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The Madras Wines Vs. B. Abraham - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1985)2MLJ285
AppellantThe Madras Wines
RespondentB. Abraham
Cases ReferredArunachalam v. Kesavan Chettiar
Excerpt:
- - learned counsel further submits that with or without the exemption, the jurisdiction of the civil court to pass a decree in ejectment even against a tenant within the meaning of the act is not ousted and this proposition has emerged from the judicial precedents rendered under the rent control statute, which prevailed and which is prevailing in this state and the* only inhibition is with reference to evicting the tenant in execution of such a decree or otherwise except through the processes under the act, and on the conditions set out therein getting satisfied therefor, and when the execution came to be levied in respect of the decree, the act had come to be applied to the premises in question and the decree could not be availed of to evict the defendant, who is a tenant within the.....orders. nainar sundaram, j.1. the defendant in o.s.no. 454 of 1975 on the file of the city civil judge, madras, is the petitioner in this revision. the respondent is the plaintiff decree-holder. the defendant admittedly was let into possession of the premises in question as a tenant. the tenancy was terminated and the plaintiff laid the suit for ejectment of the defendant. apart from other contentions,, the defendant raised a plea that the suit for ejectment is not maintainable in view of the provisions of the tamil nadu buildings (lease and rent control) act, 1960 hereinafter referred to as the act. the plaintiff counteracted this defence of the defendant by stating that the building was completed only in march, 1970 and as per section 30(i) of the act, nothing in the act shall apply to.....
Judgment:
ORDER

S. Nainar Sundaram, J.

1. The defendant in O.S.No. 454 of 1975 on the file of the City Civil Judge, Madras, is the petitioner in this revision. The respondent is the plaintiff decree-holder. The defendant admittedly was let into possession of the premises in question as a tenant. The tenancy was terminated and the plaintiff laid the suit for ejectment of the defendant. Apart from other contentions,, the defendant raised a plea that the suit for ejectment is not maintainable in view of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 hereinafter referred to as the Act. The plaintiff counteracted this defence of the defendant by stating that the building was completed only in March, 1970 and as per Section 30(i) of the Act, nothing in the Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned. The first Court countenanced this case of the plaintiff. The suit came to be heard in January, 1976 and was, in fact, disposed of on 19th January, 1976, and by that time, the five year period of exemption under Section 30(i) of the Act had lapsed. Hence, the defendant put forth a contention that a decree as such could not be passed. This contention of the defendant was also rejected by the first Court. The defendant appealed in A.S.No. 247 of 1976, which Was heard and disposed of by a Bench of this Court, consisting of Ramanujam and Sethuraman, JJ. The defendant repeated the very same contention that the period of exemption had lapsed and the inhibition with regard to eviction of tenants will come into play. The learned Judges considered it unnecessary at that stage to go into the question as to whether : any decree that may be passed in the suit is executable or not in view of the provisions of Section 10 of the Act, as that question will arise only at the stage of the execution after the decree is passed. The learned Judges expressing an opinion that the first court was in error in going into that question at that stage, set aside that finding of the court below, and without going into the question of the executability of the decree, the decree for ejectment was confirmed, leaving it open to the defendant to agitate the. same at the stage of execution. The appeal was ultimately dismissed. The plaintiff has levied execution in E.P.No. 2166 of 1981. of the decree for ejectment. The defendant, apart from contesting the execution for delivery of possession, took out E.A.No. 924 of 1982 under Section 47 of the Code of Civil Procedure to declare that the decree passed in the suit is not executable in view of the provisions of the Act. The court below has dismissed E.A.No. 924 of 1982 -and consequently directed delivery of possession in E.P.No. 2166 of 1981. This revision is preferred against the order passed by the Court below in. E.A.No. 924 of 1982. The Court below relied on a pronouncement of Ratnam, J. in Arunachalam v. Kesavan Chetidar : (1983)2MLJ166 .

2. Mr. C. Raghunatha Reddy, learned Counsel for the defendant, would submit that even prior to the date of the decree in the suit and pending the suit the exemption under Section 30(1) of the Act had lapsed and even though the jurisdiction of the Civil Court to pass a decree is not ousted, on the lapse of the exemption, the Act became applicable to the premises in question and when the execution came to be levied, the provisions of the Act squarely applied and there could not be an eviction of the defendant, who has become a tenant within the meaning of the Act, except under the provisions of the Act. Learned Counsel further submits that with or without the exemption, the jurisdiction of the Civil Court to pass a decree in ejectment even against a tenant within the meaning of the Act is not ousted and this proposition has emerged from the judicial precedents rendered under the Rent Control Statute, which prevailed and which is prevailing in this State and the* only inhibition is with reference to evicting the tenant in execution of such a decree or otherwise except through the processes under the Act, and on the conditions set out therein getting satisfied therefor, and when the execution came to be levied in respect of the decree, the Act had come to be applied to the premises in question and the decree could not be availed of to evict the defendant, who is a tenant within the meaning of the act. As against this, Mr. K. N. Balasubramaniam, learned Counsel appearing for the plaintiff, would heavily rely on the pronouncement of Ratnam, J. referred to above to state that the decree obtained by the plaintiff can be executed though the period of five years under, Section 30(1) of the Act had expired by the time the decree was granted and the execution proceedings initiated.

