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R. Govindaswamy Vs. Bhoopalan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1977)2MLJ206
AppellantR. Govindaswamy
RespondentBhoopalan and ors.
Cases ReferredAct. In Damadi Lal and Ors. v. Parashram and Ors.
Excerpt:
.....not maintainable, as at that time, the provisions of the act were not applicable to non-residential buildings and, accordingly,..........the suit is the appellant as also the petitioner in the civil revision petition. the respondents filed a suit for a declaration of their title and for recovery of possession. their case was that the suit site originally belonged to one subramani, the father of the respondents and after him the site was leased by his wife amirthammal in favour of the appellant. the lease was stated to be some time in the year 1956 on a monthly rent of] rs. 5. later on, it is stated that it was increased gradually upto rs. 20. on the ground that the appellant failed to pay the rent, the respondents issued a notice terminating the tenancy and called upon the appellant to surrender possession. of course, at the time when the notice was issued, the respondents claimed that the superstructure also was put up.....
Judgment:

V. Ramaswami, J.

1. The first defendant in the suit is the appellant as also the petitioner in the civil revision petition. The respondents filed a suit for a declaration of their title and for recovery of possession. Their case was that the suit site originally belonged to one Subramani, the father of the respondents and after him the site was leased by his wife Amirthammal in favour of the appellant. The lease was stated to be some time in the year 1956 on a monthly rent of] Rs. 5. Later on, it is stated that it was increased gradually upto Rs. 20. On the ground that the appellant failed to pay the rent, the respondents issued a notice terminating the tenancy and called upon the appellant to surrender possession. Of course, at the time when the notice was issued, the respondents claimed that the superstructure also was put up by them and it belonged to them. But when they filed the suit, they gave up their claim to the superstructure and contended that they are entitled to recover possession of the vacant site after removal of the superstructure. The appellant's case was that about 20 years prior to the suit, he purchased the property under an oral sale from Amirthammal and that he was not holding that property as a tenant under the said Amirthammal or the plaintiffs. He also contended that subsequent to his purchase, he had put up the superstructures costing over Rs. 15,000. He filed an additional written statement in which he raised a plea that there was no valid notice as required under Section 11 of the Madras City Tenants' Protection Act and that, therefore, the suit is liable to be dismissed on that ground. The appellant filed a separate application I.A. No. 1212 of 1972 under Section 9(i)(a) of the Madras City Tenants' Protection Act of 1922 praying to direct the respondents to sell the suit land to him for a price to be fixed by the Court in the event of finding against the Appellant on the question of oral sale and giving a finding that he is a tenant. Both the suit and the application under Section 9 were tried together. The trial Court held that the oral sale pleaded by the first defendant was not true and that he was a tenant of the suit site. The trial Court also held that since the Madras City Tenants' Protection, as extended to the Vellore City within which the suit property is located, did not apply to non-residential buildings, the appellant was not entitled to any order for sale under Section 9 of that Act. Accordingly, the suit was decreed as prayed for and I.A. No. 1212 of 1972 was dismissed. The appellant preferred appeals before the lower appellate Court both against the decree as also against the order in I.A. No. 1212 of 1972, but without success. The result of it is there is a finding that the relationship between the appellant and the respondents is landlord and tenant, but the tenant-appellant is not entitled to a direction for sale under Section 9 of the Act as the Act, as extended to Vellore City, did not apply to non-residential buildings. The second appeal and the civil revision petition have been filed respectively against the decree in the suit and the order in the application filed under Section 9 of the Act. When the Second Appeal was pending, G.O. Ms. No. 1285, Revenue, dated 31st May, 1975 was published in the Fort St. George Gazette on 28th June, 1975 extending the City Tenants' Protection Act for non-residential buildings also in respect of the Municipal Town of Vellore. Taking advantage of this notification, the appellant filed C.M.P. No. 12098 of 1975 on 7th October, 1975 under Section 9 praying for a direction to the respondents to sell to the petitioner the suit site for a price to be fixed by the Court. Since this application was not filed within a period of one month from 25th June, 1975, as required in Section 9, the petitioner has filed C.M.P. No. 11277 of 1976 for excusing the delay in filing C.M.P. No. 12098 of 1975. Though the appellant has filed an appeal against the decree in the suit holding that there was no oral sale in his favour, the learned Counsel for the appellant did not press that issue and argued the matter accepting the finding that the appellant is a tenant under the respondents.

