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Venkatarama Lyer and anr. Vs. Thiruvidamarudur Sri Manalingaswami Devastanam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal Nos. 316 of 1964 and 350 of 1965 and C.M.P. No. 8917 of 1964
Judge
Reported inAIR1972Mad167
ActsConstitution of India - Articles 133 and 136; Madras City Tenants Protection (Amendment) Act, 1955 - Sections 2(4) and 11; Madras City Tenants Protection (Amendment) Act, 1960; Madras City Tenants Protection (Amendment) Act, 1964 - Sections 9; Code of Civil Procedure (CPC), 1908 - Sections 151 - Order 20, Rule 12 - Order 32 - Order 41, Rule 23; Madras City Tenants Protection Act, 1921 - Sections 9
AppellantVenkatarama Lyer and anr.
RespondentThiruvidamarudur Sri Manalingaswami Devastanam and ors.
Cases ReferredPichu Ayyangar v. Sri Perarulala Ramanuja Jeer Swamigal
Excerpt:
property - appealable order - order 20 rule 12 and order 41 rule 23 of code of civil procedure, 1908 - order passed by court appealable - appeal not preferred against order and allowed to become final - it would not be open to aggrieved party to challenge correctness of same in subsequent stage of same proceedings. - - 316 of 1964 and the cross-objections, therefore, fail and they are dismissed......that by reason of madras act 16 of 1964, which has amended the city tenants protection act, the suit filed by the plaintiff has abated in view of section 9 of that act. this submission of the learned counsel was on the ground that the act was applicable to the instant case. but, as we have already seen in a. s. 349 of 1958 and cr. p. 1626 of 1958, a division bench has already held that the first defendant was not a tenant within the meaning of the act and that the rights of the parties in regard to the superstructure were crystallised on the determination of the tenancy at the time when the act had not been extended to thiruvidaimarudur area and that, therefore, the first defendant could not invoke any of the provisions of the act either for purchasing the site from the landlord or.....
Judgment:

V. Ramaswami, J.

1. Defendants are the appellants in both these appeals. The plaintiff is the Thiruvidaimarudur Sri Mahalingaswami Devastanam represented by its hereditary trustees. The plaintiff is the owner of the land bearing survey No. 197/4 measuring 2 acres 9 cents situate in Railadi Street, Thiruvidaimaruthur. Out of this one acre of land was leased by the plaintiff to a tenant who had put up some building for running a rice mill there. The building put up by the tenant was later on purchased by Sankara Iyer, the first defendant. Under Ex. A. 1, dated 27-6-1951, the said Sankara Iyer became lessee under the plaintiff. The term fixed in the lease was three years. It was agreed that on the expiry of the lease period the tenant should with all superstructures standing thereon on receiving compensation for value of the superstructures. The lease period was to expire on 26-6-1954. On 10-4-1954, the plaintiff issued a lawyer's notice calling upon the tenant Sankara Iyer to surrender possession of the land and building on the expiry of the lease period and offered to pay the compensation for the building. Though the first defendant received a notice, he did not comply with the demand. Thereupon the plaintiff filed a suit for recovery of possession with past and future mesne profits. The plaint was originally presented on 25-8-1955 in the District Munsif Court, Valaigaiman. On objection being taken regarding the valuation of the suit and the jurisdiction of the court, the plaint was directed to be returned by the District Munsif Court for presenting the same in proper court. Thereafter the plaintiff presented the plaint on 10-10-1957 in the Sub-Court Kumbakonam.