3. The contentions raised by the respective counsel oblige me to bestow some serious attention on the case law on the subject including that which has arisen in similar contingencies under the Act itself or under similar statutes, current and prevailing anterior to the enactment of the Act. Before I do that, I would like to advert to the broad and general implications of the exemption provision in Section 30(1) of the Act. It says that nothing in the Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned. This exemption has got a peculiarity of its own. A building within the meaning of the Act comes into existence for the first time. Normally the provisions of the Act should apply. By this exemption, the application of the Act gets postponed for a period of five years, and the Act comes into force so far as this building is concerned only after the lapse of the five years. Hence the principles discussed in judicial precedents, taking note of the coming into force of provisions similar to those under the Act, for the first time before the decree or after the decree and before the levying of execution or after the levying of execution and under similar contingencies are very relevant for the purpose of deciding the implication of the present exemption provision. The first principle to construe an exemption provision is that it should be properly and strictly construed against the person who claims it. Courts are not supposed to enlarge or extend the exemption beyond the scope of the provision. But for the exemption, the Act would apply even to a new building. The application of the Act to new building gets postponed and hence on the lapse of the period of five years, the Act must be applied to even such a building.

4. In Mahmood v. Kerala Corporation Ltd (1954) 1 M.L.J.44 : A.I.R.1945 Mad. 181 Chandrasekhara Aiyar, J. held that there was an ouster of jurisdiction of Civil Courts and the remedy of the plaintiff was to go before the Controller.

5. In Moothaliandan Chetty v. Venkatesan Chetti : AIR1945Mad386 , Mockett, J. dealt with a case where the landlord had, after giving notice, filed a suit for evicting a tenant and had obtained a decree therein and levied execution for delivery prior to the amendment of the House Rent Control Order prescribing that a tenant could not be evicted except under an order of the Rent Controller, and the learned Judge held that the landlord's right to execute the decree was not taken away by the amendment, which came into force subsequent to the application to execute the decree. Mockett, J. after referring to the decision of Chandrasekhara Aiyar, j. summed up the proposition in the following terms:

and when an application for possession comes before the Controller, the Controller should apply his mind to the circumstances actually present before him to enable him to make or refuse an order, and it would be for one side or the other to point out that the application for ejectment had lost its force owing to the fact that since the application had been made, difficulties which were then not in existence had arisen or difficulties that were in existence had disappeared. I am not however concerned with any such position in this case.

6. In V.R.R. Sami Ayyar, In re : AIR1946Mad321 , Byers, J. dealt with the contention that a decree for eviction could not be passed by the Civil Courts in view of Section 7(A) of the Madras House Rent Control Order, 1941. Before the learned Judge, the pronouncement of Chandrasekhara Aiyar, J. in Mah mood v. Kerala Corporation Ltd. : AIR1945Mad181 , was relied on, but the learned Judge did not accept the same and held that the wording of the section is not such as to deprive the Civil Courts of their power to entertain the suit for eviction and to adjudicate upon it and what the Control Order prohibits is eviction outside the provisions of Section 7(A) of the Order. The very same learned Judge in Satyanarayana v, Satyanarayana : (1946)1MLJ135 once again dealt with a similar contention and repelled the same, holding that:

It cannot be said that these words are wide enough to deprive the Civil Courts of their jurisdiction to pass decrees; all that the rule contemplates is the control of the relief of eviction.

Even here, Byers, J. did not follow the pronouncement of Chandrasekhara Aiyar, J.

