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Padmasani Ammal Vs. Devaraja Pillai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberA.A.A.O. Nos. 139 and 140 of 1971 and 25 of 1972 and C.R.P. No. 570 of 1972
Judge
Reported inAIR1973Mad294; (1973)1MLJ26
ActsMadras City Tenants Protection Act - Sections 3, 4, 4(1), 4(3), 4(4), 6 and 9; Code of Civil Procedure (CPC), 1908 - Order 20, Rules 7 and 19
AppellantPadmasani Ammal
RespondentDevaraja Pillai
Cases ReferredNathamuni Naidu v. Ranganayaki
Excerpt:
.....no application is made under section 6 by the landlord within three months from the date of the decree, the suit which gave rise to the decree for ejectment, will stand dismissed. hemant kumar 1966crilj805 lays down the proposition that a wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. jawaharlal [1961]2scr918 ,clearly states that a litigant deserves to be protected against the default committed or negligence shown by the court or its officers in the discharge of their duties. thiruchirapalli municipal council [1965]2scr645 by stating that there was no date mentioned for the deposit of the compensation amount in that case..........is not paid within the three months' time, the suit would stand dismissed. thus, on 12-3-1969, the suit stood dismissed. so, on the date of e. p. 538 of 1969, for delivery of possession, viz., 15-3-1969, there was no decree at all. hence there cannot be any execution of decree. in that view, the respondent filed e. a. 751 of 1970 for re-delivery. by operation of law, which is explicit from section4(4), the suit stands dismissed. hence re-delivery was asked for. according to learned counsel, under section4(3), the court shall set off, and not the plaintiff by herself. he further contended that there is no question of res judicata inasmuch as it cannot be said that the question of three months' time given by the statute or the time limit given by the decree, was directly in issue in the.....
Judgment:

1. The respondent in the above appeals and civil revision petition was the defendant in O. S. No. 3185 of 1960 on the file of the City Civil Court, Madras. The suit was filed by the appellant in the above appeals and petitioner in the civil revision petition on 23-12-1960 for ejectment and for recovery of arrears of rent and future rent till delivery of possession, on the ground that the appellant is the landlady of the vacant site occupied by the respondent and that the respondent should be evicted from the suit land. The respondent filed an application under Section 9 of the Madras City Tenants Protection Act (hereinafter referred to as the Act) praying that, inasmuch as the respondent had built the superstructure on the suit land, the appellant must be directed to sell the suit land to him for the price fixed by the court in accordance with law. The court ordered that petition. But, unfortunately, the respondent was not able to pay the amount, fixed by the court, as compensation for taking possession of the suit land. Then on an application by the appellant the court fixed the value of the superstructure at Rs. 3000 and directed the appellant to deposit on or before 12-3-1969 the said sum of Rs. 3000 towards compensation for the value of the superstructure put up by the respondent. The said order was passed on 12-11-1968. On 11-3-1969, the appellant deposited Rs. 596 after adjusting the arrears of rent and costs payable by the defendant. On 15-3-1969, the appellant filed E. P. 538 of 1969 for delivery of possession, and took delivery of the suit property on 19-2-1970. Meanwhile, on 18-2-1969, the appellant filed IA, 4113, 4114 and 4115 of 1969 for review of the judgment, for amendment of the decree and for excusing the delay in filing the said applications. On 20-2-1970 the respondent filed three applications in IA, 3281, 3282 and 3283 of 1970 for dismissing the suit (O. S. 3185 of 1969) for an injunction restraining the appellant from pulling down the superstructure that stands on the disputed land and for redelivery of the superstructure taken possession of by the appellant, respectively. The respondent also filed E. A. 751 of 1970 on the execution side, for redelivery of the superstructure taken from him. On 9-9-1970 the appellant made an endorsement on the applications in I. A. 4113, 4114 and 4115 of 1969 as not pressing them; and on that, they were dismissed. On 16-6-1971, the appellants filed by the respondent (I. A. Nos. 3281 to 3283 of 1970) were allowed by the trial Court. But the executing court dismissed his E. A. 751 of 1970 filed for re-delivery. Aggrieved by the dismissal of the execution application, the respondent preferred C. M. A. 5 of 1971 and aggrieved by the orders allowing I. A. 3281 to 3283 of 1970 the appellant preferred C. M. A. 71 to 73 of 1971 before the Principal City Civil Judge, Madras. The Principal City Civil Judge heard all the above four C. M. As. together, allowed C. M. A. 5 of 1971 and dismissed the rest of the C. M. As. Aggrieved by the orders of the Principal City Civil Judge, the appellant has preferred C. M. S. A. 139 of 1971 against the decision in C. M. A. 5 of 1971, C. M. A. 25 of 1972 against the decision in C. M. A. 71 of 1971, C. R. P. 570 of 1972 against the decision in C. M. A. 72 of 1971 and C. M. S. A. No. 140 of 1971 against the decision in C. M. A. 73 of 1971.

