding the under-valuation of the suit for the purpose of jurisdiction & c.-f. It is urged that a tenant whose tenancy is determined is rendered a trespasser as the relationship of the landlord & the tenant will have ceased & that it is not competent for such a person to bring an action on the basis of tenancy & pay the c.-f. on the annual rent; but a regular suit for possession ought to have been filed by payment of the c.-f. on the market value of the property. I am unable to agree with this contention. A tenant holding over after the termination of tenancy will still continue to maintain that character for the purpose of enforcing his rights as a tenant & on such title he is not precluded from bringing a suit against the landlord. The finding of the lower Ct. that the suit comes under the purview of Section 4, Clause XI (e), Court-fees Act, is not incorrect.
7. In the result, I do not find any reason to disturb the judgment & decree of the Ct. below. The petn. is therefore dismissed with costs. Advocate's fee Rs. 15-/.