7. In Madhavakurup v, Muhammad Sukri Sahib : (1948)2MLJ359 , Panchapagesa Sastri, J. was dealing with a case where the suit for ejectment was pending when the Madras Non-Residential Building Rent Control Order was amended. However, an ex parte decree was passed subsequently and the property itself was delivered to the plaintiff landlord in execution proceedings. But the execution application was not normally closed and the defendant/tenant applied to the Court for redelivery of the property and the same was ordered. The District Munsif upheld the contention of the defendant that under Section 8(1) of the Amended Non-Residential Buildings Rent Control Order, a tenant could not be evicted and accordingly held that the previous order directing delivery was wrong and the court had jurisdiction to set aside that order and to order re-delivery as the execution petition had not been closed and the proceedings were still pending before the Court. The decree-holder appealed and the appellate Court also agreed with the first Court on this question. A civil miscellaneous second appeal was preferred to this Court. Panchapagesa Sastri, J. construed the expressions 'in execution of a decree or otherwise' occurring in Section 8(1) of the Control Order and held that it would have reference to a decree in a suit instituted after the amendment and the learned Judge declined to construe the section retrospectively and further held as follows:.If there is nothing else in the enactment to indicate that every pending legislation or pre-existing substantive rights of parties were intended to be affected by the amended Order, I must hold in accordance with the well established rules of construction of statutes 'that the amended Control Order, Section 8, Clauses 1 and 2 had no application to the present execution petition and that the order for delivery originally made was right and proper. Reference may usefully be made in the discussif i of the questions as to how far statutes can be taken to have retrospective operation to the judgment in United Provinces v. Mt. Atiga Begum . Sulaiman, J. points out that unless either by express or by necessary intendment it is made out in the new legislation that it applies to pending proceedings as well, it ought not to be construed to have retrospective operation so as to affect the rights of parties in pending suits. Varadachariar, J. also refers to the same principle and explains the decision of the judicial Committee in Mukharjee v, Mst. Ram Ratan Kuar .

The learned Judge further observed that the Order itself is only for a short duration and if and when it is repealed or it expires without being renewed, the previous decree of the Civil Court will have to be executed by the civil court as in ordinary cases. In the result, the learned Judge allowed the civil miscellaneous second appeal.

8. As against the decision of Panchapagesa Sastri, J. on leave being granted by the learned Judge, a Letters Patent Appeal was preferred and the matter came up before Horwill and Rajagopalan, JJ. in

Muhammad Sukri Sahib v. Madhava Kurup : (1924)46MLJ560 . The learned Judges adverted to the fact that execution proceedings were filed long after the amendment came into force and that they are not concerned with the applicability of the new law to pending proceedings. The contention before the Bench was that the moment a person files a suit, he obtains thereby a vested right to have applied not only to the suit, but to all execution proceedings also, the law relating to execution as it existed at the time of filing the suit. The Bench repelled the said contention, observing as follows:

We know of no such principle; and we find no reason to think from the cases that have been cited before us that if a new law is introduced restricting the right to execute, execution proceedings can nevertheless be instituted if such a right existed on the date of the filing of the suit.

The Bench was not prepared to follow the Judgment of Sulaiman, J. in the United Province v. Mt. Atica 'Begum (1940) F.C.R.110 : 53 L.W.397 in which a reference was made to certain English cases interpreting British statutes said to be similar to the statute under consideration, and the learned Judges declared that they have not seen those decisions of statutes and they are not at all convinced that any such general principle exists. The learned Judges also referred to the Judgment of Mockett, J. in Moothaliandan Chetti v. Venkatesam Chetti : AIR1945Mad386 and after adverting to the passage in the judgment of Mockett, J. extracted (supra), opined that Mockett, J. far from thinking that a landlord had, by the institution of the application for possession in the Sub Court acquired an absolute right to physical possession, contemplated proceedings before the Rent Controller in which it would be contended by the tenant that in view of the new legislation actual possession could not be given. The learned Judges allowed the Letters Patent Appeal and set aside the pronouncement of Panchapagesa Sastri, J. in Madhaya Kurup v. Muhamad Sukri Sahib : (1948)2MLJ359 .

9. In Muhammadunny v. Melepurakkal Unniri : (1949)1MLJ452 a Bench of this Court, consisting of Rajamannar, C.J. and Raghava Rao, J. was concerned with a suit filed by the landlord for eviction of the tenant from the building, which suit was thrown out by the first Court, following the pronouncement of Chandrasekhara Aiyer, J. in Mahmood v. Kerala Corporation Ltd. (1949) 1 M.L.J. 44 : A.I.R.1945 Mad.181 on the ground the provisions of the Madras Non-Residential Buildings Rent Control Order (1942) prohibited the institution of a suit for possession. However, on appeal, the lower appellate court following certain decisions of this Court subsequent to the pronouncement of Chandrasekhara Aiyer, J. referred to above, held that the suit was maintainable and passed an order of remand to the first Court. This order of remand was put in issue in a civil miscellaneous appeal before the Bench. The Bench expressed the view that the eviction could only be in accordance with the provisions of the Rent Control Order, there was no prohibition regarding institution and passing of a decree by the Civil Court, the civil court which passed the decree might not have jurisdiction to execute the decree for possession and the decree for eviction cannot be executed for some time, during the continuance of the Rent Control Order, Dissenting from the view of Chandrasekhara Aiyar, J. in Mahmood v. Kerala Corporation Ltd : AIR1945Mad181 the Bench summed up the proposition by stating that the jurisdiction of a civil court to entertain and pass a decree in a suit for eviction by the landlord against the tenant was not expressly or impliedly taken away by the provisions of the Rent Control Order and in this view, the Bench dismissed the civil miscellaneous appeal before it.