2. The respondents have filed counter-affidavits both in the petition under Section 9 and in the petition to excuse the delay, filed in this Court. It was contended by the learned Counsel for the respondents that the notification in, G.O. Ms. No. 1285, Revenue, dated 31st May, 1975 had not been shown to have been placed before the Legislature as required in Section 1(6) of the Act and unless the said notification was placed before the Legislature, it will not be of any effect and will not confer any right on the petitioner to invoke the provisions of Section 9 of the Act. Under subsection (6) of Section 1, every notification issued under Sub-section (2) or Sub-section (4) of that section shall be laid before the Legislature, if it is sitting, as soon as may be after the issue of the notification, and if it is not sitting within seven days of its re-assembly, and the State Government shall seek the approval of the Legislature to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before it. As seen from this provision, this requirement relating to the placing before the Legislature is required only with reference to the notifications issued under Sub-section (2) or Sub-section (4). The Act, as originally enacted, was made applicable by the Legislature to the City of Madras. But Sub-section (2) enabled the State Government, by notification in the Fort St. George Gazette to extends the. Act to any other municipal town. Sub-section (4) authorised the Government by notification in the Fort St. George Gazette to cancel any notification issued under Sub-section (2). These provisions show that only when the Act is extended or a notification under Sub-section (2) is cancelled, it had to be placed before the Legislature. The Act was extended to the municipal town of Vellore by notification dated 8th January, 1973 which was published in the Fort St. George Gazette on 31st January, 1973. Section 2(1) defined 'building' as meaning a building used for residential or non-residential purposes in the City of Madras and for residential purposes only, in any other area. Thus when the Act was extended to the municipal town of Vellore, it applied only for residential buildings. But Section 2(1)(i) also empowered the Government by notification to make the definition of 'building' as including residential or non-residential building even in cases of any other municipal town. In exercise of the power under the said G.O. Ms. No. 1285, Revenue, dated 31st May, 1975, the Government specified the municipal town of Vellore as a municipal town for the purposes of Section 2(1)(i) from the date of publication of the notification in the Tamil Nadu Government Gazette. This notification under Section 2(1)(i) is not required to be placed on the table of the Legislature. The learned Counsel for the respondents is, therefore, not well-founded in his contention that the notification had not taken effect in this case. It should not be assumed that even in the case of a notification under Section 1(2) that the notification will take effect only after it is laid before the Legislature. In fact, that question does not arise for consideration as I have said that Sub-section (6) of Section 1 is not applicable to notification issued under Section 2(1)(i).

3. It was next contended by the learned Counsel for the respondents that Section 5 of the Limitation Act is not applicable and that, therefore the delay in filing the petition could not be excused. In this connection, the learned Counsel relied on the judgment of Raghavan, J., in C.R.P. No. 2354 of 1972. The learned Judge held that the requirement under Section 9, that the application under the provision will have to be filed within one month after the service on him of summons or of the date with effect from which the Act is extended to the municipal town, is a condition for invoking the right of purchase and not a period of limitation prescribed. In that view, he held that Section 5 of the Limitation Act was not applicable.