2. The main grounds on which the respondent herein succeeded before the lower appellate court were(i) that the landlady (appellant) had not deposited the compensation amount within three months from the date of the decree in the suit and as such the suit had to be dismissed under Section4(4) of the Act; and (ii) that the deposit after adjustment of the arrears of rent and costs payable by the respondent towards the amount of compensation was not a proper 'deposit' and as such the appellant had not complied with the order.

3. Thiru Parasaran, the learned counsel for the appellant and petitioner, in the C. R. P., raised five contentions; and they are as follows--(i) The decree has given more time than that fixed by the statute and as such it cannot be said that the decree is a nullity. Hence the executing court's order of delivery of possession is valid, since the executing court cannot go behind the terms of the decree.(ii) Even if the judgment and decree passed by the trial Court were erroneous on a point of law, the same will operate as res judicata so long as they are not set aside on appeal.(iii) The trial Court having given more time than that prescribed by the statute, the party getting the benefit of such a decree cannot be damnified, since the act of court cannot prejudice the rights of the party.(iv) According to the judgment and decree passed by the trial Court, the appellant has complied with the terms and as such no adverse order can be passed against her.(v) And the respondent being a sub-tenant cannot have the protection under the Act.

4. It is clear from the facts of the case that the tenant (respondent) was not able to purchase the suit land for reasons best known to himself. At the same time, it is also clear that the landlady (appellant) has not deposited the amount payable by her as compensation for the superstructure within three months from the date of the decree. It is further clear that while depositing the amount of compensation beyond the three months period stipulated under Section4(1) of the Act, the landlady has deducted the arrears of rent and costs payable by the tenant and has deposited only the balance.

5. When there is a special statute, provisions of general law cannot be made applicable unless the special statute is silent in such respect. This proposition needs no authority. As far as the Act (City Tenants Protection Act) is concerned, the same is a special statute intended to give protection to tenants who have constructed buildings an others' lands in the hope that they would not be evicted so long as they pay a fair rent for the land. Section 3 of the Act provides for the payment of compensation on ejectment. Section 4 deals with disposal of suits for ejectment. Section4(1) runs thus:--

'In a suit for ejectment against a tenant in which the landlord succeeds, the court shall ascertain the amount of compensation if any, payable under Section 3 and the decree in the suit shall declare the amount so found due and direct that, on payment by the landlord into court, within three months from the date of the decree, of the amount so found due, the tenant shall put the landlord into possession of the land with the building and trees thereon.'

Section4(3) is to the following effect:

'If in such suit or application the court finds that any sum of money is due by the tenant to the landlord for rent or otherwise in respect of the tenancy, the court shall set off such sum against the sum found due under sub-section(1) or sub-section(2), as the case may be, and shall pass a decree or interim order declaring as the amount payable to the tenant on ejectment the amount, if any, remaining due to him after such set-off.'

Section4(4) reads:

'If the amount found due is not paid into court within three months from the date of the decree under sub-section(1) or of the interim order under sub-section(2), or if no application is made under Section 6, the suit or application, as the case may be, shall stand dismissed, and the landlord shall not be entitled to institute a fresh suit for ejectment or present a fresh application for recovery of possession for a period of five years from the date of such dismissal.'

Section 6 gives a right to the landlord to pray for fixing the fair rent in case the landlord is unable or unwilling to pay the compensation ordered. Section 9 gives right to the tenant to file an application to court for directing the landlord to sell the land for the price that may be fixed by the court. Thus, on a reading of the Act as a whole, it has given ample protection to the tenants provided they pay compensation as fixed by the court for the land. The failure on the part of the tenants to avail themselves of the benefits under Section 9 given right to the landlords to get possession of the land with the superstructure put up thereon by the tenant, after paying compensation as provided for under Section4(1). If the said compensation is not paid and no application is made under Section 6 by the landlord within three months from the date of the decree, the suit which gave rise to the decree for ejectment, will stand dismissed. Thus, we see while protecting the interests of tenants, the basic rights of the landlords, such as of getting compensation and also of purchasing the superstructure in case the tenants default to pay compensation for the land, are also protected.

