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S.A. Seshadri Ayyangar Vs. A. Narayana Nair - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 73 of 1949
Judge
Reported inAIR1951Mad640; (1950)2MLJ396
ActsMadras Non-residential Buildings Control Order, 1945 - Sections 8, 8(3) and 9(2A); Code of Civil Procedure (CPC) , 1908 - Sections 2(2), 47 and 96; Madras Buildings (Lease and Rent Control) Act, 1946 - Sections 9 and 18(1)
AppellantS.A. Seshadri Ayyangar
RespondentA. Narayana Nair
Appellant AdvocateG. Ramalinga Reddi, Adv.
Respondent AdvocateS. Venkatachala Sastri, Adv.
DispositionAppeal allowed
Cases ReferredIn Canada Cement Co. Ltd. v. Montreal East Corporation
Excerpt:
.....buildings control order, 1945, sections 2 (2), 47 and 96 of code of civil procedure, 1908 and sections 9 and 18 (1) of madras buildings (lease and rent control) act, 1946 - section 18 (1) authorises continuance of execution proceedings initiated before expiry of order in city civil court as if instituted under section 9 - revisional order of provincial government passed after expiry of order is null and void - revisional order no bar to execution of order for eviction passed under section 8 of madras order - appeal allowed and execution petition directed to be restored and disposed of according to law. - - but it isequally well-settled that when a question is abated to be referred to an established tribunal without more, it......of the city civil court on the ground that neither the order nor the act in terms gave such a right of appeal. both section 8 (3) of the order and section 9 of the act provided that every order for eviction passed by the bent controller or an appellate authority should be executed by the specifiedcivil court, as if it were a decree of that court. section 18 (1) of the act provided that proceedings in execution filed under the provisions of the order and pending at the commencement of the act, shall be deemed to have been filed under the corresponding provisions of the actand continued accordingly. it is trite law that a right of appeal against a judicial order does not exist unless given by statute. but it isequally well-settled that 'when a question is abated to be referred to an.....
Judgment:

Viswanatha Sastri, J.

1. The landlord of anon-residential building in the Madras City is the appellant and the tenant is the respondent in this Letters Patent Appeal. The Madras Non-residential Buildings Control Order, 1946, hereinafter referred to as the Order, expired on 30-9-1946 and the Madras Buildings (Lease and Rent Control) Act XV [15] of 1946, hereinafter referred to as the Act, came into force on 1-10-1946. The landlord obtained an order from the Rent Controller for eviction of the tenant under Section 8 of the Order on 29-5-1946 and this order was confirmed by the Collector on appeal on 15-7-1946. On 2-8-1946 the landlord applied to the City Civil Court for execution of the order for eviction in accordance with Section 8 (3) of the Order which provided that such order 'shall be executed .... by the Principal Judge by the Madras Civil Court .... as if it were a decree passed by him.' On the same day, the tenant preferred a revision petition to the Provincial Government against the order of the Collector under Section 9 (2-A) of the Order which ran thus :

'The provincial Government may call for the record of any case which has been decided by the Controller or Collector and make such order in the ease as they think fit. Any such order shall be final and shall not be called in question in any Court of law.'

The Act designedly omitted to enact a similar provision vesting the Provincial Government with revisional power. Nevertheless, the Provincial Government passed an order on 13-3-1947 allowing the revision petition presented by the tenant and setting aside the order for eviction passed by the Controller and confirmed by the Collector on appeal. Acting upon this order of the Government the learned Judge of the City Civil Court dismissed the execution petition filed by the landlord for delivery of possession. An appeal preferred by the landlord to this Court against the order of dismissal of his execution petition was dismissed by Balakrishna Ayyar J., from whose judgment this Letters Patent Appeal has been preferred.

2. A preliminary objection was taken to the maintainability of the appeal to this Court against the order of the Judge of the City Civil Court on the ground that neither the Order nor the Act in terms gave such a right of appeal. Both Section 8 (3) of the Order and Section 9 of the Act provided that every order for eviction passed by the Bent Controller or an appellate authority should be executed by the specifiedcivil Court, as if it were a decree of that Court. Section 18 (1) of the Act provided that proceedings in execution filed under the provisions of the Order and pending at the commencement of the Act, shall be deemed to have been filed under the corresponding provisions of the Actand continued accordingly. It is trite law that a right of appeal against a judicial order does not exist unless given by statute. But it isequally well-settled that

'when a question is abated to be referred to an established tribunal without more, it...imports that theordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.'

