Skip to content


R. Krishnamurthy Vs. S. Parthasarathy and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1949)1MLJ412
AppellantR. Krishnamurthy
RespondentS. Parthasarathy and anr.
Cases ReferredChandrika Singh v. Rashbehary Singh I.L.R.
Excerpt:
.....was no question of jurisdiction at all. srinivasa ayyangar concedes that if a landlord filed a suit in ejectment and failed to say that the tenancy had been determined, the court would dismiss the suit and not return the plaint. that being so, if the rent controller did not decide that question properly, the matter would have to be raised in appeal to the court of small causes and would give this court no jurisdiction to entertain a suit by the defeated party;.....notice under section 111(h) of the transfer of property act, filed an application before the rent controller, madras, under section 7 of madras act xv of 1946 for the eviction of the respondent. the rent controller, after giving notice to the respondent, came to the conclusion that the respondent had not paid his rent within the time allowed by section 7(2) and so ordered his eviction. the question of the non-issue of notice under section 111(a) of the transfer of property act was not raised. the respondent exercised his statutory right of appeal under section 12 of the act and filed an appeal in the court of small causes, madras. again no reference was made to the failure of the appellant to give notice to quit. the appeal was dismissed. the respondent thereupon filed c.s. no. 342.....
Judgment:

Horwill, J.

1. The respondent is the occupier of the house No. 403, Mint Street, Madras, and the appellant is the owner of that house, who had leased it to the respondent on a month to month tenancy. The respondent failed to pay rent for July, 1947, before the end of August of that year; and so the appellant, without giving notice under Section 111(h) of the Transfer of Property Act, filed an application before the Rent Controller, Madras, under Section 7 of Madras Act XV of 1946 for the eviction of the respondent. The Rent Controller, after giving notice to the respondent, came to the conclusion that the respondent had not paid his rent within the time allowed by Section 7(2) and so ordered his eviction. The question of the non-issue of notice under Section 111(A) of the Transfer of Property Act was not raised. The respondent exercised his statutory right of appeal under Section 12 of the Act and filed an appeal in the Court of Small Causes, Madras. Again no reference was made to the failure of the appellant to give notice to quit. The appeal was dismissed. The respondent thereupon filed C.S. No. 342 of 1948 in this Court for a declaration that the order of the Rent Controller was ultra vires, in that no notice to quit had been given, such as is required by law under Section 111(h) of the Transfer of Property Act. The learned Judge held that notice under Section 111(h) of the Transfer of Property Act was necessary and that the Rent Controller had no jurisdiction to enquire into an application under Section 7 of Act XV of 1946 where no notice to quit had been given and that therefore this Court had jurisdiction to entertain the suit, to give the declaration prayed for, and to set aside the order of the Rent Controller. Another question was raised with regard to a sub-tenancy; but we are not concerned with that in this appeal.

2. Two points arise for determination, (1) whether notice to quit was necessary, and (2) whether, if necessary, this Court had jurisdiction to entertain a suit to set aside the order of the Rent Controller.

3. Mr. V.C. Gopalaratnam has argued that Act XV of 1946 is self-contained and that in it are found all the provisions of law and procedure necessary for dealing with the cases between a landlord and tenant that came within the purview of this Act and so pro tanto repeals by implication the corresponding provisions of the Transfer of Property Act. There is something to be said for this argument; but in the view that we are taking, it is not necessary for us to consider this extreme contention. We shall therefore confine ourselves to a consideration of the narrower question formulated by the learned trial Judge : ' Does Section 7 of Act XV of 1946 by necessary implication abrogate or repeal Section 111(h) of the Transfer of Property Act? ' Perhaps the more pertinent question would be :' Can an application for eviction be made to the Rent Controller before the tenancy has been determined by a notice to quit?'

4. Disregarding the words that are not applicable to the question which we are considering, the main paragraph of Section 7 reads:

A tenant in possession of a building shall not be evicted therefrom .... before .... the termination of the tenancy, except in accordance with the provisions of this section.

