1. The following two questions have been referred to by Mohan, J. for an authoritative pronouncement by a Bench. First is, whether a member of the family could seek the benefit of S. 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The second is, where during the pendency of rent control proceedings, the landlord executes the order of eviction and obtains possession, whether on the reversal of that order of eviction, restitution is possible.
2. We shall take up for consideration the first question, namely, whether a member of the family could seek the benefit of Sec. 10(3)(c), Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, for a decision by a Bench in view of' the conflict between the decisions in Ramalingam v. Kothandaraman : (1980)2MLJ283 decided by Mohan, J. and in Surekha v. Union Bank of India, Madras 1980 93 MLW 284, decided by Rathnam, J. in C. R. P. No. 2917 of 1980, the landlord is the owner of ground and premises No. 1, Palayappan Street, Madras. The tenant is occupying a portion of the premises for residential purposes and another portion for non-residential purposes. The landlord requires the residential portion in the occupation of the tenant for additional accommodation for himself and for his family members on the ground that the younger brother of the landlord is getting married. It is in this context that these questions arise for consideration.
3. The contention of Mr. K. Duralswami on behalf of the landlord is that a landlord can seek the benefit of S. 10(3)(c) not only for his own purposes but also for the purposes of his family members. According to the learned counsel, the word 'landlord, should not be given a restricted meaning. It must also take in a member of his family. On the other hand, both Mr. Vallinayagam and Mr. Unnikrishnan, on behalf of the tenant, would contend that the expression 'landlord' occurring in S. 10(3)(c) of the Act could not take in any member of his family. Mr. Kumaraswanxy on behalf of the landlord contended that under S. 10(3)(c) of the Act, a landlord can maintain an application for eviction of the tenant on the ground that he requires the building for additional accommodation not only for himself but also for the purposes of a member of his family. According to the learned counsel, though the words 'member of the family' do not occur in S. 10(3)(c), the expression should be interpreted widely and it should be held to take any member of the family as well. On the other hand both Mr. Vallinayagam. and Mr. Unnikrishnan, contend that the word 'landlord' in S. 10(3)(c) must be confined to himself. The learned counsel laid emphasis upon the fact that S. 10(3)(a)(i) to (iii) originally use the expression 'landlord' only. This court interpreted the section to say that it would take in not only a landlord but also a member of the family. Thereafter, the -Legislature amended the section and enabled the landlord to file a petition under Section 10(3)(a) for eviction of the tenant for his own occupation or for the occupation of his son. Again this court took the view that merely because the section uses the word 'son' the landlord should not be confined to seek eviction only for himself and for the needs of his son and that it will be open to him to maintain a 1petition for eviction under S. 10(3)(a)(iii) for the occupation of any member of his family. Thus, while the Legislature consciously amended Sec. 10(3)(a) to bring it in conformity with the decisions of this court by introducing the words 'any member of the family, the Legislature kept untouched S. 10(3)(c). From this, the learned counsel want us to draw an inference that the Legislature did not want the benefit of S. 10(3)(c) of the Act to be given to a member of the landlord's family. Section: 10(3)(a) reads as follows:
'A landlord may, subject to the provisions of Cl. (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building- (i) in case it is a residential building, if the landlord requires it for his own occupation or for the occupation of any member of his family 'and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned;
(ii) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adopted for such use, if the landlord requires it ' for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own :
(iii) in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on a non-residential building in the city, town or village concerned which is his own.'
The section, as it originally stood, did not contain the words 'any member of the family'. It contained the word 'landlord' only. In fact, this corresponded to S. 7 (3) (a) of the Act, 1949 which read as follows:-
'S. 7 (3) (a). A landlord may, subject to the provisions of Cl. (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the building-
(i) in case it is a residential building, If the landlord requires it for his own occupation and if he is not occupying a residential building of his own in the city, town or village concerned.'
