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K.P.S. Thangaswamy Chettiar Vs. A. Bapoo Sahib - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Case NumberA.A.O. No. 545 of 1948
Judge
Reported inAIR1951Mad804
ActsMadras Buildings (Lease and Control) Act, 1946 - Sections 8 and 12(4); Code of Civil Procedure (CPC) , 1908 - Sections 144, 144(2) and 151
AppellantK.P.S. Thangaswamy Chettiar
RespondentA. Bapoo Sahib
Appellant AdvocateM.S. Vaidhyanatha Iyengar, Adv.
Respondent AdvocateA.V. Narayanaswami Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredJai Berhara v. Kedar Nath Marwari
Excerpt:
.....least it is well-established that restitution proceedings are in the nature of execution proceedings, (ii) that section 8 of madras act xv (15) of 1946 provides a machinery for executing orders passed in appeal, that the ct. narayana ayyar founded his reply is well-established in this province. he might well have been met with the plea that the rent controller had no jurisdiction at all. vaidyanatha ayyar are sound, we must be prepared to assume that the legislature deliberately conferred a right of appeal & simultaneously nullified its intentions by depriving the successful party of any means of realising the benefit of his success. vaidyanatha ayyar next complained thatthe order of restitution was passed without noticeto his client......that he required the shop for his own use, & that the tenant was in arrears with his rent. the rent controller recorded no finding on the question whether the landlord required the shop for his own use; but he found that the resp. was in arrear of rent for june 1947 & therefore passed an order evicting him from the premises. the applt. put the order in execution as soon as he could & actually took possession of the property on 22-6-1948. the tenant appealed to the sub-judge who reversed the order of the rent controller & dismissed the petns. for eviction. that order was pronounced on 25-8-1948. mr. vaidyanatha ayyar for the applt. complained that the order made in the appeal was inequitable; but into that matter we cannot go for the reason that under section 12 (4) of madras act xv.....
Judgment:

Balakrishna Ayyab, J.

1. The property which forms the subject-matter of these proceedings is a shop in Big Bazzar Street, Tiruchirappalli town. The applt. who is the owner of the property applied to the Rent Controller for eviction of the resp. who was his tenant on the grounds that he required the shop for his own use, & that the tenant was in arrears with his rent. The Rent Controller recorded no finding on the question whether the landlord required the shop for his own use; but he found that the resp. was in arrear of rent for June 1947 & therefore passed an order evicting him from the premises. The applt. put the order in execution as soon as he could & actually took possession of the property on 22-6-1948. The tenant appealed to the Sub-Judge who reversed the order of the Rent Controller & dismissed the petns. for eviction. That order was pronounced on 25-8-1948. Mr. Vaidyanatha Ayyar for the applt. complained that the order made in the appeal was inequitable; but into that matter we cannot go for the reason that under Section 12 (4) of Madras Act XV (15) of 1946 jthe decision of the appellate authority is final. On 30-8-1945, i.e., five days after the Sub-Judge had pronounced the order in the appeal the tenant applied for restitution, & without notice to the applt. the learned Subordinate Judge ordered redelivery of the property by 30-9-1948 & redelivery was actually effected. It is against this order that the present appeal has been filed.

2. Before examining the contentions of Mr. Valdyanatha Ayyar for the applt. it may be stated that so far as execution is concerned, the scheme of Madras Act XV (15) of 1946 is that in the mofussil all orders passed under Sections 7, 8 or 12 of the Act i.e., the orders of the. Rent Controller & the Appellate Authority--are executable in the Ct. of the appropriate Subordinate Judge or where there is no Subordinate Judge, in the Ct. of the Dist. Judge.

3. For the applt. Mr. Vaidyanatha Ayyar contended that the lower Ct had no jurisdiction to order restitution. His reasoning was that it could derive the necessary power only from Section 144, C. P. C. but that section has not yet been made applicable to proceedings under Madras Act XV (15) of 1946. Besides, even assuming that Section 144 does apply to a matter of this kind the procedure laid down by the decisions in respect of Section 144 has not been followed. Before restitution can be made, there must be a separate & specific order directing restitution & particularising the nature & extent of the restitution that should be made. There must be an order, said Mr. Vaidyanatha Ayyar, 'crystallising' & formulating the rights of the party seeking restitution. Such an order can be made only by the Ct. of first instance, i.e., in the present case, the Rent Controller.' The Rent Controller has made no such order & therefore there was no order on the basis of which any restitution could be made. Further the order which the Rent Controller passed in the first instance was sent to the Sub Ct. for execution, & the moment the Sub Ct. executed that order, it became 'functus officio'.