Although this does not make it quite certain that a tenant can be evicted if the provisions of this section are complied with, it is clear that a tenant can be evicted before the termination of the tenancy, in other words, before the tenancy is determined. It perhaps does not necessarily follow that a notice to quit can be dispensed with, though it is difficult to see why such a notice should be sent if it is not necessary to determine the tenancy before filing an application before the Rent Controller. Section 7(2) is in its terms positive, and its interpretation is therefore clearer. The Sub-section says that if a landlord desires to evict his tenant he must apply to the Controller for a direction in that behalf. Upon the receipt of the application of the landlord, the Controller has to give to the tenant a reasonable opportunity of showing cause against the application. Having given that reasonable opportunity, he has to consider whether the tenant has done any of the acts or committed any of the defaults that come within the ambit of the various clauses of that Sub-section, the first of which is that he has not, by the last day of the month following that for which rent is payable, paid or tendered the rent. If the Controller is satisfied that the tenant has not paid, he shall make an order directing the tenant to put the landlord in possession of the building. So we see from this Sub-section that the landlord who seeks to evict his tenant, as the appellant here did, must apply to the Controller and that when the Controller is satisfied, after hearing the tenant, that rent was not paid before the end of the month following that for which it was due, he has no option but to direct the tenant to put the landlord in possession. It seems to us that words cannot more clearly indicate what the duty of the Controller is. Sub-section (3) does not directly apply to the case now under consideration; but it gives some indirect indication of the scope of Sub-sections (1) and (2). That Sub-section deals with the case in which the landlord has no residential building of his own in the City or has no building in which to carry on his own business, and is therefore in need of the building in which the tenant is living for his own residence or to carry on his business. In such a case the Rent Controller shall pass an order that possession be given to the landlord. But there is an important proviso that if the tenancy has been for a term, the landlord will not be entitled to obtain possession until the term has expired. This proviso would not be necessary if the whole section were intended to apply only to tenancies that had been determined in one of the ways indicated by Section 111 of the Transfer of Property Act.

5. Though the wording of Section 7 is clear enough; yet it is argued that if this section be given its natural meaning, certain results would follow which the Legislature could not have contemplated. It is said that there was very keen competition by the general public for houses and a general attempt by landlords to charge extortionate rents, with the result that the Government was obliged to introduce provisions such as are found in this Act, in the first instance in the Defence of India Rules, and then again in this Act, to control rents; and so it is argued that if we give Section 7 its natural interpretation, it would be contrary to the general spirit of the Act. The preamble runs:

Whereas it is expedient to regulate the letting of residential and non-residential buildings and to control the rents for such buildings and to prevent unreasonable eviction of tenants therefrom in the Province of Madras.

Thus it is seen that the objects are (1) to regulate the letting of residential and non-residential buildings, (2) to control the rents for such buildings, and (3), to prevent unreasonable eviction of tenants. It is always dangerous to argue from hard cases; but even if we may take such into consideration, it does not seem to us unreasonable that the Legislature, in giving tenants a quasi-permanent tenure, should, at the same time, require that even tenants who hold under a long-term lease should pay their rents regularly and punctually, and that if they did not do so, they would be liable to eviction even before their terms had expired.

6. In order to interpret Section 7 in accordance with, what the learned Judge considered to be the general purpose of the Act and the requirements of Section 111 of the Transfer of Property Act, he was constrained to interpret the word 'before' read with ' termination of the tenancy' as meaning before the term had expired but after the tenancy had been determined by forfeiture or in some other way. Mr. Srinivasa Ayyangar found it difficult to support such an unnatural interpretation of the expression ' before the termination of the tenancy;' and so argued that the expression ' before or after the termination of the tenancy ' was intended to emphasize that a tenant could remain in possession even after the termination of the tenancy. Both of these interpretations strain and distort a plain and simple expression and do not accord with the provisions of Sub-section (2) of Section 7. As indicated earlier in our judgment, no question of conflict with Section 111 of the Transfer of Property Act arises if Section 7 deals with tenancies-that have not been determined as well as with those that have.

7. The learned Judge sought support for this interpretation of Section 7 in a judgment of Somayya and Rajamannar, JJ., in V. Vaidhianatha Iyer v. Dr. K.P. Chidambaram and another C.M.A. No. 202 of 1945. In that case the learned Judges were interpreting Rule 81(bb)(ii) of the Defence of India Rules and dealing with an argument that the definition of ' tenancy ' given in the rules was ultra vires. The passage relied on by the learned Judge was this:

When we speak of a suit by a landlord for eviction of a tenant, no doubt there is 'strictly an inconsistency, because if he were a tenant, the landlord could not evict him. For some reason or other, either by efflux of time or by the issue of a notice to quit or by forfeiture and re-entry, a tenant must have ceased to be a tenant before the landlord can claim to evict him.

