Skip to content


P. Ananthakrishnan Nair (Advocate Receiver) and anr. Vs. Dr. G. Ramakrishnan and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1977)2MLJ98
AppellantP. Ananthakrishnan Nair (Advocate Receiver) and anr.
RespondentDr. G. Ramakrishnan and anr.
Cases Referred and Abbasbhai v. Gulamali
Excerpt:
- - if the subordinate courts appear to have exercised a jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity, then the revisional jurisdiction of the superior court can be invoked. this is based on the well-known principle that when in an order a legal right is in dispute and the ordinary civil courts are in seizing of the matter, appeal would lie notwithstanding that there is no right of appeal provided for under the special act under which the legal right was agitated. i know of no better way of directing that there shall be no appeal than by the legislature stating that the decision of a particular court shall be final. joseph sandanam (1975)2mlj204.....t. ramaprasada rao, j.1. four ejectment suits under the presidency towns small causes court act were filed by the different land owners against a common set of tenants, who were given a lease of vacant land and on which they have put up superstructure and who filed petitions under section 9 of the tamil nadu city tenants protection act for relief. when these suits were filed 11 petitioners of whom petitioners 4 and 11, who are also defendants 4 and 11 in the ejectment suits were receivers appointed by the high court in c.s. no. 152 of 1960 on the file of the high court, madras. it is common ground that the original lease of the vacant site was in favour of the firm of n.v. abdullah sahib. it is also not in dispute that the said firm of which the defendants other than defendant 11 were.....
Judgment:

T. Ramaprasada Rao, J.

1. Four ejectment suits under the Presidency Towns Small Causes Court Act were filed by the different land owners against a common set of tenants, who were given a lease of vacant land and on which they have put up superstructure and who filed petitions under Section 9 of the Tamil Nadu City Tenants Protection Act for relief. When these suits were filed 11 petitioners of whom petitioners 4 and 11, who are also defendants 4 and 11 in the ejectment suits were receivers appointed by the High Court in C.S. No. 152 of 1960 on the file of the High Court, Madras. It is common ground that the original lease of the vacant site was in favour of the firm of N.V. Abdullah Sahib. It is also not in dispute that the said firm of which the defendants other than defendant 11 were partners and were conducting the said business put up superstructure of their own even prior to 1954. Due to certain disputes amongst the partners after the death of N.V. Abdullah Sahib, a suit was filed in the High Court, C.S. No. 152 of 1960. It is in that suit defendants 4 and 11 were appointed as joint receivers. The fourth defendant is a party receiver and defendant 11 is an advocate receiver. In the ejectment suits, the 11th defendant was also made a party, since it was necessary in law for the landlords to do so. On receipt of summons in the ejectment suit, four applications were filed purporting to be by defendants 4 and 11 to secure the benefits under Section 9 of the Tamil Nadu City Tenants' Protection Act. The affidavit in support of the application under Section 9 of the Act was sworn to by the 4th defendant alone but purports to be on behalf of himself and others, though admittedly all others were ex parte and did not appear at all. This was resisted by the plaintiffs-landlords in the respective ejectment suits. They have taken up the position that the advocate-receiver of the estate, who is also a party defendant in the suit, not having made the application under Section 9 of the Act, the applications were not maintainable. They would also allege that defendants 1 to 10 including defendant 4, who was the party receiver, were not doing any business on the plots leased out and that the superstructures were let out by the advocate-receiver to third parties and the interested defendants having discontinued their business long ago, are not entitled to the benefits under the protective enactment, namely, Tamil Nadu City Tenants Protection Act. In effect the contention is that mere owning of the superstructures by itself would not be sufficient to claim the benefits of the Act, but they must be in physical possession of the same and the protection contemplated under the Act would not govern such cases. Other objections on merits were also taken. The trial Judge posed the question whether the petitioners were entitled to the benefits under Section 9 of the Act. He referred to the evidence of one of the partners, who was none-else than the party receiver and according to this witness the company has stopped doing business from 1964 and that the business in timber or in manufacturing furniture for the purpose of which the four properties were taken on lease, has been suspended even from 1964. It was brought out in evidence that excepting for the 4th defendant and defendants 7 and 11 (defendant 11 being the advocate-receiver), all other defendants were outside Madras. The trial Court found that as a greater number of persons interested in the litigation were outside Madras, there was no possibility of these persons joining together at any point of time to start the business afresh. On the ground that it was not possible to hold that the petitioners were actually carrying on business in any portion of the premises on the date of the filing of the ejectment suits, so that they could ask for a direction from the Court to the landlord to sell that particular property which may be required for the convenient enjoyment of the tenants, the trial Court held that the petitioners were not entitled to the benefits under Section 9 of the Act. It is common ground that excepting for a small portion of the entire land, in which the account books of the quondam business were kept, the rest of the portion of the land is occupied by sub-tenants, who are there since 1960. Having regard to the provisions of Section 9(i)(b) of the Act which contemplates that the land must be necessary for the convenient enjoyment of the tenant and not the sub-tenant the applications were dismissed. On appeal, the appellate authority came to the same conclusion. In the course of its judgment, the appellate authority observed that the 11th defendant, who was a joint receiver in the Court proceedings did not file any application claiming the benefits under Section 9. The plot which is the subject-matter of the four ejectment suits was a single plot of an extent 10 grounds and that the lease of the land was prior to 1950. C.S. No. 152 of 1960 was filed after the death of Abdullah Sahib, who was the original lessee of the land. This suit was filed as between the heirs for a partition of the estate of Abdullah Sahib. Even in the ejectment suits no other party was interested in contesting the suit or entering appearance in them Defendants 1 to 3 and 5 to 10 were ex parte. But yet the fourth defendant would claim that he is claiming such benefits under the Act not only for himself but on behalf of the other defendants who remained ex parte. From the records it is seen that the receivers only were contesting the ejectment suits by giving a vakalat to their counsel. The appellate authority observed that it is doubtful whether the 4th defendant could represent the other defendants and ultimately found that he was not so entitled to file the petition under Section 9 of the Act. Further, excepting the party receiver and the 7th defendant, all are out of State residents. The entire land is now in the occupation of sub-tenants from 1964. The persons, who are entitled to the statutory privilege not having exercised their rights in the manner prescribed the appellate authority held that the petitioners cannot be said to be in possession and occupation of the suit land and since the contesting defendants excepting defendant 4 remained ex parte, and since only one of the joint receivers filed the application for the grant of benefits under the Act, he agreed with the trial Court and dismissed the appeals. It is as against this the present revisions have been filed.