10. In Haji Mohamed v. Globe Theatres A.I.R.1956 Mad.216, P.N. Ramaswami, J. following the earlier pronouncements in In re. V.R.R. Sami Ayyer,' : AIR1946Mad321 and Muhammadunny v. Melepurakkal Unniri : (1949)1MLJ452 observed as follows:

It is now well settled that a decree in ejectment can be passed by the Civil Court and all that the Madras Buildings (Lease and Rent Control) Act ensures is that during the subsistence of that Act, the Civil Court cannot execute the decree, but the landlord will have to take appropriate steps under the provisions of the said Act. There is no taking away of the jurisdiction of the Civil Court but only an imposition of restrictions in regard to the mode of execution.

11. In Thalai Vadivu Anandar v. Venugopala Chettiar : (1960)1MLJ356 . Rajamannar, C.J. and Ganapatia Pillai, J. dealt with the case of a decree on compromise passed in a suit instituted by the landlord against the tenant for recovery of possession of the property. The compromise decree was passed on 15th March, 1954. The order for delivery was made in execution on 12th April, 1954 directing delivery by 10th June, 1954. As against this order, there was an appeal and the order of delivery was stayed ex parte on 15th April, 1954. On 27th May, 1954, the landlord decree-holder died. On 8th July, 1954, the appeal was dismissed, upholding the order of delivery and the appellate court apparently taking the view that Section 7 of the Madras Buildings (Lease and Rent Control) Act would not make the original order for possession ipso factc invalid. but it might be that the Judgment debtor could object to actual eviction in pursuance of the order. On 12th July, 1954 the tenant applied for stay of execution. It must be pointed out that earlier on 16th June, 1954 the Rent Control Act got extended to the village where the property was situated. The legal representative of the deceased landlord decree-holder filed ah application also on 12th July, 1954 to be added as a legal representative and praying for an order directing delivery of possession. This was admittedly done after the Rent Control Act was made applicable to the village in question.

12. The ground taken by the tenant was that the Rent Control Act having been extended to the village in which the property was situated on and from 16th June, 1954, the legal representative of the landlord/decree-holder could not evict him. The District Munsif overruled the objection of the tenant and brought the legal representative of the landlord/decree--holder on record and passed an order for delivery of possession to the legal representative. Against this order of the District Munsif, the tenant filed an appeal, which was heard and disposed of by the Subordinate Judge, who dismissed the appeal on the ground that Section 7 of the Act could not apply to pending execution proceedings, that is to say, the prior execution petition wherein an order for eviction had already been passed. Against this order, the tenant preferred an appeal to this Court, which came up for decision before Panchapakesa Ayyar, J. The learned Judge' held that Section 7 of the Act did apply and was a complete answer to the claim of the legal representative of the landlord/decree-holder to evict the tenant and hence the appeal was allowed and the execution petition filed by the legal representative of the landlord/decree-holder was dismissed. However, on leave being granted by he learned single Judge, a Letters Patent Appeal came up before the Bench. The Bench found as per the facts above that though there was an order of eviction in a prior execution petition, the tenant could not be evicted in pursuance of that order and that was why the subsequent execution petition was filed on 12th July, 1954 and it was filed after the Rent Control Act had come into operation in the village in which the property was situated. Referring to the decision in Sukri Sahib v. Madhava Kurup : (1924)46MLJ560 the Bench observed as follows:

It was contended before the Division Bench that the moment a person files a suit, he obtains thereby a vested right to have applied not only to the suit, but to all execution proceedings also, the law relating to execution as it existed at the time of filing the suit. The learned Judges had no difficulty in rejecting this contention as they were not aware of any such principles. They found no reason to think that, if a new law is introduced restricting the right to execute, execution proceedings can nevertheless be instituted if such a right existed on the date of the filing of the suit . . . .

No doubt there is a reference to pending proceedings in one part of the judgment, but it was not necessary to deal with the point because they held that during the interval between the passing of the decree and the filing of the execution petition, there was no pending proceeding. The basis of the decision is certainly against the view that Clause 8 would not affect pending proceedings....

Referring to the observations of Mockett, J. in Moothaliandan Chetti v. Venkatesam Chetti : AIR1945Mad386 extracted supra, the Bench expressed the view as follows:

We must confess we are not able to fully appreciate the scope of these observations.

Ultimately the Bench countenanced the principle that the executing Court is bound to apply the provisions in the statute, which had come into force even before the date of the execution petition; which it was called upon to dispose. The Bench also took note of the fact that it was not a case where during the pendency of an already filed execution petition, the Rent Control Act came to be extended to the village in question and by the time of the filing of the concerned execution petition, the Act had already come into force.

