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K. Muhammad Sukri Sahib Vs. thelapurath Madhava Kurup and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in79Ind.Cas.1011; (1924)46MLJ560; (1949)1MLJ376
AppellantK. Muhammad Sukri Sahib
Respondentthelapurath Madhava Kurup and anr.
Cases ReferredMoothaliandan Chetti v. Venkatesan Chetti
Excerpt:
.....tenant a reasonable opportunity of showing cause against the application, to consider whether the tenant has been guilty of any of the laches or defaults referred to in the various paragraphs of sub-clause (2). if he is satisfied that he has, then he shall order the eviction; if he is not so satisfied, then he is bound to reject the application. that case can clearly be distinguished because, as we have already said, we are not here concerned with the applicability of the new law to pending proceedings; 's judgment any principle laid down that could usefully be applied to this case, except the well-recognised one that one should not apply a new law to divest a person of his vested rights, unless by express or necessary implication the new law is made by the legislature to do so. ,..........control order, 1942, that the tenant was entitled to remain in possession.3. clause 8(1) says:a tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree or otherwise...except in accordance with the provisions of this clause.as there are no provisions in this clause for the eviction of the tenant on the grounds raised in the suit, it is clear that if this sub-clause be taken at its face value, the tenant could not be evicted even though a decree had been obtained. sub-clause (2) makes the matter even clearer; because the procedure to be adopted by a landlord who desires to evict his tenant is not to apply to the civil court in execution of his decree, but to the rent controller for a direction that the tenant be evicted. the.....
Judgment:

Horwill, J.

1. The respondent is the owner of a shop in Calicut town and the appellant is his tenant, holding the shop on a month-to-month tenancy. The respondent filed O.S. No. 405 of 1943 for the eviction of the appellant; but before he could obtain a decree, the Non-Residential Building Rent Control Order, 1942, had been amended on nth July, 1944. Apparently unaware of the amendment, a, decree was passed in the respondent's favour on the 8th September, 1944. Almost immediately, the respondent applied for possession, obtained an ex parte order in his favour, and was actually put in possession on the 15th September, 1944. On the 28ih October, 1944, the appellant drew the attention of the executing Court to the amendment on the nth July, 1944, and pointed out that the Court had acted ultra vires, in that its order delivering possession to the respondent was void. The Court then took action under Section 151 of the Code of Civil Procedure and set aside its previous order on the ground that it would not have passed that order if its attention had been drawn to the amendment. The matter was taken in appeal to the Subordinate Judge, who affirmed the decision of the trial Court. The matter came before Panchapagesa Sastri, J., in A.A.A.O. No. 43 of 1946. The learned Judge held that despite the passing of the amendment on the 11th July, 1944, the law to be applied, to the case was the law as it existed at the date of filing the suit. He therefore allowed the appeal with costs throughout. At the same time, he granted leave to appeal under the Letters Patent.

2. There can be no doubt, on the plain words of the amended Clause 8 of the Non-Residential Building Rent Control Order, 1942, that the tenant was entitled to remain in possession.

3. Clause 8(1) says:

A tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree or otherwise...except in accordance with the provisions of this clause.

As there are no provisions in this clause for the eviction of the tenant on the grounds raised in the suit, it is clear that if this sub-clause be taken at its face value, the tenant could not be evicted even though a decree had been obtained. Sub-clause (2) makes the matter even clearer; because the procedure to be adopted by a landlord who desires to evict his tenant is not to apply to the Civil Court in execution of his decree, but to the Rent Controller for a direction that the tenant be evicted. The Con (roller has then, after giving the tenant a reasonable opportunity of showing cause against the application, to consider whether the tenant has been guilty of any of the laches or defaults referred to in the various paragraphs of Sub-clause (2). If he is satisfied that he has, then he shall order the eviction; if he is not so satisfied, then he is bound to reject the application.

4. The difficulty which the learned Judge felt in giving Clause 8 its plain interpretation was that to do so would be to infringe the principle that a new legislation should not affect existing rights unless the wording of the statute makes it clear, expressly or by necessary implication, that it is to have retrospective effect. Although the suit was still pending at the time when the amendment was made, yet it has not been contended that the introduction of this legislation created a new law to be applied by the Court and that the decree passed by the Court was consequently not a valid one. The execution proceedings were filed long after the amendment came into force. Mr. Venkatasubramaniam has been constrained to argue that the moment a person files a suit he obtains thereby a vested right to have applied not only to the suit, but to all execution proceedings also, the law relating to execution as it existed at the time of filing the suit. We know of no such principle; and we find no reason to think from the cases that have been cited before us that if a new law is introduced restricting the right to execute, execution proceedings can nevertheless be instituted if such a right existed on the date of the filing of the suit. Our attention has been drawn to the judgment of Sulaiman, J., in The United Provinces v. Mt. Atica Begum (1941) 1 M.L.J. (Supp.) 65 : 3 F.L.J. 97 : I.L.R. 1941 Kar. 73 (F.C.) in which reference is made to certain English cases interpreting British Statutes said to be similar to the Statute here under consideration; but we have not seen those decisions or those Statutes and we are not at all convinced that any such general principle exists.

5. The learned judge, in attempting to reconcile the new amendment with the principle leaning against giving retrospective effect to new legislation, was inclined to think that the words ' in execution of a decree ' can only be applied to suits instituted after the nth July, 1944. It seem to us, however, that no suits could be instituted after that date; for by the new Act a landlord desirous of evicting his tenant would not file a suit; but would apply directly to the Rent Controller, who would then proceed to hear the objections of the tenant and to decide the case in accordance with the principles laid down in Clause 8. The learned Judge found support for his conclusion in the decision of Mocket, J., in Moothaliandan Chetti v. Venkatesan Chetti : AIR1945Mad386 in which the learned Judge allowed a revision petition against an order of the Chief Judge of the Small Cause Court, Madras, who, during the course of a petition praying for possession, applied the new law as soon as it came into force and dismissed the application. That case can clearly be distinguished because, as we have already said, we are not here concerned with the applicability of the new law to pending proceedings; and we do not find from Mockett, J.'s judgment any principle laid down that could usefully be applied to this case, except the well-recognised one that one should not apply a new law to divest a person of his vested rights, unless by express or necessary implication the new law is made by the Legislature to do so. In summing up, Mockett, J., said:

If and when an application for possession comes before the Controller, the Controller should apply his mind to the circumstances actually and presently before him to enable him to make or refuse an order, and it would be for one side or the other to point out that the application for ejectment had lost its force owing to the fact that since the application had been made, difficulties which were then not in existence had arisen or difficulties that were in existence had disappeared. I am not however concerned with any such position in this case.

It is seen from this passage that the learned Judge, far from thinking that the landlord had, by the institution of his application for possession in the Sub-Court, acquired an absolute right to physical possession, contemplated proceedings before the Rent Controller in which it would be contended by the tenant that in view of the new legislation, actual possession could not be given. Panchapagesa Sastri, J., also referred to certain passages in the judgment of Sulaiman, J., in the Federal Court case referred to and said:

Sulaiman, J., points out that unless either expressly or by necessary intendment it is made out in the new legislation that it applies to pending proceedings as well, it ought not to be construed to have retrospective operation so as to affect the rights of parties in pending suits.

With respect, we agree with this observation but, as we have already pointed out, we are not concerned here with pending proceedings. We are not prepared to say that during the period between the passing of the decree and the filing of the execution petition there were any pending proceedings. We are only concerned here with the right of the respondent to execute his decree; and we are of opinion that Clause 8 prohibited him from filing an execution petition in the Court, his only way of evicting the tenant being to file an application before the Rent Controller.

6. The appeal is therefore allowed and the decrees of the trial Court and of the first appellate Court restored. The appellant will be given his costs in this Court and before Panchapagesa Sastri, J.

7. In this Court Ramanujam Chettiar has been brought on record in the place of the original respondent; and so Ramanujam Chettiar will be liable for costs in this Letters Patent Appeal and the original respondent in the other Courts.


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