In Kolandaivelu Chettiar v. Koolayana Chettiar 1961 MWN 45 : (1961) 1 MLJ 184, Venkatadri, J. has to consider the scope of S. 10(3)(a). The Rent Controller in that case held that the landlord required the suit premises bona fide for his personal use, that is, for setting up a separate family for his second son. But the Appellate Authority, however, found that the landlord has been occupying a residential building of his own and even if he bona fide required the disputed premises for the occupation of his son, he would not be entitled to evict under S. 7 (3) (a) of the 1949 Act. On appeal the Revisional Authority, namely the District Judge, found that the word 'landlord' included a member of the family and consequently, the petition filed by the landlord for eviction is maintainable,. even though he required it for setting up a separate family for his second son in spite of the fact that the landlord himself was in occupation of in building of his own excluding the suit premises. Venkatadri, J., upholding the view expressed by the District Judge held that a landlord could maintain an application for eviction of the tenant an the ground that he required the premises to set up a separate family for his second son when his second son was not occupying a residential building of his own in the place concerned. The learned Judge held that the words 'his own occupation had to be construed to include occupation of the landlord's son as well. It maybe mentioned in this context that the Revisional Authority had to decide the case on hand under S. 7 (3) (a), as It stood under the Act of 1949. However, at the time of the disposal of civil revision petition Venkatadri, J., had to decide the case under S. 10(3)(a) of the 1960 Act as it stood then, which included the landlord requiring the building for his own occupation on for the occupation of his son. In the circumstances, the learned Judge observed thus :
'Under the present Act, the provision is made clear by inserting the words for the occupation of his son and it he or his son is not occupying a residential building of his own in the city, town or village concerned.'
The decision of Venketadri ,J.in Kolandaivelu. Chettiar v. Koolayana Chattiar 1961 Mad VIN 45 is an authority for the proposition that even though under S. 7 (3) (a), as it stood then In the Act 194% the words 'landlord' and 'his own occupation' were only used in the section, the learned Judge hold that the landlord could maintain an application for eviction on the ground that he required the premises for the needs of a member of his family. In this connection, the learned Judge followed a Bench decision of the Patna High Court in Bidhubhusan v. Commissioner, Patna : AIR1955Pat496 . Section 11(3) of Bihar Buildings (Lean and Rent Eviction) Control Act, 1947, was in these terms :
'A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of a building, if he requires it reasonably and in good faith for his own occupation or for the occupation of any person fm whose benefit the building is held by him.,'
The Bench speaking through Kanhaiya Singh, J. observed thus:
The expression 'his own occupation', or 'his own business' or 'family' should be given a wider and liberal connotation so as to include persons who, though not members of the joint family of the landlord, are living with him and dependent upon him. In my opinion, the expression 'his own occupation' in the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, should be given an intended and liberal meaning. In the present case, the landlord wanted to set up his nephew in business, and it is for this purpose that he wanted possession of the room at present occupied by the Opposite party.'
The learned Judges of the Patna High Court followed the decisions of the CalCutta High Court in Puspa Lata Devi v.. Dinesh Chandra Das 1950 85 CLJ 74 and in Bibhuti Bhusan v. Kshettra Gopal Datta ILR (1951) Cal 375 and also the decision of the Bombay High Court in Radio Technology Institute v. Pandurang Bapurao (AIR 1946 Bom 212) and some decisions of Nagpur and Punjab High Courts. In Saraswathi v. Vadivelu Chettiar : AIR1968Mad70 the scope of S. 10(3)(a)(iii) of the Act,, 1960, arose for interpretation before Ramaprasada Rao, J. as he then was. In that case the landlord filed an application for possession of her premises on the ground that the same was required for the business carried on by her husband- it was contended on behalf of the tenant that the requirement of the premises by the landlord's husband, though bona fide, would not be a ground for eviction under S. 10(3)(a)(iii) of the Act, because the section contained the words only 'landlord' or 'his son' The learned Judge followed the decision of Venkatadri, J. in Kolandaivelu Chettiar v. Kootayana Chettiar 1961 1 MLJ 184 and of Veeraswami, J. in Kanlu v. Unnissa ILR (1963) Mad 684, to which we shall refer later and observed' thus :
'No doubt, the Legislature has expressly included the word 'son'. Landlord is, of course different from the landlord', son, The expression son added on in the amending Act XVTII of 1960, in my opinion, has been so added, so that as on who may or may not be a dependent on the father or mother as the case may be, can be deemed to be a person who could assert himself to the benefit of the new section, It is for purposes of making such a benefit m-re specific that the Legislature in its wisdom might have thought fit to include expressly the word son' after the word landlord in S. 10(3)(a)(iii). The mere addition of the word t son' in the above provision and the exclusion of the enumeration of the other dependants as is ordinarily understood in society cannot lead to the irresistible conclusion that the Legislature by necessary implication intended to exclude such dependent from obtaining such benefit. I think, if such exclusion were to be inferred as a matter of course, it would lead to an unreasonable restriction in the matter of enjoyment of property by landlord.'
