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Hazarath Sayed Shamian Sakkab Kadiri Thaikkal, Represented by Its Trustee C.S. Peeran Sahib Vs. T.B. Ibrahim Sahib (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1960)1MLJ475
AppellantHazarath Sayed Shamian Sakkab Kadiri Thaikkal, Represented by Its Trustee C.S. Peeran Sahib
RespondentT.B. Ibrahim Sahib (Died) and ors.
Cases ReferredNagammal v. Govindarajulu Naicker
Excerpt:
.....to section 12. i have referred to section 12 only to emphasise this feature, that even viewed as a contract, the compromise decree could not be relied upon to divest the petitioner of his statutory right under section 9, if he satisfied the requirements of section 9 read with section 10. 9. i have already pointed out that the decree in question in this case is a decree for ejectment within the meaning of section 10. the learned counsel for the respondents contended that even independent of the provisions of section 10, section 9 by itself would apply, because ibrahim was a tenant entitled to compensation against whom a suit in ejectment had been instituted within the meaning of section 9(1) of the act. both sets of contentions of the learned counsel for the respondent were well founded......one in 1930 and the other in 1931. in 1950 the petitioner filed o.s. no. 315 of 1950 to eject the tenant ibrahim from the sites in question and to recover possession of the sites as vacant sites. it should be remembered that ibrahim had put up structures on the sites when he was the tenant. that suit ended in a compromise which was the basis of the decree dated 10th january, 1952. clause 1 of the decree provided that ibrahim should continue in possession as a tenant of the sites for a period of 12 years from 1st january, 1952, on payment of monthly rent of rs. 60.clause 2 ran:on the expiry of the period, i.e., on 31st december, 1963, the defendant do surrender possession of the said properties after removing the superstructure without any right to claim either any renewal of the lease.....
Judgment:

Rajagopalan, J.

1. The petitioner was the landlord who owned the sites which were let to the tenant, Ibrahim Sahib, whose legal representatives have been brought on record as respondents 2 to 13. The vacant sites were leased to Ibrahim Sahib under two lease deeds, one in 1930 and the other in 1931. In 1950 the petitioner filed O.S. No. 315 of 1950 to eject the tenant Ibrahim from the sites in question and to recover possession of the sites as vacant sites. It should be remembered that Ibrahim had put up structures on the sites when he was the tenant. That suit ended in a compromise which was the basis of the decree dated 10th January, 1952. Clause 1 of the decree provided that Ibrahim should continue in possession as a tenant of the sites for a period of 12 years from 1st January, 1952, on payment of monthly rent of Rs. 60.

Clause 2 ran:

On the expiry of the period, i.e., on 31st December, 1963, the defendant do surrender possession of the said properties after removing the superstructure without any right to claim either any renewal of the lease or to any compensation for any superstructure.

Clause 3 ran:

that in default of surrendering of possession on the due date the plaintiff do recover possession through Court of the suit properties.

Clause 4 was ancillary to Clause 1 and provided for the recovery of the rent reserved, Rs. 60 a month, by the institution of a separate suit, should that rent fall into arrears. Clauses 5 and 6 dealt with the question of costs, and Clause 7 with the repayment of the advance paid by the tenant. Clause 8 provided for liberty to have the decree registered, but it is not clear whether either party to the suit took advantage of that provision. The decree in the suit was passed before the provisions of the City Tenants Protection Act III of 1922, as amended by Madras City Tenants Protection (Amendment) Act XIX of 1955, was extended to Tanjore where the properties lay.

2. Act XIX of 1955 which amended Act III of 1922 and provided for the extension of the provisions of Act III of 1922 to areas other than Madras provided for the issue of a Notification by the Government. It was common ground that the Notification extending to Tanjore the provisions of Act III of 1952 as amended by Act XIX of 1955 was issued on 28th March, 1956.

3. Within the statutory limit of one month prescribed by Section 9 of the Act, that is, on 26th April, 1956, Ibrahim preferred an application under Section 9 of the Act. The petitioner landlord contended that the petition was not maintainable. The maintainability of the application was adjudged as a preliminary issue, and by his order, dated 27th August, 1957, the learned District Munsif held that the petition was maintainable and adjourned the proceedings for adjudication of the other points at issue. The petitioner applied under Section 115, Civil Procedure Code, to have the order, dated 27th August, 1957, set aside in revision.

4. The relevant portion of Section 9 runs:

Any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted...may...apply to the Court for an order that the landlord shall be directed to sell the land for a price to be fixed by the Court.

5. The relevant portion of Section 10(1) runs:

Sections 4, 5, 6, 8 and 9 shall apply to suits in ejectment...which are pending or in which decrees for ejectment...have been passed, but have not been executed...

6. The main contention of the learned Counsel for the petitioner was that the compromise decree in O.S. No. 315 of 1950 was not a decree for ejectment within the meaning of Section 10. The learned Counsel pointed out it was a composite decree. Clause 1 of the decree in effect provided for a 12 years' lease during which period the tenant was not liable to be evicted at all. Clauses 2 and 3 provided for the termination of the lease at the end of the twelve years' period, for the surrender of possession on the termination of the lease and for eviction through the process of Court if the tenant failed to deliver possession. The contention of the learned Counsel therefore was that, since on the date Ibrahim preferred his application under Section 9, there was no threat of eviction at all, the petition under Section 9 was not maintainable. The learned Counsel urged that the scheme that underlay Act III of 1922 was that if there was no threat of eviction, the tenant could not claim any right to buy out the landlord. On that basis the learned Counsel urged that the threat to the tenant could materialise in this case only on the expiration of the period of lease for which the parties have contracted, that is, after 31st December, 1963.