6. As far as the present case in concerned, the difficulty arises because of the fact that the trial Court while passing the decree did not bear in mind the relevant provisions of the Act. The decree directs that the appellant must pay the sum of Rs. 3000 to the respondent on or before 12-3-1969 towards compensation for the value of the superstructure put up by the tenant. It also declares that the respondent is liable to pay the appellant a sum of Rs. 325 by 12-3-1969 towards past damages and directs such payment as also future damages at the rate of Rs. 20 per month till date of delivery of possession. It further directs the payment of Rs. 109 by the respondent to the appellant towards costs. Thiru Parasaran, the learned counsel for the appellant, submitted that the appellant was directed to pay the compensation, on or before 12-3-1969 and as such the appellant can pay the compensation having the outer limit as 12-3-1969. The decree was passed on 12-11-1968. Admittedly, 12-3-1969 will be beyond the 'three months' prescribed by the statute. The learned counsel submitted that the decree is binding on the parties and as such the same will operate as res judicate. He cited the decision in Mohanlal v. Benoy Kishna : [1953]4SCR377 , wherein the Supreme Court has held:

'Even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res judicata'. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties.'

7. State of West Bengal v. Hemant Kumar : 1966CriLJ805 lays down the proposition that a wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. Distinction has to be made between an incorrect decision and a decision rendered without jurisdiction. Malkarjun Bin Shidaramappa Pasare, (1900) 27 Ind App 216 is to the effect that an executing court does not lose jurisdiction to sell because it serves notice on a person who does not represent the deceased judgment-debtor, and afterwards erroneously decides that he does; such decision is valid unless set aside in due course of law. From the above decisions, Thiru Parasaran submitted that the decree passed by the trial Court can be construed only as an erroneous decree and it cannot be a nullity. According to the learned counsel, if it is an erroneous decree, the remedy is only by setting it aside by means of an appeal or a review application; if that be the case, the courts below ought to have dismissed the application filed by the respondent, since the respondent is bound by the decree on record.

8. Thiru Parasaran next contended that the act of court should not prejudice the parties. He cited the decision in Lalchand v. Kanhailal : AIR1961MP223 , wherein it has been held that where a decree does not bear the correct date of pronouncement of judgment as required by Order XX, Rule 7, C.P.C., the decree-holder who applies for execution within three years from the wrong date specified in the certified copy of the decree, but beyond three years from the correct date, would be able to invoke the principle that the acts of court should prejudice no man if on the facts he is able to establish that he was actually misled by the wrong date of the decree as mentioned in the certified copy supplied to him. Jagat Dish v. Jawaharlal : [1961]2SCR918 , clearly states that a litigant deserves to be protected against the default committed or negligence shown by the court or its officers in the discharge of their duties. Jang Singh v. Brijlal : [1964]2SCR145 , states that no act of court should harm a litigant and it is the bounden duty of court to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied but for the mistake. Doraisami Nadar v. Vinayaka Ratnasami Nadar, (1969) 82 MLW 188 cited by Thiru Parasaran is for the proposition that a court cannot dismiss the suit where it had passed a preliminary decree since the same will have the effect of nullifying the preliminary decree itself.

9. Thiru Parasaran, the learned counsel for the appellant, sought to justify the act of adjustment made by the appellant-landlady before depositing compensation amount. He invoked to his support the provisions of Order XX, Rule 19, C.P.C. wherein the general powers as to set-off are provided. In Chinnammal v. Chidambara Kothanar, 71 MLJ 506 AIR 1936 Mad 626 a Bench of this court accepted the principle that when under the same decree both the plaintiff's right and the defendant's liability are declared, it would be idle to drive the former to a separate proceeding to recover the costs. To the very same principle are the decisions reported in Nagar Damodar v. Gange AIR 1938 Mad 638; Mahalingam Chettiar v. Ramanathan Chettiar and Narasamma v. Venkateswara Rao AIR 1943 Mad 667.

10. Thiru Parasaran, the learned counsel for the appellant, cited the decision in Adaikappa v. Chandrasekhara and S. R. Rajendar v. M. S. Govindier 1961 2 MLJ 418 AIR 1962 Mad 16) for the proposition that an appeal will lie from the decree passed by the trial Court, even though the same is one passed under the provisions of the Act.

