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Thalai Vadivu Anandar Vs. Venugopala Chettiar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1960)1MLJ356
AppellantThalai Vadivu Anandar
RespondentVenugopala Chettiar
Cases ReferredIn Muhammadunny v. Melapurakkal Unniri
Excerpt:
- - as the respondent failed to deliver possession by the prescribed date, the plaintiff-decree-holder filed e. if that is so, it is for the appellant to ask the court which is threatening to evict him to stay his hands (whether it is bound to do so or not is not a matter on which i am expressing any opinion); not to come in appeal against an order which is perfectly proper and legal. narayanaswami ayyar, learned counsel for the appellant, contended, relying upon the well-known rule against implying retrospective operation of statutes, that section 7 of the act would only apply to decree passed in suits filed after the passing of the act. we fail to see how the principle against retrospective operation is offended in this case......implying retrospective operation of statutes, that section 7 of the act would only apply to decree passed in suits filed after the passing of the act. in this case admittedly the decree was passed long before the act, and even an execution petition had been filed before the act came into force. we cannot agree with this contention of learned counsel for the appellant. na authority has been cited to us for this extreme position that section 7 would not apply except to decrees passed in suits filed after the passing of the act. on the other hand a division bench of this court held in sukri sahib v. madhava kurup : (1924)46mlj560 , that a provision similar to section 7 of the act of 1949 might bar the eviction of a tenant in execution of a decree passed in a suit filed before the.....
Judgment:

P.V. Rajamannar, C.J.

1. This Appeal against the Judgment of Panchapakesa Ayyar, J., in C.M.S.A. No. 130 of 1954 arises in the following circumstances. One Marudappa Chettiar filed O.S. No. 675 of 1952 in the Court of the District Munsif, Tiruchirapalli, against Venugopala Chettiar, the respondent herein, for recovery of possession of the property in dispute and for past and future rents. In that suit the parties entered into a compromise and based on that compromise the Court passed a decree directing the respondent herein to deliver possession of the property by 15th March, 1954 and also to pay past and future rents. As the respondent failed to deliver possession by the prescribed date, the plaintiff-decree-holder filed E.P. No. 240 of 1954 on 18th March, 1954, for delivery of possession. An order for delivery was passed on 12th April, 1954, directing delivery by 10th Jnne, 1954. On 15th April, 1954, the respondent filed an appeal to the District Court, Tiruchirapalli, against the order for delivery (A.S. No. 177 of 1954). In that appeal he obtained on ex parte order of stay on 15th April, 1954, itself. On 27th May, 1954, the original decree-holder Marudappa Chettiar died. On 8th July, 1954, the District Court dismissed A.S. No. 177 of 1954 on the ground that the order of delivery was right. The learned Judge inter alia observed as follows:

The right given to a tenant by Section 7 of the Act is a substantive right and there is nothing in the Act to indicate that it is retrospective in the application. Therefore, there can be no question of applying the provisions of the Act, so as to hold that the order of delivery passed against the appellant is wrong. It is urged that Section 7 not merely vests a right in the appellant but prohibits the Court from evicting him. If that is so, it is for the appellant to ask the Court which is threatening to evict him to stay his hands (whether it is bound to do so or not is not a matter on which I am expressing any opinion); not to come in appeal against an order which is perfectly proper and legal.

2. Apparently the view taken by the learned District Judge was that Section 7 of the Madras Buildings (Lease and Rent Control) Act would not make the original order for possession ipso facto invalid, but it might be that the judgment-debtor could object to actual eviction in pursuance of the order. After the dismissal of his appeal the respondent filed an application, E.A. No. 845 of 1954 on 12th July, 1954, for Stay of execution. Meanwhile the son of Marudappa Chettiar, the present appellant before us, filed an application on the same day that he may be added as legal representative of the decree-holder praying for a decree directing delivery of possession of the suit property to him. The ground taken by the respondent was that the Rent Control Act had been extended to the village in which the property was situated on and from 16th June, 1954 and therefore the decree-holder's legal representative could not evict him. The learned District Munsif of Tiruchirapalli overruled the respondent's objection and brought the appellant before us as the legal representative of the deceased decree-holder and passed again another order for delivery of possession to the legal representative. Against this order of the District Munsif the respondent filed an appeal, A.S. No. 261 of 1954 which was heard and disposed of by the learned Subordinate Judge of Tiruchirapalli. He dismissed the appeal on the ground that Section 7 of the Act would not apply to pending execution proceedings, that is to say, to the prior execution petition wherein an order for eviction had already been passed. From this order the respondent preferred an appeal to this Court, C.M.S.A. No. 130 of 1954 which came up for decision before Panchapakesa Ayyar, J. The only question argued before him was whether the Rent Control Act whose application had been extended to the village in which the property was situated only on 16th June, 1954, would prevent the eviction of Venugopala Chettiar except in accordance with Section 7 of that Act. The learned Judge after an elaborate discussion of the several decisions cited before him held that Section 7 of the Act does apply and is a complete answer to the claim of the decree-holder's legal representative to evict the respondent. The learned Judge therefore allowed the appeal and dismissed the execution petition filed by the decree-holder's legal representative but granted leave to file a Letters Patent Appeal.

3. Mr. A.V. Narayanaswami Ayyar, learned Counsel for the appellant, contended, relying upon the well-known rule against implying retrospective operation of statutes, that Section 7 of the Act would only apply to decree passed in suits filed after the passing of the Act. In this case admittedly the decree was passed long before the Act, and even an execution petition had been filed before the Act came into force. We cannot agree with this contention of learned Counsel for the appellant. Na authority has been cited to us for this extreme position that Section 7 would not apply except to decrees passed in suits filed after the passing of the Act. On the other hand a Division Bench of this Court held in Sukri Sahib v. Madhava Kurup : (1924)46MLJ560 , that a provision similar to Section 7 of the Act of 1949 might bar the eviction of a tenant in execution of a decree passed in a suit filed before the concerned statute. In that case the suit was filed in 1943 for eviction of the tenant. On 11th July, 1944, Clause 8 of the Madras Non-Residential Buildings Rent Control Order, 1942, was amended and when so amended the clause ran as follows:

A tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree or otherwise...except in accordance with the provisions of this clause.

4. 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 principle. 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. The observations of Sulaiman, J., in The United Provinces w. Mt. Atica Begaun (1941) 1 M.L.J. Sup. F.C. 65, were relied on behafore the Division Bench but the learned Judges did not agree that the observations in any way affected their decision. Actually in that case the decree was passed after Clause 8 of the Non-Residential Buildings Rent Control Order had been amended in the manner aforesaid. The execution petition was filed subsequently. The decision of the learned Judge was that Clause 8 prohibited the decree-holder from filing an execution petition, his only way of evicting the tenant being to file an application before the Rent Controller. 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. Mr. Narayanaswami Ayyar relied upon the decision of Mockett, J., in Moothaliandan Chetti v. Venkatesam Chetti : AIR1945Mad386 . In that case the Chief Judge of the Court of Small Causes dismissed an application for ejectment. That application was filed on 18th March, 1944. There was a sub-letting of a portion in June, 1943. Possession was to be given on 14th April. On 14th April the plaintiff when he sought to obtain possession was obstructed by the respondent. Thereupon an application was made to the Small Cause Court and that Court dismissed the application. The learned Judge adverted to the difference in the language between the old Section 7-A, Madras House Rent Control Order and the new Section 7-A. The learned Judge took the view that the Small Cause Court had no jurisdiction to invoke the new provision and construe it to operate retrospectively. He allowed therefore the revision petition before him and set aside the order of the Small Cause Court. In the concluding portion of his judgment there are certain observations which really are pertinent for the disposal of this case, namely:

If and when an application for possession comes before the Controller, the Controller should apply his mind to the circumstances actually and presently 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 has been made, difficulties which were then not in existence had arisen or difficulties that were in existence had disappeared.

5. We must confess we are not able to fully appreciate the scope of these observations. The Division Bench in Md. Sukri Sahib v. Madhava Kurup : (1924)46MLJ560 , understood this passage thus:

It is seen from this passage that the learned Judge, far from thinking that the landlord had, by the institution of his 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.

In Muhammadunny v. Melapurakkal Unniri : (1949)1MLJ452 , it was pointed out by a Division Bench to which one of us was party that the jurisdiction of a Civil Court to entertain and pass a decree in a suit for eviction by a landlord against his tenant is not expressly or impliedly taken away and that Clause 8 of the Madras Non-residential Buildings Rent Control Order, which corresponds to Section 7 of the Madras Buildings (Lease and Rent Control) Act, 1949, prevents the tenant from being thrown out. One of the methods of eviction is by the process of execution of a decree for possession and it was held that this method was prohibited and eviction could only be in accordance with the provisions of the Rent Control Order.

6. In our opinion this appeal can be disposed of on a very short point. This appeal arises out of an execution petition filed on 12th July, 1954, (E.P. 240 of 1954) by the legal representative of Marudappa Chettiar. There was no doubt a prior execution petition filed by Marudappa Chettiar himself and an order for eviction but admittedly the respondent had not been evicted in pursuance of that order. That is why after the death of Marudappa Chettiar his legal representative, the appellant before us, was compelled to file another execution petition praying for delivery of possession. That admittedly was filed after the Rent Control Act had come into operation in the village in which the property was situated. We fail to see how the principle against retrospective operation is offended in this case. It is not as if during the pendency of E.P. No. 240 of 1954, out of which this appeal arises, that the Rent Control Act came to be extended to the suit village. By the date of the filing of the present execution petition the Act had come into force. The executing Court which was bound to apply the provisions in the statute had come into force even before the date of the execution petition which it was called upon to dispose of. In our opinion there is no substance in the contention of learned Counsel for the appellant.

7. It was argued but without the support of any authority that Section 7 would not apply to compromise decrees. Once a decree is passed, we can see no difference on principle between a decree passed on a compromise and a decree passed after contest.

8. Mr. Narayanaswami Ayyar sought to raise a new point which was not raised by him in the Courts below and not even in the memorandum of appeal, namely, that as the respondent had obtained a stay of the order for delivery passed by the learned District Munsif of Tiruchirapalli on 15th April, 1954, on the misrepresentation that the Rent Control Act had been extended to the suit village, he was disentitled to any relief based on the provisions of the Act. We do not have the order of stay passed by the learned District Judge nor a copy of the affidavit filed by the respondent in support of his application. We do not know what prompted the learned District Judge to pass the ex parte order. In the absence of even a specific ground in the Letters-Patent Appeal, we do not think the appellant should be allowed to raise a new point at this late stage. The appeal fails and is dismissed with costs.


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