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A. Arunachala Naicker Vs. Ghulam Mahmood Sahib - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1613 of 1956
Judge
Reported inAIR1959Mad191; (1959)1MLJ181
ActsTenancy Law; Madras City Tenants Protection Act, 1922 - Sections 4, 6 to 8, 9 and 9(3); Madras City Tenants Protection (Amendment) Act, 1955; Code of Civil Procedure (CPC) , 1908 - Sections 2(2), 47, 96 and 115
AppellantA. Arunachala Naicker
RespondentGhulam Mahmood Sahib
Appellant AdvocateC.R. Krishna Rao, Adv.
Respondent AdvocateT. Ramalingam, Adv.
DispositionRevision dismissed
Cases ReferredDesikachariar v. Ramachandra Reddiar
Excerpt:
madras city tenants protection act (iii of 1922) as amended by act xix of 1955, section 9--claim by tenant disallowed--revision under section 115 of civil procedure code (act v of 1908)--not maintainable--appeal under section 47 of act v of 1908; in an application for delivery of possession in execution of a decree for ejectment obtained by the landlord, a petition filed by the tenant, claiming rights under the provisions of the madras city tenants protection act (iii of 1922) as amended by act xix of 1955, that the land on which he had put up a shed after the decree should be sold to him under section 9 of the act, was dismissed. on the question whether a revision petition under section 115 of the code of civil procedure (act v of 1908) was maintainable and whether an appeal would not..........that there was no plea claiming that the tenant was entitled to the benefits of the madras city tenants protection act. a decree for ejectment was passed on 20-8-1846.an appeal was filed against that decree to this court which failed. that decree was further confirmed in the letters patent appeal and the proceedings finally terminated on 23-3-1950 when the tenant was given one year's time to vacate the land. an application for delivery of possession was thereafter filed in e. p. no. 1403 of 1951. while that application was pending a suit was filed by a third party for an injunction to restrain the landlord from executing the decree hut the suit was dismissed on 20-5-1954. the pendency of the suit resulted in the dismissal of e. p. no. 1403 of 1951 evidently for statistical.....
Judgment:
1. This Civil revision petition arises at the instance of the tenant against whom a decree has been passed in a suit for eviction. In 1917 the respondent granted a lease of a property, a land, for certain agricultural purposes to the petitioner. After the termination of the lease the respondent filed a suit for eviction of the tenant in O. S. No. 283 of 1945. The tenant set up various defences, namely, a denial of the title of the plaintiff, want of proper notice to quit etc. It is significant that there was no plea claiming that the tenant was entitled to the benefits of the Madras City Tenants Protection Act. A decree for ejectment was passed on 20-8-1846.

An appeal was filed against that decree to this Court which failed. That decree was further confirmed in the Letters Patent Appeal and the proceedings finally terminated on 23-3-1950 when the tenant was given one year's time to vacate the land. An application for delivery of possession was thereafter filed in E. P. No. 1403 of 1951. While that application was pending a suit was filed by a third party for an injunction to restrain the landlord from executing the decree hut the suit was dismissed on 20-5-1954. The pendency of the suit resulted in the dismissal of E. P. No. 1403 of 1951 evidently for statistical reasons.

The landlord thereupon filed E. P. No. 157 of 1955 for obtaining delivery. Delivery was ordered on 29-9-1955. In the meantime the Madras City Tenants Protection Act III of 1922 was amended by the Madras Act XIX of 1955 and the amended enactment came into force on 10-9-1955. Under the Act as amended the benefits of the earlier Act were made available to tenants who had put up buildings on the demised lands before coming into force of the Madras Act XIX of 1955. Taking advantage of the provisions of the Act the tenant, namely, the present petitioner filed C. M. P. No. 1693 of 1955 on 5-10-1955 in the lower court stating that he had a shed put up on the land after the decree, that he was entitled to the benefits of the Madras City Tenants Protection Act and that the land should be sold to him under Section 9 of the Act.

This was contested by the landlord on various grounds. The learned Assistant Judge cum Registrar of the City Civil Court, Madras, held that the petitioner was not entitled to the benefits of the Madras Act 19 of 1955 and dismissed the application. The tenant seeks to revise that order in this petition. This civil revision petition is sought to be filed under Section 115 of the Civil Procedure Code.

Under that section the High Court can entertain a revision against the order of a subordinate Court only in a case where there is no appeal provided under the law. The question, therefore, is whether there is a right of appeal against the order of the lower Court which held that the petitioner was not entitled to the benefits of the Madras City Tenants Protection Act.

It is necessary in this connection to refer to certain provisions of the Madras City Tenants Protection Act. Under the general law if a tenant puts up any building or structure on a demised land the tenant has got to remove the super structure after the tenancy is determined and deliver vacant possession of the land to the landlord. The Madras City Tenants Protection Act III of 1922 was intended to protect the tenants who had constructed buildings on the lands leased out to them in the hope that they would not be evicted. Originally it applied only to tenancies created in the City of Madras before 8-2-1922 that is before coming into force of that Act.

That Act has been amended by the Madras Act XIX of 1955 which applied the beneficial provisions of the Act to the tenancies prior to the coming into force of the Amending Act, namely, 10-9-1955 and also to places beyond the limits of the Madras City viz, specified villages within five miles of the City of Madras, or such municipal town which are notified by the Government by means of notification. Broadly stated the benefits conferred by the Madras Act III of 1922 are : (1) light of the tenant to obtain compensation on eviction for the building put up by him on the demised property (Section 3), (2) right at his option to purchase the land subject to certain qualifications and conditions prescribed (Section 9), (3) proper notice before eviction (Section 11), (4) determination of fair rent during the continuance of the tenancy by the Court on application therefor, (Sections 6, 7 and 7-A).

The provisions of the Act apply to all suits for eviction filed after the enactment to applications under Section 41 of the Presidency Towns Small Cause Courts Act, and to suits and applications for ejectment in which any decree or order had been passed but which decree or order had not been executed. (See Section 10). The procedure for working out the rights created by the Act has also been prescribed. Section 4 relates to a suit for ejectment against the tenant. It contemplates the determination of the compensation and the passing of a preliminary decree declaring the amount of compensation due to the tenant in respect of the building put up by him and directing that on such payment within three months from the date of the decree the tenant shall put the landlord into possession of the property; if however such payment was not made the suit was to stand dismissed and the landlord was disabled from filing a suit for ejectment for a period of five years thereafter.

Similar provisions were made in respect of an application under Section 41 of the Presidency Town Small Cause Courts Act. Section 9 confers an additional right to the tenant to purchase the land from the landlord. This he could do by applying to the Court within one month after corning into force of the Act or within 15 days after the service of summons in a suit or application under Section 41 of the Presidency Small Cause Courts Act for ejectment by the landlord. On such an application the Court should ascertain the manner set out in that section and fix the market value of the property; if the tenant paid the same in accordance with the instalments to be fixed by the Court and within the time prescribed a final order is to be passed by the Court directing conveyance of the land by the landlord to the tenant.

On such order being made the suit or application for ejectment is to stand dismissed and the decree or order for ejectment is to be vacated. In default of payment by the tenant the application by the tenant is to stand dismissed, the tenant being entitled to restitution in respect of any portion of the price that he might have paid. In that case the suit or application would have to he proceeded with in accordance with the law. Sections 6, 7 and 7-A give jurisdiction to the Court for fixing fair rent in the circumstances set out therein. Section 8 stales that the order passed under the aforesaid sections shall have the effect as a decree in a suit. There is no provision in the Act providing any right of appeal as such in regard to orders passed under the provisions aforesaid.

But it must be noticed that Sections 4 and 9 created new rights in tenants and extended the powers and jurisdiction of the Civil Court which entertains or could entertain a suit or application for eviction against a tenant. It is well recognised that the right of appeal should be given by a statute. It is also well recognised that if a right is granted by a statute and jurisdiction is given to ordinary courts to give effect to such a right, the procedure including a right of appeal that is applicable to the proceedings in such Courts would also apply for the enforcement of such rights. Appeals would therefore lie even if they are not specifically provided for by the statute creating the right, it in respect of those orders an appeal would lie if they were treated as a part of the ordinary jurisdiction of that Court. The right of appeal becomes inherent by virtue of the adjudication of rights and not by implication.

2. In National Telephone Co. v. Postmaster General 1913 A. C. 546 Viscount Haldane L. C. observed thus: "When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decisions likewise attaches".

Lord Shaw of Dunfermline observed at page 557: ".....When it became possessed of the cause so referred, that cause fell to he determined according to the rules and methods of the ordinary procedure of the Commission and it became subject to all the provisions of the Acts of 1873 and 1888 including those as to appeal." Lord Parker of Waddington observed at page 562 thus: "Where by statute matters are referred to the determination of a Court of record with no further provision the necessary implication is, I think that the Court will determine the matters as a Court. Its jurisdiction is enlarged hut all the incidents of such jurisdiction including the right of appeal from its decision remain the same,"

3. In Secy. of State for India v. Chellikani Rama Rao, ILR 39 Mad. 617: (AIR 1916 PC 21) the question arose whether an appeal lay to the High Court from an order of the District Judge under the provisions of the Madras Forest Act. Under that Act a right of appeal is provided to the District Judge from an order of the Forest Settlement Officer and no further appeal was provided in the statute from the order of the District Court on such appeal. The question arose whether there could be an appeal against the order of the District Judge. The Privy Council held that an appeal lay to the High Court notwithstanding the fact that the Forest Act did not provide for a right of appeal from the decision of the District Judge.

Dealing with this aspect the Privy Council observed at page 624 (of ILR Mad): (at p. 23 of AIR) "it was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships' opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders, and decrees the. ordinary rules of the Civil Procedure Code apply..... The claim was the assertion of a legal right to possession of and property in land; and if the ordinary courts of the country are seized of a dispute of that character, it word require in the opinion of the Board a specific limitation to exclude the ordinary incidents of litigations. The objection taken is accordingly repelled." To the similar effect is the decision of the Privy Council in Hemsingh v. Basant Das. ILR 17 Lah. 146 : (AIR 1936 PC 93). That decision related to a question whether an appeal lay from the judgment of the High Court to whom jurisdiction was conferred under Section 34 of the Gurudwara Act VIII of 1925. In Adaikappa Chettiar v. Chandrasekhara Thevar. 1948-1 Mad. LJ 41 : (AIR 1948 PC 12) the point that arose for consideration was as regards appealability of an order refusing to amend a decree under Section 19 of the Madras Agriculturists Relief Act, IV of 1938 on the ground that the petitioner was not entitled to the benefits of the Act. The Privy Council held that such an order would be appealable as a decree. They stated the rule thus at page 44 : (of Mad. LJ) : (at p. 14 of AIR) : "The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal." It was further held that a refusal to grant the application under Section 19 of the Madras Act IV of 1938 would amount to a decree within the meaning of Section 2(2) C. P. Code, from which an appeal under Section 96 would lie. Such a refusal amounted to a formal expression of the adjudication which so far as regards the Court expressing it, conclusively determined the right of the parties with regard to all or any of the matters in controversy in the suit, namely, whether the judgment debtor was an agriculturist and entitled to have his debt discharged under the Act. The same principle was accepted by the Supreme Court in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd., . That case arose under the Indian Trade Marks Act. Under Section 76 of the Act a right of appeal is conferred on the High Court against an order of the Registrar of Trade Marks. A question arose whether a decision of a single Judge of the High Court under Section 76 of the Act was subject to a further appeal under Clause 15 of the Letters Patent. The Supreme Court held that such further appeal lay. In so holding the Supreme Court observed at page 222 (of Mad LJ) : (at p. 362 of AIR) :

"The rights created by the Trade Marks Act are Civil rights for the protection of persons carrying on trade under marks which have acquired a reputation. The statute creates the Registrar a tribunal for safeguarding these rights and for giving effect to the rights created by the Act and the High Court as such without more has been given appellate jurisdiction over the decisions of this tribunal. It is not easy to understand on what grounds it can be said that the High Court while exercising this appellate jurisdiction has to exercise it in a manner different from its other appellate jurisdiction. It seems to us that this is merely an addition of a new subject-matter of appeal to the appellate jurisdiction already exercised by the High Court."

4. In that view it was held that Clause 15 of the Letters Patent applied to the case and a further appeal lay to a Bench of the High Court against the judgment of a single judge. It therefore follows that when a right particularly a Civil right is created by a statute and jurisdiction is conferred upon ordinary Courts of the land for adjudicating upon such right, in the absence of any other statutory provision, the procedure that is applicable to the adjudication of rights by such Courts would apply for the adjudication of the now rights and a right of appeal would exist against the decision in regard to the matter.

5. Taking up the provisions of the Madras City Tenants Protection Act, Section 4 contemplates a preliminary judgment or a preliminary decree and a final decree. The provisions of the Civil Procedure Code would apply to such cases, namely, preliminary and final decrees and they would be appealable as such. In this connection I may refer to a judgment of this Court in Kasi v. Ramanatha Chettiar, 1947-2 Mad LT 523, where it was held that there can be more than one preliminary decree in a suit. A case under Section 9 of the Act presents some difficulty. Various orders are contemplated under that section.

If the application for the purchase of land is dismissed on the ground that the tenant is not entitled to the benefit of the Act, the principle of the decision in 1948-1 Mad LT 41 : (AIR 1948 PC 12) would apply and the order would be appealable as a decree. If on the other hand the Court passes an order fixing the price for the building, that order as such may not amount to a decree within the meaning of Section 2(2) of the C. P. Code but in certain cases it may amount to an order under Section 47 of the C. P. Code. Under Section 9(3) of the City Tenants Protection Act final order dismissing the suit is contemplated.

That undoubtedly would amount to a decree and be appealable as such. Therefore where the right to apply is negatived or where the application is granted, the conditions complied with and the suit is dismissed an appeal would lie under Section 98 C. P. C. But if an order is one merely fixing compensation or the value of the property, that would only be an interlocutory order but in certain cases the effect of that order would amount to an adjudication that the decreeholder would not be entitled to execute the decree according to its tenor. Such an order would in my opinion come within the terms of Section 47 of the C. P. Code and an appeal would lie as a decree.

Therefore in a case where there is an order under the Madras City Tenants Protection Act which does not of its own force amount to a decree namely adjudicating on the rights of the parties the question would arise whether it is an order within the meaning of Section 47 of the C. P. Code. In this connection reference may be made to the decision, of the Full Bench in Desikachariar v. Ramachandra Reddiar, where it was held that it is not every order in

execution that is appealable under Section 47 and 96 of the C. P. Code but an order in order to be appealable should amount to an order determining the rights of the parties to the proceedings.

In such a case Section 47 C. P. Code would apply and an appeal would also lie from such an order. I have already referred to the provisions of Sections 6 to 8 of the Madras City Tenants Protection Act which give power to the Court to adjudicate on application for fixing fair rent payable for the land. Section 8 states that such an adjudication is deemed to be a decree and therefore an appeal would lie. I am therefore of opinion that in regard to orders passed on applications under the City Tenants Protection Act an appeal would lie if the adjudication amounts to a decree or if the adjudication has the effect of deciding the question in execution in regard to execution, discharge or satisfaction of the decree.

The instant case within the principle laid down by the Privy Council in 1948-1-Mad LJ 41 : (AIR 1948 PC 12), and an appeal would lie against the order. Even otherwise I would hold that the effect of the order in the present case is to hold that execution should proceed by overruling objection to the execution and claiming benefits under the Act. An appeal therefore lay in the present case against the order of the lower Court and the civil revision petition is incompetent. The Civil revision petition tails and is dismissed with costs.


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