Thus, the learned Judge in that case held that notwithstanding the fact in 1960 the Legislature introduced the word 'son' in S. 10(3)(a), an application for eviction could be maintained by the landlord not only for himself personally but for the occupation of his son or f or any member of the family dependent on him. Subsequently, S, 10(3)(a) has been amended by deleting the word 'son' and introducing the words 'any member of the family'. There is, thus, no difficulty for a landlord to maintain an application for eviction of the tenant under the present S. 10(3)(a),' if the landlord requires the premises, either for his own ptmpose5 or for the purposes of a, member of his family.
4. The Legislature either at the time of passing the Act 1960 or subsequently when it amended S. 10(3)(a) by deleting the word 'son' and introducing the words 'any member of the family' did not choose to amend S. 10(3)(c). The difference between S. 10(3)(a) and Section 10(3)(c) lies in the fact that to maintain an application under S. 10(3)(a)(i) to (iii) the landlord must not be in occupation of a residential building or non-residential building of his own in t e city, town or village concerned. On the other hand, to maintain an application for eviction of the tenant on the ground of additional accommodation under S. 10(3)(c) of the Act, it is necessary that the landlord should be in occupation of a part of a binding, This distinction is sought to be heavily relied upon by the counsel for the tenant to support their argument that the landlord can maintain an application under S. 10(3)(c) only if he requires the building, for additional accommodation for his personal residential purposes or for the purposes of the business such he is personally, carrying on. Section 10(3)(c) is identical to S. 7 (3) (c) of the 1949 Act. The said section reads as follows:-
'A landlord who is occupying only a part of a building, whether - residential or non-residential, may, notwithstanding anything contained in Cl. (a) apply - to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential or for purposes of a business which he is carrying on, as the case may be.'
The scope of S. 7 (3) (c) of the 1949 Act &rose; for consideration before Veeraswami, J. in Kangu v. Ahmed Unnissa Begum : (1963)1MLJ97 . The landlord wanted the portion in the occupation of the tenant for additional accommodation on the ground that she required the same in order to enable her son-in-law to open a clinic. . Admittedly, the daughter and son-in-law were living with the landlord. Veeraswami, J. held as follows :
'The words 'if he requires' occurring in S. 7 (3) (c) of the 1949 Act should be understood in the same liberal sense, as the words 'his own occupation in See. 7 (3) (a) of ''the Act have been understood. What is meant by the words 'his own occupation' or 'if he requires' is that the requirement is not that of a stranger. It is not necessary to attract those words that the need should be personal to the landlord. The need of close relations who happen to live with the landlord or landlady may well satisfy the words 'his own occupation' or 'if he requires'. Dependency, social customs and habits, usage, practice of a particular community and like considerations may well be taken into account in determining whether the requirement of those words is satisfied.'
The learned Judge, apart from following the decision of Venkatadri, J. in Kolandaivelu Chettiar v. Koolayana Chettiar 1961 1 MLJ 184, also followed the decision of Patna High Court in Bidhubhusan v. Commissioner, Patna : AIR1955Pat496 and in Balabhadra v. Premchand AIR 1953 Nag 144.
5. In K, C. Devisal v. State of Madras : (1970)1MLJ533 a Bench of this court consisting of Veeraswamy, C. J., sitting with K. N. Mudaliar, J. had to consider whether the words 'for his own occupation or for the occupation of his son' in S., 10(3)(a)(i) would enable the landlord to maintain for eviction of a tenant for the occupation of his nearest kith and kin other than a son. It was strenuously contended before the learned Judges that having regard to the language of S. 10(3)(a)(i) of the Act, the bona fide requirement of a daughter would fall within this scope.
The learned Chief Justice observed as follows :
'In our view in delimiting the scope of this provision, regard must be had to the social set up and the family life with its surroundings. An undivided son, who is married naturally, may desire to live apart and the father may possibly regard that as a requirement of the premises for his own occupation. But, since the Legislature has also used the language 'for the occupation of his son', it is urged that this is an indication that, at least, a daughter is not taken into account. The rationale behind the inclusion of the son is that the ground of eviction should be available to a landlord for that occupation of his nearest kith and kin. Where to draw the line may be left to particular cases. But the case of a daughter is to our mind a -fortiori and we can see no reasonable justification for differentiating a son from a daughter in the matter of requirement of the landlord for purposes of his own occupation. It should not be lost sight of that the statutory protection of tenancy is a departure from the normal provision control link the relationship of landlord and tenant under the Transfer of Property Act, and, we should think that, for that reason, it should receive a liberal interpretation so as to mitigate, where necessary, the vigour on the landlord . That is not to say that, on a matter like that, one is expected to lean in favour of landlord.'