13. In B. V. Patankar v. C.G. Sastry : [1961]1SCR591 the Supreme Court dealt with a case where possession was delivered to the landlord from the tenant of a building even though the provisions of Mysore House Rent and Accommodation Control Order (1948) was in operation on that date. The language of Section 9(1) of the Mysore House Rent and Accommodation Control Order (1948) was more or less similar to Section 10(1) of the Act, when it stated that a tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of that clause. Section 16 of the Mysore House Rent and Accommodation Control Order (1948) while giving liberty to the landlord to file a suit for eviction of a tenant before a competent Civil Court provided that no decree for eviction of a tenant passed by a Civil Court shall be executed unless a certificate to that effect is obtained from the Controller. The Supreme Court referring to the contention that ignoring the above provisions is no more than an error in the exercise of jurisdiction, observed as follows:

The contention raised that ignoring Sections 9(1) and 16 of the 1948 House Rent Control Order is no more than an error in the exercise of jurisdiction does not appear to be sound because those sections are a fetter on the executability of the decree and not merely an error in the exercise of the jurisdiction. In the present case the two sections mentioned above were a restriction on the power of the Court to execute the decree and therefore this argument must also be rejected.

The Supreme Court confirmed the view of the High Court that the executing Court had no jurisdiction to order the eviction of a tenant because of the provisions of the Mysore House Rent and Accommodation Control Order (1948), which was in operation on the date of eviction.

14. In Firm Amar Nath v. Tek Chand : [1972]3SCR922 the Supreme Court dealt with a notification issued under Section 3 of the Punjab Urban Rent Restriction Act, 1949. To appreciate the ratio enunciated by the Supreme Court in the context of the said notification, it is better that the said notification stands extracted in this order also.

In exercise of the powers conferred by Section 3 of the Punjab Urban Rent Restriction Act, 1949 and all other powers enabling him in this behalf, the Governor of Punjab is pleased to direct that the provisions of Section 13 of the said Act shall not apply in respect of decrees for ejectment of tenants in possession of buildings which satisfy the following conditions, namely:

(a) Buildings constructed during the years 1959, 1960, 1961, 1962 and 1963 are exempted from all the provisions of the said Act for a period of five years to be calculated from the dates of their completion, and.

(b) During the aforesaid period of exemption suits for ejectment of tenants in possession of those buildings were or are instituted in civil courts by the landlords against the tenants and decrees of ejectment were or are passed.

Section 13(1) of the Punjab Act stated that a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of the Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of that section. The building in that case was completed in March, 1960 and the suit was filed on 14th January, 1963. However the decree for ejectment was obtained on 14th August, 1969. On 29th August, 1969 execution was levied, which was dismissed on the ground that the notification of exemption could not apply. The High Court in second appeal held that the decree was executable. The Supreme Court upheld this decision of the High Court. In that case, the suit, as stated above, was filed before the lapse of the period of exemption though the decree came to be passed after such lapse. It was contended before the Supreme Court that the decree having been passed after the lapse of the period of exemption, the exemption from the restrictions placed by Section 13 will not be available because not only the suit ought to have been filed, but the decree for eviction ought to have been obtained within the period of exemption. The Supreme Court pointed out that this contention on the face of it would lead to incongruity, or would it accepted have the effect of nullifying the very purpose for which the exemption was being given. The language of the notification was clear and what was exempted was the decree for ejectment of a tenant from the application of Section 13. Clause (b) of the notification prescribed a time during which a suit in which a decree could be passed should be filed. The decree passed in such suits were held by the Supreme Court to be executable free from the fetters imposed by Section 13. It was pointed out that the filing of the suit by itself did not confer any exemption because what was exempted from the provisions of Section 13 was the decree. The Supreme Court took note of the fact that the buildings constructed in 1959, 1960, 1961, 1962 and 1963 had already been exempted from the provisions of Section 13 by two earlier notifications and found that the notifications granted exemption to decrees in suits filed within the period of exemption though the decrees came to be passed after the lapse of such period.

15. I must straightway point out that the language of Section 30(1) of the Act is different and its intendment is also different. It merely states that nothing in the Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to local authority concerned. It does not speak about the institution of a suit or the obtaining of a decree in such a suit as in the case dealt with by the Supreme Court in Firm Amar Nath v, Tek Chand : [1972]3SCR922 . As I have initially pointed out, Section 30(1) merely postpones the application of the Act to newly constructed buildings for a period of five years, on the lapse of which the Act would apply to such buildings. This is the simple and apparent implication of the provision in Section 30(1) of the Act. As to what would be the implications and impact of the coming into force of the Act in respect of such buildings, I shall presently advert to, after completing my discussion of the case law on the subject.

16. In Killick Nixon Ltd. v. V.R. Narayana Rao, Appeal No. 518 of 1973, Judgment dated 12th February, (1974) 1 M.L.J.16 a Bench of this Court, consisting of Ramanujam and V. Ramaswami, JJ. dealt with a case where during the pendency of an appeal against a decree for ejectment, Section 30 of the Act was amended, limiting the exemption for new buildings for a period of five years only, in contract to the earlier permanent exemption of buildings constructed after the Act, and on the ground that the period of five years had lapsed, it was pleaded before the Bench that the decree ought to be set aside. The learned Judge held, following the earlier Bench pronouncements in Muhammad Sukri Sahib v. Madhava Kurupu : (1924)46MLJ560 , Muhammadunny v. Melepurakkal Unniri : (1949)1MLJ452 and Thalai Vadivu Anandar v. Venugopala Chettiar : (1960)1MLJ356 that the provisions of the Act do not prevent the Civil Court from passing a decree for possession though it might not be possible to execute the same in view of the specific provisions contained in the Act, which enables a Controller to pass an order of eviction only on stated grounds. The learned Judges felt that it was unnecessary to go into the question of executability of the decree since, the validity of the decree is one thing and its executablity is another and the court while passing the decree is not concerned with the executability. Leaving open the question of executability of the decree to the execution proceedings, the learned Judges affirmed the decree for ejectment.

17. In Abdul Azeez & Sons v. Mavali Rajan (1977) T.N.L.J.69 Ismail, J. (as he then was), dealt with a case where a decree was passed prior to the amendment to Section 30 of the Act and taking advantage of the amendment limiting the period of exemption to new buildings only for a period of five years, it was contended that the decree stood nullified. This contention was repelled by the learned Judge holding that the decree was validily passed, following the pronouncement of the Bench in Killick Nixon Ltd. v. V.R. Narayana Rao (1974) 1 M.L.J.16. The learned Judge also pointed out that It is one thing to hold that the decree passed by the Courts below was validly passed with jurisdiction and it is another thing to say whether the said decree can be executed or not, in view of the particular provision of the Act.

18. In Chand Basha v. Prari Bi : (1978)1MLJ46 Ramanujam, J. dealt with a case where a decree was obtained prior to the amendment of Section 30 of the Act by virtue of which the Act became applicable to the building. The tenant contended before the executing Court that the decree for eviction cannot be executed. This objection was rejected by the executing Court and that view was confirmed by the lower appellate court. The view taken by the two courts below was challenged in appeal before the learned Judge and the learned Judge following the pronouncement of the Bench in Thalai Vadivu Anandar v. Venugopala Chettiar : (1960)1MLJ356 held that the decree even though valid is not executable so long as the provisions of the Act continue to apply to the building....

19. In M. Balakrishna Rao v. Haji Abdula : [1980]1SCR875 the Supreme Court dealt with a case where a suit for ejectment was filed taking advantage of Clause (iii) of Section 30 of the Act prior to the amendment in 1964, which provided that nothing contained in the Act would, apply to any non-residential building, the rental value of which on the date of the commencement of the Act as entered in the property tax assessment book of the municipal council, district board, panchayat or panchayat union council or the Corporation of Madras exceeded Rs. 400 per mensem. Pending the suit, an amendment was introduced by virtue of which Clause (iii) of Section 30 was omitted, and further Section 3 of the Amendment Act provided that all proceedings instituted on the ground of exemption by virtue of Clause (iii) (deleted) shall abate. The Supreme Court held that the suit will abate even if there was no express allegation in the plaint to the effect that the suit was instituted on the ground that the building was exempted under Clause (iii) of Section 30 of the Act and the Act as such could apply to the building in question and the tenant became a statutory tenant and he could not be evicted, except in accordance with the provisions of the Act....

20. In Tottal Monthemmal Naidu v. Kottikkollan Edavaiath Nabeesa and another (1980) 93 L.W. 202 Ratnam, J. dealt with a case where execution of a decree for. ejectment came to be levied after the Pondicherry Buildings (Lease and Rent Control) Act (1969) came into force. The decree in the first Court was obtained on 31st May, 1972, and the first appeal was dismissed on 17th November, 1973. The second appeal was dismissed by this Court on 7th November, 1977. The Pondicherry Act had come to be enforced to the area in question on 17th October, 1972. A contention that the suit itself was barred and the civil Court had no jurisdiction to pass a decree In ejectment was negatived by this Court in second appeal, and the question as to whether reliance could be placed on the provisions of the Pondicherry Act was left open to the stage of execution of the decree. When the question was raised in execution, the tenant could not succeed and the executing Court held that the decree was one passed before the enforcement of the Act to the area in question, and that was no bar to the executability of the decree. On revision, Ratnam, J. after adverting to the pronouncement of the Bench of this Court in Thalai Vadivu, Anandar v. Venugopala Chettiar : (1960)1MLJ356 and of the Supreme Court in Balakrishna Rao v. Hajee Abdulla Sait : [1980]1SCR875 held that the Pondicherry Act had come into force to the area in question long prior to the filing of the execution petition and at the time when the execution petition came to be dealt with by the executing Court, the bar against eviction of tenants except in accordance with the provisions of the Pondicherry Act had come into force and hence the decree in ejectment was not executable.

