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Mohammed HussaIn Vs. A.K.M. Pitchai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1970)2MLJ663
AppellantMohammed Hussain
RespondentA.K.M. Pitchai
Cases ReferredThangaswamy Chettiar v. Bapoo Sahib
Excerpt:
- .....for redelivery either under section 144 of the code of civil procedure, or under the inherent powers of the court cannot be maintained, and that the mesne profits awarded by the lower court had no basis at all.4. as regards the first contention relating to the maintainability of the application for redelivery, the learned counsel referred to the decision in c.r.p. no. 967 of 1968 where ramaprasada rao, j., had held that in the absence of an express provision or a provision by necessary intendment which would enable a civil court to direct redelivery, the court acting under section 18 of the madras buildings (lease and rent control) act, (hereinafter called the rent control act) did not possess such power. the facts in that case are practically the same as in this case. there.....
Judgment:

G. Ramanujam, J.

1. The above two revisions arise out of two applications filed by the respondent herein, one E.A. No. 1126 of 1968 for redelivery of possession of a house from which the respondent was evicted by the Court and the other E.A. No. 197 of 1969 for recovery of damages or mesne profits. The circumstances under which the above two revisions came to be filed by the petitioner are these:

2. The respondent was a tenant under the petitioner herein. The petitioner filed an eviction petition in H.R.C. No. 1894 of 1967 on the ground of wilful default by the respondent in payment of the rents. There was an ex parte order of eviction on 7th August, 1967. The respondent filed LA. No. 880 of 1967 for setting aside (he said ex parte order. The Rent Controller passed a conditional order setting aside the ex parte order of eviction but : as the conditions were not complied with, the said application was dismissed on 9th November, 1967. Thereafter, in execution of the ex parte order of eviction, the petitioner got delivery of the property through the City Civil Court at Madras on 14th November, 1967 in E.P. No. 1001 of 1967. The respondent filed an appeal, H.R.A. No. 358 of 1967 against the conditions imposed in I.A. No. 880 of 1967 by the Rent Controller for setting aside the eviction order and the said appeal was allowed on 16th November, 1968. As a result of the appellate order, the ex parte order of eviction stood set aside. The respondent thereafter filed E.A. No. 51 of 1968 in the executing Court for redelivery of possession by way of restitution. But in the meanwhile, the petitioner filed C.R.P. No. 298 of 1968 in this Court against the order in H.R.A. No. 358 of 1967 and got interim stay, as a result of which E.A. No. 51 of 1968 was closed by the executing Court. Ultimately C.R.P. No. 298 of 1968 was dismissed on 15th March, 1968 with a direction to dispose of the eviction petition within two months and not to disturb possession of the new tenants inducted by the petitioner in the meanwhile till the disposal of the eviction petition. H.R.C. No. 1894 of 1967 was actually disposed of on merits on 30th December, 1968 directing the parties to establish their right in a civil suit as it was found that there was a prima facie dispute between the parties as regards the title to the properties. The petitioner filed an appeal against that order in H.R.A. No. 264 of 1968, but without success. He also filed C.R.P. No. 762 of 1968 in this Court against the appellate order in H.R.A. No. 264 of 1968 but the same was also dismissed on 4th June, 1969. He thereafter filed O.S. No. 6369 of 1968 to establish his title to the property in pursuance to the order in H.R.C. No. 1894 of 1967 and obtained an interim injunction in I.A. No. 18525 of 1969 which was later on 19th August, 1969. It is under these circumstances the respondent filed E.A. No. 1126 of 1968 for redelivery, and E.A. No. 197 of 1969 for damages or mesne profits, invoking the provisions; of Sections 144 and 151 of the Code of Civil Procedure. The lower Court by its common order not only directed redelivery of possession but also ordered payment of mesne profits at the rate of Rs. 100 per month from 30th October, 1968 till the date of redelivery. C.R.P. No. 92 of 1970 is against the order in the first application and C.R.P. No. 93 of 1970 is against the order in the second application.

3. The learned Counsel for the petitioner in both the cases contended that an. application for redelivery either under Section 144 of the Code of Civil Procedure, or under the inherent powers of the Court cannot be maintained, and that the mesne profits awarded by the lower Court had no basis at all.