In that case the tenancy had been terminated by a decree for eviction; and the learned Judges did not therefore have to consider the question whether Section 7 dealt with cases in which the tenancy has not been determined. Another case which the learned Judge thought, strengthened his argument was Narayana Nair v. Kunhan Mannadiar : (1947)2MLJ559 . In that case the learned Judges were interpreting Section 14 of the Malabar Tenancy Act, which is very similar to Section 7(1) of Act XV of 1946, but differs from it in three respects, (a) that the case related to a suit and not to an application before a Tribunal, (b) Section 14 contains no words ' before or after ', such as we find in Section 7, and (c) it corresponds only to the negative portion of Section 7 found in Section 7(1). The first of these is, perhaps, unimportant, because we must apply the ordinary law to proceedings before Tribunals as well as to proceedings in Court;but the other directions are vital ones, which seem to us to make all the difference between the case under consideration by the learned Judges in Narayana Nair v. Kunhan Mannadiar : (1947)2MLJ559 and the case under consideration before us. If Section 7(1) had stood alone, we might have hesitated to hold that notice to quit was not necessary, even though the expression 'before or after' is found there.

8. We are therefore of opinion that Section 7 must be given its plain meaning. I f so, no question of attempting to reconcile Act XV of 1946 with the Transfer of Property Act arises. We are satisfied that Section 111(h) of the Transfer of Property Act has no place in the scheme of procedure laid down in Section 7 of the Act. That is the answer to the first question that we have formulated.

9. The other question that arises in appeal is with regard to the jurisdiction o the Rent Controller to deal with this application in the absence of a notice to quit' on the assumption that a notice to quit was necessary. We agree with the learned Judge that this Court can entertain a suit to set aside an order of the Rent Controller if the Rent Controller exceeded the powers conferred on him. A Court or Tribunal can however be said to have no jurisdiction to entertain a suit or application only if it has no jurisdiction with regard to the subject-matter of the suit or application, e.g., if a. suit is valued beyond Rs. 3,000 the Court of a District Munsiff has no jurisdiction to entertain such a suit; and if it does so, then the decree is entirely void. Again, if a Civil Court entertains one of those kinds of suits which are triable exclusively by a Revenue Court under the Madras Estates Land Act, then its decree, too, would be entirely void. But even these rules are subject to the qualification that if the jurisdiction of the Court depends upon the ascertainment of facts and the Court, upon the facts found, holds that it has jurisdiction, then the decree of that Court cannot be ignored or set aside in collateral proceedings. In Ishan Chandra v. Moomraj Khan : AIR1926Cal1101 , Chose, J., remarked:

There cannot be any question that a decree passed without jurisdiction is a nullity. But the expression jurisdiction ' has not unoften been used with ambiguity, and the distinction between a judgment where jurisdiction is assumed by the Court where there is absolute want of it, and where the Court in the exercise of its jurisdiction acted wrongly in disregard of the law, has not always been borne in mind. This want of discrimination in the use of the term has resulted in a good deal of confusion. The distinction between a defect of jurisdiction and an error or irregularity in procedure is pointed out in Hawes on the jurisdiction of Courts thus:

Then follows this quotation from Hawes:

In the former case the whole proceeding is corum non judice, and void; in the latter the proceeding cannot be impugned in a collateral action, even though it be erroneous upon its face, and even though it relates to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. It is examinable only on a direct proceeding as by an appeal or by a proceeding in the nature of an appeal, and where there is no remedy of that kind, it concludes for ever,

