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K. Kannabhiran Mudaliar Vs. Mullangi Lakshmana Perumal Chetty, Trustee of Mullangi Charities - Court Judgment

LegalCrystal Citation
Subjecttenancy
CourtChennai
Decided On
Reported inAIR1949Mad201
AppellantK. Kannabhiran Mudaliar
RespondentMullangi Lakshmana Perumal Chetty, Trustee of Mullangi Charities
Excerpt:
- - it must be noted that by this time the house rent control order had been substituted by the new act which came into force on 1st october 1946. on the same date, 11th october 1946, the city civil court judge directed the issue of a warrant for the delivery of possession-of the premises to the landlord but as it seems to be the practice in that court he gave a further direction that the warrant was to be issued after 28th october 1946 returnable by 12th november 1946. it is significant to note that on the very same date, 11th october 1946, the respondent was able to get delivery of the non residential premises from his sub-tenant, singaravelu and appears to have himself got into it in order apparently to surmount in that manner the objection upon which the tenancy bad been sought to..........2530 of 1946 by the principal city civil judge, madras. until 1st october 1916, the madras house rent control order 1945 was in force. from that date its place was taken by the madras buildings (lease and rent control) act (xv [15] of 1946). the date when the prior order expired and the new enactment came into force is of importance in this case having regard to the contentions raised both in the lower court and before me on behalf of the appellant in respect of a shop no. 339 esplanade, g.t. madras, which belongs to a charitable trust the trustee of which is mullangi lakshmana perumal chetti, the petitioner in e.p. no. 1257 of 1946. the petitioner filed an application before the rent controller under section 7 a (2) (iii) (a), madras house rent control order, 1945 on the ground that.....
Judgment:

Yahya Ali, J.

1. These are two connected appeals against two orders made in E.P. No. 1257 of 1916 and E.A. No. 2530 of 1946 by the Principal City Civil Judge, Madras. Until 1st October 1916, the Madras House Rent Control Order 1945 was in force. From that date its place was taken by the Madras Buildings (Lease and Rent Control) Act (XV [15] of 1946). The date when the prior order expired and the new enactment came into force is of importance in this case having regard to the contentions raised both in the lower Court and before me on behalf of the appellant in respect of a shop No. 339 Esplanade, G.T. Madras, which belongs to a charitable trust the trustee of which is Mullangi Lakshmana Perumal Chetti, the petitioner in E.P. No. 1257 of 1946. The petitioner filed an application before the Rent Controller under Section 7 A (2) (iii) (a), Madras House Rent Control Order, 1945 on the ground that he (appellant-Ed.) had sublet the premises without the written consent of the landlord and that consequently under the provision cited above he was liable to be evicted. Upon that application an order of eviction was made on 27th May 1946 by the Rent Controller against the respondent (in the lower Court-Ed.) in favour of the petitioner. Time was given in that order until 22nd August 1916. The respondent filed an appeal to the Collector of Madras which was dismissed on 22nd July 1946. Since the order of eviction thus became final under the terms of the Rent Control Order, the petitioner filed E.P. No. 1257 of 1946 on 6th September 1946 in the City Civil Court to evict the respondent from the premises by executing the order of eviction which has the effect of a decree enforceable by that Court. To this application the respondent filed a counter on 11th October 1946 urging that his sub-tenant who was in the premises had not yet vacated and wanted two months further time to get him to quit the premises and to deliver possession. It must be noted that by this time the House Rent Control Order had been substituted by the new Act which came into force on 1st October 1946. On the same date, 11th October 1946, the City Civil Court Judge directed the issue of a warrant for the delivery of possession-of the premises to the landlord but as it seems to be the practice in that Court he gave a further direction that the warrant was to be issued after 28th October 1946 returnable by 12th November 1946. It is significant to note that on the very same date, 11th October 1946, the respondent was able to get delivery of the non residential premises from his sub-tenant, Singaravelu and appears to have himself got into it in order apparently to surmount in that manner the objection upon which the tenancy bad been sought to be terminated and the order of eviction had been made.

2. In the meantime, some other proceedings for review etc., seem to have gone on before the Rent Controller as well as before the Chief Judge of the Court of Small Causes and in those proceedings orders of stay had been obtained by the respondent. The result was that on 28th November 1946, the City Civil Judge adjourned EP. No. 1257 of 1946 to 20th December 1946 pending final orders upon those petitions which had been filed before the Rent Controller and the Chief Judge of the Court of Small Causes. By 29th November 1946 however all obstructions were removed by the dissolution of orders of stay so that there was no further impediment in the matter of enforcing execution of the order of eviction. At this stage, having exhausted all conceivable avenues, the respondent took the step of filing E.A. No. 2530 of 1946 on 30th November 1946 praying under Section 47, Civil P.C., that E.P. No. 1257 of 1946 should be rejected on certain legal grounds which have been developed both in the lower Court and in this Court by his counsel. On 15th January 1947 the learned City Civil Judge allowed E.P. No. 1257 of 1946 directing delivery of possession by 22nd January 1947 and dismissed E. A. No. 2530 of 1946. C.M.A, No. 24 of 1947 is against the order allowing E.P. No. 1257 of 1946 and C.M.A. No. 25 of 1947 is an appeal against the order dismissing E.A. No. 2530 of 1946.

3. Mr. Ch. Raghava Rao raised the legal contention based upon the language of Madras Buildings (Lease and Rent Control) Act XV [15] of 1946 that the appellant is a tenant within the meaning of that Act and that under that Act since there was no sub-tenant any longer in the premises it was necessary for the respondent landlord to file a fresh application for eviction under the new Act as both E.P. No. 1257 of 1946 and all proceedings taken prior thereto by the Rent Controller under the House Rent Control Order of 1945 had lapsed, and there was no execution proceeding, legally speaking, after 1st October 1946 in which the tenant could be ejected. The learned City Civil Judge went into this contention with reference to the language of the relevant provisions of the Act and held that in spite of the Act having come into effect on 1st October 1946, the prior proceedings including the order of eviction dated 27th May 1946 were in force and could be executed by the City Civil Court. He also pointed out with reference to what transpired subsequent to 1st October 1946 itself in his Court that on 11th October 1946 an order had been passed in the presence of both parties directing the issue of a warrant for delivery of possession within a certain time and this was based on the counter filed by the appellant on the same date saying that he wanted two months' time to get the premises vacated by his sub-tenant and to deliver vacant possession thereof to the land-lord. The learned City Civil Judge held that this order had become final between the parties and the appellant could not go behind it. In answer to this finding, Mr. Raghava Rao has put forward the same legal objection which I have set out above that there being no legally enforceable order of eviction and the execution petition itself having lapsed there was no proceeding before the Court in which any eviction could be ordered and that being so all proceedings which were sub-sequently taken in that execution petition were nugatory.

4. To deal with these contentions, it is necessary to appreciate the general scheme of Madras Buildings (Lease and Rent Control) Act. The expression 'tenant' is defined in Section 2 (4) as meaning any person by whom or on whose account rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour. We need not pause to examine the question whether the appellant is a tenant within the meaning of this definition as he is a person who admittedly has continued by sufferance of party as well as by sufferance of Court in occupation of the premises asking on each occasion more and more time for vacating it. In fact although the eviction order was passed on 27th May 1946 he is still occupying the premises. The most important Sections for the purpose of these appeals are Sections 7 and 18. Sub-section (2) of Section 7 so far as is material to this case runs thus:

A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied .(ii) that the tenant has after the commencement of this Act without the written consent of the landlord (a) transferred his right under the lease or sub-let the entire building or any portion thereof

The rest of the Section is not of importance here. Section 18 is in these words:

(1) All proceedings commenced and action taken under the Madras House Rent Control Order, 1945 and the Madias Non-residential Building 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 subject 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 the Madras Non-Residential Buildings Rent Control Order, 1945, and in which fair rent has been fixed, shall continue in force until they are superseded or modified under this Act by the authority competent to do so.