21. In Krishnaswami v. Rasheeda : (1980)2MLJ463 S. Natarajan, J, was concerned with a suit for ejectment where a decree was obtained and both the first appeal and the second appeal were dismissed. However, during the pendency of the first appeal, the Act was made applicable to the town where the building was situated, and the tenant filed an application in the first court for a declaration that the decree cannot be executed. The first court dismissed the application, and on revision, S. Natarajan, J. after adverting to the case law on the subject, held that though the decree is not null and void, yet a declaration regarding its non-executability can be given. The learned Judge observed in paragraph 6 of the Judgment as follows:

The resultant position therefore, is that the filing of a suit for recovery of possession of a property from a tenant or the passing of a decree therein by the Court in favour of the landlord, is not prohibited under the Act. But the decree cannot be executed so long as the Act remains in force.

22. In Arunachalam v. Kesavan Chettiar : (1983)2MLJ166 , Ratnam, J. dealt with a case where the building was constructed in March, 1975. The suit for recovery of possession by the landlord against the tenant was filed on 4th January, 1980 when the five year period under Section 30(1) of the Act had not yet lapsed. On 28th January, 1981, the suit was decreed. On 9th November, 1981 the appeal was dismissed. On 6th January, 1982 the execution petition was filed and on 19th January, 1982 an order for delivery by 30th January, 1982 was made. However, delivery could not be effected since the building was found locked. On 30th January, 1982 the tenant filed an application that the decree is not executable, and the order of delivery obtained by the landlord was erroneous. That application was dismissed by the first court and the matter came before the learned judge by way of a revision. The learned Judge has opined that the institution of the suit before the expiry of the period of exemption would suffice the purpose and the lapse of the period by the time the decree or order in the proceedings is passed and further proceedings are taken thereafter to realise the benefits thereof, would not take away the benefit of the decree or order so obtained. The learned Judge has expressed his views in the following terms:

Where a new building is constructed and the construction thereof is notified to the local authority, the building would be exempt from the operation of the provisions of the Act for a period of five years therefrom. During this period of five years, if no proceedings are initiated, then the exemption will lapse on the expiry of the period of five years. But on the other hand, if within the period of five years proceedings are taken based on the exemption then even though by the time the decree or order in the proceedings is passed and further proceedings are taken thereafter to realise the benefits thereof, the five years period had lapsed, nevertheless, the benefit of the decree or order so obtained would be available to the party, who secured it.

***

The irremovability of the tenant from the premises in his occupation despite a decree except in accordance with an order under Section 10 or 14 to 16 of the Act, lost as a result of the exemption under Section 30(1) of the Act is not restored statutorily in a case where the decree or order is passed after the expiry of five years or the execution is levied after that period. It cannot therefore be readily assumed that in such cases the benefit of exemption or the fruits of the proceedings based on such exemption are totally lost to the party for whose benefit also the exemption was granted.

The learned Judge felt that the decision of the Supreme Court in Firm A mar Nath v. Tek Chand : [1972]3SCR922 would lend support to his view that the exemption would operate not only to the building, but also to the decree obtained in respect of the building.

23. In Vineet Kumar v. Mangal Sain Wadhera : [1984]2SCR333 the Supreme Court was concerned with Section 2(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which provided that nothing in the U.P. Act shall apply to a building during the period of ten years from the date on which its construction is completed. There the landlord filed a suit for eviction and for other reliefs on the ground that the period of ten years had not lapsed on the date of suit. The tenant contended that the period of ten years had lapsed and the Act would apply. The first Court held that the exemption would apply and the Act would not apply and decreed the suit. On revision, the High Court found that the building was not ten years old on the date of the suit and hence the Act would not apply, and that the tenant cannot get any protection. The High Court confirmed all the findings except about the arrears of rent and remanded the matter to the first Court for determination of arrears. The only point argued before the Supreme Court on a special leave petition was whether the premises, which was not ten years old on the date of the suit and was exempted from the operation of the U.P. Act could be governed by it if ten years expired during the pendency of the litigation. A contention was put forth that the Court had to decide the case on the basis of cause of action that had accrued prior to the filing of the suit and not on a new cause of action. The Supreme Court, after adverting to its pronouncement in Pasupuleti Venkateswaralu v. Motgrand General Traders : [1975]3SCR958 held that the benefit of the U.P. Act could be given to the tenant when the Act became applicable to the premises in question during the pendency of the litigation. The Supreme Court ruled out that the moment the building becomes ten years old to be reckoned from the date of completion, the U.P. Act would become applicable for the purpose of enabling the tenant to work out the rights under it. While setting aside the order of the High Court relating to eviction, the case was sent back to the first court for it to apply the U.P. Act and to give the protection of the said Act to the tenant.