2. A preliminary objection was taken by the learned present Advocate-General appearing for the respondent that no revision will lie against an order of the appellate authority passed under Section 9-A of the Tamil Nadu City Tenants Protection Act. Under this section, an appeal lay from an order passed by a Court under Section 9 of the Court to which an appeal would lie from any decree passed by the former Court and the decision of such appeal shall be final. On the basis of this it is contended that no revision petition could be filed as against the said appellate order because such an order is made final. Contending contra the then Advocate-General submitted that so long as the Subordinate Court is not acting as a persona designata but as a Court, the common law jurisdiction which would entitle the High Court to exercise its revision jurisdiction under Section 115, Civil Procedure Code is always available.

3. The revisional jurisdiction of the Superior Courts was thought of at the time of the constitution of the chartered High Courts in the Presidency Towns. It Is also seen that Sudder Courts were so empowered to have a power of superintendence over Subordinate Courts and in that behalf a power to call for the records of any case decided in appeal by the Subordinate Courts was provided to the Sudder Court provided no further appeal lay from the order of the Subordinate Court to the Higher Court, Vide Chappan v. Moidin Kutti I.L.R.(1899) Mad. 68 : 1899 8 M.L.J. 231. Such a visitorial jurisdiction of the Superior Court to afford redress to an aggrieved litigant and cause rectification of a non-appealable order was felt to be necessary even by our constitution-makers as is seen from Article 227 of the Constitution. Obviously this power of revision has been provided for to the Superior Court so as to subserve and not to defeat the ends of justice.

