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Thalayur Narayanan Moossad Vs. Mammadissa and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1937Mad795
AppellantThalayur Narayanan Moossad
RespondentMammadissa and ors.
Excerpt:
- - 5 and 6. these words, if they have any significance at all, must mean that the court must be satisfied that the assertion made by the landlord as regards his own requirement of the land is a bona fide assertion. a dismissal on the ground of the tenant's failure to make a deposit ordered under section 24, clause 2, i do not therefore think that it is necessary to go through the formality of asking the tenant to make a fresh application......own cultivation. the district munsif followed the strict letter of section 23 and dismissed the tenant's application.2. when the suit came on for trial, the court found that the landlord did not succeed in making out either the ground under clause 2 or the ground under clause 5 of section 20 and accordingly it dismissed the suit. on appeal, it appears from the judgment of the learned district judge that the ground of waste was not pressed before him; and on the other ground, viz. that under clause 5, the learned district judge confirmed the finding of the trial court. hence this second appeal by the landlord. before me, mr. kuttikrishna menon tried to re-agitate the plaintiff's case under clause 2, but in view of the definite statement in the judgment of the lower appellate court, i.....
Judgment:

Varadachariar, J.

1. This second appeal arises out of a suit in ejectment by a jenmi. The suit was instituted before the enactment of the Malabar Tenancy Act, as the term of the lease had expired by the date of the suit. As the case had not been disposed of before the Act came into force, the tenant thought fit to file I.A. 521 of 1931 praying for a renewal. Section 23, Tenancy Act provides that when such an application is filed, the landlord shall be asked to state whether he desires to evict the tenant on any of the grounds referred to in Section 20 except ground No. 3, i.e. the ground based on expiry of the term; and if the landlord expresses his intention to do so, the section directs that the application of the tenant shall be dismissed. In this case, the plaintiff when he received notice Under Section 22, amended his plaint by stating that he proposed to rely upon Clauses 2 and 5 of Section 20 relating to acts of waste by the tenant and bona fide requirement of the land by the landlord for his own cultivation. The District Munsif followed the strict letter of Section 23 and dismissed the tenant's application.

2. When the suit came on for trial, the Court found that the landlord did not succeed in making out either the ground Under Clause 2 or the ground Under Clause 5 of Section 20 and accordingly it dismissed the suit. On appeal, it appears from the judgment of the learned District Judge that the ground of waste was not pressed before him; and on the other ground, viz. that Under Clause 5, the learned District Judge confirmed the finding of the trial Court. Hence this second appeal by the landlord. Before me, Mr. Kuttikrishna Menon tried to re-agitate the plaintiff's case Under Clause 2, but in view of the definite statement in the judgment of the lower Appellate Court, I am not prepared to permit that question to be re-opened.

3. As regards the case Under Clause 5, I see no reason to disturb the finding; but Mr. Kuttikrishna Menon argues that the Court has really no power to investigate the truth or otherwise of an allegation made by the landlord Under Clause 5. Reading Clauses 3, 5 and 6 of Section 20, his contention is that Clause 5 and 6 can only mean that if once the landlord says that he wants the land for his own purpose, there is an end of the matter. Mr. Kuttikrishna Menon is of course right in pointing out that there is very little difference between the condition imposed by Clause 3 and the condition imposed by Clauses 5 and 6 so far as the right to eject is concerned, viz. the expiry of the term. The only difference can therefore be according to him the additional allegation by the landlord in the terms referred to in Clauses 5 and 6. This construction, I think, will practically defeat the purpose of these provisions and give no effect whatever to the use of the words bona fide' in Cluases. 5 and 6. These words, if they have any significance at all, must mean that the Court must be satisfied that the assertion made by the landlord as regards his own requirement of the land is a bona fide assertion.

4. I agree with Mr. Kuttikrishna Menon that the clauses are not perhaps very happily worded or located. I find it stated in one of the commentaries on the Act that Clauses 5 and 6 were added after the Bill had left the Select Committee. That perhaps explains why they were put in in the particular form and place, in which they are now found in the Act. It would perhaps have been more appropriate if the Act had provided that the landlord's bona fide requirements will be an answer to the tenant's application for renewal, instead of tacking on that requirement in the provisions dealing with the right to eject. On the language of Section 23, Mr. Kuttikrishna Menon is justified in saying that once a landlord alleges an intention to put forward a case under any clause other than Clause 3 of Section 20, the Court has no option but to dismiss the tenant's application for renewal. In interpreting Section 23 also, it must be remembered that Clauses 5 and 6 to Section 20 were inserted at a later stage and the necessity for making corresponding modifications in Section 23 might have been lost sight of. The Act has proceeded on the footing that the other grounds of eviction will only be alleged at a date when the tenancy had not expired and therefore provided that if such allegation is made, the application for renewal shall be dismissed. It did not contemplate a ease where both the grounds of eviction may co-exist. If in a case where both the grounds co-exist the Court finds that grounds other than the expiry of time have not been substantiated, the result is that the Court will have to deal with the case only on the footing of a claim based on expiry of time and. immediately the tenant's right to apply Under Sections 22 and 23 will have to be dealt with as if no other ground existed. This seems to me the only way in which I can reconcile the various provisions of the Act and give reasonable effect to its scheme.

5. Dealing with the present case on the above footing, it seems to me that in the events that have happened, the proper course will be to hold that the Courts below were right in their view that the landlord had not made out the right to eject either Under Clause 2 or Under Clause 5 of Section 20. But having regard to the way in which I.A. No. 521 of 1931 had been disposed of, the case must still be dealt with by the lower Court on the footing that the plaintiff is claiming ejectment on the simple ground of the expiry of the term of the lease. There is nothing in the provisions of the Act to bar a second application by the tenant Under Section 22 merely on the ground of the dismissal of a first application, except in the case provided for in Clause 1 of Section 25, viz. a dismissal on the ground of the tenant's failure to make a deposit ordered Under Section 24, Clause 2, I do not therefore think that it is necessary to go through the formality of asking the tenant to make a fresh application. I would set aside the order of the trial Court dismissing I.A. No. 521 of 1931 and ask that Court to restore that application to the file. To this extent and for this limited purpose I set aside the decrees of the Courts below and send the case back to the Court of first instance to deal with I.A. No. 521 of 1931 in accordance with law and in the light of the above observations.

6. It would follow from the very terms of Clause 3 of Section 20 that if the tenant does not avail himself of the opportunity thus given to him to take a renewal in accordance with the provisions of the Act, the landlord will be entitled to possession. The present impasse has largely arisen from the plaintiff's insistence on his untenable claim of a right to eject on the ground of waste or bona fide requirement for his own purpose. I would accordingly direct him to pay respondent 1's costs both here and in the lower Appellate Court. As regards the costs in the first Court, I would direct the parties to bear their own costs, because the suit was instituted at a time when the Tenancy Act had not come into force. If however the tenant does not avail himself of the privilege of obtaining a renewal as contemplated by the Act and a decree in ejectment ultimately comes to be passed in plaintiff's favour, the plaintiff will be entitled to the costs of the action in the trial Court.


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