In Dharmalinga Mudaliar v. Annamalai : AIR1981Mad312 the landlord filed an application under S. 10(3)(c) of the Act on the ground that additional accommodation was required for his son. It was contended before this court that it would not be open to the landlord to ask for additional accommodation on the ground of' requirement for his son or any other members of his family on the language of S. 10(3)(c) of the Act. Rathnam, J. while reject7 in a the contention, held that it would be certainly open to a landlord to ask for additional accommodation in order to enable his son to live comfortably with the members of his family enjoying all facilities and it would not be for the tenant to state that this should not be done on question of relative hardship.
6. In Muthukumaraswarny v. Devaraj 1976 89 MLW 601 Ramaprasada Rao, J. had to consider the scope of S. 10(3)(c) of the Act. The learned Judge held that ever since the Special Act to prevent unreasonable eviction of tenants was introduced in 1949, a distinction was maintained between the provisions, whereby a landlord would ask for additional accommodation from a tenant in the same premises from the provisions, where under a landlord could ask for p. building in the occupation of his tenant, it he is himself not occupying a building of his own, whether residential or non residential in the same city, town or village. Consequently, it would not be open to a landlord to file a petition for eviction on the ground of additional accommodation for the purpose of a business carried on by his wife or daughter. In other words, the learned Judge held that the words 'his own occupation' for residential or non-residential as the case may be, must be confined to the personal need of the landlord and not for any member of his family. In this connection, the learned Judge laid stress on the fact that when S. 10(3)(a) had been amended more than once, the Legislature did not think it proper to amend Sec. 10(3)(c).
7. Mohan, J. took the same view in Ramalingam v. Kothandaraman, : (1980)2MLJ283 , wherein the learned Judge followed the decision of Ramaprasada Rao, J. in Muthukumaraswamy v. A. Devarai 1976 2 MLJ 520 and held that a landlord can maintain an application for additional accommodation under S. 10(3)(c) only for his personal need and not that of any member of his family.
8. On a consideration of the above decisions, we are of the view that the requirement of the landlord in S. 10(3)(c) of the Act cannot be confined to his personal requirement, and the landlord will be entitled to maintain a petition for eviction for additional accommodation under S. 10(3)(c) of the Act, if he requires additional accommodation for residential purposes of himself or for any member of his family or for purposes of a business which he is carrying on by himself or by any member of his family. It has to be remembered that the provisions of the Madras Buildings (Lease and Rent Control) Act is a special law supposedly enacted for a temporary period which is in the nature of a limitation upon the ordinary law of property as contained in the Transfer of Property Act, In other words, as rightly pointed out by Veeraswami, J. in Kangu v. Ahmed Unnissa Begurn : (1963)1MLJ97 the Act being a restriction upon the ownership and enjoyment of house property has to pass the test of reasonableness and in fact it was on that ground, among others, the validity of the Act was upheld, and consequently what the Act protects is only against unreasonable eviction. Therefore, the words 'his own occupation' cannot be given a restricted meaning. We are unable to share the view expressed by Ramaprasada Rao, J. and by Mohan, J. in Ramalingam. v. Kothandaraman : (1980)2MLJ283 that the words 'his own occupation' occurring in S. 10(3)(c) of the Act should be given a restricted meaning in view of the fact that S. 10(3)(a) of the Act has been amended by the Legislature at the same time leaving See. 10(3)(c) unamended. As pointed out by Rathnam, J. in Dharmalinga Mudaliar v. Annamalat : AIR1981Mad312 it must be remembered that in K. G. Davasay v. State of Madras : (1970)1MLJ533 a Division Bench of this court held even on the language of S. 10(3)(a)(i) of the Act as it then stood, that the words 'for his own occupation or for the occupation of his son' would include his daughter as well. If that be so, we are unable to hold that the words 'his own occupation' occurring in Sec. 10(3)(c) of the Act should receive a restricted meaning. We are of the opinion that the words 'if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying 'on' should be interpreted liberally and cannot be confined to the needs of the landlord personally but would also take the purposes of any member of his family. However, the distinction between S. 10(3)(a) and S. 10(3)(c) has to be maintained. In other words, in order to attract S. 10(3)(c) the landlord who files an application for eviction must be in the occupation of a portion of the premises for residential purposes or for purposes of a business which he is carrying on. We therefore answer the first question in the affirmative and hold that a member of the family of the landlord can seek the benefit of S. 10(3)(c) provided the conditions therein are satisfied. Therefore, we are of the view that the decision in Dharmalinga Mudaliar v. Annamalai : AIR1981Mad312 is correct and that the decision in Muth ukumaraswamy v. Devarai 1976 89 MLW 601 is not correct and we overrule the same.