4. Section 9(1)(i) applied to a case where a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882 is taken by the landlord in which case the application under that section will have to be filed within one month after service on him of summons in the suit. If the Act was extended during the pendency of the suit, the application will have to be filed within one month of the date with effect from which the Act was extended to the said municipal town or village in which the land is situate. Thus though the right to file the application under Section 9(1)(i) arises after the filing of a suit, the period of one month prescribed could not be considered to be a condition, but it is a period of limitation. It may be seen from Section 9(1)(ii) that the Act, as amended by Madras Act, XXIV of 1973, gives right to a tenant even in a case where no suit in ejectment has been filed or pending. In such a case, the application under Section 9 will have to be filed within a period of two months from the date of publication of the amending Act. Thus in a case where an Act was extended for the first time, the right to file arises by reason of the extension of the Act to the municipal town and in other cases on receipt of the summons and if we test it with reference to such cause of action, certainly it would be a period of limitation from the date when the cause of action arose and it could not be said that it is a condition for the applicability of Section 9. Therefore, even in a case where the application is filed after receipt of the summons, it would be a case of limitation and not a condition for invoking Section 9. I am, therefore, of the opinion that it will be a period of limitation prescribed by Section 9. Under Section 29(2) of the Limitation Act, 1963 where any special or local law prescribes for any application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 of that Act shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for such application, the provisions contained in sections 4 to 24 shall apply, unless the applicability of any of those provisions is excluded or modified. Section 5 of the Limitation Act is, therefore, clearly applicable to an application under Section 9 of the Act. I may add that this was also the view taken by Kailasam, J. (as he then was) in C.R.P. Nos. 1762 and 1763 of 1973 dated 2nd January, 1976.

5. On the merits relating to the delay, the learned Counsel for the respondents contended that the only reason given for not filing the application in time was that the 'petitioner was not aware of the extension of the Act to the non-residential buildings in Vellore town till October, 1975 and that itself will not be a sufficient ground for excusing the delay. It is seen from the affidavit filed in support of the petition to excuse delay that only some time in October, 1975 he vaguely understood that the Act had been extended to non-residential buildings also. Therefore, he contacted his counsel at Madras and when he informed him about the extension, he instructed him to file an application. I think this allegation must be true and bona fide because he had already filed an application under Section 9 even in the trial Court and had filed an appeal and a civil miscellaneous petition and that was pending in this Court. If really he was aware of the extension, he would not have kept quiet without filing the petition. I think on the merits I have to accept that the delay in filing the application was bona fide and not wilful and it will have to be excused. Accordingly, C.M.P. No. 11277 of 1976 is ordered and the delay is excused. On the merits in the application filed under Section 9, the learned Counsel for the respondents contended that he is not entitled to invoke Section 9 at all as he wilfully denied the title of the respondents-landlords. Even in the reply notice sent prior to the suit the appellant contended that he had orally purchased the property from Amirthammal about 20 years prior to the suit and that he was not a tenant under the respondents at all. This plea was repeated in the written statement also. In view of this according to the learned Counsel, he forfeited his right as a tenant and he could not claim his right under Section 9 of the City Tenants' Protection Act. In support of this contention, he relied on the decision of this Court reported in Veeraswami Naicker v. Alamelu Ammal : AIR1965Mad442 . That was also a case arising under the Madras City Tenants' Protection Act. Though the first defendant in that case took the land on lease, he denied the title of the landlord pleading that he had purchased the property from the landlord himself. The landlord terminated the tenancy on the ground of denial of title and filed a suit for declaration of his title and for recovery of possession. The Division Bench of this Court held:

Quite apart from this decision, we are of the view that the lower appellate Court took the right view of the scope of Section 2(4), as it stood before the amendment in 1960. It is true that the third clause in the definition comprehends persons continuing in possession, though the tenancy has come to an end. A tenancy may come to an end for a number of reasons as for instance denial of landlord's title. Such a denial under the ordinary law of transfer of property brings about forfeiture. The argument for the appellant before Us is that even such a case will be within the actual words of the third category in the definition. But there is a fallacy in the argument. When a person, who continues to be in possession after termination of tenancy, claims that he does so, as he is entitled to the property, as his own, it is obvious that there is hardly any room for such an owner to seek protection of his possession under the provisions of the Act. Clearly the Act is not intended to protect such owners, for there is no need for it. We are of the view that such a case will not fall within the third category of persons entitled to protection under the Act.

