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P. Ethirajammal Vs. N. Hassan Kanno - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1565 of 1976
Judge
Reported inAIR1977Mad327
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10 and 30(1); Hindu Married Women's Right to Separate Maintenance Act, 1946
AppellantP. Ethirajammal
RespondentN. Hassan Kanno
Cases ReferredS. P. Temple v. Manickam Chettiar
Excerpt:
tenancy - eviction - sections 10 and 30 (1) of tamil nadu buildings (lease and rent control) act, 1960 and hindu married women's right to separate maintenance act, 1946 - whether landlord entitled to decree for possession without qualification imposed by appellate court - amendment was retrospective in character - after amendment building not exempt some provisions of act of 1960 amended from provisions of act - grounds taken by landlord untenable - no infirmity in order passed by appellate court - appeal liable to be dismissed. - - the provisions of the said act had not been noticed and the first appellate court negatived the wife's claim for separate maintenance as the failed to prove the ground of cruelty pleaded in the plaint......of the act, the civil court would have had jurisdiction to entertain the suit. on facts, the suit building was exempt from the provisions of the act when the suit was filed but before ever the court could give a decision in the matter, the exemption had been taken away (by the amending act) and on the date of trial, the provisions of the act were applicable to the case. the question is whether the court can ignore the amendment and grant a decree for possession without the qualification that it was subject to the provisions of the act. taking the provisions of the amending act only prospectively, the fact remains, on the date when the trial court had to give a decision, the building came within the provisions of the act and it was not exempt from the act. the court has got to apply.....
Judgment:

1. This second appeal arises out of a suit in ejectment. The legal representative of the plaintiff-landlord is the appellant before me. The Muthumari Chetti St., Mannady, Madras, which the respondent in this appeal (hereinafter referred to as the tenant) had taken on lease on a monthly rent of Rs. 700. According to the landlord (plaintiff) the building had been put up in the year 1965 and therefore the same was exempt under S. 30(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, Act 18 of 1960 (hereinafter referred to as the Act) as it then stood. It may be noted that under the above provision, any building constructed after the commencement of the Act was exempt from the provisions of the Act. Therefore in respect of such buildings, the landlord need not make out a case under S. 10 of the Act to evict the tenant. When the suit was filed in the present case, admittedly the building was exempt from the provisions of the Act and therefore the landlord had no necessity to make out any of the grounds under S. 10 of the Act and go before the Rent Controller. Hence the suit was filed in the City Civil Court for possession after duly terminating the tenancy.

2. The tenant raised various contentions including that the building had been constructed even prior to the commencement of the Act. But they had been negatived on merits.

3. During the pendency of the suit before the IV Assistant Judge, City Civil Court, madras, the amending Act, Act 23 of 1973, came into force. By virtue of that Act, sub-s. (1) of S. 30 has been substituted and now according to the amended provision, even a building constructed after the commencement of the Act would have exemption from the provisions of the Act only for a period of five years from the date of completion of the construction. This amendment came into force on 30-6-1973. As I said, the suit was then pending before the trial court. The said court passed a decree for possession after holding that the Amending Act was not retrospective and that it did not affect pending proceedings.

4. On appeal by the tenant, the decree for possession has been modified, in that, the decree is made subject to the provisions of Act 18 of 1960. The effect of the decree passed by the first appellate Court is that the landlord has to go before the Rent Controller and make out a ground for eviction under S. 10 of the Act before ever the decree can be executed. The legal representative of the landlord has filed this second appeal contending that the first appellate Court was not right in modifying the decree of the trial court for possession and incorporating a clause that the decree is subject to the provisions of Act 18 of 1960.

5. The learned counsel for the tenant tried to contend that the amendment under Act 23 of 1973 is retrospective in character. But there is nothing in the Amending Act to indicate that the Legislature intended to give retrospective effect to the said provision. This has been recognised by several decisions of this court. Therefore one has to proceed prospective.

6. Even so the question for consideration is whether in the present case the landlord is entitled to a decree for possession without the qualification imposed by the first appellate Court.

7. It is settled law as far as this Court is concerned that even in respect of a building which is covered by the provisions of the Act, the Civil Court's jurisdiction to entertain a suit for possession is not ousted. Of course a decree passes by the Civil Court for possession in such a case should necessarily be subject to the provisions of the Act. That means even if, when the present suit was instituted, the building in question was within the purview of the Act, the Civil Court would have had jurisdiction to entertain the suit. On facts, the suit building was exempt from the provisions of the Act when the suit was filed but before ever the court could give a decision in the matter, the exemption had been taken away (by the Amending Act) and on the date of trial, the provisions of the Act were applicable to the case. The question is whether the court can ignore the amendment and grant a decree for possession without the qualification that it was subject to the provisions of the Act. Taking the provisions of the Amending Act only prospectively, the fact remains, on the date when the trial court had to give a decision, the building came within the provisions of the Act and it was not exempt from the Act. The Court has got to apply the substantive law as it stands when the case comes up for decision. The mere fact that the law was different when the suit had been instituted does not mean that the court can ignore the change of law. It cannot give relief to the parties as per the law that was in force on the date of the plaint and not as per the law when the decision is rendered. In this case by applying the Act as amended by Act 23 of 1973 which was undoubtedly in force on the date when the trial Court rendered its decision, surely the court is not giving any retrospective effect to the amendment. It only administers the law as it stands on the date on which the decision is rendered. That is the view I have taken in C. R. P. No. 750 of 1974(Mad).

