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K. Mohamed Sheriff Vs. P.S. Mohamed Thasim Sahib - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 135 of 1961
Judge
Reported inAIR1964Mad453
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9; Madras Buildings (Lease and Rent Control) Act
AppellantK. Mohamed Sheriff
RespondentP.S. Mohamed Thasim Sahib
Appellant AdvocateA. Subramania Iyer, Adv.
Respondent AdvocateT.R. Ramachandran and ;T. Martin, Advs.
DispositionAppeal dismissed
Cases ReferredHindu Religious Endowments Madras v. Rugmini
Excerpt:
- - observed- the original house having ceased to exist, and the tenant not being entitled to claim that the protection of the acts had throughout attached to the plot of land, he has also failed in his contention that the building in the course of erection on these premises1 was at the material date a dwelling-house let as a separate dwelling......appellant in this appeal. the respondent filed the above suit for recovery of possession of the suit property. as the appellant remained absent, he was set ex parte, and a decree, as prayed by the respondent, was passed. subsequently the appellant filed an. application for setting aside the ex parte decree and that application was dismissed. the decree-holder thereafter executed his decree and obtained delivery of possession. subsequently, the appellant, in e. a. no. 413 of 1961, applied for setting aside the ex parte order of delivery and for re-delivery of the suit property to him on the ground that the learned district munsif had no jurisdiction to pass a decree for eviction, as the only forum, according to the then, prevailing statute, was the rent controller. the leaned district.....
Judgment:
ORDER

Venkatadri, J.

1. This matter arises out of execution proceedings in O. S. No. 114 of 1959 on the file of the District Munsif of Nagarcoil. The defendant is the appellant in this appeal. The respondent filed the above suit for recovery of possession of the suit property. As the appellant remained absent, he was set ex parte, and a decree, as prayed by the respondent, was passed. Subsequently the appellant filed an. application for setting aside the ex parte decree and that application was dismissed. The decree-holder thereafter executed his decree and obtained delivery of possession. Subsequently, the appellant, in E. A. No. 413 of 1961, applied for setting aside the ex parte order of delivery and for re-delivery of the suit property to him on the ground that the learned District Munsif had no jurisdiction to pass a decree for eviction, as the only forum, according to the then, prevailing statute, was the Rent Controller. The leaned District Munsif agreed with this contention., allowed the petition and ordered re-delivery of the suit property to the appellant. Against this order of the learned District Munsif, the respondent preferred an appeal, C. M. A. No. 16 of 1961, to the District Judge of Kanyakumari at Nagarcoil, who allowed the appeal, and set aside the order of the District Munsif, Nagarcoil, observing that the provisions of the Buildings (Lease and Rent Control) Act, will come into play only when there is a structure on the property. It is against this order of the learned District Munsif that the appellant has filed this Civil Miscellaneous Second Appeal.

2. On behalf of the appellant it is seriously contended that when the respondent filed a suit for possession of the suit property, the only forum with whom he' should have filed an application was the Rent Controller Nagarcoil. But, when the matter came up before the appellate Court, the respondent rightly raised an objection that the provisions of the Buildings (Lease and Rent Control) Act would not be applicable, as the structure on the property had fallen down and as the suit property was only a vacant site. I am inclined to agree with the learned District Judge that the provisions of the Buildings (Lease and Rent Control) Act will come into play only when there is a structure on the property.

To support this proposition of law, reference may be made to Ellis and Sons Amalgamated Properties Ltd. v. Sisman, 1948 1 K B 653. The facts in that case are that a house within the Rent Restriction Act was so extensively damaged by enemy action in 1941, that it was demolished by the local authority. Subsequently the landlord, in its place, constructed a new house. The old tenant filed an application contending that he has got a right to occupy the new house as he has not ceased to' be a tenant. It is in that connection that Tucker L. J. observed-

'........... the original house having ceased to exist, and the tenant not being entitled to claim that the protection of the Acts had throughout attached to the plot of land, he has also failed in his contention that the building in the course of erection on these premises1 was at the material date a dwelling-house let as a separate dwelling. That being so, it seems to me that, however unfortunate it may be for him, he has no claim to occupy these premises now or at any future time. If this is a matter which calls for remedy in view of the unfortunate position of tenants, whose houses have been destroyed, the remedy must be provided by the Legislature. It is not for these courts, in an attempt to do what may appear to be justice to tenants, to put a strained and unnatural interpretation upon the language of these Acts of Parliament.'

This case has been referred and explained in Morleys Ltd. v. Slater, 1950 1 All ER 331. In this case the premises were damaged by enemy action and became uninhabitable, but the tenant was able, and continued, to use them for the purpose of his business. The landlords gave the tenant a notice in writing to quit the premises and claimed possession. It was held by the Court of Appeal that the premises were originally let as a dwelling-house within the Rent Acts; they remained the same identifiable premises; the fact that owing to the damage the tenant was prevented from living in the premises did not change the character of the letting. What they pointed out is that the premises are still identifiable and still habitable and the tenant has got the right to live in the premises.

3. Megarry in his book on 'The Rent Acts' 4th Edn. at page 83, says that the restriction of the Acts do not inhere in the land after the demolition of the dwelling house, but remains only so long as it is there. All these principles have been explained in 'Principles of Rent Control' by Andhyarujina at page 19 thus :-

'A statutory tenancy also ceases when the house ceases to exist either duel to a change of identity or the destruction of the premises; but it is a question of fact whether the identity is destroyed or not. But in the case of a contractual tenant even in spite of destruction of the house, the tenant remains a contractual tenant of the site, and if a new house is constructed on the site, he becomes a tenant of the) new house. But if his tenancy is determined after the destruction of the house, but before the new house becomes habitable, no statutory tenancy would arise, for the essence of the statutory tenant's right is that he must be in possession at the date of the determination of his contractual tenancy.'

4. Learned counsel also cited Hindu Religious Endowments Madras v. Rugmini, AIR 1932 Mad 470. In that case the Bench consisting of Beasley C. J. and Cornish J. had to consider whether the Madras Hindu Religious Endowments Act would be applicable, though there is no temple in existence. It is in that connection that their Lord Ships observed-

'In my view, that section does not assist the appellants because the proper construction of it seems to me to be that it is to enable the Board to deal with religious endowments, the original purposes of which subsequent to the Act become impossible of realisation, {hat is to say, by the temple ceasing to exist, or religious endowments which come into existence after the passing Of the Act and the purposes of which are never realised.'

The learned Judges observed that the Act is not at ail applicable because there was no existence of the temple. I feel that the conclusion arrived at by the learned District Judge seems to be correct. This appeal is dismissed, but in the circumstances without costs.


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