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K. Perumal Chettiar Vs. V. Muthuswami - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 76 of 1961
Judge
Reported inAIR1962Mad447
ActsMadras Buildings (Lease and Rent Control) Act, 1949 - Sections 7, 7(6) and 12-B; Madras Buildings (Lease and Rent Control) (Amendment) Act, 1960 - Sections 10(7) and 35(2)
AppellantK. Perumal Chettiar
RespondentV. Muthuswami
Cases ReferredAct. In Venkatratnam v. Lalluram
Excerpt:
.....bar of a subsequent application which is filed during the pendency of the first but based on different grounds could not be justified under section 10 or on principles of res judicata.; as per provisions of section 10(7) of the madras buildings (lease and rent control) act xviii of 1960 which reads as follows:--where an application under sub-section (2) or sub-section (3) for evicting a tenant has been rejected by the controller, the tenancy shall, subject to the provisions of this act, be deemed to continue on the same terms and conditions as before ..... the landlord can file another application in case there was a default during the subsequent period when a previous application of reviction is pending.; the words other grounds mentioned in the proviso in section 10(7) ..... provided..........application) properly filed would become incompetent subsequently (relating as it does to a different default or subject-matter) simply because an earlier application of the landlord happens to be rejected during the pendency of the second application. such a contention is however advanced on the theory that once the earlier petition is dismissed, the tenancy continues till atleast that date and intermediate defaults cannot terminate the tenancy. we shall consider that principle a little later after ascertaining whether it can be supported' on any principle of res judicata.5. an order rejecting an application ordinarily relates to matters which exist on the date of the filing of the petition and subsequent events do not generally form part of the subject-matter of adjudication. section.....
Judgment:
1. This Civil Revision Petition has been posted before this Full Bench in view of the challenge made to the correctness of the decision reported in Sita Ramanjaneyulu v. Krishnayya (1952) 2 M.L.J. 231. The subject matter of this Revision Petition relates to certain proceedings initiated by the respondent-landlord for eviction of the petitioner under the provisions of the Madras Buildings (Lease and Rent Control) Act (XXV of 1949). Even earlier, that is on 1st February, 1955, the respondent had filed a petition (H.R.C. No. 35 of 1955) for a similar relief before the Rent Controller, Tiruchirappalli, the ground alleged being that the tenant had defaulted in payment of rent and had sub-let the building which according to him was also required for personal occupation. That application was dismissed by the Rent Controller. An appeal from that order proved fruitless. The respondent questioned the correctness of that order under Section 12-B of the Act in C.R.P. No. 15 of 1957 on the file of the District Court, Tiruchirappalli, which also met with a similar fate. That Was on 30th December, 1958. While the Revision Petition was pending before the District Judge, that is, on 20th August, 1958, the respondent filed H.R.C. No. 283 of 1958 (out of which the Revision Petition before us arises) for eviction of the petitioner on the ground that he was guilty of further default in the payment of rent, in that he was in arrears from 18th February, 1957 to 18th July, 1958, a period subsequent to the filing of the previous petition. Another ground, namely, the need for personal occupation, was also mentioned. The Courts below, have accepted the case of the respondent and ordered eviction. That order is contested before us on the short ground that the filing of the second petition for eviction on the grounds stated, even while the earlier petition for similar reliefs was pending adjudication before the Court of revision, is not authorised by law and that therefore the lower Courts had no jurisdiction to order eviction. The contention is based solely on the terms of Section 7(6) of the Act which runs:

Where an application under Sub-section (2) or Sub-section (3) for evicting a tenant has been rejected by the Controller, the tenancy shall subject to the provisions of this Act be deemed to continue on the same terms and conditions as before and shall not be terminated by the landlord except on one or more of the grounds mentioned in Sub-section (2) or Sub-section (3).

It is contended that as under the sub-section the tenancy continues on the rejection of an application for eviction, any default committed by the tenant' in 'regard" to payment of rent, etc., during the pendency of the petition, will not entitle the land-lord to file an application under Section 7 of the Act; to permit him to do so will be to recognise a power in the landlord to terminate the tenancy which on the terms of the statute is deemed to continue. This argument is supported by the decision in Sita Ramanjaneyulu v. Krishnayya .

2. We are of opinion that the terms of Section 7(6) do not warrant such a construction. That sub-section specifically states that the tenancy which is deemed to continue thereunder will be terminable by the landlord on the grounds, specified in Sub-sections (2) and (3). There are no words in the section to prevent the land-lord founding a second petition for eviction on the basis of a default in the payment of rent which occurs subsequent to the filing of the first petition. Further, there may also arise cases where subsequent to the earlier petition but during the pendency of it, a need arises for the landlord to obtain the building for personal occupation or there may be cases where the tenant unauthorisedly sub-lets the premises or commits waste or nuisance. It cannot be denied that the, landlord must in justice be able to obtain relief in such cases. To say such a right would be lost merely because an ill-founded earlier petition was pending will require much clearer language in Section 7(6).

