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A.R. Ramanatha Iyer Vs. Kondiah Naidu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1995 of 1976
Judge
Reported inAIR1980Mad120
ActsMadras City Tenants Protection Act, 1922 - Sections 9, 9(1), 9(2) and 9(3); Presidency Small Cause Courts Act - Sections 41
AppellantA.R. Ramanatha Iyer
RespondentKondiah Naidu
Appellant AdvocateS. Subramania Iyer, Adv.
Respondent AdvocateK. Yamunan, Adv.
Cases ReferredHulasrai v. K. B. Bass and Co.
Excerpt:
tenancy - withdrawing petition - section 9 of madras city tenants protection act, 1922, section 41 of presidency small cause courts act and order 23 rule 1 of code of civil procedure, 1908 - whether application filed under section 9 can be withdrawn and refund of amount deposited in court can be claimed - no bar to withdraw application filed under section 9 offering to purchase land for price fixed by court - order 23 rule 1 gives unqualified right to plaintiff to withdraw from suit and no provision of code requires court to refuse permission to withdraw suit and to compel plaintiff to proceed with case - since petition under section 9 filed by tenant in ejectment suit filed against him order 23 rule 1 apply to petition under section 9 (1) - no possibility of any set off or counter claim..........small causes, madras. the respondent filed m. p. no. 3165 of 1968, under section 9 of the madras city tenants protection act, claiming protection under the said act and offering to purchase the land in his occupation at a price to be fixed 'by the court. the court fixed the value of the land in occupation of the respondent at as. 1380, and directed him to pay the amount in thirty monthly instalments commencing from february 1972. the respondent paid the entire sum of rupees 2731. in the meanwhile, the entire area of which the suit land forms part has been declared to be slum area under section 3 of the tamil nadu slum areas (improvement and clearance) aa 1971, (hereinafter to be referred to as (act 11 of 1971). the petitioner was also served with a notice under section 11 of the said.....
Judgment:
ORDER

1. The Civil Revision Petition Is filed against the order dated 5-3-1976 in M. P. No - 224O of 1975 by IV Judge, Court of Causes, Madras. The petitioner, respondent in the lower court, is the land owner, the respondent, who is the petitioner before the lower court, is the tenant The Petitioner filed under, Section 41 of the Presidency Small Cause Courts Act, ejectment suit No. 111 of 1968, on the file of the Court of Small Causes, Madras. The respondent filed M. P. NO. 3165 of 1968, under Section 9 of the Madras City Tenants Protection Act, claiming protection under the said Act and offering to purchase the land in his occupation at a price to be fixed 'by the court. The court fixed the value of the land in occupation of the respondent at As. 1380, and directed him to pay the amount in thirty monthly instalments commencing from February 1972. The respondent paid the entire sum of Rupees 2731. In the meanwhile, the entire area of which the suit land forms part has been declared to be slum area under Section 3 of the Tamil Nadu Slum Areas (Improvement and Clearance) AA 1971, (hereinafter to be referred to as (Act 11 of 1971). The petitioner was also served with a notice under Section 11 of the said Act, Thereafter the respondent filed an application for withdrawal of his application filed under Section 9 of the City Tenants Protection Act, and also sought permission of the court to withdraw the sum of Rs. 2731 deposited by him to the credit of the ejectment suit. On this application the court held that the notification under Tamil Nadu Act 11 of 1971 puts an end to the jural relationship of the landlord and tenant and it is neither possible nor competent for the petitioner to sell the land to the respondent and so long as the sale deed has not been executed by the petitioner and the title has not passed to the respondent it is not open to the Petitioner to lay any claim to the amount in Court deposit. On these finding the Court below ordered refund of the amount to the respondent. Aggrieved against the order passed by the lower court the petitioner has coma up in revision before this court.

2. It is contended for the petitioner that since the lands have not been acquired by the Government under Section 11 of Act 11 of 1911, the petitioner's right, title and interest in the property are merely restricted and regulated under Section 14 of the said Act and the relationship of the landlord and tenant does not cease to exist by virtue of the notification issued under Section 11. It is further contended that since the object of the Act, as seen from the pre amble, is merely to provide for the improvement and clearance of slums in the State of Tamil Nadu and not to deprive the petitioner of his right, title and interest in the area declared to be a slum clearance area under Section 11, there is absolutely no, for holding that the petitioner is not competent to convey the land in favour of the respondent and ordering refund of the amount to the respondent. It is also contended that the respondent having offered to purchase the property and deposited the amount in pursuance of the court order, it is not open to him to withdraw the application and claim refund of the amount.

3. It is contended for the respondent that so long as the court has not order ed conveyance of the land by the petitioner to the respondent and the respondent has not been put in possession of the land, it is not open to the respondent to withdraw the application filed under Section 9 of the City Tenants Protection Act, and claim refund of the amount,

4. The short question for Consideration is whether the respondent can with draw the application filed under See. 9 of the City Tenants Protection, Act and claim refund of the amount deposited in court.

5. When a notification to issued under Section 11 of Act 11 of 1971 declaring any slum area to be a slum clearance area the owner of the land may redevelop the land in accordance with the plans approved by the prescribed authority subject to such restrictions and conditions imposed by the prescribed authority (vide Sec. 14 of the Act). Sec, IV of the Act confers on the Government the power to acquire a slum area. Section 16 of the Act provides for the framing of rules to regulate the transfer to the persons who, immediately before the declaration of that area to be a slum clearance area were in occupation of the lands and buildings in that area. It can thus be seen that as a result of the notification issued under Section 11, the rights of the land owner are merely restricted and regulated and his right of transfer to persons before it was declared to be a slum clearance area is governed by the rules framed under Section 18 of the Act. Both sides are unable to throw any light whether rules regulating transfer have been framed under Section 18. One thing appears to be clear and that 14 there is no prohibition for transfer of the land or building by the owner even after the area has been declared to be a slum, clearance area.

6. Section 9 (1) (a) (i) of the Madras City Tenants Protection Act provides that when the landlord files a suit for ejectment of the tenant under Section 41 of the Presidency Small Cause Courts Act, the tenant may Me an application for order of court directing the landlord to sell the land for a price to be fixed by the court Under Sec. 9 (1) (b) the court shall decide the minimum extent of the land which may be necessary for the convenient enjoyment of the tenant and fix the price, The court should then order the tenant to deposit the amount in court in one or more instalments within the prescribed time. On payment of the amount by the tenant, the court under Section 9 (3) shall pass an order directing the conveyance by the landlord to the tenant of the extent of the land for which the price was fixed. In the present case, the stage contemplated under Sec. 9 (3) has not been reached. The court has not ordered conveyance of the land from the landlord and the ejectment proceedings are still pending. There is no bar for the respondent to withdraw his application filed under Section 9 of the City Tenants Protection Act offering to purchase the land for a price fixed by the court. The Supreme Court in M/s. Hulasrai v. K. B. Bass and Co. : [1967]3SCR886 has held that Order 23, Rule I C. P. C. gives an unqualified right to a plaintiff to withdraw from 0 suit and there is no Provision in the C. P. C. which requires the court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with the case. Different considerations will arise only where Be-off has been claimed or a counter-claim has been made. Since the petition under Section 9 is filed by the tenant in an ejectment suit filed against him Order 23, Rule I will apply to the petition under Section 9 (1) of the Madras City Tenants Protection Act. An there is no possibility of any set off. or counter claim in the proceedings initiated under Section 9 of the Madras City Tenants Protection Act, it follows that it is open to the tenant to withdraw the petition filed by him under Sec. 9.

7. The Madras City Tenants Protection Act is a beneficial provision intended for the protection of the tenant. It In always open to the tenant to waive the benefit conferred under the Act. In that view, the tenant is entitled to withdraw the petition filed under Section 9 of the Madras City Tenants Protection Act, especially when the court has not directed the conveyance of the land by the landlord to the tenant.

8. The next question is whether the respondent is entitled to the refund of the amount lying in court deposit. Sec. 9(2) of the Madras City Tenants Protection Act provides that in default of payment by the tenant of any instalments fixed by the court under Section 9 (1) for the purchase of the land, the court shall dismiss the application filed by the tenant under sub-section (1) and order repayment of the amount to the tenant. When the section provides refund of the amount paid by the tenant even in a case where the tenant defaults in the payment of instalments fixed by the court, there is no reason why repayment should be refused when the tenant has complied with the orders of court and has paid all the instalments. If refund could be ordered when there is default, there is no rhyme or reason to ref use refund to the tenant when he has complied with the orders of the court and paid the amount in full, so long as there is no statutory bar for withdrawal of the application filed by the tenant under Section 9, and so long as the court has not ordered conveyance of the land by the landlord to the tenant, there is no prohibition for the tenant to withdraw the application and claim refund of the amount deposited in court. Learned counsel for the petitioner contended that Section 9 (2) providing for refund of the amount applies only when there is a default and not when there is compliance with the court's order regarding payment. It is quite incongruous and illogical to suggest that the tenant is entitled to refund when he commits default in payment of instalments and he is not entitled to refund when he has complied with court's order and paid the amount in full. The contention of the learned counsel fails and is accordingly rejected.

9. Learned counsel for the petitioner next contended that the respondent having filed an application offering to purchase the property and having deposited the amount in court, he is estopped from withdrawing his application filed under Section 9. The acceptance of the offer made by the respondent to purchase the land and the amount of price to be paid for the land are matters which are regulated by statute and the principle of estopped cannot be applied where the respondent has merely acted under a statutory provision. The order of the lower court is confirmed and the civil revision petition stands dismissed. No costs.

10. Petition dismissed.


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