4. In his attempt to develop this line of reasoning Mr. Vaidyanatha Ayyar cited a number of decisions. The first of these is 'Banmul Soanmul v. Harackchand Roopchand : (1948)1MLJ256 . We do not think that that decision has really any application to the facts of the present case. In that case what happened was this : The Provincial Govt. passed an order under the Madras House Rent Control Order--this is different from the Act--in favour of a certain party. An attempt was made to execute that order through the machinery set up by Madras Act XV (15) of 1946. It was held that the order was not one which could be or was made pursuant to any provisions of the Act. Since Section 9 enables execution to issue only in respect of orders made under the specified sections of the Act, the order which had been obtained from the Govt. was not one which could be executed under that Act. In the present case the order of the Sub-Judge was not made under the House Rent Control Order but in virtue of the powers conferred by the Act itself. Section 9 of the Act specifically provides that

'every order passed on appeal under Section 12 shall be executed...... ..by the Principal Subordinate Judge having original jurisdiction over the area in which the building is situated.'

This decision is not an authority for the proposition that no restitution can be ordered under the Act. In 'Rohani Ramandhwaj Prasad Singh v. Har Prasad Singh', 1943 2 MLJ 460: , which is the second case cited by Mr. Vaidyanatha Ayyar, the P. C. decided:

'When a decree is varied or reversed in circumstances giving rise to a right by way of restitution, the right arises automatically & is claimable under Section 144, Civil P. C. before the trial Ct.'

Mr. Vaidyanatha Ayyar next referred to 'Palanlyandi Pillai', v. Rasappa Pillai : AIR1937Mad173 where this passage occurs:

'It will be seen that under Section 144 before an order for restitution can be made the form & the manner of restitution & the relief which the Ct. would grant for giving the benefit of the decree to the person who seeks the restitution of the property which he has been deprived of, have to be determined by the Ct.........After determination as aforesaid it will be then open to the Ct. to givethe appropriate relief which the nature of thecase may require & which may accord with suchdetermination.'

He also cited 'Birendra Nath v. Surendra Kumar : AIR1940Cal260 where the learned Judges say :

'The final Judgment or decree furnishes only the foundation to a claim for restitution,--gives authority for 'the view' that restitution is necessary. An appln. for restitution is not one for enforcement of that judgment or decree, but In the words of Rankin C. J. it is an appln. for relief which is consequential upon the appellate Ct.'s decree of reversal........The order for restitutionis in effect a new decree, which has to be enforced by another execution.'

5. Finally he referred in this connection to 'Kishori Mohan v. Brahma Niranjan : AIR1938Cal554 , in which it was decided that a Ct. to which a decree is transmitted for execution becomes 'functus officio' the moment it has executed the decree. He also referred to a passage at p. 556 which runs thus :

'Therefore the Judgment-debtors had the right to go to the Ct. of first Instance for such restitution as was Just & proper......'

In view of these decisions he repeated that the tenant should In the first Instance have gone to the Rent Controller & obtained an order from him, 'crystallising & formulating' his rights in regard to restitution & thereafter put that order in execution. He also suggested that if it was necessary a separate suit for the purpose should or could be filed.

6. To this Mr. Narayanaswami Ayyar replied (1) that in this province at least it is well-established that restitution proceedings are in the nature of execution proceedings, (ii) that Section 8 of Madras Act XV (15) of 1946 provides a machinery for executing orders passed in appeal, that the Ct. set up for that purpose in the mofussil is the Ct. of the Subordinate Judge or Dist. J. where there is no Sub-Judge & (iii) that the general rule is that once the ordinary tribunals are seized of a matter, the forms, procedure & reliefs usually observed by & obtainable in such Cts. become applicable & available in respect of that matter. In 'Somasundaram v. Chokkalingam', 40 Mad 780 : AIR 1917 Mad 185. it was decided:

'An appln. for restitution is an appln. in execution under the new Code of Civil Procedure.'

The same view appears in 'Unnamalai Ammal v.Mathan', 33 MLJ 413 : AIR 1917 Mad 194.The decision there was that,

'An appln. for restitution is an appln. for execution of a decree & is governed by Article 182 & not by Article 181, Limitation Act.'

In one of the cases cited by Mr. Vaidyanatha Ayyar & already referred to, namely, 'Palaniyandl Pillai v. Rasappa Pillai : AIR1937Mad173 :

'It is no doubt true that our H. C. has taken the view that an appln. for restitution is an appln. for execution of the decree whatever may be the view of the other H. Cts.'

There are several other decisions of this Ct. to the same effect & it is clear that the first of the three propositions on which Mr. Narayana Ayyar founded his reply is well-established in this Province.