3. The Madras Buildings (Lease and Rent Control) Act is an enactment which restricts the ordinary rights of landlord and tenant arising out of their mutual contracts and relationship : it undoubtedly affects their proprietary rights. The provisions of the Act have therefore to be strictly construed. Section 7(6) itself only creates a fiction as to the continuation of the tenancy the purpose of it being to enable the tenant to continue in possession on the same terms as before, and not to be bound by intermediate stipulations which he might have entered into with the landlord during the pendency of the petition. While enacting such a fiction the Legislature safeguards also the landlord's right by preserving to him the right created under Sub-sections (2) and (3). It will be an unwarranted extension of the fiction to hold that while on the dismissal of an application for eviction the tenant is restored to his original position, the landlord should be at a disadvantage, by not being able to rely on defaults or necessities which arise subsequent to the filing of the previous application but before its termination. If that were so, the consequence would be that so long as, what is ultimatly found to be an ill-founded petition by a landlord for eviction of his tenant, is pending (whether before the Rent Controller or the appellate authority or Court of revision) or so long as he is able to delay final disposal thereof, the tenant could with impunity commit defaults in payment of rent incurring no penalty therefor; even immediate and dire necessity for personal occupation by the former or open and hostile acts of waste or nuisance by a disgrunted tenant would also go without a remedy. Such a construction of Section 7(6) would have also the effect of defeating the express and mandatory provisions of Section 7(2) and (3) which oblige the Rent Controller to pass an order for eviction when, once, one of the justifying grounds is proved to exist.

4. The Act no doubt gives protection against eviction to tenants notwithstanding the fact that the landlord had terminated the tenancy; but such protection is ... given only to a tenant who is regular in the payment of the rents and only when other circumstances specified in Sub-sections (2) and (3) do not exist. When therefore a fiction is created by Section 7(6) for continuation of the tenancy on the dismissal of the landlord's application for eviction, such continuance must be subject to the same conditions. Therefore there can be no impediment to the landlord availing himself of his rights under the Act even during the pendency of an earlier application by filing a fresh one on the basis of grounds arising subsequently. It should follow that the pendency of an application for eviction under the Act cannot prevent a fresh application being filed on the basis of subsequent defaults or necessities. Indeed there is nothing in the statute to prevent it. If so much is conceded, how can we hold that an application (the second application) properly filed would become incompetent subsequently (relating as it does to a different default or subject-matter) simply because an earlier application of the landlord happens to be rejected during the pendency of the second application. Such a contention is however advanced on the theory that once the earlier petition is dismissed, the tenancy continues till atleast that date and intermediate defaults cannot terminate the tenancy. We shall consider that principle a little later after ascertaining whether it can be supported' on any principle of res judicata.

5. An order rejecting an application ordinarily relates to matters which exist on the date of the filing of the petition and subsequent events do not generally form part of the subject-matter of adjudication. Section 10 gives finality to the decision of the' authorities only in regard to matters that have been finally decided in a petition. Subsequent events which cannot ordinarily form part of the issues in the case cannot therefore be held to have been decided finally. Therefore a mere rejection of an application cannot mean that the Controller or other authority has decided that no justifiable ground for eviction accrued to the landlord since" the filing of the application. It follows that the bar of a subsequent application which is filed during the pendency of the first but based on different grounds cannot be justified under Section 10 or on principles of res judicata.

6. Mr. S.K. Ahmed Meeran appearing for the petitioner, however, contends that as Section 7-A provides for payment or deposit of rent during the pendency of the proceedings for eviction in default of which an eviction order is to follow, it should be held that the statute has provided a machinery to adjudicate defaults arising subsequent to the filing of an application for eviction that such subsequent events should therefore be regarded as forming the subject-matter of issue in the earlier petition and the rejection thereof would amount to an adjudication that there was no subsequent default. But the terms of Section 7-A do not justify the contention; they only impose a condition for entertaining a defence on the part of the tenant to an application for eviction. They enable the Rent Controller or the appellate authority to direct the tenant to deposit rents accruing for subsequent periods : if there is default therein, the tenant can be directed to deliver possession of the premises forthwith to the landlord. Section 7A has no reference to the determination of any disputed question; it is intended only to prevent defaulters from continuing in possession of the property taking advantage of the pendency of an application without at the same time performing their own part of the obligations. Secondly it does not cover grounds other than default of payment of rent, i.e., other grounds specified in Sections 7(2) and 7(3) which would justify eviction. It cannot, therefore, be held that the rejection of the petition of the landlord by the Rent Controller would be tantamount to an adjudication against him of all grounds justifying eviction which arose subsequent to the filing of the original petition for eviction.