4. As regards the first contention relating to the maintainability of the application for redelivery, the learned Counsel referred to the decision in C.R.P. No. 967 of 1968 where Ramaprasada Rao, J., had held that in the absence of an express provision or a provision by necessary intendment which would enable a civil Court to direct redelivery, the Court acting under Section 18 of the Madras Buildings (Lease and Rent Control) Act, (hereinafter called the Rent Control Act) did not possess such power. The facts in that case are practically the same as in this case. There was an ex parte order of eviction and pursuant thereto the landlord took possession of the property and the tenant, after succeeding in having the ex parte order set aside, applied to the Court for redelivery under Section 144 of the Code of Civil Procedure and the Court directed redelivery. That order was set aside by Ramaprasada Rao, J., accepting the contention of the petitioner (landlord) that the Legislature not having chosen to provide for such a situation, the Court acting under Section 18, cannot order restitution invoking the power under Section 144. The learned Judge has referred to the decision of a Division Bench of this Court in Mayilsami Geunder v. Rammoorthi : (1970)1MLJ606 , in support of his view. Mayilsami Gounder v. Rammoorthi : (1970)1MLJ606 , arose under the Madras Cultivating Tenants Protection Act of 1955 and there, while considering the scope of the power under Section 4 (5) of the said Act, the learned Chief Justice speaking for the Bench had expressed that unlike Courts of law which would have inherent powers, although there is no specific enabling statutory provision, the position of statutory bodies entrusted with specific powers is entirely different, that the powers of such a statutory body are entirely limited and controlled by the statute which confers them, that it cannot act outside the limits of the statute creating it and that it is another matter if on a construction of a statutory provision an inference therefrom can be made of an ancillary or necessary power to execute the main purpose covered by the statute but that such a principle will be inapplicable to construction of Section 4 (5) of the Act. The question that arose for decision in that case was whether the Revenue Divisional Officer acting under Section 4 (5) of the said Act had jurisdiction to order restoration in case the order of eviction in execution of which possession was delivered was reversed by the appellate Court.

5. In similar circumstances, Alagiriswami, J., in Raso Moopanar v. Ramamurthy Iyer (1967) 1 M.L.J. 257 : I.L.R. (1968) Mad. 571, had taken the view that because, as would be obvious from the Act, the Legislature was so particular about protecting the rights of cultivating tenants, it would be reasonable to infer that it did not intend that a cultivating tenant who had been evicted from his holding in pursuance of an order of eviction which is subsequently found to be wrong, should be left helpless without any remedy to get possession of the holding iron) which he has been so evicted. The said view was not accepted by the Division Bench as in its view there is an express limitation upon the scope of the power conferred by Section 4 (5) of the Madras Act XXV of 1955 and notwithstanding the express exclusion of a case of eviction under Section 3 (4) the Court cannot impute an intention on the part of (he Legislature so as to enable the Court to infer an inherent power to put the tenant in possession who has been evicted in execution of an order under Section 3 (4) of the Act. Ultimately the Bench concluded by saying:

It may be unfortunate that notwithstanding the reversal of the eviction order the tentant is unable to get restoration. But, it is for the Legislature to provide for the situation.

6. As against this, the learned Counsel for the respondent brings to my notice a decision in Thangaswamy Chettiar v. Bapoo Sahib : (1949)2MLJ699 , where Horwill and Balakrishna Ayyar, JJ. had dealt with the identical question as the one arising in this case and had held that an application for restitution is an application for execution, that once execution proceedings under the Rent Control Act are placed in the hands of ordinary Courts, all the provisions of the Code of Civil Procedure, relating to execution would apply mutatis mutandis so far as the machinery set up by that Act and provisions thereof permit, that the Courts will not permit a suitor to suffer by reason of a Wrong order it has made and when once the error is discovered it will, as far as possible, put him in the position which he would have occupied if the order had not been made, and that the right to restitution is not derived from Section 144 of the Code of Civil Procedure, which only prescribed the method of enforcing that right. There the learned Judges have cited with approval the following passage from the decision in Birendranath Basu Thakur v. Surendrakumar Basu Thakur I.L.R. (1940) Cal. 486:

The power of a Court to direct restitution is inherent in the Court itself. It rests on the principle that a Court of justice is under a duty to repair the injury done to a party by its act : Badger V. The Compotoir D' Escomptede Paris L.R. (1871) 3 P.C. 465, and Jai Barham v. Kedar Nath Marwari (1922) 44 M.L.J. 735 : (1922) L.R. 49 318. IndAp 351. The right of a party to have restitution and the duly of the Court to give him restitution do not rest on the provision of Section 144 of the Civil Procedure Code, which defines the procedure only in one class of cases requiring restitution by enacting that the application for restitution is to be made in the Court of first instance.

The ratio of the decision in Thangaswami Chettiar v. Bapoo Sahib : (1949)2MLJ699 , is based on the well-known principle that once a matter comes before a regular civil Court, its further course will be governed by the provisions of the Code and all the ordinary incidents of procedure of that Court will apply to that matter, as also the fact that an application for restitution is treated as an application for execution of a decree and is governed by Article 182 of the Limitation Act.

7. In Narayanaswami v. Renuka Devi I.L.R. (1960) Mad. 512 : (1960) 2 M.L.J. 318, another Division Bench of this Court consisting of Balakrishna Ayyar and Subramanyam, JJ. had also take the view that though a Rent Controller who passed an order of eviction under Section 7 of the Madras Buildings (Lease and Rent Control) Act, 1949 is not a civil Court, when once such an order is before a civil Court in execution, the provisions of the Code of Civil Procedure relating to execution would apply to such proceedings in execution except to the extent to which such procedure is modified by any express provisions of the Rent Control Act, and that a suit to set aside a summary order in execution under that Act was maintainable under Order 21, Rule 103 of the Code.

8. The learned Counsel for the respondent also contends that even if Section 144 of the Code cannot be invoked in this case, he is entitled to invoke the inherent power of the Court for correcting its own error and in support of that proposition he referred to a decision of the Calcutta High Court in A. Mullick v. Samsher Ali 66 C.W.N. 1068. In that case there was an order for ejectment by the trial authority under the West Bengal Land Reforms Act, 1955 and the appellate authority reversed it and sent the matter back to the trial authority for rehearing. But in the meantime, the owner got possession of the property in execution of the order of ejectment. The order in ejectment having been set aside, the opposite party claimed restitution and the question was to which authority should the opposite party apply for such restitution, and the Court held that the executing authority had the power to direct restitution. The learned Judge had observed:

Every Court has an inherent power to repair the injury made to a party by its act and it is the executing Court which has done the injury by executing an order of the trial authority which has subsequently been found to be wrong and in that view of the matter, the executing authority has the inherent power to remedy the wrong committed by itself. Therefore, the executing authority is the proper authority where the application for restitution should be made.

The learned Counsel also refers to the following passage from the decision of the Judicial Committee in Jai Barliam v. Kedar Math Marwari :

The right of a party to have restitution and the duty of the Court to give him restitution do not rest on the provision of Section 144 of the Code of Civil Procedure, which defines the procedure only in one class of cases requiring restitution.

in support of his plea that the Court has got inherent power to direct redelivery. My attention was also invited to another decision of Ramaprasada Rao, J., in Ramaswamy Iyer v. Ramakrishnayya : (1969)2MLJ272 , wherein it has been laid down that the proceedings in execution of the order of eviction passed under the Rent Control Act, once initiated before the civil Court under Section 18 of the said Act, are controlled by the provisions of the Limitation Act.

9. On a due consideration of the rival contentions of the parties on this point, I am inclined to follow the decision of the Bench in Thangaswamy Chettiar v. Bapoo Sahib : (1949)2MLJ699 . With due respect I cannot accept the contrary view taken by my learned brother, Ramaprasada Rao, J., in C.R.P. No. 967 of 1968 relying on the decision of the Division Bench in Mayilsami Gounder v. Rammoorthi : (1970)1MLJ606 , which dealtwith the power of the Revenue Divisional Officer, an authority constituted under the Madras Act XXV of 1955, to order restitution and held that he had no such power for the reason that he is bound by the provisions of the statute, that he cannot act outside the Act and that statutory Tribunals had no inherent powers to order restitution. I am not in a position to apply the principle of that decision dealing with the powers of statutory Tribunals, to the facts of the present case where the eviction order had been executed by a civil Court under the provisions of Section 18 of the Madras Buildings (Lease and Rent Control) Act, which enables the civil Court to execute an order of eviction as if it were a decree passed by that Court. Once the eviction order is treated as a decree of Court and taken to a civil Court for execution as per Section 18, such proceedings will be governed by the provisions of the Code of Civil Procedure, relating to execution of decrees so long as the provisions of the Rent Control Act did not modify or restrict the power of the civil Court under the Code. It is well established that an application for restitution is treated as an application for execution. Unlike under the Madras Act XXV of 1955 the order of eviction passed under the Rent Control Act has been specifically made executable only in a civil Court and there is no provision in the Act itself curtailing or modifying its powers under the Code in matters of execution. It is because of this special feature by which an order of eviction is brought before a regular Court for execution, Ramaprasada Rao, J., had held in Ramaswamy Iyer v. Ramakrishnayya : (1969)2MLJ272 , that the provisions of the Limitation Act would become applicable to the proceedings for eviction arising under the Rent Control Act. This is also the view taken by the Division Bench in Thangaswamy Chettiar v. Bapoo Sahib : (1949)2MLJ699 . But I find that the said Bench decision was not brought to the notice of Ramaprasada Rao, J., in C.R.P. No. 967 of 1968. I therefore hold that the lower Court had the power to order restitution under its inherent powers and direct redelivery under Section 144 of the Code of Civil Procedure, following the decision in Thangaswamy Chettiar v. Bapoo Sahib : (1949)2MLJ699 .

10. As regards the question whether the lower Court was justified in directing the payment of damages at the rate of Rs. 100 per month from 30th October, 1968, the learned Counsel for the petitioner stages that the lower Court has fixed the mesne profits at the rate of Rs. 100 per month taking the rent paid by the new tenant who has occupied the premises subsequent to the petitioner taking delivery of the property and that such basis is wrong. It is pointed out that the damages or mesne profits would be the loss that the respondent had sustained as a result of the execution of the order of eviction. It is admitted by the respondent (tenant) that he was paying a sum of Rs. 70 per month before he was evicted and it has been averred by him in his application that he has been paying a sum of Rs. 125 per mensem for the alternate accommodation, which fact has not been denied by the petitioner. From the above figures as to the rentals, it is seen that the petitioner has been profited to the extent of only Rs. 30 per month as he is receiving a sum of Rs. 100 per month from the new tenant as against Rs. 70 he was receiving from the respondent. The petitioner's learned Counsel says that if at all the petitioner may be asked to disgorge the additional amount received by him at the rate of Rs. 30 a month, but that he should not be asked to pay Rs. 100 per month ignoring the fact that the respondent was paying Rs. 70 per month for his occupation. Though I agree with the learned Counsel for the petitioner that the fixation of damages at Rs. 100 per month cannot be sustained in the circumstances of this case, I do not think the excess amount of Rs. 30 per month which he had collected in excess of the rent of Rs. 70 a month paid by the respondent at the time of eviction, should form the basis for fixing the quantum of damages. The basis for fixing the damages in this case should be the loss suffered by the respondent. The respondent has been made to pay a sum of Rs. 120 per month for the alternate premises as against Rs. 70 which he was paying before he was evicted from the premises in question, the damage the respondent is suffering as a result of the eviction has to be taken as Rs. 50 per month and the damages have to be worked out only on that basis. I therefore modify the order of the lower Court in this respect and direct the petitioner to pay mesne profits at the rate of Rs. 50 per month from 30th October, 1968 till the date of delivery. But this Judgment will be without prejudice to the contentions of either parties in O.S. No. 6369 of 1968 on the file of the City Civil Court, Madras and in the interlocutory applications therein.

11. In the result, Civil Revision Petition No. 92 of 1970 is dismissed, and Civil Revision Petition No. 93 of 1970 is partly allowed. There will be no orders as to costs.


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