4. The question argued before us is whether an order, which is made final by reason of the inbuilt provisions in a statute, is still revisable under the supervisory or visitorial jurisdiction of the Superior Court either under Section 115, Civil Procedure Code or under Article 227 of the Constitution of India. In so far as the jurisdiction under the Constitution is concerned, it has to prevail because no statute enacted under the law can make an inroad into the provisions of the Constitution. In so far as the revisional jurisdiction under Section 115, Civil Procedure Code is concerned, there are certain set guidelines in the section itself, which permit the exercise of such jurisdiction. A question arises whether such a jurisdiction is available in cases where the order sought to be rectified or which is challenged is made final under the provisions of the relevant statute under which the Subordinate Court exercises jurisdiction. The provision as to appeal is no doubt the creature of the statute. But the revisional jurisdiction is available to a complaining litigant so as to subserve the ends of justice. If the Subordinate Courts appear to have exercised a jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity, then the revisional jurisdiction of the Superior Court can be invoked. It is in this light, the content of such jurisdiction has to be understood. When the statute expressly makes an order of the Subordinate Court final, then it means that the concerned statute is not prepared to provide another remedy as against it. In such cases an appeal would not lie to the higher Court by invoking the ordinary common law. It is this which is expressed by this Court in The Mona Mutt Kattalai v. Andiappan (1969) 82 L.W. 77. The relevant observation is as follows: When a decision by the Court on appeal is made final, then there is a snapping of the chain of the cause of litigation of legislative sanction. This has an expression signification, which cannot be circumscribed by wedging into it considerations of expedience, generality and other common law principles. 'Final' means the last of the series in an action. In a case where no such finality is attached to an order of the Subordinate Court, and if that order has been passed by an ordinary civil Court, a Full Bench of our Court in S.R. Rajender v. N.S. Govindiar (1961) 2 M.L.J. 418: I.L.R. (1961) Mad. 1194: 74 L.W. 478: A.I.R. 1962 Mad. , observed as follows:

The criterion for determining the maintainability of an appeal is the character of the decision under appeal and not whether the proceedings in which the decision was given originated on a plaint or an application. The Court would be governed by the ordinary rules of procedure and an appeal would lie from orders, if authorised by the existing rules. As the order is appealable, no revision lies against such an order.

This is based on the well-known principle that when in an order a legal right is in dispute and the ordinary civil Courts are in seizing of the matter, appeal would lie notwithstanding that there is no right of appeal provided for under the special Act under which the legal right was agitated.

5. What is urged, however, by Mr. Parasaran in the instant case is that under Section 9-A of the City Tenants Protection Act, the order made by the appellate Court is made final under that statute and, therefore, no further remedy either by way of a further appeal or by way of the invocation of the revisional jurisdiction of the Superior Court is available to the aggrieved party. Reliance is placed upon decisions in N.P. Ponnuswamy v. Returning Officer, Namakkal Constituency and Ors. : [1952]1SCR218 and S.A. Industries (P.), Ltd. v. Sarup Singh : [1965]2SCR756 . The ratio in the above two decisions can be summarised thus:

Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.' The second principle is where the act is a self-contained one and the intention of the Legislature was to provide an exhaustive Code for disposing of the appeals under the Act, then the finality to such orders passed on appeal, is really conclusive and no further appeal lies against it.

6. To the above principles which could be culled out from the two Supreme Court decisions as above, there can possibility be no exception at all.

7. Section 9-A of the Tamil Nadu Tenants' Protection Act provides as follows:

9-A(1) An appeal shall lie from an order passed by a Court under Section 9 to the Court to which an appeal would lie from any decree passed by the former Court and the decision in such appeal shall be final.

The finality is attached to the order passed by the Subordinate Court in appeal which would mean that no further appeal under the common law could be availed of by the aggrieved party on general principles and expediency. The question that arises in the instant case which stems from the preliminary objection raised by Mr. Parasaran is that no revision petition could be filed as against the said appellate order because it is made final under that Act. The trend of the decision cited above would support Mr. Parasaran only to this extent, namely, that in view of such finality attached to the appellate orders, no further appeal could be laid taking advantage of the fact that it was a civil Court which decided the concerned legal right. Before the induction of Section 9-A into the Act, the Full Bench of our Court in S.R. Rajendar v. N.S. Govindiar (1961) 2 M.L.J. 418 : I.L.R. (1961) Mad. 1194 : 74 L.W. 478 : A.I.R. 1962 Mad. 16 , recognised such a second appeal. But after the introduction of Section 9-A into the Act, no doubt no such appeal would lie because of the finality attached to the appellate order made by the Subordinate Courts. But the real question is whether a revision under Section 115, Civil Procedure Code, would lie to rectify the said order, if it is caught in the stream of mischief contemplated by the three limbs of Section 115, Civil Procedure Code, already referred to.

