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Gurumurthi Iyer and ors. Vs. M.K. Subramania Chetti - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1967)2MLJ322; (1967)2MLJ64
AppellantGurumurthi Iyer and ors.
RespondentM.K. Subramania Chetti
Cases ReferredAmerican Economic Laundry v. Little L.R.
Excerpt:
- - 1. this revision proceeding raises a very interesting question whether, within the scheme of madras act xviii of 1960, the legal representative of a tenant, who has come on record as such, in the executing court, with regard to a decree for eviction obtained by the landlord, can put forward an independent ground in his favour of protection from eviction which is expressly embodied in the statute itself......for eviction against these persons, if so advised if the rent control court then passed a decreed eviction against those person, after due enquiry, that decree is certainly capable of being executed i am stating this as it is claimed that one of these two persons has been allotted other accommodation, and that he is not entitled to claim the statutory protection. i am not making any comment on these controversies concerning the merits, which will obviously have to be tried out elsewhere.8. but the learned counsel for the landlord claims that it is not open to these persons to invoke the statutory protection under section 10(4)(i), though they may be within that category, because they are liable to be evicted as the legal representatives of the deceased tenant. the decision in.....
Judgment:
ORDER

M. Anantanarayanan, C.J.

1. This revision proceeding raises a very interesting question whether, within the scheme of Madras Act XVIII of 1960, the legal representative of a tenant, who has come on record as such, in the executing Court, with regard to a decree for eviction obtained by the landlord, can put forward an independent ground in his favour of protection from eviction which is expressly embodied in the statute itself. The facts are as follows;-

2. A decree for eviction originally obtained against one Sengamalammal (since deceased) is now being executed under the provisions of Section 18 of Madras Act XVIII of 1960. It is not in dispute that the decree is executable in that form and that it is executable against the legal representatives of the deceased tenant, who were residing with her up to the time of her death in the same building. For when we look into Section 2(8) of the Act, we find that the word 'tenant' is defined inter alia as including the 'legal representatives of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family 'up to the death of the tenant.

3. One point urged by the learned Counsel for the revision petitioners is that revision Petitioners 2 to 5 (legal representatives of the deceased Sengamalammal) could not have been brought on record as such, in the executing Court, but admittedly, this objection is of a very formal nature and need not detain us. The sons of deceased Sengamalammal, her legal representatives, are now on record as such. By virtue of the definition I have quoted, they are also tenants under Madras Act XVIII of 1960. There can be no doubt whatever, that, ordinarily, they would be liable to be evicted under the decree for eviction to obtained against Sengamalammal herself.

4. But the special circumstance is that two of these persons are alleged to be Government servants employed in essential services. There is a special statutory rule against eviction, in favour of such persons, enacted in Section 10(4)(i) of the Act. No doubt, the statute merely states that

no order for eviction shall be passed under Sub-section (3) against any tenant who is engaged in any employment... notified by the Government as an essential service.

5. That means that, if the proceedings had been initiated against these sons of Sengamalammal in the first instance, no order for eviction could have been passed against these two persons, taking it as conceded for this argument that they are persons employed in essential Government service within the scope of Section 10(4)(i). It is possible to argue that, while there is a statutory protection against the passing of an order of eviction, there is no statutory protection in explicit terms, against the execution of an order for eviction. But I take it that the intendment of the protection constrains us to conclude that no order for eviction can, on stronger grounds, be executed against such a tenant, who is residing in the premises. This is all the more so, because what has happened in the case is that these two persons have been virtually recognised as tenants by the landlord in consequence of payments of rent subsequent to the death of Sengamalammal.

6. In this state of affairs, it appears to me that the only issue of fact that the executing Court can conceivably decide is whether these persons come within the scope of Section 10(4)(1) as a fact, or otherwise. If the executing Court finds: that they are not so protected, the decree for eviction can certainly be executed against them. The learned Counsel for the revision petitioners does not dispute this. But if the executing Court finds that the claim to the statutory protection on behalf of these persons is true, then I am unable to see how executing Court can execute the decree in manner which is contrary to law. It will have to record the fact, and decline to execute the decree against the protected person.

7. The landlord will then have to proceed to the Rent Control Court itself by initiating a separate proceedings for eviction against these persons, if so advised If the Rent Control Court then passed a decreed eviction against those person, after due enquiry, that decree is certainly capable of being executed I am stating this as it is claimed that one of these two persons has been allotted other accommodation, and that he is not entitled to claim the statutory protection. I am not making any comment on these controversies concerning the merits, which will obviously have to be tried out elsewhere.

8. But the learned Counsel for the landlord claims that it is not open to these persons to invoke the statutory protection under Section 10(4)(i), though they may be within that category, because they are liable to be evicted as the legal representatives of the deceased tenant. The decision in American Economic Laundry v. Little L.R. (1951) 1 K.B. 400 is relied on in support. That case seems to have very little to do with the present situation. That was a case in which, during a period of suspension of a final order for possession under the Rent Restriction Act the tenant died, but his a daughter, who had been living with him continuously for some years before his death, continued to occupy the premises, and claimed certain privileges in the capacity of a tenant, within the scope of a particular statutory definition. It was held that the daughter could not claim this protection as a statutory tenant holding over after the making of the order for possession, did not have all the rights conferred by the Rent Restriction Acts, during that period. That case has nothing to do with the present situation under Section 10(4)(i) of Madras Act XVIII of 1960. Here we have a specific statutory protection in favour of a party, within the scope of the sub-section, and I hold that that is a protection not merely against the passing of an order for eviction but impliedly, and on stronger ground, against the execution of an order for eviction.

9. This Revision Petition has therefore to succeed to a limited extent with regard to the two persons claiming protection. The executing Court may now try their alleged status, and arrive at a finding and further proceed as I have earlier directed. If the executing Court finds that any person is entitled to the statutory protection, it cannot execute the decree against him. The landlord must have recourse to the Rent Control Court, for separate eviction proceedings. Ordered accordingly.

10. No costs.


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