N. Krishnaswamy Reddy, J.
1. The appellant-accused Vedagiri, who was convicted by the Third Presidency Magistrate, Madras, under Section 17 (3) read with Section 33 (i) of the Madras Buildings (Lease and Rent Control) Act, 1960, hereinafter called the Act and sentenced to pay a fine of Rs. 500 in default to suffer simple imprisonment for one month, has preferred this appeal.
2. The prosecution case is this: The respondent filed a private complaint against the appellant alleging that he (the appellant) contravened the interim order passed by the Rent Controller (VI Judge, Court of Small Causes, Madras) in LA. No. 549 of 1969 in H.R.C. No. 929 of 1969, directing him to restore the supply of electricity to the handloom factory, which was in the occupation of the complainant as tenant.
3. It was contended by the appellant before the learned Presidency Magistrate that though an interim order passed by the Rent Controller, directing him to restore the supply of electricity, he immediately filed an application to set aside the interim order, that in pursuance of the third proviso to Rule 18 (3) of the Madras Buildings (Lease and Rent Control) Rules, 1961, (hereinafter called the Rules), the execution proceedings in consequence of the said interim order get automatically stayed, and that therefore he did not restore the supply of electricity as directed by the interim order. The appellant admits that the interim order was served on him. There is also no dispute that the appellant filed an application to set aside the order, and it is pending before the Rent Controller.
4. It may be necessary, in view of the contentions raised by the appellant to consider the relevant provisions of the Act and the Rules. Section 17 of the Act runs thus:
(1) No landlord shall, without just or sufficient cause cut off or withhold any of the amenities enjoyed by the tenant or be in any way responsible for the amenities being cut off or withheld.
(2) A tenant in occupation of a building may, if the landlord has contravened the provisions of this section, make an application to the Controller complaining of such contravention.
(3) If the tenant satisfies the controller that the amenities were cut off or withheld or cause to be cut off or withheld with a view to compel him to vacate the building or to pay an enhanced rent or to harass him, the Controller may pass an interim order, directing the landlord to restore the amenities immediately, pending the enquiry referred to in Sub-section (4).
Explanation.---An interim order may be passed under sub-section without giving notice to the landlord.
It is, therefore, clear from these provisions that when a landlord had cut off the amenities without just or sufficient cause, the aggrieved tenant in occupation of the building may file an application for restoration of the amenities, and while such application is pending, an interim order in the circumstances mentioned in Sub-section (3) of Section 17 of the Act may be passed directing the landlord to restore the amenities without giving notice to the said landlord. It cannot be disputed that the order passed under Section 17 (3) of the Act is an enforceable and executable one. However, the learned Counsel for the respondent submits that it would refer to only executable orders and not enforceable orders. I do not see any difference between these two.
Section 33 (1) is in the following terms:
If any person contravenes any of the provisions of sub-sections... or any order under Sub-section (3) of Section 10, or Sub-section (3) of Section 17... he shall be punishable with fine which may extend to one thousand rupees.
This section makes it clear that contravention of an order passed under Section 17 (3), viz., an interim order mentioned therein, be punishable with fine. If these two sections stood alone, the prosecution in this case may be justified.
5 It is, therefore, necessary to refer to the relevant rules framed under the Act which provides a safeguard in cases where a bona fide landlord without notice aggrieved by an interim order similar to the one in the instant case files an application to set aside the interim order.
6. Rule 18 (3) of the Rules runs thus:
In any case in which an order is passed ex parte against a tenant or a landlord, or an order of dismissal for default is passed by the Controller, then the party affected may, within thirty days from the date of the order, or if he satisfied the Court that he knew of the order only on a subsequent date, within thirty days from the date of such knowledge apply to the Controller by whom the ex parte order or the order of dismissal was passed, for an order to set it aside; and if he satisfies the Controller that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called on for hearing or that such default was occasioned due to circumstances beyond his control, the Controller shall make an order setting aside the ex parte order or the order of dismissal passed, as the case may be, upon such terms as to costs, payment into Court or otherwise as the Controller thinks fit and shall appoint a day for proceeding with the application.
(Provisos 1 and 2 are omitted, as not being relevant).
Proviso 3 runs thus:
Provided also that where an application for setting aside an ex parte order or order of dismissal for default has been received under this sub-rule for the first time all execution proceedings in pursuance of the ex parte order or order of dismissal for default shall be stayed until the disposal of the application.
Rule 18 (3) gives a right to the aggrieved party in respect of an order passed ex parte or order of dismissal for default, as the case may be. The proviso makes it clear that when such application has been filed for the first time, pending disposal of the said application, the execution proceedings in pursuance of such ex parte order or order of dismissal for default shall be automatically stayed. Taking into consideration the facts of this case, viz., that an interim order has been passed against the appellant directing him to restore the supply of electricity and that within thirty days of the passing of such an ex parte order, the application of the aggrieved party, viz., the appellant, having been filed, applying the proviso 3 to Rule 18 (3), it would appear that the execution proceedings were stayed. By virtue of this proviso, the aggrieved party is not expected to file a separate application for stay, and the Rent Controller need not pass a specific order of stay.
7. The real question that is mooted out in this case is whether there is a bar of prosecution by virtue of the stay of the execution proceedings in pursuance of the proviso to the said rule. It is true that the proviso does not specifically say that the prosecution shall also be stayed. It merely says that the execution proceedings shall be stayed. There is also a difference between execution and prosecution. In a particular case execution proceedings may be taken, but prosecution may not be instituted, similarly, prosecution may be instituted, but execution may not be taken; or both may be taken simultaneously.
8. I am the view that if the execution proceedings in pursuance of the interim order are stayed by virtue of the said proviso 3 to Rule 18 (3), the interim order becomes unenforceable. That means, the appellant, who was directed by the interim order to restore the electric supply, need not restore the supply of electricity, as the application filed by him to set aside the ex parte order automatically stayed the interim order by virtue of the proviso 3 to Rule 18 (3) of the Rules. If by virtue of the said proviso, the interim order became unenforceable and unexecutable and as already pointed out by me, if Section 33 (1) of the Act can be invoked only in respect of enforceable orders, and in this case, there being at the time of the prosecution, no enforceable or executable order, the prosecution is certainly barred.
9. Sadasivam, J., in Criminal R.C. No. 118 of 1967 observed as follows:
It is clear from the proviso to the said clause that, where an application for setting aside the ex parte order is received under the said rule for the first time, execution proceedings in pursuance of the ex parte order shall be stayed until the disposal of the application. Thus, the respondent-tenant could not enforce the interim ex parte order obtained by him against the petitioner. It could not therefore be said that the petitioner was bound to obey the ex parte order, which has been stayed, and it cannot be executed pending the disposal of the said application.
That was a case of the prosecution under Section 17 (3) of the Act. Ultimately, the learned Judge set aside the conviction and sentence of fine imposed on the accused in that case. I am in respectful agreement with the observations made by the learned Judge.
10. In the result, the appeal is allowed, the conviction and sentence are set aside, and the appellant is acquitted. Fine, if already paid, will be refunded to the appellant.