8. The then Advocate-General contends, on the basis of the following citation that such an order is revisable under Section 115, Civil Procedure Code.

9. As early as 1924 in Parthasarathy Naidu v. Koteswara Rao : (1924)46MLJ201 , a Full Bench of our Court made this position clear and observed that as long as a Subordinate Court is acting not merely as a persona designata, but as a Court in the exercise of its normal common law jurisdiction, then the High Court is competent to exercise its powers of revision over the decisions made by it. Sir Walter Salis Schwabe, C.J. speaking for the Court observed as follows:

It is further argued that the fact that the decision of this Judge is, by Section 57 of the Act and by the Rules final precludes any revision. There is really no authority adduced in support of that proposition and in my judgment, it would be quite contrary to the whole object and intention of Section 115 of the Code of Civil Procedure so to hold. That section only applies where there is no appeal. I know of no better way of directing that there shall be no appeal than by the Legislature stating that the decision of a particular Court shall be final. It is the ordinary mode of expression used for the purpose in much of the legislation in England on which this legislation is founded; and, where the whole object of revision is to prevent a Court, from which there is no appeal, acting contrary to its jurisdiction, a finding that it is the law that, because the words used are 'the decision shall be final', a Court ordinarily subject to the revisional power of this Court, should be permitted to act wholly without jurisdiction without the aggrieved party being entitled to any remedy, would in my judgment b0 untenable, and that would be the effect of deciding this second point in favour of the contention put forward.

The learned Judges interpreted the finality attached to such appellate order as to mean that there could be no further appeal against it but they were emphatic that the revisional jurisdiction of the Courts are not excluded by the adoption of such a language.... Even the Supreme Court in Nemi Chand and Anr. v. The Edward Mills Co., Ltd. : [1953]4SCR197 to a certain extent recognised this principle. They were considering an order passed under Section 12 of the Court-fees Act (VII of 1870).

Section 12 of the Court-fees Act when it says that such a decision shall be final between the parties only makes the decision of the Court on a question of court-fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and does no more than that. If a decision under Section 12 reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers.

A Full Bench of Kerala High Court in P. Tharappan v. P.M.P. Nambudiri : AIR1965Ker284 , dealing with a case under the Kerala Agriculturists Debt Relief Act observed as follows:

The High Court can under Section 115, Civil Procedure Code, revise an order passed under Section 23-A by a civil Court as the appellate authority functioning under the Kerala Agriculturists Debt Relief Act, 1958. The finality which is given to the appellate order under Section 23-A means only that there shall be no further appeal. It does not mean that it shall not be amenable to the revisional jurisdiction of the High Court.

In view of the consistent opinion expressed by our High Court, the Supreme Court and the Kerala High Court, I am unable to upheld the preliminary objection that no revision petition lies against the order sought to be rectified.