24. The discussion of the case law, which has preceded and my assessment thereof, oblige me to take note of the following indisputable propositions;

(1) The Act as such does not oust the jurisdiction of the Civil Court to entertain a suit for eviction by a landlord against a tenant and the passing of a decree in such a suit.

(2) If the landlord succeeds in obtaining a decree for eviction in such a suit, that cannot be put into execution to evict the tenant and the eviction could be only in accordance with the provisions of the Act, so long as the Act applies to the building in question.

(3) The validity of a decree is one thing and executability is another thing. A decree validly passed would still be unexecutable on account of the law that is prevailing or which comes into force at the relevant point of time. The above three propositions are well-settled and well recognised ones as per the pronouncements of the Benches of this Court referred to above,

(4) The exemption under Section 30(1) of the Act postpones the application and the enforcement of the Act to the newly constructed buildings for a period of five years, on the lapse of which, the Act would apply. With or without the exemption, the maintainability of the suit and the obtaining of a decree in a suit before a Civil Court is not taken away by the Act. It is not as if only on account of the exemption or under its cover, the civil process could be resorted to. Resort to civil process never stands prohibited even under the Act; and only the eviction, otherwise than under the Act stands prohibited. On the lapse of the period under the exemption provision, the Act would become applicable and enforceable to the building and the eviction of the tenant could only be in accordance with the provisions of the Act. The moment the ' building completes the period of exemption, the Act would become applicable to the building. This is exactly the principle countenanced by the Supreme Court in Vineet Kumar v. Mangal Sain Wadherea : [1984]2SCR333 .

(5) The impact and the implications of the exemption cannot survive beyond the period of exemption. On grounds of equity, inconvenience and hardship, the Court is not supposed to stretch the scope of the exemption. The filing of the suit in a Civil Court during the period of exemption and the obtaining of a decree in such a suit even during or after the lapse of the period of exemption is of no consequence at all and if at the time the decree is put into execution to evict the tenant, the Act has intervened and come into force, that alone would govern. The courts are not concerned with the policy of the legislature or with the result, whether injurious or otherwise, by giving effect to the language used, nor is it the function of the Court where the meaning is clear act to give effect to it merely because it would lead to hardship. The. above rule was held to be an unexceptionable one in Firm Amar Nath v. Tek Chand : [1972]3SCR922

(6) The lapse of the period of exemption automatically makes the Act applicable to the building in question. If at the time when the actual eviction is sought for, the Act had become applicable to the building in question, the fact that the proceeding in which the decree was obtained, was filed during the period of exemption, is not a relevant factor because as already noted, neither the institution of the suit nor the obtaining of the decree before a civil court stands ousted by the Act, and only the eviction of the tenant stands circumscribed as per the provisions of the Act. The ruling of the Supreme Court in Vineet Kumar v. Mangal Sain Wadhera : [1984]2SCR333 is categoric when it countenanced that the moment the building becomes ten years old and thereby the period of exemption lapsed, the U.P. Act in that case, would become applicable. This categoric pronouncement of the Supreme Court settles the law beyond any ambiguity.

(7) A doubt was expressed in the earlier pronouncements of this Court as to whether, if execution had already been levied pursuant to a decree obtained prior to the coming into force of the Act, and such execution petition was pending at the time of the coming into force of the Act, such pending proceedings could be affected - Vide Muhammad Sukri Sahib v. Madhava Kurup : (1924)46MLJ560 and Thalai Vadivu Anandar v. Venugopala Chettiar : (1960)1MLJ356 But the Supreme Court in the latest judgment in Vineet Kumar v. Mangal Sain Wadhera : [1984]2SCR333 has applied the law which came into operation during the pendency of the litigation. In the present case, I am not called upon to decide this question specifically because it does not arise on facts.

25. The facts of the present case disclose that at the time when the execution came to be levied, the period of exemption under Section 30(1) of the Act had lapsed. The result is, the Act had become applicable to the building in question. If that is so, applying the ratio of the Supreme Court in Vineet Kumar v. Mangal Sain Wadhera : [1984]2SCR333 , the eviction of the defendant cannot but only be in accordance with the provisions of the Act; and admittedly the process of the Act has not yet been resorted to, to evict the defendant. In this view, this revision requires allowing and accordingly the same is allowed. I make no order as to costs. It is up to the defendant/the petitioner herein, to work out his rights on the basis of this order, if in fact, he had been dispossessed as claimed by the plaintiff. Obviously the pronouncement of the Supreme Court referred to above was not rendered at the time Ratnam, J. expressed his views in the decision in Arunachalam v. Kesavan Chettiar : (1983)2MLJ166 . The pronouncements of Benches of this Court and the latest pronouncement of the Supreme Court have got to be followed and applied to the facts of the present case, and I have done it while allowing this revision.


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