11. Finally, Thiru Parasaran submitted that the suit filed by the appellant was for several relief, such as eviction, recovery of arrears of rent and future rent till delivery of possession and as such the dismissal of the suit in toto is not correct. He sought to distinguish the decision in Ranganatha v. Thiruchirapalli Municipal Council : [1965]2SCR645 by stating that there was no date mentioned for the deposit of the compensation amount in that case and as such the Supreme Court held that the failure of the landlord to deposit the compensation as per Section 4 will result in the dismissal of the suit filed by the landlord. According to the learned counsel, in the present case the decree has given his client time to deposit the amount of compensation uptill 12-3-1969 and as such the landlady had the time as per the decree till 12-3-1969 irrespective of the provision of Section 4.

12. Thiru R. N. Kothandaraman, the learned counsel for the respondent in the C. M. S. As. and C. R. P. took me through the various provisions of the Act and submitted that Section4(1) read with Section4(4) is clear for the proposition that the suit will stand dismissed if the landlady failed to pay into the court the compensation within three months from the date of the decree. According to Thiru R. N. Kothandaraman, irrespective of any direction given in the decree, time for payment is a statutory provision and the same does not depend upon any decree or time given by a court. The learned counsel also brought to his support Section4(3) of the Act and submitted that there is a provision in the special statute for set-off and, as such, set-off as per the statute can be made only by the court; when there is a special provision in the statute, it is not correct to invoke the provisions of Order XX, Rule 19 C.P.C., which is the general law. Thiru R. N. Kothandaraman further pointed out that Section4(1) is controlled by Section4(4) and if the amount of compensation is not paid within the three months' time, the suit would stand dismissed. Thus, on 12-3-1969, the suit stood dismissed. So, on the date of E. P. 538 of 1969, for delivery of possession, viz., 15-3-1969, there was no decree at all. Hence there cannot be any execution of decree. In that view, the respondent filed E. A. 751 of 1970 for re-delivery. By operation of law, which is explicit from Section4(4), the suit stands dismissed. Hence re-delivery was asked for. According to learned counsel, under Section4(3), the court shall set off, and not the plaintiff by herself. He further contended that there is no question of res judicata inasmuch as it cannot be said that the question of three months' time given by the statute or the time limit given by the decree, was directly in issue in the suit. The statute provided three months' time and the same is mandatory. The Supreme Court has held in : [1965]2SCR645 , that the provisions of Section 4 are mandatory. It was further submitted that the decree is a nullity since by operation of law the suit stands dismissed.

13. Apart from the above legal submissions. Thiru Kothandaraman also pointed out that the applications filed by the appellant for reviewing the decree and judgment in the suit on the ground that the decree does not bring out the mandatory provision of giving three months' time for deposit of the compensation amount, that set-off has not been provided in the decree and compensation after setting off has not been fixed; for amending the decree to be in conformity with the provisions of the Act and for excusing the applications filed beyond time, were not pressed. He stressed the point that the appellant should not have taken delivery on 19-2-1970 after filing the abovesaid applications on 18-2-1969. According to him, if the appellant had disclosed to the executing court the filing of the aforesaid applications, delivery would not have been effected.

14. It is clear from the argument of Thiru Kothandaraman and also from the applications filed by the appellant, which were subsequently not pressed, that the trial Court failed to set-off the arrears of rent etc., and has also not stated that the amount of compensation has to be deposited within three months' time from the date of decree, under the provisions of Section 4 which is mandatory. In : [1965]2SCR645 , it has been observed as follows:--

'If the decree happens to be defective in the sense that it does not reproduce the requirement of Section4(1) expressly in its terms, that would not take the case outside the purview of Section4(4). We are inclined to think that having regard to the mandatory terms of Section4(4), it would be illogical and unreasonable to suggest that a defective decree like the present enables the landlord to circumvent the provisions of Section4(4). The applicability of Section4(4) cannot be repelled merely on the ground that the decree passed under Section4(1) does not specify the period of three months within which the amount found due has to be paid. In our opinion, the logical way to reconcile Section4(1) and Section4(4) would be to treat the provisions prescribed by Section4(4) as mandatory and paramount and read the relevant portion of Section 4 (1) accordingly. That is why even if the decree does not mention that the amount has to be paid within three months, the landlord's obligation to make the payment within three months is still enforceable under Section4(4); otherwise defective decrees would deprive the tenants of the benefit intended to be conferred on them by Section4(4).'