8. The above view of mine is not merely on principle but supported by authority (Vide Lachmeswar v. Keshwarlal, and Lakshmi Ammal v. Narayanaswami, : AIR1950Mad321 ). In the latter case what happened was the Hindu Married Women's Right to Separate Maintenance Act, Act XIX of 1946 came into force when the first appeal in a suit for maintenance by the wife was pending. The provisions of the said Act had not been noticed and the first appellate Court negatived the wife's claim for separate maintenance as the failed to prove the ground of cruelty pleaded in the plaint. On second appeal by the wife, this court held that the wife was entitled to separate maintenance as per the provisions of the above Act, even though she had not established the ground pleaded in the plaint. It was pointed out that if an event subsequent to the institution of the suit happened the court has discretion to allow amendment of the pleadings but where facts are not in dispute and only the statute is changed (pending suit or appeal) there is no need even for amendment of pleadings because 'the court is bound to administer the law of the land at the date when it gives its decision on a dispute.'

9. It is stated on the strength of certain observations of a Bench of this Court in M/s. Killick Nixon Ltd. v. V.R. Narayana Rao, A. S. No. 518 of 1973(Mad), that the amendment being only prospective it cannot affect pending proceedings and there is no provision in the Amending Act for abatement of pending proceedings. It was already seen that the civil court's jurisdiction is not ousted even in respect of buildings governed by the provisions of the Act. Therefore, from the mere fact that there is no provision in the Amending Act for the abatement of pending proceedings, it cannot be concluded that the court in which the suit is pending is to ignore the amendment and pass a decree according to the law which was in force on the date when the suit was filed. There is no provision for abatement for the simple reason that even after the amendment, the Civil Court continued to have jurisdiction and the suit or the appeal, as the case may be, can be proceeded with. Only thing is the decree to be passed should not ignore the amendment. There is no vested right in a party to cling to a decision which has necessarily to be varied due to the change effected in the substantive law though the change may be prospective and not retrospective. That would be the ratio of the decision of the Federal Court and that of this court referred to earlier. The learned Judges who decided M/s. Killick Nixon Ltd. v. V. R. Narayana Rao, 1974 1 MLJ (SN) 16, have really relegated the question whether the amendment applies to the case or not, to the executing court. In Zafrullakhan v. Arunachalam : (1976)2MLJ491 , Sethuraman J. has referred to the Bench decision and held that the decision of the court below having been rendered before the amendment, the successful party had a vested right. But the full judgment of the Bench does not seem to have been made available to the learned Judge and only the short notes had been before him.

10. It is to be noted that under S. 10 of the Act and the corresponding provisions in the earlier Rent Control Law a tenant shall not be evicted even though there might be a civil court decree for possession, unless any of the grounds in that section is made out. Therefore if the Civil Court does not go into the question whether the Act is applicable to the building or not, and simply grants a decree for possession (as the Civil Court's jurisdiction is not ousted even in a case where the building comes within the purview of the Act) it is not only open but also the duty of the executing Court to see whether the Act is applicable. However if the Civil Court decides that the Acts is not applicable while granting a decree for possession, it would not be open to the executing court to go behind it. That being the position there is no vested right in the landlord to be protected and he cannot be heard to say that the civil court should grant a decree for possession simpliciter after holding that the Amending Act has no application and that the building is exempt from the provisions of the Act on the ground that when he filed the suit the building was exempt. After the amendment, the building is certainly not exempt from the provisions of the Act. The stand taken by the landlord is untenable. The decree passed by the appellate Court is therefore the proper one.

11. C. Sebastian v. R.C. Diocese Madurai : (1976)1MLJ435 and Shawani v. Mahaveer Banians Stores, : (1977)1MLJ25 both rendered by Gokulakrishnan J. and the Bench decision reported in S. P. Temple v. Manickam Chettiar, : (1977)1MLJ425 all relate to cases of buildings having been exempted by G. O. Ms. No. 1998 Home dated 12-8-1974, by virtue of the powers under S. 29 of the Act. Those are all cases where the proceedings had been instituted in the Rent Control Court. In the two cases before Gokulakrishnan J. the Rent Controller had passed an order of eviction even before the buildings concerned were exempted by the above said G. O. The effect of the exemption under the. G. O. is that the landlord would be entitled to get an order of eviction even without satisfying any of the grounds contained in S. 10 of the Act and without going before the Rent Controller. It has been pointed out by the Division Bench in S. P. Temple v. Manickam Chettiar : (1977)1MLJ425 , column 2 that the landlord (Temple in that case) having had a cause of action to go before the Rent Controller under some of the grounds contained in S. 10 of the Act, there was nothing to show that it lost its right to evict the tenant on those grounds merely because the Government notified the building as one exempt from the provisions of the Act. These decisions which relate to cases of subsequent exemptions granted under the G. O., may not have a bearing on the present question, because there the point was that once the Rent Controller entertained the petition whether his jurisdiction can be held to have been taken away by the G. O. After the G. O., the Rent Controller cannot entertain a petition as he would not have jurisdiction. But what is to happen to a petition validly entertained prior to the G. O. which is not retrospective? The court said that as there was no abatement of the proceedings they should go on to the end. The vested right to file an appeal (or revision) was also held not to have been taken away.

12. Therefore, I am of the view that in this case the trial court cannot grant a decree ignoring the amendment. The decree passed by the first appellate Court is right. The second appeal fails and accordingly it is dismissed. But in the circumstances of the case, there will be no order as to costs.

13. Appeal dismissed.


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