9. Mr. Unnikrishnan, learned counsel for the tenant cited a number of decisions. It is unnecessary to refer to them, as they are not directly in point. In fact, the main argument of Mr. Vallinayagarn and Mr. Unnikrishnan was that in view of the fact that the Legislature had not amended S. 10(3)(c) while they had amended Section 10(3), the Legislature must be deemed to have deliberately and consciously left the remedy under S. 10(3)(c) to be available to the landlord for his personal purposes and not for the benefit of any member of his family, which argument we have not accepted.
10. The second question that has been referred to for our opinion is where during the pendency of rent control proceedings, the landlord executes the order of eviction and obtains possession, whether on the reversal of that order of eviction, restitution is possible. Mr. K. Duraiswami, the learned counsel for the petitioner contended that under the Act there was neither an express provision nor a provision by necessary intendment, which would enable the tenant on the reversal of the eviction order to get restoration of possession. The learned counsel argued that the court of Rent Controller was not a Civil Court and consequently, S. 144 Of Civil P. C. would not be applicable, with the result S. 144 C. P. C. dealing with the power of restitution Of civil court would not be attracted. Mr. Duraiswami further emphasised upon the fact that whatever might have been the position prior to the amendment of the Act in 1973 under S. 18 of the Act, as amended in 1973, the Rent Controller will not have any power to order restitution. On the other hand, Mr. Vallinayagam argued that under S. 18(1) of the Act the Rent Controller was competent to deal with an application for restitution or redelivery, since such application would only be an application for execution. The learned counsel for the petitioner further stressed upon the fact that every order made under Ss. 10, 14, 15, 16 and 17 shall be executed by the Controller as if such an order is an order of civil court and the Controller shall have all the powers of a civil court. Mr. Vallinayagam also argued that on the principle that no act of court shall prejudice a party, the Rent Controller would have jurisdiction to order redelivery when it discovered that the delay had been effected on the basis of a wrong order of eviction which had been subsequently set aside. In this connection, the learned counsel relied on the decisions in Thangaswamy Chettiar v. Bapoo, Sahib : AIR1951Mad804 a decision rendered by Balakrishna Ayyar, J., the decision of Ramanujam, J. in Mohamed Hussain v. Pitchai (1970-2 Mad W 663) and the decision of one of us in W. P. 11636 of 1981, rendered on 20-7-1982.
11. No doubt, the Act does not contain any express provision empowering a tenant who has been dispossessed pursuant to an order of eviction being restored to possession on the said order of eviction being reversed. Section 9 of the Act, 1949, provided that every order of eviction passed by the Rent Controller should be executed by a civil court as if it were a decree of that court. Similarly, 1960 Act before its amendment in 1973 provided that every order made under Ss. 10, 12, 13, 14, 15, 16 and 17 and every order passed on appeal under S. 23 or on revision under S. 25 shall be executed by the specified courts. However, after the amendment the power of execution .9 conferred on the Rent Controller. He shall execute the order as if such order were the order of civil court. For that purpose S. 18 conferred on him the powers of a civil court, S. 18 of the Act as amended in 1973 reads as follows
'Execution of Orders:-
(1), Every Order made under Ss. 10, 14, 15, 16 and 17 and every order passed on appeal under S. 25 shall be executed by the Controller, as if such order is an order of a civil court and for' this purpose, the Controller shall have all the powers of a Court.'