As far as the present case is concerned, the decree simply directed the appellant to deposit the sum of Rs. 3000 on or before 12-3-1969. It cannot be said that the decree directed the appellant to deposit only on 12-3-1969. The appellant could have as well deposited the amount as provided for under Section4(4) of the Act. The failure to deposit the amount as provided under Section4(1) will automatically attract the provisions under Section4(4), according to which on such failure the suit would stand automatically dismissed. On facts, the suit would stand dismissed. On facts, the suit would stand dismissed automatically after the lapse of three months from 12-11-1968. The principles laid down in : [1965]2SCR645 are very clear, and the argument that the said decision cannot be applicable to the facts of the case cannot be sustained. On all fours the principles laid down in the said decision are applicable to the present case. As per the provisions of the Act, there is no decree on record for the purpose of executing the same for obtaining delivery. In view of the fact that the period of three months is not a specific point of issue for trial in the suit, it cannot be said that the respondent is barred by the res judicata when he wants to invoke the provisions of the Act. Further, in view of the decree, not barring the landlady from complying with the provisions of the statute, as such, I do not think the act of court has prejudiced the appellant.

15. I do not think the question of sub-tenancy will assume importance in this case. The landlady herself is a lessee under a temple and she had let it out to the respondent. As far as the respondent is concerned, he is a direct tenant under the appellant and I do not think the argument as if the respondent is a sub-tenant will have any force. As already stated, it is the court that has to set-off as per the provisions of the Act. The said question assumes little importance inasmuch as the appellant has to lose her case in view of the mandatory provisions contained in Section4(1) read with section4(4) regarding dismissal of the suit. The further contention that no notice is necessary since E. P. was filed within two years from the date of the decree cannot have any relevancy, since the respondent has taken out applications which are under appeal and revision now, to get appropriate relief of setting right the defects in the orders passed by the trial Court and the executing court so as to be in conformity with the provisions of the Act.

16. It is significant to note that the tenant has taken prompt steps by filing the applications such as for re-delivery of property, for dismissal of the suit and for injunction. By virtue of the injunction, it is submitted for the respondent, the superstructure built by him on the suit land is sought to be kept intact. Thiru V. T. Gopalan, the learned counsel for the appellant, in his reply, stated that in any event the respondent should not be allowed to take up the stand for re-delivery etc. inasmuch as it must be construed that he has acquiesced himself in the decree passed by the trial Court. In view of the clear and mandatory provisions of the Act as to the dismissal of the suit in case of default of paying compensation amount within the period of three months, there cannot be any question of acquiescence by the respondent, as pleaded by Thiru V. T. Gopalan.

17. Thiru Parasaran, the learned counsel for the appellant, cited an unreported decision of Venkatadri, J., in C. R. P. 1841 of 1965-Nathamuni Naidu v. Ranganayaki-and submitted that the court below should not have dismissed the suit inasmuch as the landlady deposited compensation amount to purchase the superstructure. In that case, the learned Judge dismissed the revision petition filed by the tenant against the order of the lower court directing him to deliver possession of the land. The learned Judge observed that he was dismissing the revision petition merely on a technical ground, that once the amount has been deposited the only thing that the court can do is to direct delivery of possession of the property, that the lower court had ordered delivery and that as such the revision petition had to be dismissed. As far as the case on hand is concerned, the C. M. S. As. arise out of independent applications for re-delivery, for dismissing the suit etc. Further, the court below have considered all these matters and correctly rendered the decision in conformity with the principles in : [1965]2SCR645 . In these circumstances, I do not think the unreported decision of Venkatadri, J. aforesaid, will in any way held the appellant.

18. No doubt, the question of dismissing the suit can only be in respect of the prayer for ejectment and not the other prayers, such as for recovery of arrears of rent and future rent. Hence, the dismissal of the suit in entirety may not be correct. The Act provides for the dismissal of the suit for ejectment. Except the prayer for ejectment, the rest of the prayers cannot be dismissed.

19. In these circumstances, the revision petition is dismissed. But there will be no order as to costs.

C. M. S. A. No. 139 of 1971 is dismissed but without costs.

C. M. S. A. No. 140 of 1971 is also dismissed. But there will be no order as to costs.

20. As regards C. M. S. A. 25 of 1972 is concerned, which arises out of the application praying for the dismissal of the suit, the same is partly allowed and the order of dismissal of the suit in respect of relief's other than the relief of ejectment is set aside. As regards the relief of ejectment the dismissal of the suit to the extent of the prayer for ejectment is confirmed and to that extent, the appeal is dismissed. There will be no order as to costs in this appeal also. No leave.

21. Order accordingly.


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