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Muthiah Nattar Vs. N.S. Ibrahim Rowther Alias N.S. Mohammed Ibrahim and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1968)1MLJ190
AppellantMuthiah Nattar
RespondentN.S. Ibrahim Rowther Alias N.S. Mohammed Ibrahim and anr.
Cases ReferredKesavalu v. Rajaram
Excerpt:
.....explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise. --..........to as the landlord. the tenant's application for such restoration was under section 4(5) of the madras cultivating tenants protection act, 1955. this application was filed on 17th july, 1962, on the ground that he was wrongfully dispossessed from such lands on 14th july, 1962. under section 4(5), a petition for restoration has to be filed within two months from the date of dispossession. to this application, the landlord filed a counter on september 19, 1962, which by itself was beyond two months from the date of dispossession, inter alia alleging that the tenant voluntarily surrendered the lands in question in march, 1962, and that on april, 1962> he entered into an agreement of sale of the lands with the third party and that the third party was ever since in possession of the lands......
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The third party who was sought to be impleaded by the petitioner-tenant, hereinafter referred to as the tenant, in the Revenue Court is the petitioner in this Court. He will be referred to in this judgment as the third party. The tenant's original application was for restoration of certain lands of which he alleged he was forcibly dispossessed from by the then only respondent, hereinafter referred to as the landlord. The tenant's application for such restoration was under Section 4(5) of the Madras Cultivating Tenants Protection Act, 1955. This application was filed on 17th July, 1962, on the ground that he was wrongfully dispossessed from such lands on 14th July, 1962. Under Section 4(5), a petition for restoration has to be filed within two months from the date of dispossession. To this application, the landlord filed a counter on September 19, 1962, which by itself was beyond two months from the date of dispossession, inter alia alleging that the tenant voluntarily surrendered the lands in question in March, 1962, and that on April, 1962> he entered into an agreement of sale of the lands with the third party and that the third party was ever since in possession of the lands. Apparently the tenant was not aware of the dealings inter se between the landlord and the third party until 19th September, 1962 when the counter was filed. On 3rd October, 1962, the tenant filed an application under Rule 8(ii)(e) of the Madras Cultivating Tenants Protection Rules, 1955, to add the third party, as a party to the proceeding. The third party, however, did not receive any notice of this application. The landlord in his counter-statement to this application for impleading the third party, inter alia contended that the application to add a party is barred by limitation as it was filed beyond two months from the date of dispossession. On August 28, 1963, the Rent Court directed the impleading of the third party as a party to the proceeding and this order was upheld by Venkatadri. J., in C.R.P. No. 272 of 1964. It does not however appear that the question of limitation which was raised by the landlord was ever argued or pressed into service daring the hearing of the above proceedings.

2. The third party apparently was served with the amended application for restoration under Section 4(5) sometime after October 23, 1963, when the Rent Court passed the order to add him as a party. To this the third party independently filed a counter and amongst other things, he incidentally raised the contention that the application in so far as it was laid against him was barred by limitation and that no relief could be granted against him on this ground alone. On a request made by the third party by an independent application filed by him on 7th November, 1963, to decide this question as to limitation as a preliminary issue, the Revenue Court took up this point for determination and held against the third party. The present Civil Revision Petition is against the order of the Revenue Court.

3. Sri M.R. Narayanaswami, learned Counsel appearing for the third party, contends that the petition to implead the petitioner in this Civil Revision Petition having been accreditedly made under Order 1, Rule 10 of the Code of Civil Procedure, the application is barred under Section 22 read with Section 29 of the Limitation Act (the provisions of the old Limitation Act applies to the present case). Sri K. Raman, learned Counsel appearing for the tenant, however, contended contra and submitted that this question of limitation was decided in the earlier proceedings and that the petition in any event is not barred by limitation, and even otherwise it is not necessary that third party should be a party to the proceeding of all, having regard to the fact that the original application for restitution was filed in time and that by itself is a competent application in the eye of law.

4. The Madras Cultivating Tenants Protection Act being a special Act, affords relief to tenants under particular stated circumstances, and therefore ought to be strictly construed. Rule 8 of the Madras Cultivating Tenants Protection Rules, ordains, that every Court constituted under the Madras Cultivating Tenants Protection Act shall have the powers exercisable by a civil Court in the trial of suits and in particular provides, under Rule 8(ii), that the proceedings before the Rent Court shall, 'as far as possible', be governed by the provisions of the Code of Civil Procedure, 1908. We are here concerned with the addition of parties expressly provided for in Rule 8(ii)(e) of the Madras Cultivating Tenants Protection Rules. It is common ground that unless there is anything in the Madras Cultivating Tenants Protection Act or the rules prohibiting the application of any provisions of the Code of Civil Procedure, the Code is applicable to the proceedings in the Revenue Court. No doubt, the provisions of the Code of Civil Procedure, ought not to be strictly iron-jacketed and rendered inelastic. As the Code is mainly concerned with procedural law intended to facilitate justice, its application has to be sought instead of being avoided, if it is so required in the interests of justice - Sangram Singh v. Election Tribunal : [1955]2SCR1 . But if a special local law provides a procedure which is defined, distinct and separate and is in conflict with the common law provision as envisaged under the provisions of the Code of Civil Procedure, then of course, the former will prevail Generalia specialibus non derogant is an accepted principle of law. A proceeding before a Rent Court though not strictly a suit is certainly a legal proceeding wherein valuable justiciable rights of parties are adjudicated upon. Therefore it has to be considered whether the impact of the Code of Civil Procedure, as against the provisions of the special beneficial legislation of the Madras Cultivating Tenants Protection Act is so great and telling, that the Code should prevail over the special provisions under the Madras Cultivating Tenants Protection Act.

5. It is significant to note that Rule 8(ii) of the Madras Cultivating Tenants Protection Rules makes the provisions of the Code as far as possible applicable. The question, therefore, in the instant case is whether Order 1, Rule 10, read with Sections 22 and 29 of the Limitation Act should be strictly made applicable to the proceedings under the Madras Cultivating Tenants Protection Act. No doubt, one of the canons of interpretation is that however hard may be the consequences, it cannot be held and Courts are not prompted to listen to arguments regarding hardship to by-pass the specific intendment and effect of a statutory provision.

6. I have already slated that the provisions of the Code of Civil Procedure, are made applicable to the proceedings before a Rent Court only 'as far as possible'. Due effect should be given to this parenthesis 'as far as possible'. Instances have arisen in this Court as to when and how a suit or proceeding against a third party impleaded after institution of the main suit should be considered to be barred vis-a-vis the third party. The earliest case is that reported in Thekkian Rangacharlu Chettiar v. Muthukamapan Kothan 16 Ind.Cas. 420. This Was a suit in ejectment against 'A' (1st defendant in the suit) wherein 'B' (3rd defendant in the suit) was added as a party to the suit on the allegations made by 'A' that 'B' was the usufructuary mortgagee of the property. When 'B' was sought to be added as a party, more than 12 years had elapsed since the dispossession of plaintiff by 'A'. Their Lordships, while holding that the plaintiff's suit was barred against 'B' and that the plaintiff was entitled to a decree for possession against 'A', observed as follows:

We have considered it desirable to adopt this course, for, otherwise, if we dismiss the suit altogether, the first defendant would be able to plead limitation in. any subsequent suit by the plaintiff apart from any question of res judicata. The 3rd defendant being only a mortgagee under the first defendant, he could acquire only a mortgage right by prescription. The plaintiff obtaining possession against the first defendant would hereafter be entitled to sue the third defendant for redemption.

7. Obviously the learned Judges were constrained to hold that the suit was barred as against the 3rd defendant because the plaintiff could obtain a relief against him for redemption even after the passing of the decree in the form suggested by them. In Kesavalu v. Rajaram : (1920)38MLJ29 another Division Bench of this Court held that in a suit for specific performance of a contract of sale of a house, a subsequent purchaser of the house with notice of such contract having been joined as a defendant more than three years from the date fixed for the performance of the contract, the suit was not barred by limitation and the suit in its entirety ought not to be dismissed, as the subsequent purchaser was not the person who was primarily the party to perform the contract and was joined in order that the plaintiff might have full reliefs and might not be driven to a separate suit against him. In fact, the ratio decidendi in this suit is to a very great extent reiterated by the Supreme Court in Durga Prasad v. Deepchand (1954) S.C.J 23 : (1954) 1 M.L.J. 60. Their Lordships under similar circumstances held that the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title to the plaintiff. I have referred to this decision at this stage only to support the view that even though a party is sought to be impleaded after the lapse of the period of limitation prescribed for a suit as against him, yet he would be retained as a party and the suit would not be dismissed as against him, but the Courts will be persuaded to hear him and afford appropriate relief to the plaintiff in such proceedings. In Bhaskarunni Bangaru alias Venkataswamy v. Pallapothu Punnayya (1932) M.W.N. 330, Jackson, J., was of course, of the contrary view. Even so, Veeraswami, J., in Thangavelu Chettiar v. Kuppu Bai I.L.R. (1964) Mad. 164 : (1964) 2 M.L.J. 138, was of the view that in a suit for specific performance, if a subsequent alienee is added as a party, Section 22 of the Limitation Act read with Order 1, Rule 10(2), Civil Procedure Code, applies and that the suit would clearly be barred in so far as the third party alienee was concerned. Apparently it appears to me that the Bench decision reported in Kesavalu v. Rajaram : (1920)38MLJ29 , was not cited or referred to either in Bhaskarunni Bangaru alias Venkataswamy v. Pallapothu Punnayya (1932) M.W.N. 330, or in Thangavel Chettiar v. Kuppu Bai I.L.R. (1964) 2 Mad. 164 : (1964) 2 M.L.J. 138. Respectfully adopting the ratio and agreeing with the decision of the Division Bench in Kesavalu v. Rajaram : (1920)38MLJ29 , I am of the view that such addition of parties beyond time, even if it is prescribed by a special enactment, would not be barred by the rule of limitation as such and such proceedings ought not to be dismissed in linine as against the party so impleaded or added. On a careful consideration of the authorities cited above, I am of the opinion that though prima facie an application to add a party is preferred beyond the period of limitation, yet Courts are not helpless to pass the appropriate decree or afford appropriate relief to the party affected, namely, the plaintiff or petitioner in the suit or proceeding concerned. It is in the above perspective that the words 'as far as possible' referred to above has to be effectuated. The third party cannot therefore successfully plead the bar of limitation.

8. This subject has been approached in a different angle, but with the same result by Ramamurti, J., in Abdul Ravoof v. Kannoppan I.L.R. (1966) Mad. 538. That was a case where the cultivating tenant filed a petition under Section 4(5) of the Madras Cultivating Tenants Protection Act for restoration on the ground that he was forcibly dispossessed from the lands by the alleged subsequent lessee. The main contention therein was that the petition ought to have been dismissed once it is found that the lessors' had parted with possession in favour of third parties and that they had not been made parties to the proceedings for restoration. In a considered judgment the learned Judge made the following observations:..this necessity for giving notice to the cultivating tenant who has been induceted into the land by the landlord subsequent to the dispossession of a prior tenant would not apply where the dispossession had taken place after the commencement of the Act.... It will, therefore, be seen that consideration which apply to Section 4(1) read with Section 4(4) would not apply to a dispossession after the commencement of the Act governed by Section 4(5). The mere fact that a person is in possession of the property and the order for eviction, if enforced, or executed, would affect his rights is not a ground by itself to hold that he should be made a party without reference to the character of his right under the general law. If the right of the person who is in possession is a derivative right essentially defeasible and solely depending upon the right of some other person from whom he obtained possession and if the ground of eviction is sufficient to annul the right of that person, it cannot be said that every person in possession, regardless of all circumstances should be, made parties to the proceeding.... The question is not whether the subset quent lessee was or was not made a party to the proceeding but whether his righalso would not come to an end along with the extinguishment of his landlord's right to remain in possession. The crux of the matter lies in recognising the consequences of a defeasible or derivative title coming to an end by the operation of a superior right. Any other view would, in my opinion, completely frustrate and defeat the purpose of the special legislation, the Madras Cultivating Tenants' Protection Act.

Ramamurthi, J., in the above judgment expressed dissent to the view taken by Anantanarayanan, J., as he then was, in Vellachamy Ambalam v. Paramaswamy Ambalm : (1962)2MLJ142 . The facts of the case reported in Vellachamy Ambalcm v. Paramaswamy Ambalam : (1962)2MLJ142 , are entirely different. Even otherwise, it does not appear that the third party therein ever pressed the point of limitation. There was a direction by the learned Judge in that case that the party therein should not raise the plea of limitation. As to why such a direction was made is not clear; presumbly the parties did not intend to press the point of limitation in that case.

9. In the instant case, the tenant had no opportunity of knowing that there was an alienation or dealing of the land in question by the landlord in favour of the third party. The first disclosure of such an event was beyond the period of two months, when the landlord filed the counter-affidavit on 19th September, 1962. Further, the fact that the petition was filed beyond a period of two months from the date of dispossession as against the third party who has been inducted into possession by an arrangement inter se between the landlord and such third party, cannot be seriously pressed by the third party so as to non-suit the petitioner. It was so held by the Bench of this Court in Kesavalu v. Rajaram : (1920)38MLJ29 and even the Supreme Court impliedly, accepted such a principle, though presumably the question of limitation did not directly arise there. In such cases it is the duty of the Court, whose concept and ideal should be to maintain justice, equity and good conscience, to see that it should not by a mere application of the letter of the law, affect its spirit and intendment and fail to afford such necessary and adequate relief of the petitioner by dismissing the same as against the third party impleaded beyond time. As I am entirely in agreement with the reasoning of Ramamurti, J., that such a third party appears to be not even a necessary party to such proceeding, I am inclined to hold that the petitioner in this case ought not to be non-suited or his petition dismissed as against the third party merely on the ground that the petition has been filed beyond time. I find that Rule 10 of the Madras Cultivating Tenants Protection Rules has also been amended by adding the following sentence at the end of the existing rule:

The provisions of Rules 35 and 95 to 103 of Order 21 of the Code of Civil Procedure, 1908 shall as far as may be, apply to proceedings under this rule.

In fact, Ramamurti, J., in the above cited case, recomended the amendment of the Act by providing suitable machinery for die effective enforcement of the Order for eviction or order for possession on the lines similar to Order 21, Rules 35 and 95 to 103 of the Code of Civil Procedure. Apparently the Legislature has amended the rule on such observations made by this Court. Though the rule of law that a person who is not privy to a judgment is not bound by it is axiomatical yet in the peculiar circumstances of the provisions of the special enactment such as the Madras Cultivating Tenancts' Protection Act, such a rigorous application of the rule would make it impossible for bona fide tenants to obtain appropriate relief in cases where the landlord inducts into possession others without the knowledge of the tenant and sometimes indeed to spite the tenant. As observed by Ramamurti, J., the third party who may be inducted into possession may b a mere agent or a mere licencee and that it would be impossible for the party agrieved to take note of rights of all persons that may be in apparent possession. Even such information of induction into such possession in the instant case was available to the tenant only after the lapse of the so called period of two months prescribed for in Section 4(5) of the Madras Cultivating Tenants' Protection Act.

10. I am therefore of the view that, considering the real intendment of the beneficial legislation such as the Madras Cultivating Tenants' Protection Act, the tenant in this case cannot be non-suited even though this application to implead the third party was filed beyond the period. Thus Order 1, Rule 10, Civil Procedure Code and Sections 22 and 29 of the Limitation Act being statutorily made applicable only as far as possible, the line has to be carefully drawn in the appropriate cases. This is a case in which a strict and literal application of the above common law provisions as to limitation would do injustice rather than justice which should not only be done, but seem to be done. Further, the third party having been held to have been properly impleaded by Venkatadri, J., in C.R.P. No. 272 of 1964 has to continue as a necessary and proper party to these proceedings and the rule of limitation as such does not strictly apply to the facts and circumstances of this case arising under Section 4(5) of the Madras Cultivating Tenants' Protection Act. Of course, all the parties are entitled to plead and place their respective factual contentions before the Revenue Court. With these observations the Civil Revision Petition is dismissed. There will, however, be no order as to costs.


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