It is clear from the language of S. 18 that while conferring power on the Rent Controller the right to execute an order, it has equally conferred on the Rent Controller all the powers of a Civil Court for the purpose of execution. Section 10 of the Act provides for an order being passed for eviction of tenants. When an order for eviction is passed under S 10, the Rent Controller is empowered under S. 18 to entertain an execution petition for eviction of the tenant by the landlord. For the purpose of execution, he has got all the powers of a civil court. Once in exercise of his powers under S. 18 the Rent Controller finds that delivery of possession has been ordered on the basis of an order of eviction which has subsequently been set certainly he will have the power redelivery. This is because S 18 creates a fiction that every order passed by the Rent Controller shall be executed as if such an order is an order of a Civil Court and for that purpose the Controller is given all the powers of a civil court. The application for restitution is only an application in execution. (Vide the decision in Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai : 2SCR436 and' in Maqbool Alam Khan v. Mst. Khodaija : 3SCR479 . Consequently, the Rent Controller in terms of S. 18 has got the power to entertain an execution petition at the instance of the landlord who obtains an order of eviction and he will have equally the power to entertain a petition for restitution, when the order of eviction passed against the tenant s reversed. . It is implicit on the order of reversal of the order of eviction that the tenant should be put back in possession.
12. In Thangaswamy Chettiar v. Bapoo Sahib : AIR1951Mad804 a similar question arose for consideration. In an application for eviction of a tenant on the ground of arrears of rent, the landlord got an order for eviction under the provisions of the 1946 Act and obtained physical delivery of possession in execution. The Appellate Authority set the order of eviction passed by the Rent Controller aside. Thereafter, the tenant filed an application for restitution and redelivery, which was ordered by the Subordinate judge. The landlord took up the matter in appeal before this court, which was disposed of by a Bench of this court. It was contended before this court on behalf of the tenant that so far as the Province of Madras was concerned, it was established that restitution proceedings were in the nature of execution proceedings, that S. 8 of the Madras Act XV of 1946 provided a machinery for executing orders passed in appeal, that the courts set up for that purpose in the mofussil was the court of the Subordinate Judge or District Judge where there was no Sub-Judge and that the general rule was that once the ordinary tribunals were seized of a matter, the forms, procedure and reliefs usually observed by and obtainable in such,courts became applicable and available in respect of that matter. Balakrishna Ayyar, J. speaking for the Bench observed in Thangaswamy Chcttiar v. Bapoo, Sahib : AIR1951Mad804 as follows.:
'It is clear that the first of the three propositions which Mr. Narayana Aivar found his reply is well established in tihis province.'
The learned Judge in support of his-conclusion extracted, the propositions in the following cases. In Somasundararn v. Chockalingam ILR (1917) Mad 780 : AIR 1917 Mad 185 it was decided thus an application for restitution is an application in execution under the new Code of Civil Procedure. In Unnamalai Ammal v. Mathan : (1917)33MLJ413 it was observed that an application for restitution is an application for execution of a decree and is governed by Art. 182 and not by Arlicle in, Limitation Act. Again in Palaniyandi Pillai v. Rasappa Pillai : AIR1937Mad173 it is observed thus :
'It is no doubt true that our High Court has taken the view that an application for restitution is an application for execution of the decree whatever may -be the- view of the other High Courts.'
In this view the Bench ordered the restitution.
13. However, this decision was unfortunately not brought to, the notice of Ramaprasada Rao, J. as he then was, in. Arunagiri Nadar v. Rathinaswami 1970 83 MLW 745 : AIR 1971 Mad 162 when the landlord of the building obtained an ex parte order of eviction' was set aside and the tenant sought redelivery of the property which was take possesion by the landlord pursuant to the ex parte decree. The learned Judge after extracting a passage from the judgment of the Chief Justice in Mayilsami Gounder v. Rammoorthi Chettiar (C.R,P. 439 of 1967) (reported in : (1970)1MLJ606 observed thus :
'It is, therefore, clear that in the absence of an express provisions or a provision by necessary intendment which would enable a civil court to direct redelivery, the civil court does not possess such power.'