Per Viscount Haldane L. C. in National Telephone Co. Ltd. v. Postmaster General(No. 2), (1913) A. C. 546 : 82 L. J. K. B. 197; Canada Cement Co. v. Montreal East Corporation, (1922) 1 A. C. 249, : A.I.R. 1921 P. C. 219 : 91 L. J. P. 0. 113. In executing the order for eviction, the City Civil Court Judge was functioning as an ordinary civil Court and doing the ordinary business of an executingCourt with regard to whose procedure and orders the provisions of the Code of Civil Procedure, including those providing for a right of appeal, would apply. See Secretary of State v. Chelikani Rama Rao, 39 Mad. 617 : A.I.R.1916 P. C. 21; Hem Singh v. Basant Das . The true principle applicable to cases of this kind was stated by Lord Simonds delivering the judgment of the Judicial Committee in Adaikappa Chettiar v. Chandrasekhara Thevar in these terms :

'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 appeallies, 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.'

The order of City Civil Judge dismissing the execution petition of the landlord attracted to itself the provisions of Sections 2(2) and 47, Civil P. C., with the consequential right of appeal given by Section 96, Civil P. C. The objection to the maintainability of the appeal is therefore overruled.

3. The contention of the appellant is that since Section 9 (2A) of the Order which conferred a revisional power on the Provincial Government and indeed the whole Order had expired by efflux of time on 30-9-1946, the Provincial Government lost all jurisdiction on that date and its order purporting to be passed on the revision petition of the tenant on 13-3-1947 was null and void. The argument of the respondent, accepted by the learned Judge, is that even before 30-9-1946, the tenant had acquired a vested right to take up his case in revision to the Provincial Government under Section 9 (2A) o the Order and this right was not lost on the expiry of the period for which the Order was in force. It is also urged that the Act recognises that rights acquired under the Order while it was in force, could be enforced even after its expiry. The validity of these contentions has to be examined.

4. The learned Judge proceeded on the assumption that a right to invoke the revisional jurisdiction of the Provincial Government was analogous to a right of appeal. With reference to a right of appeal, it has been held that a repealing enactment should not, in the absence of a specific provision to that effect, be so construed as to

'deprive a suit in a pending action of an appeal to a superior tribunal which belonged to him as of right'

when he instituted the action. Colonial Sugar Refining Co. v. Irving, (1905) A. C. 369 : 74 L. J. P. C. 77. This is in accordance with the general principle that an enactment which takes away substantive rights is not to be interpreted as having retrospective effect unless it is so provided either expressly or by necessary implication. Compare Section 6, General Clauses Act. A right of appeal is a substantive right within the meaning of this general rule. See Section 154, Civil P. C. It has also been recognised that where a right of appeal is granted by statute that right becomes vested in a litigant on the commencement of the proceedings in the trial Court itself. In re Vasudeva Swamiar, 52 Mad. 361 : A. I. R. 1929 Mad. 381 , Delhi Cloth and General Mills Ltd. v. Commissioner of Income-tax . It is, however, open to question whether a right to invoke a discretionary power of revision couched in the terms of Section 9 (2A) of the Order can be placed on the same footing as a right of appeal which entitled the suitor to take his case to an appellate tribunal for adjudication and obliges the appellate tribunal to set right errors of fact or law. The power of revision given by the order is not circumscribed by any limit of time within which it should be invoked nor is it a condition of the exercise of the power that the aggrieved party should even move the Government by a revision petition. The power of revision is purely discretionary and need not be exercised even if there is any error of fact or law in the order of the Bent Controller or Collector sought to be revised. In these respects a right of appeal differs from a right to apply for relief by wayof revision. This aspect of the case was, however, not touched upon in the arguments before us and we do not, therefore, rest our decision on the distinction that might be drawn between a right of appeal and a discretionary remedy available by way of revision. .

5. We have already stated that the order was only a temporary measure enacted so as to be operative for a specified period ending with 30-9-1946. There is a distinction between an enactment which is repealed and one which expires owing to its purely temporary validity. Section 6, General Clauses Act, enacts that, unless a different intention appears, the repeal of an enactment or regulation,

'shall not......(c) affect any right, privilege, obligationor liability acquired, accrued or incurred under any enactment so repeal ed......(e) affect any investigation,legal proceeding or remedy in respect of any such right, privilege, obligation--...and any such investigation, legal proceeding or remedy may be instituted or enforced ......... as if the repealing Act had not beenpassed.'

With reference to enactments expiring by their own force on a particular day, the Federal Court observed :

'The provisions of Section 6, General Clauses Act, apply only to repealed enactment and not to expiring statutes and the general rule in regard to the expiry of a temporary statute is that unless it contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires and as soon as the Act expires, any proceedings which are being taken against a person will ipso facto terminate :' J. & K. Gas Plant Manufacturing Co. v. Emperor 1947-2 M. L. J. 402 : A.I.R. 1947 F. C. 38 : 48 Or. L. J. 886.)