In the meanwhile, on 14-12-1955 the Madras City Tenants Protection (Amendment) Act, (Madras Act 19 of 1955) came into force and by G. O. Ms. 2516, dated 18-6-1957 the provisions of the Act was extend to Thiruvidaimarudur area with effect from 26-6-1957. Taking advantage of these provisions, the first defendant filed a written statement claiming protection under the Madras City Tenants Protection Act, as amended by Madras Act 19 of 1955. He also claimed that the notice issued before the suit did not satisfy the requirement of S. 11 of the Act and consequently the suit was liable to be dismissed. He also claimed right of permanent occupancy, among other defences. The first defendant filed O. P. No. 56 of 1957 on the file of the Subordinate Judge, Kumbakonam, under Section 9 of the Madras City Tenants Protection Act, for a direction to the plaintiff to sell the land to the first defendant. By his judgment and decree dated 30-7-1958, the learned Subordinate Judge held that the first defendant was entitled to the protection under the Madras City Tenants Protection Act, 1921, as amended by Madras Act 19 of 1955, and that the suit was liable to be dismissed as the notice issued by the plaintiff did not comply with the conditions as laid down in S. 11 of the Act. He also fixed the value of the superstructure at Rs. 18,000, but dismissed the suit. In O. P. No. 56 of 1957 he passed an order directing the plaintiff to sell the site to the first defendant and fixed the value of the land at Rs. 2400. The plaintiff filed A. S. 349 of 1958 against the judgment and decree in the suit, and Cr. P. 1626 of 1958 against the order in O. P. 56 of 1957. When the appeal and the Civil Revision Petition were pending, the Madras City Tenants Protection Amendment Act (Madras Act 15 of 1960) came into force which restricted the application of the Act, among other things, to residential buildings alone in areas other than the city of Madras and the Municipal towns of Coimbatore, Madurai, Salem and Tiruchirapalli. Pending the appeal, the first defendant died and his legal representatives had been brought on record as respondents 2 to 12 in the case. By a common judgment dated 7-12-1962 a Division Bench of this court held that the first defendant was not a tenant within the definition of 'tenant' in Section 2(4) of the Act, that the rights of the parties in regard to the superstructure were crystallised on determination of the tenancy at the time when the Act had not been extended to Thiruvidaimarudur area and that, therefore, the first defendant could not invoke any of the provisions of the Act either for purchasing the site from the landlord or for non-suiting the landlord by relying upon Section 11. In this view, the Division Bench set aside the judgment and decrees of the learned Subordinate Judge; but as the court found that the finding of the learned Subordinate Judge as to the value of the superstructure was unsatisfactory, they remanded the suit for the purpose of determining the value of the superstructure. The Division Bench also directed the lower court to pass a decree in favour of the plaintiff for recovery of possession and mesne profits after ascertaining the value of the superstructure for which an order for payment in favour of the first defendant should be made. The Civil Revision Petition was also allowed and the order of the learned Subordinate Judge directing the sale of the land was set aside.

2. After the remand, the learned Subordinate Judge allowed the parties to adduce additional evidence and fixed the value of the superstructure at Rs. 24207-54 and by a decree dated 14-2-1964 decreed the suit of the plaintiff for compensation and directed the plaintiff to pay defendants 2 to 12 (L. Rs. of the first defendant) a sum of Rs. 24207-54, being the value of the improvements. By the same judgment and decree the learned Subordinate Judge also directed the defendants to pay Rs. 982-50 towards past mesne profits and directed the future mesne profits to be determined in separate proceedings under Order 20, Rule 12, C. P. C. In pursuance of this decree, the plaintiff deposited a sum of Rs. 24207-54 on 1-4-1964. The defendants presented the above appeal (A. S. 316 of 1964) on 6-4-1964 against the judgment and decree of the lower court. Pending the appeal, the Madras City Tenants Protection (Amendment) Act, Act 16 of 1964, came into force on 1-9-1964. The appellants have filed C. M. P. 8917 of 1964 for raising additional grounds seeking certain rights under this amended Act (Madras Act 16 of 1964).

3. In pursuance of the direction for determination of the mesne profits under Order 20, Rule 12, proceedings were taken and ultimately the court below determined the mesne profits payable by the defendants at Rs. 280 per month and directed that this amount be paid from 10-10-1957, the date of plaint. The lower court also directed that the plaintiff is liable to pay interest at 6 per cent per annum on the sum of Rs. 24207-54 from 26-6-1954 till 1-4-1964, the date of deposit. The defendant have filed. A. S. 350 of 1965 against this order under Order 20, Rule 12. In both these appeals the plaintiff has filed cross-objections contending that the value fixed for the superstructure is very high, that the plaintiff is not liable to pay interest and that the plaintiff is also entitled to get interest on the mesne profits payable.