It is true that this decision clearly supports the contention of the learned Counsel for the respondents. But I am afraid that in view of the recent decision of the Supreme Court in Damadi Lal and Ors. v. Parashram and Ors. : AIR1976SC2229 , we could not deny the right of the petitioner to invoke the provisions of Section 9 of the Act. In that case, the Supreme Court was concerned with the question as to the rights of a tenant in possession after the termination of the tenancy. Though in the earlier cases in Anand Nivas (P.) Ltd. v. Anandji : [1964]4SCR892 and Jagdish Chander Chaterjee and Ors. v. Sri Kishan and Anr. : [1973]1SCR850 , the Supreme Court has held that a person in possession after the termination of the tenancy, though entitled to the statutory protection against eviction, has no estate or interest in the premises and it was only a personal right to remain in occupation, in the later case in Damadi v. Parashram : AIR1976SC2229 , it was held that this will depend upon the provisions of the Act under which the right is claimed and if the provisions show that the tenant, even after the determination of the tenancy, is treated on par with those persons who have contractual tenancy in their favour, the right of the person in possession after the determination of the tenancy is the same as a contractual tenant and that he could not 'be denied the right of protection under the Act. In Damadi Lal and Ors. v. Parashram and Ors. : AIR1976SC2229 , the Court was concerned with the Madhya Pradesh Accommodation Control Act, 1961 which defined 'tenant' as including any person continuing in possession after the termination of his tenancy. This definition was held by the Supreme Court as making a person continuing in possession after the determination of his tenancy a tenant thus putting him on par with a person whose contractual tenancy still subsists. The definition of 'tenant' in Section 2(4) of the City Tenants' Protection Act also includes a person who continues in possession of the land after the determination of the tenancy agreement. Under Section 111 of the Transfer of Property Act, forfeiture by denial of title is only one of the modes of determining a lease of immovable property and if there was a forefeiture by denial of title, the person in possession after such determination would also be a tenant within the meaning of Section 2(4). He would, therefore, be entitled to all the rights as if he was a contractual tenant himself. The petitioner is, therefore, clearly entitled to invoke the provisions of Section 9 of the Act.

6. If the petitioner is entitled to invoke the provisions of Section 9, there could be no defence for the direction to sell the property for a price to be fixed by the Court. Since this application was filed during the pendency of the second appeal and since the Courts below have not considered the value of the site and the other provisions of Section 9 as to the extent to be sold to the petitioner, the application will have to be remanded to the trial Court for disposal on merits as per law under Section 9 of the Act. The result of it is there will be a declaration of title to the suit property in favour of the respondents herein who are plaintiffs and 2nd defendant in O.S. No. 292 of 1971 on the file of the District Munsif's Court, Vellore, but the suit, so far as it related to recovery of possession, is dismissed. The second appeal is, therefore, allowed in part. The application under Section 9 filed in I.A. No. 1212 of 1972 is clearly not maintainable, as at that time, the provisions of the Act were not applicable to non-residential buildings and, accordingly, C.R.P. No. 112 of 1975 is dismissed. But the right of the tenant under Section 9 will have to be now decided by the trial Court in C.M.P. No. 12098 of 1975 filed in this Court. This application will be transferred to the trial Court for disposal on merits and according to law.

7. It may be mentioned that while decreeing the suit, the Courts below directed the plaintiffs to deposit a sum of Rs. 2,000 towards the value of the building. Against this direction, the plaintiffs have filed cross-objections. Since I have held that the suit for recovery of possession is not maintainable and liable to be dismissed and since the application under Section 9 was held to be valid and has to be gone into on merits, the cross-objection is liable to be dismissed and it is also, accordingly, dismissed. There will be no order as to costs in any of these cases. No leave in the second appeal.


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