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Shah Banmul Soanmul Vs. Shah Harakchand Roopchand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1948)1MLJ256
AppellantShah Banmul Soanmul
RespondentShah Harakchand Roopchand
Excerpt:
- - the use of the word 'action,'in relation to the proceedings in court, is well understood in the courts in england......which was passed by the government on september 30. it has not been suggested in argument that execution proceedings in relation to that order are a continuation of the earlier proceedings, so that those earlier proceedings were proceedings which were pending at the time when the act came into force and thus continued thereafter. it was not suggested that when a suit, for instance, for payment of money is decreed, it is pending thereafter. it is manifest that upon its disposal the suit has come to an end. thereafter, the decree in the suit is enforceable by execution proceedings; but these execution proceedings are not proceedings-in the suit itself, so far as the suit could be deemed to be in any way continuing after the decree. sub-section (1) of section 18 uses the words ' action.....
Judgment:

Frederick William Gentle, C.J.

1. This is a Letters Patent Appeal against the decision of Lakshmana Rao, J., who dismissed an appeal in execution against the order of the learned Chief Judge of the City Civil Court. The subject-matter of the application in execution was an order for possession to be delivered which was made pursuant to the provisions of the Madras House Rent Contol Order, 1945. The appellant is the tenant of No. 28, Govindappa Naick Street, Madras, in respect of which an order, to which reference is made below, for possession was passed.

2. The relevant facts are the following: Under the provisions of the Madras Rent Control Order, the landlord, who is the respondent before us, made an application for an order for possession to be given to him, to the Rent Controller. On January 31, 1946, that application was dismissed. An appeal by the landlord against the dismissal was preferred to the Collector who, when the Control Order was in force was the appellate authority. That appeal was dismissed on April 16, 1946. On May 1, following, the landlord presented a petition to the Provincial Government of Madras pursuant to Clause 8(2-A) in revision to set aside the dis-missal of his application and praying for an order for possession. No notice of that petition was given to the tenant, the appellant here, no opportunity was afforded to him to be heard in the revision proceedings, but the matter was disposed of by the. Government in the absence of the tenant and while he was in ignorance of the pro-ceedings which were being taken. On September 30, 1946, an order was made setting aside the previous dismissal of the application and directing the tenant to put the landlord in possession of the premises on or before November 11, 1946. The tenant was unaware of the order which had been made by the Government until some time later. In purported pursuance of the provisions in that behalf, the landlord applied to the Principal Judge of the City Civil Court to execute the order in his favour directing possession of the premises to be given to him. The learned Principal City Civil Judge, directed execution to issue and, as previously stated, an appeal to this Court was dismissed by Lakshmana Rao, J., and hence this Letters Patent Appeal.

3. The Control Order terminated on September 30, 1946, the very day upon which the Order of Government was made in the landlord's favour, and there-after, it is beyond doubt and not in dispute, the Control Order ceased to have any effect of any sort, and, so far as those provisions are concerned, the position was as if they never had existed. The application by the landlord in execution of the order by the Government was made pursuant to Section 9 of the Madras Buildings (Lease and Rent Control) Act, 1946. That statute came into force on October 1, 1946, the day after the expiration of the Control Order, and, so far as material its provisions took the place of those of the Control Order. Section 9 of the Act is in these terms:

Every order made under Section 7 or Section 8 and every order pased on appeal under Section 12 shall be executed.

(i) in the City of Madras, by the Principal Judge of the Madras City Civil Court...as if it were a decree passed by him.

4. On behalf of the appellant, it was contended that there is no authority, statu-tory or otherwise, enabling execution to be had in respect of the cider which was passed by the Government pursuant to the Control Order which expired on September 30, 1946. There were several other contentions raised in support of the appeal; but, in light of the conclusion to which one has arrived in regard to that stated, it is unnecessary to consider the other contentions.

5. Section 9 of the Act expressly enables orders made under the stated previsions of the Act to be executed by the Principal Judge of the Madras City Civil Court. It does not enable other orders to be executed. In that connection, Mr. V.V. Srinivasa Aiyangar, on behalf of the landlord respondent, referred to and relied upon Section 18 of the Act which provides as follows:

(1) All proceedings commenced and action taken under the Madras House Rent Control Order, 1945...and pending at the commencement of this Act, shall so far as may be, be deemed to have been commenced or taken under the corresponding provisions of this Act and be continued subiect to the provisions of this Act.

(2) All orders passed or deemed to have been passed under the Madras House Rent Control Order, 1945...and in which fair rent has been fixed, shall continue in force until they are superseded or modified under his Act by the authority competent to do so.

6. It was argued that the order of September 30, 1946, is included in either Sub-section (1) or Sub-section (2) of Section 18 or both and was a proceeding which was pending when the Act came into force; consequently, it must be deemed to have been commenced or taken under the relevant provisions of the Act. That being so, the order becomes executable pursuant to Section 9.

7. The proceedings which had been initiated by the landlord had terminated in an order which was passed by the Government on September 30. It has not been suggested in argument that execution proceedings in relation to that order are a continuation of the earlier proceedings, so that those earlier proceedings were proceedings which were pending at the time when the Act came into force and thus continued thereafter. It was not suggested that when a suit, for instance, for payment of money is decreed, it is pending thereafter. It is manifest that upon its disposal the suit has come to an end. Thereafter, the decree in the suit is enforceable by execution proceedings; but these execution proceedings are not proceedings-in the suit itself, so far as the suit could be deemed to be in any way continuing after the decree. Sub-section (1) of Section 18 uses the words ' action taken '. It is not easy to infer what exactly was meant and intended by the draughtsman when those words were included. The use of the word ' action,' in relation to the proceedings in Court, is well understood in the Courts in England. The word ' action ' means the word ' suit,' as used in this country; but save in very loose phraseology, the word ' action ' is not used in this country in regard to proceedings by suit or otherwise. It would seem that those words must mean something apart from proceedings in Court, more especially since the words 'all proceedings ' are found in Sub-section (1) immediately preceding the words 'action taken' and probably they relate to some form of notice being given, which is required before proceedings can be formally instituted. They certainly do not, in my view, refer to any form of civil process, since that is covered by the words'' all proceedings '' previously contained in Sub-section (1). The proceedings which Sub-section (1) provides, should be continued subject to the provisions of the Act, are proceedings which have been commenced before the Act came into force and which were pending at that moment and no other proceedings. The proceedings which were prose-cuted by the landlord before the Rent Controller, the Collector, and the Government had terminated and were no longer pending when the Act came into force. Assis-tance is obtained from Sub-section (2) in ascertaining whether Section 18 applies to the order made on September 30, by the Government. That sub-section provides that all orders passed under the Control Order shall be deemed to be in force, provided only that any such order is one in which a fair rent has been fixed. There is no provision in Sub-section (2) that any other order shall continue in force, and if it had been the intention of the Legislature that an order, such as the one in point in the present instance, should continue in force, the sub-section easily could, and indeed would, so have stated. A perusal of the two sub-sections of Section 18 of the Act, to my mind, reflects that in so far as the proceedings resulting in the order of the 30th September, are concerned, those were not proceedings which should be deemed to have been commenced or to be continued, subject to the provisions of the Act and the order is not one which must be treated as continuing in force.

8. It follows that the order is not one which could be or was made pursuant to any provisions of the Act. Since Section 9 enables execution to issue by the Principal Judge of the Madras City Civil Court only in respect of orders made under the specified sections of the Act, the order which the landlord obtained against the tenant in the present instance is not one which is subject to execution pursuant to Section 9.

9. It has already been pointed out that recourse cannot be had--and no attempt to do so has been made--to the corresponding provision to Section 9 of the Act in the Madras Rent Control Order which has now no force or effect.

10. Although it does not directly arise, in light of the opinion which has been expressed, it is, I think, desirable to point out that the action of the Government, in purported exercise of its powers given by the Control Order under Clause 8(2-A), in setting aside the dismissal of the landlord's application, by way of revision without giving any opportunity to the person adversely affected by that order to appear before it to show cause against the order being set aside, was one which is without any warrant or justification and was a denial of the ordinary principles of elementary justice.

11. For the reasons given, in my opinion, this appeal should be allowed with costs of the appellant throughout.

Bell, J.

12. I entirely agree.


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