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B.A. Woodman Vs. Mrs. Regina Rajan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1336 of 1951
Judge
Reported inAIR1953Mad378; (1952)1MLJ628
ActsMadras Buildings (Lease and Rent Control) Act, 1946 - Sections 7(3A), 9, 12B and 20; Madras Buildings (Lease and Rent Control) (Amendment) Act, 1951; Pending Execution Act, 1951
AppellantB.A. Woodman
RespondentMrs. Regina Rajan
Appellant AdvocateM. Chinnappan Nair, Adv.
Respondent AdvocateSrinivasan and ;P.M. Srinivasan, Advs.
DispositionPetition allowed
Cases ReferredSatyanarayana v. Venkatarattamma
Excerpt:
.....amended act which prohibits eviction - court competent to decide legality of orders passed by rent controller - court below erred in dismissing challenge on ground of inapplicability of new act - proceedings deemed to be pending on date of operation on new act - held, eviction order not executable by virtue of subsequent amendment. - - 3. the contention that is now raised before me by the learned counsel for the petitioner is that the order of the learned city civil judge is not sustainable by reason of the very provisions which he has failed to consider and whose effect he has simply brushed aside by stating that no reliance can be placed on section 7(1) of the act. that section does not merely contemplate eviction in execution of a decree but also contemplate eviction by.....orderbasheer ahmed sayeed, j.1. this civil revision petition is against the order of the learned city civil judge passed in e. a. no. 1772 of 1951 in e. p. no. 862 of 1951 in l. dis. no. 4315 h. b. c. 1950.2. the petitioner is the tenant against whom an order for eviction was passed by the rent controller on 7-9-1950. the order is in the following terms:'petitioner by advocate. respondent hi person. by consent respondent is given time for vacating till 7-3-1951. eviction is ordered.' it transpires a further extension of time for vacating and delivery of possession was given till 26-5-1951. this extension of time was given on 12-4-1951 by the city civil court. it was obviously given when the landlady filed an execution application on 21-3-1951. in between the filing of the execution.....
Judgment:
ORDER

Basheer Ahmed Sayeed, J.

1. This civil revision petition is against the order of the learned City Civil Judge passed in E. A. No. 1772 of 1951 in E. P. No. 862 of 1951 in L. Dis. No. 4315 H. B. C. 1950.

2. The petitioner is the tenant against whom an order for eviction was passed by the Rent Controller on 7-9-1950. The order is in the following terms:

'Petitioner by advocate. Respondent hi person. By consent respondent is given time for vacating till 7-3-1951. Eviction is ordered.'

It transpires a further extension of time for vacating and delivery of possession was given till 26-5-1951. This extension of time was given on 12-4-1951 by the City Civil Court. It was obviously given when the landlady filed an execution application on 21-3-1951. In between the filing of the execution application and the expiry of the extended time for delivery of possession, a new legislation viz. Act 8, Of 1951 came into force on 1-5-1951. That Act amended the original Act 15 of 1946 as amended by further Acts. By the amendment of 1951 several new provisions were added to the existing Act.

The relevant provisions which are material to this petition are those relating to Sections 7(3A), I2B, 18 and 20. Under Section 7(3A) it was provided that no order for eviction shall be passed under Sub-section (3) (1) against any tenant who is engaged in any employment or class of employment notified by the State Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified. In this case it is common ground that the petitioner is engaged in an employment notified by the State Government as an essential service, he being employed in the High Court as a sergeant of the High Court.

The next section that is relevant is the one contained in Section 12B which gives the High Court and the District Court power to revise, on the application of any aggrieved party, any order passed or proceedings taken under the Act by the authority, either the 'Rent, Controller or the executing authority. There is an explanation to this section which is also very relevant for the purpose of this petition and that explanation reads:

'The jurisdiction of the High Court or District Court under this section shall extend also to orders passed on proceedings taken at any time within six months before the commencement of the Madras Buildings (Lease and Rent Control) Amending Act, 1951.'

The next section which is relevant is Section 18 but I do not think I need extract it here ; but the more important section that is very material is the one enacted as Section 20 which is to the following effect:

'Any rule or order made or deemed or purporting to have been made, any decision or direction given or deemed or purporting to have been given, any notification issued or deemed or purporting to have been issued, any action or proceeding taken or deemed or purporting to have been taken, or anything done or deemed or purporting to have been done.........shall bedeemed to be a rule or order made, decisionor direction given, notification issued, actionor proceeding taken, or thing done, under thecorresponding provisions of this Act.'

When E. P. No. 862 of 1951 was pending beforethe executing Court the tenant put in a petitionE. A. No. 1772 of 1951 on 16-5-1951 praying thatthe Court may be pleased to cancel the warrantissued in E. A. No. 862 of 1951 on the groundthat no order of eviction should be passed againsthim by virtue of the new provision under Section 7 (3A). His contention was that on a proper interpretation of Section 7(1) wherein it was stated that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section and while Section 7(3A) stated that no order for eviction shall be passed under Sub-section (3) against any tenant who has been notified by the State Government to be employed in an essential service, the order was unexecutable as against him and therefore the warrant should be cancelled.

The learned City Civil Judge took the view that Section 7(1) of the Act refers only to eviction in execution of decrees and the decision in the case or order of eviction having been passed prior to the coming into force of Act 8 of 1951 there was no justification for him to cancel the order directing delivery of possession against the tenant. Against that order this revision petition has been preferred by the tenant.

3. The contention that is now raised before me by the learned counsel for the petitioner is that the order of the learned City Civil Judge is not sustainable by reason of the very provisions which he has failed to consider and whose effect he has simply brushed aside by stating that no reliance can be placed on Section 7(1) of the Act. That section does not merely contemplate eviction in execution of a decree but also contemplate eviction by other means and the word 'otherwise' would certainly include orders by the Rent Controller as well. Even under orders passed by the Rent Controller, if eviction is to take place it must be in accordance only with the provisions laid down in Section 7(1) and one of the provisions laid down in the amended Section 7(3A) states that an employee who is notified to be of an 'essential service' cannot be evicted.

The question is whether the City Civil Court, which is only executing an order of the Rent Controller passed long prior to the coming into force of the Act, can take notice of this statutory prohibition against eviction of an employee notified to belong to an essential service and pronounce that the order is not executable against such an employee. It is the contention of the learned counsel for the respondent that the City Civil Court, being simply an executing court, under Section 9 of the Act and being called upon to execute every order made under Section 7, or Section 8 and every order passed on appeal under Section 12, or in revision under Section 12B, as if it was a decree passed by the execution Court itself, will not be entitled to go behind the order of the Rent Controller wherein eviction of the tenant has already been ordered. It is the application of this section that is now in dispute.

It has no doubt to be observed in the first instance that this civil revision petition is only against the order of the City Civil Judge passed on the application of the tenant in which the applicant claimed that he was entitled to the benefit of the statutory prohibition that has been enacted under Section 7 (3A) and that the execution Court should take notice of it. But actually the learned City Civil Judge has not proceeded on this simple point that as an executing Court it is not possible for him to hear an objection raised by the tenant which according to the learned counsel for the respondent should have been raised before the Rent Controller. The reasoning given by the learned Judge is different from the point that has now been raised by the learned counsel for the respondent before me.

The point stressed by the learned counsel for the petitioner on the other hand is that though the order of the Rent Controller which was passed prior to the coming into force of Act 8 of 1951 might have been valid, still no proceeding could be taken under that order in view of the new Section 7(3A) that has been enacted and that by virtue of that section the order pronounced by the Rent Controller has become unexecutable, and therefore the learned City Civil Judge was not entitled to execute an order which had by law become void or illegal and by reason of that new law which has given the benefit to the tenant, the tenant cannot be asked to deliver vacant possession of the property in question. He further contends that he has acquired a statutory protection by virtue of the new section and therefore the executing Court was bound to consider the validity of the order originally passed and then give the tenant the protection under the new section.

I think there is force in the contention of the petitioner's advocate when he says that the order which had been sought to be executed by the respondent was no more capable of being executed by virtue of the new law which has therefore become a nullity. His further contention is that under Section 24 of the Act any application made, appeal preferred or other proceeding instituted under the Act and pending at the commencement of Act 8 of 1951 shall be disposed of as if Act 8 of 1951 had been in force at the time when such application, appeal or proceeding was made, preferred or instituted. The effect of this section is that the application made by the petitioner should be deemed to have been made under this Act and the proceeding instituted by the respondent for evicting the tenant should also be deemed to have been pending at the time Act 8 of 1951 came into force and the application of the tenant and the landlady will have to be disposed of as if they were made under the Act as was amended by Act 8 of 1951 under which the tenant was given the protection that in so far as he is an employee in an essential service notified by the State Government, the eviction order shall not be executed against him.

4. It may be that the City Civil Court, proceeding with the execution, was not quite competent to go into this question as to whether Section 7 (3-A) would apply to the tenant and whether he should get protection under that Act. Nevertheless when the application was made contesting that the order passed by the Rent Controller was not competent & was not capable of being executed, it was certainly open to the learned City Civil Judge to go into the question and say that an order which was not in accordance with the new section was no more executable.

5. Even if the learned City Civil Judge was not in a position to pronounce on the validity of the order which was sought to be executed by the landlady against the tenant still in view of the fact that he failed to do so and a revision petition has been filed before this Court, in my view, on a reasonable construction of Section 12B, this Court has got very wide powers to call for the records and then satisfy itself as to whether, not merely an original order passed by the Rent Controller but also any order passed by any executing Court was just or legal and was in accordance with law. The language of Section 12B gives ample power to the Court, when once the matter is before it, to call for and examine the records relating to any order passed or proceedings taken under the Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety ofsuch order or proceeding and pass such order In reference thereto as it thinks fit.

The present order is certainly one which has arisen in a proceeding which was filed by the landlady against the tenant. On an interpretation of Section 20 of the Amending Act, Section 7(1), Section 7 (3A) and Section 12 B, it seems to me that it is within the province and competence of this Court to consider the entire matter in its full perspective and then do justice in the matter. In my opinion, in view of the retrospective effect of Act 8 of 1951 and the protection that has been afforded to the tenant by reason of Section 7 (3-A) and by virtue of the powers vested in this Court to satisfy itself as to whether the order of the Rent Controller or the subsequent order of the City Civil Judge in execution were competent or otherwise, I think it will be in the interests of justice that the Rent Controller's order as well as the order of the City Civil Judge should be set aside as not being competent and as being ultra vires of the sections referred to above.

6. Two decisions have been referred to, one reported in --. 'Poonamchand v. Venkataratnam Chetti', : AIR1952Mad159 and the other in -- 'Satyanarayana v. Venkatarattamma', : AIR1951Mad1044 . It is not necessary for me to discuss the reasonings given in these two decisions but in my view the reasoning adopted in--'Satyanarayana v. Venkatarattamma', : AIR1951Mad1044 would attract itself to the facts of this case to some extent and the interpretation given therein of Section 20 of the Amending Act 8 of 1951 is applicable to the facts of this case. I respectfully agree with that interpretation. In fact in -- 'C. R. P. No. 546 of 1951 (Mad) decided by me I came to the same conclusion as the Bench in -- 'Satyanarayana v. Venkatarattamma', : AIR1951Mad1044 though this decision had not been brought to my notice while I was disposing of that revision petition.

The learned counsel for the respondent attempted to make out that the tenant is trying to wriggle out from the original order passed by the Rent Controller by reason of the new Section 7 (3A). It is no question of wriggling out from the decision of the Rent Controller which at that time should be stated to have been very correctly given, but then by virtue of subsequent proceedings which are said to be pending and by virtue of the operation of Section 20, a statutory right which has become vested in the tenant cannot be denied to him even if it be as contended by the learned counsel for the respondent that it was a consent order, A reading of the order passed by the Rent Controller does not however convince me that it could be said to be a consent order. Eviction is ordered irrespective of consent in that order; but the consent seems to apply only to the question of the time within which delivery of possession, had to be made. For, the order seems to be clear that the question of consent has application only to the period of time when delivery of possession has to be given. But the order for eviction is independently of that consent.

A feeble attempt was also made to show that there was an estoppel under Section 115, Evidence Act. I do not think I need dilate on that. A further point raised by the learned counsel for the respondent was that the order of the Rent Controller having been passed on' 7-9-1950 and Act 8 of 1951 having come into force on 1-5-1951, the order was not within six months contemplated under Section 12-B in order to entitle its consideration by this court in revision. I do not think there is much point in that contention for by reason of Section 20 of the Amending Act and also Section 18 of the Act the petition for execution as well as the petition for the cancellation of the warrant could be taken as actions under the Act and they are respectively on 21-3-1951 and 16-5-1951, so that the proceeding which can be taken to have been commenced, or pending, at the time when Act 8 of 1951 came into force are still within six months' period referred to in Section 12B.

In this view I think the learned City Civil Judge was not correct in seeking to execute the order by refusing to cancel the warrant issued against the tenant. The tenant, in my opinion, is entitled to the benefit of Section 7 (3A) and both the Rent Controller's order as well as the order of the learned City Civil Judge will not be of any avail against him. The order of the Rent Controller cannot be executed in the lace of Section 7 (3A) of the Act.

7. In the result this petition is allowed withcosts throughout.


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