Their Lordships quoted with approval the statement of the law at p. 347 of Craies on Statute Law (4th Edn.). A temporary Act comes to an end for all purposes at the end of the period for which it is enacted. Unreasonable results might follow in some cases from this view of the law. If a man broke a penal regulation a week or two before it expired, he could not be punished unless indeed the trial had ended in his conviction before the regulation expired. Even if the prosecution had been started before the regulation expired, still if the trial was not over, then at the moment the regulation expired, the trial would necessarily cease and the man would go free. To avoid these consequences, special legislative provision is sometimes made to the effect that notwithstanding the expiry of a temporary enactment or regulation proceedings could be instituted in respect of acts done or omitted contrary to the expired enactment or regulation or such proceedings, if previously instituted, might be continued as if the enactment or regulation had not expired. OrdinanceXII [12] of 1946 amending Section 1, Sub-section (4), Defence of India Act, 1939, as interpreted by the Federal Court in the case above cited is an instance in point.

6. It is, we apprehend, with a realisation of the distinction between an expiring enactment and a repealed enactment, that Section 18 (1) of the Act was enacted in these terms :

'All proceedings commenced and action taken under the Madras Non-residential Buildings Rent Control Order, 1945, and pending at the commencement of this Act, shall so far as may be, be deemed to have been commenced or taken under the provisions of this Act.'

There is here no unqualified saving of all pending proceedings but only a limited provision hedged in with conditions. Proceedings initiated under the order while it was in force but which had not terminated before its expiry, could be continued only if and to the extent to which, a corresponding provision is made in the Act. Those proceedings have to be continued only subject to the provisions of the Act. The Provincial Government was a tribunal invested with wide powers of revision by Section 9 (2A) of the Order but with the expiry of the life of the order that tribunal also ceased to exist. There is no provision in the Act corresponding to Section 9 (2A) of the Order and the Provincial Government is not one of the tribunals created or invested with any jurisdiction by the Act. It is true, as pointed out by Balkrishna Ayyar J. that the Provincial Government has survived the expiry of the order and continues to exist and function as a Government but it ceased to be a tribunal empowered by statute to adjudicate upon claims by landlords for eviction of tenants, once the Order expired. The Act has made a radical departure from the order and has deliberately not included the Provincial Government among the tribunals invested with jurisdiction under it. The Provincial Government having become functus officio on the expiry of the Order, there was no tribunal that could thereafter deal with the revision petition which had been presented by the tenant but which remained undisposed of at the date of the expiry of the Order. The order of the Provincial Government dated 13-3-1947 allowing the revision petition of the tenant having been passed after the expiry of the Order and after the Provincial Government lost all jurisdiction over the subject-matter, has no effect whatever. As a tribunal, the Provincial Government, was purely the creature of the Order and with the order the tribunal created also ceased to exist. In the circumstances we are constrained to hold that the order of the Provincial Government dated 13-3-1947 was one passed wholly without jurisdiction and was null andvoid. The City Civil Court erred in law in acting upon that order and dismissing the execution petition of the landlord.

7. Reference has been made in the judgment of the learned Judge to two decisions of the Judicial Committee as having a bearing on the question now under consideration. The decision in Keshoram Poddar v. Nanda Lal , is, in our opinion, distinguishable because there the Court had to deal with a 'living Act' and an existing tribunal, though the powers and jurisdiction of the tribunal before and after a particular date, were differently prescribed by the Act then in question. It was for this reason that Lord Dunedin in delivering the judgment ofthe Board, observed :

'Their Lordships think that the discussions as to the different effects of a repealing Act on the one band, and an expiring Act on the other, which bulk largely in the judgments given, are really besides the point.'

In Canada Cement Co. Ltd. v. Montreal East Corporation, (1922) 1 A. C. 249 : A. I. R. 1921 P. C. 219 : 91 L. J. P. C. 113 what was taken away was not the right of appeal but the very Court to which the appeal lay, namely the Superior Court of Montreal sitting in review, The right of appeal wag transferred by statute from the abolished Court to the appellate side of the Court of King's Bench in Quebec, but no provision was made for the transference of appeals which would have lain to the abolished Court to the newly constituted appellate Court, In these circumstances, the Judicial Committee held that an appeal from the Circuit Court to the Court of the King's Beach did not lie. This is the sense in which the decision was understood by a Pull Bench of five Judges in In re Vasudeva Swamiar, 52 Mad. 361: A. I. R. 1929 Mad. 381 .

8. Section 18 (i) of the Act authorises the continuance of execution proceedings initiated before the expiry of the Order in the City Civil Court as if they had been instituted under Section 9 of the Act. The revisional order of the Provincial Government purporting to be passed on 13-3-1947 after the expiry of the Order is null and void and is, therefore, no bar to the execution of the order for eviction passed under Section 8 of the Order. This appeal is allowed and the execution petition is directed to be restored and disposed of according to law. As the appellant appeared in person, there would be no order as to costs.


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