A similar situation arose for consideration before Ramanujam, J. in Md. Hussain v. Pitchai : (1970)2MLJ663 . In that case also, the landlord obtained an ex parte order of eviction and obtained possession of the property in execution of the order. Subsequently, the ex parte order of eviction was set aside at the instance of the tenant and he applied for redelivery of property, Rmarnanujam, J. observed as follows:-
'On a due consideration of the rival contentions of the parties on this point, I am inclined to follow the decision of the Bench in Thangaswamy Chettiar v. Bapoo Sahib : AIR1951Mad804 . With due respect, cannot accept the contrary view taken by my learned brother, Ramaprasada Rao ,J. in C. R. P. No. 967 of 1968 : (reported in AIR 1971 Mad 162) relying on the decision of the Division Bench in Mayilsami Gounder v. Rammoorthy : (1970)1MLJ606 which dealt with the power of the Revenue Divisional Officer, an Authority constituted under the Madras, Act XXV of 1955-to order restitution and held that he had no such power for the reason that he is bound by provisions of the statute, that he cannot act outside the Act and that statutory Tribunals had no inherent powers to order restitution. I am not in a position to apply the principle of that decision dealing with the power of statutory Tribunals to the facts of the present case where the eviction order had been executed by a civil court under the provisions of S. 18 of the Act, which enables the civil court to execute an order of eviction as if it were a decree passed by that court. Once the eviction order is treated as a decree of court and taken to a civil court for execution as per S. 18, such proceedings will be governed by the provisions of the Code of Civil Procedure, relating to execution of decrees so long as the provisions of the Rent Control Act did not modify or re~ strict the Power of the Civil Court under the Code. It is well established that an application for restitution is treated as an application for execution. Unlike under the Madras Act XXV of 1955 the order of eviction passed under the Rent Control Act has been specifically made executable only in a civil court and there is no provision in the Act itself 'curtailing or modifying its powers under the Code in matters of execution. It is because of this special feature by which an order of eviction is brought before a regular court for execution, Ramaprasada Rao,J. had held in Ramaswarny Iyer v. Ramakrishnaya : (1969)2MLJ272 that the provisions. of the Limitation Act would become applicable to the proceedings for eviction arising under the Rent Control Act. This is also the view taken by the Division Bench in Tangaswamy Chettiar v. Bapoo Sahib : AIR1951Mad804 . But I find that the said Bench decision was not brought to the notice of Ramprasada Rao, J. in C. R. P. No. 967 of 1968 (reported inAIR 1971 Mad 162). 1 therefore hold that the lower court had the power to order restitution under its inherent powers and direct redelivery under S. 144, Civil P. C. '
14. Mr. K. Duraiswamy, however, urged that Ramanujam,, J. had to deal with an application for restitution when S. 18 of the Act, as it stood then, enabled civil court to execute the order, as if it were a decree passed by the court. Mr. Durraiswami further. Contended that after the amendment in 1973 the power to execute the order is conferred on the Rent Controller. Consequently, the decision of Ramanujam, J. would not be applicable. A similar contention was raised before one of us in Writ Petition No. 11636 of 1981: (reported in (1983) 1 MLJ 18), wherein it is observed as follows -
'Mr. K. Srinivasan sought to distinguish the decision of Ramanujam, J. on the ground that the case arose under S. 18 of the Act before its amendment in 1973 when the order of the Rent Controller was to be executed by a civil court. Undoubtedly, the situation arose before the amendment of S. 18 in 1973.However, in my opinion, that does not in any manner render the principle laid down by Ramanujam, J. inapplicable to the facts of the present case. As already stated after the amendment of S. 18 of -the Act in 1973 the Rent Controller himself executes the order of eviction as if it were an order of a civil court and for that purpose he will have all the powers of a civil court. If by this legal fiction, the Rent Controller has all the powers of a civil court in the matter of execution of an order of eviction, I am unable to understand e would -have no power ft order an application for resilient which is nothing; but an execution appearing. In this connection, it will be useful to re1w to a decision of Ramaswamy, J. in Ramanujam Naidu v. Panchanatha Mudaliar 1980 98 MLW 06 which runs as follows: 'It is the contention of the learned counsel for the petitioner that prior to be amendment the Rent Controller while executing the order made by him was acting as a civil court and it is in Those circumstances this court held in Subramani Pillai v. Rajakanni Nadar : AIR1971Mad310 that the old R '32 was not applicable to execution proceedings, and that after the amendment, the executing forum now is the Rent controller and as such Rule 25 would be applicable to the present execution petition filed under the amended S. 18. I am unable to agree with this contention of the learned counsel. Under the old section the decree remains as that of the Rent Controller and the rent controller executing it shall be deemed to be a civil court. If once the eviction order of the decree of the civil court and is to be executed as if it were an order of the civil court ,then the provisions of 21,C.P.C as far as may be will be attracted .Rule 25 in terms is not applicable to a death occurring after the decree in execution proceedings as it in terms is applicable only to proceedings pending before the rent controller .Though the rent controller is the executing the decree is not executing an order of the rent controller , but an order which shall be deemed to be order of this civil court which is executing .In such a proceeding Rs.25 is not applicable the ratio of definition of Subramania Pillai v Rajkannainadar : AIR1971Mad310 .therefore still hold good end is applicable ,It may also be mentioned that in executing the order of eviction as if it were an order of civil court. The controller shall have all the powers of the civil court in proceedings in execution in civil court The provision of S5limitation act is applicable and therefore an application for excusing the delay in filling the petition for bringing on record the legal representatives if their is any delay could also maintainable.
I am therefore of the view that an application for restitution is an application for execution and consequently the rent controller as got the power to order restitution .we therefore are of the view that the amendment to the Act in 1973 as not in any way taken away the power of the tenant to be restored to possession pursuant to the reversal of the order of eviction as held by Ramanujam,J in Mohammad Hussain v Pitchai : (1970)2MLJ663
15. The right of the tenant to be restored to possession can be viewed from another angle. It is a cardinal principle of law that the acts of courts should not be allowed to work injury on the suitor: Actus curiae neminem gravabit-An act of court shall prejudice no man. The moment the court finds that a mistake has been committed, it will rectify the error and put the suitor as far as possible in 'the possession 'he would have occupied on the wrong order being made. In the leading English case of Rodger v. Comptoir D. Escompte de Paris (1871) 41 L3 PC 1 Lord Cairns said:
'One of the first and highest duties of All courts is to take care that the act of the court -does no injury do the suitors and when the expression 'the act the court' is used it does not mean merely the act of the primary court or of any intermediate court appeal but the act of the court which entertains jurisdiction over the clatter to the Highest Court which finally disposes of the case, ILR 1953 2 Cal 335.'
In such a case the law raises am obligation an the party who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost, and this obligation, it is the shown of the courts to enforce unless it is shown that the restitution would be clearly contrary to the real justice of the case. It is well settled that S. 144 is not exhaustive. In Birendra Nath Basu Thakur v. Smendra Kumar Basu Thakur : AIR1940Cal260 it has been observed thus:
'The power of a court to direct restitution is inherent in the court itself. It rests on the principle that a court of justice is under a duty to repair the injury done to a party by its act. The right of a. party to have restitution and the duty of the court to, give him restitution did, not rest on the provision of Sec 144, Civil' P. C., which defines the procedure only in one class of cases requiring restitution by enacting that the, application for restitution is to be made in the court of first instance.'
Ramanujam, J. has stated the same principle in Md. Hussain v. Pitchai IM-2 Mad LJ 663. In this context it will be useful to quote the following statement of the law in Craies on Slate Law Seventh Edition, Page.1111 which runs as follows:
'If a statute is passed for the purpose of' enabling something to be done but omits to mention in terms some detail Which is of great importance (if not actually essential) to, the proper and' effectual performance- of the work which the Statute ha& in contemplation the courts are at liberty to infer that the statute by implication empowers the detail to be carried out.
All the, above, decisions have been referred, to by one of us, as already stated in writ petition No. 11636 of 1981, wherein it has been held that even after the amendment to S. 18 of the Act, 1973, the Rent Controller has power to, order restitution and effect redelivery of the property consequent an the order of eviction, being reversed. The same view has been taken by Nainar Sundaaram, J in C.. R. P..No 43 of 1962, ( T.K sundaram v. V.balaraju) dt. 30-6-1982 a short report of which is applicable in : AIR1983Mad225 . We are in agreement with these said view. To hold otherwise as pointed out in the judgment in W.P. 11636 of 1981 : (reported in (1983) 1 MLJ 18), would be to set a premium on fraud and it would also be possible for a land lord to get expert orders of eviction behind a tenant and obtain possession and the tenant would find himself in a help less situtation. We have therefore no hesitation in holding the term their reversal of the order it would be opened to the tenant to obtain redelivery of application for restitution.
16. Our answers to the questions referred to us are as fallows :
(1) A land lord who is occupying only a part of a building weather residential or non-residential, will be entitled to apply to the account controller for eviction of the tenant if he requires additional accommodation for his own residential purposes or for any member of his family or for purposes of a business which he or a member of his family is carrying on as the case may be. The words ' for his own occupation' cannot be restricted to the personal need of the land lord'
(2) A tenant, who has been dispossessed pursuant to the order of eviction, will be entitled to restitution on the reversal of the said order of eviction.
17. We remit the matters to a learned a single Judge for disposal on merits.
18. Order accordingly.