7. The position has now been in a way clarified by Act XVIII of 1960 (The Madras Buildings (Lease and Rent Control) Act, 1960) which replaces the old Act of 1949. Under Section 35(2) of that enactment the provisions of the new Act would apply to proceedings initiated under the earlier one. Section 10 (7) of the new Act repeats the Provisions contained in Section 7(6) of the old Act. A proviso, however, is added to Section 10 (7) of the new Act which states;

Provided that nothing in this sub-section shall be deemed to prevent a landlord who has made an application for evicting a tenant on any of the grounds mentioned in Sub-section (2) or Sub-section (3) from applying again, when the previous application is pending, to the Controller for evicting the tenant on any of the other grounds mentioned in Sub-section (2) or Sub-section (3).

The Proviso is unfortunately not very clear as to whether it is intended to cover the category of grounds taken in the first application or the subject-matter thereof. For example, if an application for eviction is filed on the ground of default of payment of rent in a particular month, can the landlord file another application in case there is a default for the next month? Notwithstanding the inapt language used, we are of opinion that he can. To hold otherwise would lead to results inconvenient if not repugnant to the scheme of the Act itself. Suppose a landlord wants the demised premises for personal occupation when the number of members of his family are only three. After filing of the petition suppose other members, come into the family by birth or otherwise. It would not have been the intention of the Legislature in such cases to prevent the filing of another application by the landlord basing his claim on his subsequent need albeit the first petition was pending. The words " other grounds " mentioned in the Proviso must therefore be taken to mean grounds other than those which form the subject-matter of the previous petition but coming within Sub-sections (2) and (3).

8. It is however unnecessary for us to rest our conclusion in this case on the provisions of Section 10 (7) of the new Act. The argument that no petition for eviction could be filed during the pendency of the earlier one which is subsequently dismissed, is based really on a mixture of two concepts, that is, by importing the principles of contractual tenancy into a purely statutory one. We cannot accept that argument : as we have stated earlier a right to evict under Section 7(2) and (3) is a stautory one and that right cannot be qualified by stating that it can be availed of only if the tenancy had terminated.

9. There are two decisions of this Court which have now to be considered. In C.M.P. No. 4966 of 1949 a Bench of this Court was concerned with a case where an application for eviction was filed on the ground that there was default in payment of rent. That application ultimately failed on the ground that the landlord had not issued proper notice to quit (which in the view then prevailing was necessary) before initiating the proceedings for eviction. The landlord thereafter issued a proper notice terminating the tenancy and then filed an application for eviction substantially basing it on the very same ground of default of payment of rent which supported the previous application. It was held that once an application for eviction was rejected, whatever the reason for such rejection might be, the tenancy should be deemed to continue and it would no longer be open to the landlord to show that the tenancy had come to an end before the date of the rejection of the petition. This view was accepted in Sitaramaanjaneyulu v. Krishnayya , where a second eviction petition was filed on the

ground of a subsequent default in the payment of rent while the first one based on an earlier default was pending before the Rent Controller. The learned Judges observed:

We think it follows from this construction of that provision that in support of a second application for eviction the landlord can only rely upon default or other grounds committed or available after the date of the rejection of the first application. In this case the second petition was filed before the prior application had even been dismissed. The prior application was actually dismissed on 6th February, 1950, and therefore, the tenancy must be deemed to have continued at least up to that date. In effect the landlord in the second petition alleges that from 24th October, 1949, the tenancy must be deemed to have come to an end. This, he cannot be permitted to say.

(italics ours).

With great respect to the learned Judges we wish to point out that there are no words in Section 7(6) expressly or otherwise limiting the right of the landlord to present a second petition only on grounds committed or available after the date of the rejection. Secondly the mere fact that a tenancy is in force (under Section 7(6) by 3. fiction) cannot mean that the right to evict statutorily given under Section 7(2) and (3) does not exist. Let us examine the main ground of the two decisions, namely, that during the continuance of a tenancy a right to apply under Section 7(2) and (3) does not exist. Continuance of a tenancy does not appear to be a bar to the application of Section 7 of the Act. In Venkatratnam v. Lalluram , a lease was

granted in favour of a tenant, for a period of ten years. During the currency of the lease a default occurred in payment of rent on the due date. A question arose whether even during the duration of the tenancy, the landlord could evict the tenant by reason of his default in payment of rent. It was held that it would be open to the landlord to evict his tenant even though the period of lease had not expired, if the conditions laid down in Section 7(2) were satisfied. We are in respectful agreement with this view which recognises the position that even though a tenancy is in force, the landlord can exercise the statutory right given to him under Section 7(2). It follows that the application for eviction by the landlord in the instant case during the pendency of a previous application on grounds not available to him at the time of the filing of the earlier application, is maintainable. This petition fails and is dismissed with costs.


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