7. Plausible though the argument sounds, I am unable to accept it. The question is, what was the statutory right of Ibrahim. The first question is, is he a tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted within the meaning of Section 9(1) of the Act. Section 10 further provides that the provisions of Section 9 shall apply to suits in ejectment in which a decree for ejectment had been passed before the date on which the provisions of Act III of 1922 as amended by Act XIX of 1955 were extended to the territorial area, in this case, Tanjore. The decree in O.S. No. 315 of 1950 was not executed and could not have been executed and ejectment of Ibrahim sought on the relevant date, 28th March, 1956.

8. It is true that the decree in O.S. No. 315 of 1950 was passed upon a compromise between the parties which itself evidenced a fresh contract, a contract entered into before the Act was made applicable to Tanjore. That contract provided for a twelve year lease. The decree thus provided not only for ejectment on the termination of the twelve year period of lease, but also provided for the lease itself. It provided for other things as well. Nonetheless, it would appear to be a decree for ejectment within the meaning of Section 10(1) of the Act, though the execution of the decree could not be claimed till 1st January, 1964. That the decree contained other provisions does not alter the position, that the provision for ejectment, though on a future date, made it a decree for ejectment within the meaning of Section 10. The logical result of accepting the contention of the learned Counsel for the petitioner that if there had been any other provisions in the decree it would not be a decree for ejectment, would really lead to this position, that even a provision for payment of costs, in addition to a provision for ejectment, would take it outside the scope of Section 10(1), because it would not be a decree for ejectment pure and simple. No doubt a contract underlay this decree and the contractual rights and obligations formed the basis of the decree. If Act III of 1922 had not been extended to Tanjore, the parties would be bound by the contract that underlay the decree, in particular the provisions providing for the twelve year lease. But the statutory right for which Section 9(1) provided could be claimed where the Act applied, independent of the terms of contract, subject only to the conditions in the Proviso to Section 12 of the Act. The scheme of the Act thus specifically provides for the statutory right prevailing, notwithstanding any contract to the contrary. I am not called upon to consider at this stage whether the petitioner can bring himself within the scope of the Proviso to Section 12. I have referred to Section 12 only to emphasise this feature, that even viewed as a contract, the compromise decree could not be relied upon to divest the petitioner of his statutory right under Section 9, if he satisfied the requirements of Section 9 read with Section 10.

9. I have already pointed out that the decree in question in this case is a decree for ejectment within the meaning of Section 10. The learned Counsel for the respondents contended that even independent of the provisions of Section 10, Section 9 by itself would apply, because Ibrahim was a tenant entitled to compensation against whom a suit in ejectment had been instituted within the meaning of Section 9(1) of the Act. The fact that that suit ended in a decree which provided for ejectment did not take Ibrahim outside the scope of Section 9(1). The decree for ejectment had not been executed. The learned Counsel relied on the decision of the Full Bench in Syed Oomer Sahib v. Gopaul (1925) 47 M.L.J. 350 : I.L.R. (1925) Mad. 813. The learned Chief Justice pointed out:.the tenant intended by the section is a person who is threatened with ejectment as the result of the legal proceedings instituted against him but has not, in pursuance of those proceedings, been actually ejected. It seems to me immaterial whether or not the proceedings resulted in a decree which might lead, but has not led, to an actual ejectment of the tenant.

10. The learned Counsel referred next to Nagammal v. Govindarajulu Naicker : (1958)1MLJ286 , and pointed out that it could not be claimed that the petition of Ibrahim was premature and that he should have waited till the expiry of the period of lease of 12 years, because the application under Section 9 had to be preferred within one month from the date on which the Notification was issued extending the provisions of Act III of 1922 to Tanjore. Both sets of contentions of the learned Counsel for the respondent were well founded.

11. Thus the position is that, subject to the determination of the question whether the Proviso to Section 12 would apply, the contract of twelve years' lease did not affect Ibrahim's right to prefer an application under Section 9 of the Act. That application was maintainable both under the provisions of Section 9(1) and under Section 10, and under Section 9(1) independent of Section 10. The only question decided by the lower Court was whether the petition was maintainable, and the conclusion reached by the learned District Munsif was, in my opinion, right, and calls for no interference in revision. As I have already pointed out, the other questions in issue between the parties have yet to be determined by the learned District Munsif.

12. One other argument of the learned Counsel for the petitioner remains. He urged that even if the petition was maintainable, the equities in this case would justify consideration of the application after the period of the lease is over, that is, after 1st January, 1964. Under the provisions of Section 9, the relevant period is the seven year period before the date of the order and not before the date of the application. If the basic principle is that the statutory right for which Section 9(1) provides, prevails against the contractual rights and obligations to the contrary, I can see no real justification to direct a postponement of the proceedings in this case so that the period of lease for which the compromise decree provided could first run out.

13. This petition fails and is dismissed with costs.


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