Thiru Ramamurthi Iyer, the learned counsel for the appellants, contend that by reason of Madras Act 16 of 1964, which has amended the City Tenants Protection Act, the suit filed by the plaintiff has abated in view of Section 9 of that Act. This submission of the learned counsel was on the ground that the Act was applicable to the instant case. But, as we have already seen in A. S. 349 of 1958 and Cr. P. 1626 of 1958, a Division Bench has already held that the first defendant was not a tenant within the meaning of the Act and that the rights of the parties in regard to the superstructure were crystallised on the determination of the tenancy at the time when the Act had not been extended to Thiruvidaimarudur area and that, therefore, the first defendant could not invoke any of the provisions of the Act either for purchasing the site from the landlord or for non-suiting the landlord by relying upon Section 11. This finding had become final. If the first defendant was aggrieved with this finding, he could have preferred an appeal to the Supreme Court either under Art, 133 or under Art. 136 of the Constitution. The learned counsel for the appellants contended that since the earlier judgment in A. S. 349 of 1958 remanded the matter to the trial court, no appeal could have been preferred under Art. 133 and that, therefore, he is entitled to canvass the finding. The decision in that case is, in our opinion, a 'final order' and the first defendant could have filed an appeal to the Supreme Court under Art. 133. In any case, even if no appeal could have been preferred under Art. 133 he could have filed an appeal under Art. 133 he could have filed an appeal under Art. 136 of the Constitution if he was aggrieved by the order of this court. As no appeal has been preferred that order of the High Court had become final and it was not liable to be canvassed at a subsequent stage of the same proceedings.

4. In our opinion, the decision of the Supreme Court in Nainsingh v. Koonwarjee, C. A. No. 1460 of 1966, : [1971]1SCR207 covers this point. In that case, the defendant raised the question of jurisdiction of the court to deal with the suit. The trial court upheld the defence and dismissed the suit holding that the Civil Court had no jurisdiction to entertain the suit. On appeal by the plaintiff, the first appellate court reversed the finding of the trial court and held that the court had jurisdiction and remanded the matter for disposal on merits. The defendant did not take that order of the first appellate court in appeal or revision to the High Court and allowed it to become final. After the trial court decided the suit on merits, the defendant filed an appeal to the High Court and challenged appeal to the High Court and challenged the finding of the first appellate court that the court had jurisdiction. The High Court accepted the contention of the defendant that the first appellate court went wrong in holding that the suit was maintainable and set aside the order the held that the suit was not maintainable. On appeal, the Supreme Court held:--

'The High Court, in our opinion, erred in holding that the correctness of the remand order was open to review by it. The order in question was made under Rule 23, Order 41, C. P. C. That order was appealable under Order 32, of that Code. As the same was not appealed against, its correctness was no more open to examination in view of S. 105(2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers. Under the inherent power of courts recognised by S. 151, C. P. C., a court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should followed and inherent jurisdiction should not be involved. In other words, the court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power'.

To the similar effect is the decision of the Privy Council in Louis Dreyfus v. Arunachala . The ratio of these decisions, in our opinion, is that, if an order which was appealable was not appealed against and allowed to become final it would not be open to the aggrieved party to challenge the correctness of the same in a subsequent stage of the same proceedings. Therefore, the appellants could not be permitted to challenge the correctness of the finding of this court in A. S. 349 of 1958. It may be mentioned that the definition of 'tenant' has also not undergone any change under the amending Act 16 of 1964. Even assuming that no appeal lay against the decision in A. S. 349 of 1958, we are of the view that since the earlier decision was by a Bench of this court, we cannot view that judgment in these appeals. The prior decision which was held to be reviewable at a later stage of the same proceeding, in Pichu Ayyangar v. Sri Perarulala Ramanuja Jeer Swamigal, ILR (1940) Mad 901 : AIR 1940 Mad 756 was a decision of a single Judge made in a revision petition and when the matter came for final disposal it was decided by a Division Bench. The appellants are, therefore, not entitled to invoke the provisions of the Madras City Tenants Protection Act even assuming that they were entitled to any protection under the Act by virtue of the amendment Act (Madras Act 16 of 1964).

5. It is next contended by Thiru Ramamurti Iyer, the learned counsel for the appellants, that the value of the superstructure fixed by the trial court is too low and the first defendant has claimed in the appeal that it is worth at least Rupees 30,000. The plaintiff has not given any value in the plaint. .. .. .. .. ..

(Discussion of facts omitted).

According, we fix the value of the building on the date of termination of the tenancy at Rs. 24207-54. The appeal A. S. No. 316 of 1964 and the cross-objections, therefore, fail and they are dismissed. .. .. .. .. ..

6. Appeal dismissed.


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