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P. Ramasami Naidu Vs. Venkataramanjulu Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1914Mad301; (1914)26MLJ467
AppellantP. Ramasami Naidu
RespondentVenkataramanjulu Naidu and ors.
Cases ReferredRamakrishna Sitaram v. Haji Dawood Ismail I.L.R.
Excerpt:
.....section 41. the learned third judge of the small causes court overruled these objections and gave possession to the plaintiff directing that 'the defendant chandrasekara aiyar who appeared for the plaintiff has argued this point very fully and clearly before me. maberly (1811) 2 campbell 573 it was held where a tenancy was 'for 12 months certain and six months' notice to quit afterwards, notice given to terminate the tenancy at the end of the first year was good. maberly (1811) 2 campbell 573 (ubi-sub) was cited in the argument, and was not disapproved of. it must be remembered that the power to pass orders relating to immoveable property is an exceptional authority conferred on the presidency small cause courts. if the conditions fail, the jurisdiction does not exist......fixed period was over, leaving it to the landlord the right to claim possession after giving six months notice. i cannot accept the conclusion of the learned judge that the six months notice was to be anterior to the 15 years and not subsequent. there are no indian authorities on the construction to be placed on similar clauses in rent agreements. nor are the english authorities uniform. in thompson v. maberly (1811) 2 campbell 573 it was held where a tenancy was ' for 12 months certain and six months' notice to quit afterwards, 'notice given to terminate the tenancy at the end of the first year was good. in 61 law times page 729, lord coleridge says this with reference to thompson v. maberly (1811) 2 campbell 573 ' mr. cross relied on the case' of thompson v. maberly (1811) 2 camp.....
Judgment:

1. This was a proceeding in ejectment under Section 41 of the Presidency Small Cause Court Act: Defendant executed a rental agreement on the 14th June 1897 agreeing to occupy the site for 15 years , by building a house on it. The agreement provides ' In case you require the aforesaid land if you give me 6 months' previous notice after the aforesaid 15 years, I shall accordingly vacate the land, remove the superstructure I had built thereon and put you in possession of it,' Plaintiff gave two notices, one in October 1911, and another on the 13th December 1913 claiming possession on the 31st of that month : plaintiff's case is that the tenancy came to an end by efflux of time on the 14th June 1912 and that as he gave notice in October 1911, defendant was bound to vacate the premises : Defendant contended that the first notice was bad as it was before the 15 years were over, that the second notice did not terminate the tenancy as it did not allow 6 months' time to vacate, and that the Small Cause Court had no jurisdiction to entertain the application under Section 41. The learned Third Judge of the Small Causes Court overruled these objections and gave possession to the plaintiff directing that 'the defendant should remove the superstructure at his cost and deliver the site on 1st May 1913' Defendant moves the High Court to revise this order: A preliminary objection is taken to the jurisdiction of the High Court to entertain the Revision petition. Mr. Chandrasekara Aiyar who appeared for the plaintiff has argued this point very fully and clearly before me. His contention is that under Section 8 of Act V of 1908 only certain sections of the Code of Civil procedure were made applicable to suits or proceedings of Small Cause Courts, and that Section 115 is not one of those sections He also contended that as Section 23 of Act XV of 1882 which related to the provisions of the Code of Civil Procedure applicable to Presidency Small Cause Courts was repealed by Act I of 1895, and as the said section referred to the schedule which made Section 622 of the Old Code corresponding to Section 115 of the present Code applicable to Small Cause Courts, by implication the power of the High Court to interfere in Revision under Section 115 was taken away : and he quoted Ismalji Ibrahimji Nagree v. N.C. Macleod I.L.R. (1907) B. 138 in support of this position. Section 8 of the Code of Civil Procedure enumerates the sections which are made applicable ' to any suit or proceeding in any Court of Small Causes,' The petition before me is not a suit or proceeding in a Small Causes Court. Nor does the repeal of Section 23 affect the question. It was due to the fact that the Civil Procedure Code contained provisions relating to the provisional powers of the High Court and it was thought unnecessary to provide for it in the Small Cause Courts Act. As regards Ismaljee Ibrahimjie Nagree N.C. Macleod, Receiver I.L.R. (1907) B. 138 it is true that Mr. Justice Beaman expressed a doubt whether Section 622 of the old Code was applicable to applications to revise suits or proceedings from Small Cause Courts. But the learned Judge gives no reason for his conclusion There can be no doubt that the language of Section 115 is in terms applicable to cases coming' from Presidency Small Cause Courts. They are subordinate to the High Court (Vide Section 3 of Act V of 1908 and Section 6 of Act XIV of 1882) Therefore unless by any express provision the power of the High Court is taken away, it will have jurisdiction to revise the proceedings of Small Cause Courts. The practice in the Presidency has been to entertain these applications. I am fortified in this view by the decision of the Calcutta High Court in Haladhar-Maiti v. Choytonna Maiti I.L.R. (1903) C. 588. In Ramadhin Bania v. Sewbalak Singh I.L.R. (1910) C. 714 and in Sarat Chandra Singh v. Brojo Lal Mukerji I.L.R. (1903) 0. 986 the learned Judges of the Calcutta High Court came to the conclusion that the High Court was competent to exercise revisional jurisdiction, but directed that the petition should be disposed of by the Judge sitting in the Original Side of the High Court. That is not the practice which has been adopted by the Madras High Court. I must overrule the preliminary objection and hold that the High Court has power to revise the proceeding under Section 115 of the Code of Civil Procedure.

2. On the merits, the question turns upon the construction to be placed on the rental agreement. Mr. Parthasarathi Aiyangar for the petitioner contends that the language of the rental agreement imports that the defendant was not to be disturbed under any circumstance within the 15 years of his lease, and that on the expiry of that period, the plaintiff can recover possession only after giving six month's notice. It is contended on the other side that the term as to six months ' notice was inserted in order that the defendant may know at the end of the 15th year that the landlord intends to eject him and that the notice of October 1911 is sufficient compliance with this condition. I am unable to accept this construction. The language is plain and unambigious; and that parties apparently contemplated the continuance of the tenancy on the original terms after the fixed period was over, leaving it to the landlord the right to claim possession after giving six months notice. I cannot accept the conclusion of the learned Judge that the six months notice was to be anterior to the 15 years and not subsequent. There are no Indian authorities on the construction to be placed on similar clauses in rent agreements. Nor are the English authorities uniform. In Thompson v. Maberly (1811) 2 Campbell 573 it was held where a tenancy was ' for 12 months certain and six months' notice to quit afterwards, 'notice given to terminate the tenancy at the end of the first year was good. In 61 Law Times page 729, Lord Coleridge says this with reference to Thompson v. Maberly (1811) 2 Campbell 573 ' Mr. Cross relied on the case' of Thompson v. Maberly (1811) 2 Camp bell 573 (ubi. sub), where Lord Ellenborough, C.J. stated that if premises are taken for ' twelve months certain and six months, notice to quit afterwards,' the tenancy may be determined by a six months notice to quit expiring at the end of the first year.' That case is not, however, quite satisfactory, as it appears to have been decided on the meaning of the word certain, and as Lord Campbell points out in a note, the decision was for the plaintiff on another point, so that Lord Ellenborough's observation was obiter. It is true that, in the case of Brown v. Symons and Anr. (1860) 8 C.B.N.I. 208 : 29 L.J. 251, C.P in the Common Pleas, which was an apprenticeship case and turned upon the words ' for twelve months certain', Thompson v. Maberly (1811) 2 Campbell 573 (ubi-sub) was cited in the argument, and was not disapproved of. But I think that in a case of a similar agreement where the word ' certain ' does not occur, it would be very doubtful whether Thompson v. Maberly (1811) 2 Campbell 573 (ubi-sub) should be treated as an authority.' The same view was held by the Court of appeal in The Canon Brewer v. Nash (1898) 77 LT 648 The case Brown v. Symons and Anr. (1860) 8 C.B.N.I. 208 : 29 L.J. 251, C.P related to a contract of service and does not affect the decision in the above cases. In Halsbury's Laws of England Vol. XVIII page 444, the proposition is thus stated in the notes. ' In general where there is a fixed term and then the tenancy is determinable on notice, the notice cannot, it seems, be given until after the expiration of the fixed term.' This view is in consonance with reason and justice. I therefore hold that the tenancy was not terminated by the notice of October 1911 and that the notice of the 13th of December 1912 was not sufficient.

3. The further question now arises, whether the Presidency Small Cause Court had jurisdiction to direct possession to be given under Section 41 of the Act. The second paragraph of that section makes the determination of the tenancy a condition precedent to the exercise of jurisdiction. It must be remembered that the power to pass orders relating to immoveable property is an exceptional authority conferred on the Presidency Small Cause Courts. The conditions under which this power can be exercised must therefore be strictly complied with; if the conditions fail, the jurisdiction does not exist. It was argued before me that the defendant has other remedies and that he is not entitled to invoke the aid of the High Court's revisional powers. A number of cases were quoted before me. I take the principle of these decisions to be that where there is discretion to be exercised, the High Court will ordinarily refuse to interfere, if the petitioner has other remedies. Generally speaking, only cases which are sought to be brought under Clause (c) of Section 115 will be affected by this rule. I am of opinion that where want of jurisdiction has been established, no question of the exercise of discretion arises and that the High Court cannot condone absolute want of jurisdiction. The decision of Mr. Justice West in Amritra'v Krishna Deshpande v. Balakrishna Ganesa Amrapurkar I.L.R. (1887) B. 488 is not against this position. In the view that I have taken of the right of revision, it is not necessary to consider whether the remedy by way of retrial is open to a party against whom an order under Section 41 has been passed. I need only mention that it has been decided in Ramakrishna Sitaram v. Haji Dawood Ismail I.L.R. (1907) B. 259 that such proceedings should not be dealt with under Chapter VI of the Presidency Small Cause Courts Act.

4. The decision of the learned Judge must be set aside and the application under Section 41 must be dismissed with costs throughout.


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