The point of Mr. Raghava Rao's argument based upon these Sections is that under Section 18 which provides for the continuing in force of existing proceedings, orders, etc., it is enacted that those proceedings pending at the commencement of the Act shall be deemed to have been commenced or taken under the corresponding provisions of this Act subject to two important qualifications; (1) 'so far as may be', (the concise scope of this qualification was, however, not expatiated upon by the learned advocate) and (2) their continuance will be 'subject to the provisions of this Act.' As far as I am able to see, these two restrictive expressions occurring in the Section do not have on a true interpretation of the Section , the effect or result of altogether wiping out all prior proceedings which were in existence before the commencement of the Act.

5. Then, asks Mr. Raghava Rao, why introduce the condition 'subject to the provisions of this Act' in Section 18 (1). For this purpose it is necessary to refer to certain other provisions of the Act as well as the Madras House Rent Control Order It would be seen that while under the House Rent Control Order the authorities conatituted for entertaining appeals and revision applications were respectively the Collector of Madras and the Provincial Government, under the present Act appeals lie to the Chief Judge of the Court of Small Causes and no further revision lies to this Court as it has been held by this Court that the appellate powers were conferred upon the Chief Judge of the Court of Small Causes as a persona designata. Unless there was a restriction in Section 18 to the effect that the continuance of the proceedings shall be subject to the provisions of this Act there would be an anomaly with regard to this matter. To cite another instance, the House Rent Control Order applied to the whole Province but the Act applies only to the City 'of Madras, the municipalities and certain notified areas. To indicate the limited territorial application again it was necessary to insert such a qualification. Possibly such instances can be multiplied.

6. Apart from this general argument what appears to me to a clinching way of looking at the matter is this. Under Section 18 (1) the language employed is that proceedings commenced and action taken, etc., pending at the commencement of this Act shall be deemed to have been commenced or taken under the corresponding provisions of this Act. It is a settled doctrine that when the expression 'deemed to have been commenced or taken' is used in statutory enactments it is not to be read as if it was in actual fact commenced or taken under that new provision but must by a fiction be for the purpose of the statute deemed to have been so commenced or taken under the corresponding provisions of this Act. Now the order of eviction was passed under Section 7A (2A), Madras House Rent Control Order, and it was continued by the City Civil Court under Section 7A, (2A) (iii) for purpose of execution. When we reach that position it will be necessary to give effect to the language of Section 18 (1) which says that proceedings commenced and action taken under the House Rent Control Order (and these were proceedings commenced and action taken under that order) and which were pending at the commencement of this Act (admittedly the execution petition was pending at the commencement of this Act) shall be deemed to have been commenced or taken under the corresponding provisions of this Act, those corresponding provisions being Section 7 for passing an order of eviction and Section 9 for execution of that Order The expression 'so far as may be' and 'subject to the provisions of this Act' as I have already discussed above do not affect this interpretation. The construction sought to be placed upon this Section by Mr. Raghava Rao would, in my opinion, virtually render Section 18 (1) altogether ineffective. He draws attention to the phrase 'after the commencement of this Act' occurring in Section 7 (2) (ii) of the Act where it is stated that the tenant should have transferred his right under the sub-lease after the commencement of this Act without the consent of the landlord and upon the strength of this expression it is urged that the sub-letting ought to be after the commencement and that Section 18 (1) does not in any manner affect the scope and effect of the expression 'after the commencement of this Act' in that provision. The only answer to this contention is that Section 18(1) must in the context be held to override Section 7 (2) (ii).

7. Another argument advanced by Mr. Raghava Rao is that the object of the Act was to retain in force only such orders as had been passed for the determination of fair rent under the House Rent Control Order That case is, however, provided for under Section 18 (2) specifically and it is clear that while Section 18(2) applies to orders which had become final under the operation of Section 10, Section 18(1) deals with proceedings commenced and action taken and pending at the commencement of the Act. If this view is correct it must be held that the order of eviction dated 27th May 1946 and E.P. No. 1257 of 1946 which was filed on 6th July 1946 must be deemed to have been passed or filed respectively under this Act after the commencement of this Act. It follows from this conclusion that the order dated 11th October 1946 directing the issue of a warrant for delivery of possession is one which is binding upon the appellant and it is not open to him to go behind it. The order of the Principal Judge of the City Civil Court is upheld and these civil miscellaneous appeals are dismissed with costs two sets.


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