7. In 'Marudamuthu v. H. R. E. Board, Madras', ILR (1938) Mad 216 : AIR 1937 Mad 653, Varadachariar, J., as he then was, took it as a proposition which required no authority, namely, that 'once a matter comes before a regular Civil Ct. its further course will be governed by the provisions of the Code.' The same view is expressed in 'Kandaswami v. Neelamangam Pillai : AIR1947Mad112 , where Chandrasekhara Aiyar, J. refers to a number of decisions which have laid down that rule. It is sufficient to refer to one of the decisions he cited, viz., the case of 'National Telephone Co., Ltd. v. Postmaster General No. 2', (1913) AC 546: 32 LJKB 1197, where Viscount Haldane L. C. says at p. 552 :

'When a question is stated to be referred to an established Ct. without more, it, in my opinion, Imports that the ordinary incidents of the procedure of that Ct. are to attach, & also that any general right of appeal from its decision likewise attaches.'

On the basis of this rule it must be held that once execution proceedings under this Act are placed in the hands of the ordinary Cts. the provisions of Civil P. C. relating to that subject would apply 'mutatis mutandis' & so far as the nature of the machinery set up by Madras Act XV (15) of 1946 & the provisions thereof permit.

8. There is another aspect of the matter. The contention for the applt. Ignores the true nature of restitution proceedings. It is a basic rule that the Cts. will not permit a suitor to suffer by reason of a wrong order it has made, & that when once the error is discovered it will so far as possible put him in the position which he would have occupied if the wrong order had not been made. The right to restitution is not derived from Section 144, C. P. C. That section only prescribes a method by which that right can be enforced. In 'Birendra Nath v. Surendra Kumar : AIR1940Cal260 , which Mr. Vaidyanatha Ayyar himself cited, the following passage occurs at p. 493 :

'The power of a Ct. to direct restitution is Inherent in the Ct. itself. It rests on the principle that a Ct. of Justice is under a duty to repair the injury done to party by its act : 'Rodger v. Comptoir D'Escompte de Paris', (1871) 3 PC 465 : 40 LJPC 1 & 'Jai Berhara v. Kedar Nath Marwari', 49 IA 351 : AIR 1922 PC 269. The right of a party to have restitution & the duty of the Ct. to give him restitution do not rest on the provisions of Section 144, Civil P. C., which defines the procedure only 'in one class of cases' requiring restitution by enacting that the appln. for restitution is to be made in the Ct. of first instance.'

The portion underlined (here in inverted commas) implies that Section 144 is not exhaustive of the forms of procedure.

9. If as we think we have regard to the substance of the matter & not merely to its technical forms it must be clear that the order passed by the learned Subordinate Judge is the only one which could have been made in the circumstances of the case. Except by ordering that the tenant be put back into possession of the property the appellate authority could not have given effect to its order at all.

10. It has been already mentioned that the contention of Mr. Vaidyanatha Ayyar was that after he had succeeded in the appeal the tenant should have gone back to the Rent Controller & obtained a separate order from him granting him restitution, & thereafter put this order in execution in the Sub Ct. or if necessary filed a separate suit. It is difficult to see how in view of the provisions of Section 144(2). C. P. C. any suit would lie. The suggestion that the tenant should have gone to the Rent Controller & obtained a specific order from him is not as simple as it looks, because If the tenant had made such, an appln. he might well have been met with the plea that the Rent Controller had no jurisdiction at all.

11. A decisive objection to the argument of Mr. Vaidyanatha Ayyar is that if his contentions were to prevail, there would be really no effective means of putting in execution a large category of orders that may be passed in appeal. The clear purpose of Madras Act XV (15) of 1946 was to simplify proceedings & to set up a machinery for the speedier disposal of certain matters; but if the contentions of Mr. Vaidyanatha Ayyar are sound, we must be prepared to assume that the Legislature deliberately conferred a right of appeal & simultaneously nullified its intentions by depriving the successful party of any means of realising the benefit of his success. It is not to be supposed that the Legislature would have stultified itself in the manner.

12. Mr. Vaidyanatha Ayyar next complained thatthe order of restitution was passed without noticeto his client. To this Mr. Narayanaswami Ayyar attempted the answer that no notice was necessary under Order 21. Rule 22 since the execution petn.was being filed within two years of what may becalled the date of the decree. To this It wasreplied that Order 21, Rule 22 has no application to thematter on hand ; whether that be so or not, weare clear in our mind that the applt. has not beenprejudiced in any manner. Before the learnedSubordinate Judge he could not have raised anypoints that have not been raised here & the resultcould hardly have been different. In the result,therefore, the appeal fails & is dismissed withcosts.


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