We do not think that his proposition is seriously denied by Mr. Srinivasa Ayyangar; and so it is unnecessary to discuss this matter at length, and a brief reference to the other cases cited will be sufficient. In Chinnappareddi v. Srinivasa Rao Gam : (1935)69MLJ196 , a distinction was drawn between an inherent want of jurisdiction, in which case a. decree would be absolutely void, and want of jurisdiction on grounds to be determined by the Court itself, in which case the decree could not be set aside by collateral proceedings. In Nageswara Iyer v. Ganesa Aiyar : AIR1942Mad675 , it was said that if the question which is alleged to create the want of jurisdiction is one which the Court is bound to decide, the matter is not one relating to jurisdiction; if there is any error in the decision, it can only be remedied by an appeal or other proceeding known to law. In Balakrishnayya v. Lingarao : AIR1943Mad449 , the following passage from Chandrika Singh v. Rashbehary Singh I.L.R. (1907) Cal. 193, is quoted with approval:

It is only when a Judge or Court has no jurisdiction over the subject-matter of the proceeding or action in which an order is made or a judgment rendered, that such order or judgment is wholly void, and that the maxim applies that consent cannot give jurisdiction; in all other cases, this objection to the exercise of the jurisdiction may be waived, and is waived, when not taken at the time the exercise of the jurisdiction is first claimed.

Here we are satisfied that there was no question of jurisdiction at all. If a lessor brings a suit for eviction, he has to prove the existence of a lease, the relationship of lessor and lessee between himself and the defendant, and the determination of the lease. If he fails to prove this, the plaint is not returned, because the suit is one which the Court has no jurisdiction to entertain; but the suit is dismissed as revealing no cause of action. It is argued that the present case resembles that contemplated by Section 80 of the Code of Civil Procedure and Section 41 of the Presidency Towns Small Cause Courts Act; but it is expressly stated in these provisions of law that suits of the nature referred to in them cannot be filed unless notice is given-In a suit by a landlord against his tenant for eviction, the determination of the tenancy is merely one of the constituents of the cause of action that the landlord has to prove against his tenant in order to succeed in the suit. We are of opinion that a tenant can waive notice to quit; but even if he cannot, notice has not to be proved as a condition precedent to the institution of the suit. Realising the difficulty of supporting the opinion of the learned Judge, that a want of notice raises a question of jurisdiction, Mr. Srinivasa Aiyangar seemed driven to argue that the Rent Controller is concerned only with the questions of eviction when the determination of the lease is admitted or has been established in a Court having jurisdiction, and not at all with questions whether leases have been determined or not; and that he would have no jurisdiction to decide such questions. The difficulty in putting forward that contention, however, is again the wording of the main paragraph of Section 7(1), which, to quote it in full, is:

A tenant in possession of a building shall not be evicted therefrom, whether in execution of a decree or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.

If the Rent Controller had no jurisdiction to consider whether a tenancy had been determined or not, it would mean that a suit would have to be filed in ejectment and that only after a decree had been obtained, would an application before the Rent Controller be maintainable. If such were the case, the words ' or otherwise ' would be superfluous. Mr. Srinivasa Ayyangar however realised this difficulty; and so argued that if an application were filed before the Rent Controller in which an allegation of notice were made which the respondent denied, then the Rent Controller would have jurisdiction to consider that question; but that if no allegation were made, then the Rent Controller would have no jurisdiction to entertain the application, but would have to return it, we are unable to accept this contention; for it seems to us that if the Rent Controller has jurisdiction to decide, on allegations made, whether a tenancy has been determined or not, he would have the same jurisdiction over this matter as a Court would in a suit by a landlord in ejectment upon the termination of the tenancy. Mr. Srinivasa Ayyangar concedes that if a landlord filed a suit in ejectment and failed to say that the tenancy had been determined, the Court would dismiss the suit and not return the plaint. In the same way, the Rent Controller would have to dismiss the application if it were not alleged in the affidavit that notice had been given or if it found, upon hearing the parties and considering the evidence, that notice had not been given. It would follow from this, therefore, that if notice to quit was necessary, it would be merely one of the issues to be decided by the Rent Controller and would not in any way affect his jurisdiction to entertain the application. That being so, if the Rent Controller did not decide that question properly, the matter would have to be raised in appeal to the Court of Small Causes and would give this Court no jurisdiction to entertain a suit by the defeated party; for such a suit would be barred by Section 12(4) of the Act.

10. Both for the reason that notice to quit was not necessary and for the reason that even if it was, this Court would not have jurisdiction to entertain a suit, this appeal is allowed and the suit dismissed with costs throughout. The costs of private printing will be added to the costs in the appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //