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M. Arumugam Pillai Vs. K.S. Kullappan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1979)2MLJ458
AppellantM. Arumugam Pillai
RespondentK.S. Kullappan
Excerpt:
- .....when the decree came to be passed in the suit, the benefits of the act were not extended to non-residential buildings in kumbakonam municipal area, where the property in question is situate. there is also no dispute before me that by g.o. ms. no. 1285, revenue, dated 31st may, 1975, the benefits of the act were extended to non-residential buildings in the municipal area of kumbakonam. taking advantage of the extension to the municipal area of kumbakonam, the defendant filed e.a. no. 445 of 1975 under sections 47 an 151 of the code of civil procedure, praying for an order that the decree in the suit is not executable in view of the provisions of the act having been made applicable to the building in question. the district munsif, kumbakonam, did not countenance the plea of the.....
Judgment:
ORDER

S. Nainar Sundaram, J.

1. The defendant in O.S No. 332 of 1973 on the file of the District Munsif of Kumbakonam, is the petitioner in this revision. The respondent herein is the plaintiff in the suit. On 28th August, 1974, the plaintiff obtained a decree for possession and for arrears of rent against the defendant. There is no dispute before met hat there are structures standing on the land in question and the structures would come within the definition of 'building' used for non-residential purposes, within the meaning of the provisions of Tamil Nadu City Tenants' Protection Act (III of 1922), hereinafter referred to as the Act, as they stand amended. At the time when the decree came to be passed in the suit, the benefits of the Act were not extended to non-residential buildings in Kumbakonam Municipal area, where the property in question is situate. There is also no dispute before me that by G.O. Ms. No. 1285, Revenue, dated 31st May, 1975, the benefits of the Act were extended to non-residential buildings in the Municipal area of Kumbakonam. Taking advantage of the extension to the Municipal area of Kumbakonam, the defendant filed E.A. No. 445 of 1975 under sections 47 an 151 of the Code of Civil Procedure, praying for an order that the decree in the suit is not executable in view of the provisions of the Act having been made applicable to the building in question. The District Munsif, Kumbakonam, did not countenance the plea of the defendant and his application was dismissed. The defendant filed an appeal, C.M.A. No. 21 of 1976, which was heard and disposed of by the Subordinate Judge of Kumbakonam and the appellate Court also repelled the contentions of the defendant and the appeal was dismissed. The present revision is directed against the orders of the appellate Court.

2. The question that comes up for consideration in the present revision is what is the impact of the extension of the provisions of the Act to non-residential buildings by the G.O. concerned, after the decree in the suit has been passed, but before it has been executed anterior to the date on which the concerned notification had taken effect Section 2(1) of the Act defines 'building'. As it originally stood enacted, the section read as follows--

In this Act unless there is anything repugnant in the subject or context--

(1) 'Building' includes a house, out-houses, stable, latrine, shed, hut, and any other such structure, whether of masonry, bricks, wood, and metal or any other material whatsoever.

There has been an amendment introduced by Madras Act XIII of 1960 and the definition introduced reads as follows:

(1) 'Building' means any building, but or other structure, whether of masonry, bricks, wood mud. metal or any other material what soever used.

(i) for residential or non-residential purposes, in the city of Madras, in the Municipal towns of Coimbatore, Madurai, Salem and Tiruchirapalli and in any village within five miles of the City of Madras or of the municipal towns aforesaid, and

(ii) for residential purpose only, in any other area and includes the appurtenances thereto.

This definition Clause has been further amended by Madras Act XVI of 1964 and after the amendment introduced by the said Act, the definition of 'building' reads as follows:

(1) 'Building' means any building, hut or other structure, whether of masonry, bricks, wood, mud or metal or any other material whatsoever used--

(i) for residential or non-residential purposes in the City of Madras, in the municipal towns of Coimbatore, Madurai, Salem and Tiruchirapalli, or such other municipal town as the Government may, by notification, specify, and in any village within five miles of the city of Madras or of the municipal towns or town aforesaid,

(ii) for residential purposes only, in any other area; and includes the appurtenances thereto.

3. Unless and until a notification extending the provisions of the Act to buildings used for non-residential purposes those specifically mentioned in Section 2(1)(i) of the Act, the rights, privilege and benefits of the Act cannot be claimed by such a tenant within the meaning of the Act. The fact remains that in the present case the notification was published only on 31st May, 1975, after the decree in the suit came to be passed on 28th August, 1974. How this notification affects the rights and privileges which have accrued to the lane lord prior to the taking effect of the notification is set out by Section 3 of Madras Act XVI of 1964 which reads as follows:

Certain pending proceedings to abate-

Every proceeding instituted by a landlord in respect of any non-residential building or part thereof situated in any municipal town specified in the notification issued under sub-Clause (i) of Clause (1) of Section 2 of the principal Act as amended by this Act and the villages within five miles of such municipal town and pending before any Court or other authority or officer on the date on which the said notification takes effect shall in so far as the proceeding relates to any matter falling within the scope of the principal Act as amended by this Act in respect of such building or part, abate, and all rights and privileges which may have accrued to that landlord in respect of any such building or part and subsisting immediately before the date on which the notification aforesaid takes effect shall, in so far as such rights and privileges relate to any matter falling within the scope of the principal Act as amended by this Act, cease and determine and shall not be enforceable.

4. Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date on which the notification aforesaid takes effect.

5. A reading of the section leaves no room for doubt that except in a case where the decree or order passed has been executed or satisfied in full before the date on which the notification takes effect, the rights and privileges which may have accrued to the landlord in respect of a building used for non-residential purposes shall cease and determine and shall not be enforceable. If this is kept in mind, there is no difficulty in coming to the conclusion that the decree in question cannot be enforced in view of the subsequent G.O., extending the provisions of the Act to the building in question. This aspect has been omitted to be taken note of by the two Courts below and this has resulted in rendering orders which run contra to the express provisions of Section 3 of Madras Act XVI of 1964. In this view, I am inclined to interfere in this revision Accordingly, the revision is allowed in part in that the decree for possession shall determine and shall not be enforced. The decree for arrears of rent will stand. It is open to the plaintiff/landlord to institute proceedings afresh for possession after satisfying the provisions of the Act, which will secure the rights of the tenant also. There will be no order as to costs.


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