10. On the merits Mr. Govind Swaminathan continued his argument and referred to the definition of a tenant in the Act and contended that the continuance of the business of a tenant or a physical occupation of the demised land by the lessee is not a condition precedent for the grant of the relief. As one of the joint receivers has filed the application on behalf of all, then the relief should automatically be granted by the Court below notwithstanding the fact that excepting for defendants 4 and 7 all were ex parte and many of the contesting defendants were permanent residents outside the State of Madras. The learned Advocate-General Mr. K. Parasaran, appearing for the respondents would reiterate that there was no valid application under Section 9 of the City Tenants' Protection Act and that the application in the circumstances having been made only by the 4th defendant and not even by the other receiver, the 11th defendant, no relief could be given on that application, which is incomplete and which is not in accordance with law. He would also refer us to one of the salient principles of personal law of Muslims to which community the contesting defendants belong that no co-owner can represent the interest of others. In the alternative he would say that the benefit is conferred on the parties in actual possession for their convenient enjoyment of the land, since they are supposed to have put up superstructures thereon for their personal occupation and enjoyment. An application made by one of the joint receivers is not an application by all the parties and as the intendment of the Act is to confer benefit on those who have put up the superstructures and who required the land for convenient enjoyment of the said superstructures so put up by them, the applications filed in the present case by one of the party receivers is not at all an application contemplated under the law to enable all the parties to secure benefits under the Madras City Tenants Protection Act. Though he would not seriously object to the necessity for the tenant to be in physical and corporeal possession of the land, yet having regard to the fact that Courts below took that view which is also possible, according to the decision in Abdul Mallik v. Fr. Joseph Sandanam : (1975)2MLJ204 , such a construction or a misconstruction placed upon the sections of the Act by the Courts below cannot be the ground for revision under Section 115, Civil Procedure Code, having regard to the Supreme Court in Hiragauri v. A.K. Mamadji : AIR1973SC1336 .

11. The main grounds on which the Courts below refused the relief to the petitioners are that excepting for one of the party receivers none-else filed an independent application under the Act for the grant of the statutory benefits. Secondly, the Courts were of the view that as defendants 1 to 10 have discontinued their business long ago and were not interested in either the land or the superstructure for the purpose of business and excepting for defendant 4 all others remained ex parte through out and also for the reason that excepting the 4th defendant and the 7th defendant all other interested defendants were residing outside Madras and as the 11th defendant is only an advocate-receiver, the application for the grant of the statutory benefit under Section 9 of the Act is per se defective and, therefore, the relief to all cannot be granted. The application under Section 9 has been made only by the 4th defendant and not even by the 11th defendant. The party-receiver claims that the said application should be deemed to be for the benefit of all. Even according to his personal law, he cannot represent all the parties. It is seen from the records that only the 4th and 11th defendants, who are the joint receivers gave a vakalat to an advocate in the ejectment suits. In these circumstances, can it be said to be a proper application? No doubt, Mr. Govind Swaminathan is right when he said that the tenant has been defined in relation to any land in Section 2(4) as meaning a person liable to pay rent in respect of such land, under a tenancy agreement express or implied. On the date when the fourth defendant purported to act on behalf of all and made the application under Section 9 of the Act, Act XXIV of 1973 which amended the City Tenants' Protection Act, 1921, was not there. But under the amended provisions a tenant means not only the person liable to pay rent as above, but also includes any such person as is referred to in Sub-clause (1) who continues in possession of the land after the determination of the tenancy etc. The amended provision makes it clear that continuance in possession of the land and actual physical possession of the land and building is a necessary indicia for claiming protection under the Act. We shall, however refer to it later. To continue the point posed for consideration can it be said that the application by one of the joint receivers is sufficient for all the interested defendants in the action and whether the majority of them having remained ex parte can claim the benefit of such an application?

12. The non-party receiver has been made a party and the party-receiver is already in the litigation. In a suit where receivers have been appointed by Court and put in possession of the subject-matter of the litigation, it is imperative that in the suit against the real parties to that litigation, the plaintiff should take the precaution of impleading the receiver or receivers as parties) thereto. The appointment of a receiver does not absolve the affected party in the litigation for whose benefit the receivers have been appointed to efface himself and feel that he has no more obligation in the suit. A fortiori if certain rights and privileges are granted to a party to such a litigation by the beneficial provisions of a statute, then it is not the receiver, who could set the law in motion on his behalf and obtain such statutory ' benefits or privileges. It is for the contesting party or the real party if such an expression can be used, who could take advantage of the statutory concession or right and move the Court by himself. A Bench of the Calcutta High Court in Md. Kadar Ali Fakir v. Govindabandhu A.I.R. 1946 Cal. 127, observed thus:

Simply because a Receiver is authorised to defend suits, it does not give a new privilege to a third party plaintiff and so does not entitle him to bring a suit against the Receiver alone ignoring the persons who are in law necessary parties to such suit. The appointment of a Receiver does not in any way affect the right of a third party creditor who has claims against the persons over whose property the Receiver has been appointed. If such creditor files a suit, he must make his debtors parties to the same. The only difference that the appointment of a Receiver makes is that if the property in the hands of the Receiver is intended to be affected by the result of such a suit, the Receiver has got to be made a party after obtaining leave from the Court, and this is to be by way of addition to and not in substitution for the parties who are primarily responsible.

The accepted principle is that a Receiver cannot be viewed as a substitute of parties, but he also runs the race of litigation because he has been ordained to do so by virtue of his appointment as Receiver by an order of Court in that litigation. Therefore, even though there are Receivers in an action, it cannot be said that the parties can keep discreetly silent about their rights and claim the same through the persons of the Receiver. Therefore, it follows that the application filed by the 4th defendant as Receiver cannot ensure to the benefit of the parties, not can it be said in the circumstances of this case, to be a regular application processed by him to obtain the statutory privileges under Section 9 of the City Tenants Protection Act. The, Application under Section 9 having been made by the fourth defendant mostly in his capacity as Receiver and as it is seen that it was the fourth defendant and the 11th defendant as joint Receivers who appointed a counsel to seek for directions from Court under Section 9 of the Act, it can fairly be assumed that the application made by the 4th defendant is more in the capacity as a Receiver and not as a party to the suit. Even if it is to be assumed that the said application was on behalf of the other parties and the other joint Receivers, such an application is not maintainable since each one of the parties entitled to the benefits under the Act, should come forward and file an application for such benefits. That this is the intendment of the Act is clear from the fact that in a final enquiry, the Court has to adjudicate as to what portion of the land belonging to the landlord should be directed to be sold by him to the tenant for the purpose of his convenient enjoyment of both the land and the superstructure put up by him. We agree with the concurrent findings of the Court below that the application of the fourth defendant under Section 9 of the Act is not maintainable.

13. In Abdul Malik v. Fr. Joseph Sandanam : (1975)2MLJ204 , V. Ramaswami, J., was of the view that in order to gain the statutory entitlement under Section 9 read with Section 9-A of the Act, it is imperative for the tenant to be in possession of the land at or about the time when he seeks for the benefit under it. At any rate such possession has been viewed by this Court as a necessity or a necessary pre-requisite before a tenant could seek for protection under Section 9 of the Act It is such a construction which the Courts below have put upon the sections. If such a construction of the sections are plausible as is seen from the ratio in Abdul Malik v. Fr. Joseph Sandanam : (1975)2MLJ204 , then it cannot be said that there is an error of jurisdiction in the order complained of. At best, even assuming that a physical possession of the land by the party claiming the statutory benefit is not necessary, yet if a different view is held by the Courts below it would at best mean a misconstruction of the section. The Supreme Court in Hiragauri v. A.K. Mamadji : AIR1973SC1336 , observed as follows:

Even if that finding was erroneous in law and we do not want to suggest that it was the Courts had jurisdiction and it cannot be said that that jurisdiction was exercised illegally or with material irregularity. The worst that could be said is that they had placed an erroneous construction on the relevant provisions.

It is by now well settled that the erroneous construction placed upon a statute does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference under Section 115, Civil Procedure Code, See Ratilal v. Ranchhodbhai : AIR1966SC439 and Abbasbhai v. Gulamali : [1964]5SCR157 .

14. We have already seen that a learned Judge of this Court is of the view that such a possession is necessary. No doubt this decision was not even referred to by the Courts below but they misconstrued the relevant provision of the City Tenants' Protection Act and held that such possession and continuance of possession was a sine qua non for obtaining the statutory benefit under the Act. Under those circumstances, even if for argument's sake it is said that physical and corporeal possession of the land is not necessary for maintaining an application under Section 9 read with Section 9-A yet in view of the fact that the jurisdiction under Section 115, Civil Procedure Code, is limited and as at best the lower Court misconstrued the concerned sections, the orders of the Courts below cannot be revised.

15. The civil revision petitions fail and they are dismissed. There will be no order as to costs in all the petitions.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //