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Arunachalam Vs. Kesavan Chettiar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1983)2MLJ166
AppellantArunachalam
RespondentKesavan Chettiar
Cases ReferredFirm Amer Nath Basheeher Dass v. Tek Chand
Excerpt:
- .....on the expiry of the period of five years. but on the other hand, if within the period of five years proceedings are taken based on the exception, then, even though by the time the decree or order in the proceedings is passed and further proceedings are taken thereafter to realise the benefits thereof, the five year period had elapsed, nevertheless, the benefit of the decree or order so obtained would be available to the party, who secured it. the act does not appear to have contemplated a situation as in this case and made any provision relating to the non-availability of the benefiit of exemption to a case, where, within the period of five years during which the exemption is available, proceedings have been taken, but the proceedings have not terminated within that period or have.....
Judgment:

V. Ratnam, J.

1. The civil revision petition is directed against the order of the learned Disirict Munsif, Ramanathapuram, dismissing E. A. No. 17 of 1982 in E P. No. 14 of 1982 in O.S. Mo. 36 of 1980 filed under Section 151, Civil Procedure Code, for stay of execution of the decree in O.S. No. 36 of 1980. On 4th January, 1980, the respondent herein instituted O.S. No. 36 of 1980, District Munsif's Court, Ramanathapuram, for recovery of possession of the building in the occupation of the petitioner and also of Rs. 1,150 towards arrears of rent. According to the case of the respondent, the building in question had been put up five years prior to the date of the suit and had been let out to the petitioner initially for a period of two years on 22nd November, 1975, but that the tenancy continued even thereafter and the petitioner had not paid the rent for the period 1st January, 1978 to 30th November, 1979. A notice dated 27th August, 1979 terminating the tenancy by 30th September, 1979, was also issued to the petitioner and thereafter, the respondent instituted the suit O.S. No. 36 of 1980, District Munsif's Court, Ramanathapuram, for the reliefs set out earlier. That suit was resisted by the petitioner herein on the ground that he was not in arrears of rent, that the respondent had earlier filed H R.C. No. 27 of 1978 for fixation of fair rent but had not pursued it and that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960 as amended by Act XXIII of 1973 (hereinafter referred to as the Act) would apply and therefore, the suit will not be maintainable.

2. On a consideration of the evidence let in, the learned District Munsif found that the premises in the occupation of the petitioner had been constructed and notified by the respondent within a period of five years prior to the institution of the suit and therefore, the provisions of the Act would not be applicable to non-suit the respondent. The termination of the tenancy was held to have been validly done. The arrears of rent as claimed by the respondent was found to be due. On these conclusions, on 28th January, 1982, the respondent was granted a decree for recovery of possession of the building in the occupation of the petitioner as well as a sum of Rs, 1,150 representing arrears of rent.

Aggrieved by this, the petitioner preferred an appeal in A.S. No. 94 of 1981 to the District Court of Ramnad at Madurai. On 9th November, 1981, while holding that the provisions of the Act will not bar the granting of a decree in the suit and that the decree granted by the learned District Munsif is not liable to be interfered with, the appeal was dismissed. With a decree to recover possession of the building, on 6th January 1982,the respondent herein filed E.P. No. 14 of 1982 and on that application, on 19th January, 1982, an order for delivery by 30th January, 1982 was passed. Delivery could not be effected as the premises was found to be locked, meanwhile, on 30th January, 1982, the petitioner, herein filed an application in E.A. No. 17 of 1982 purporting to be under Section 151, Civil Procedure Code, for stay of execution of the decree in O.S. No. 36 of 1980 on the ground that the decree is not executable and the order for delivery obtained by the respondent is erroneous and therefore, further proceedings in the E.P. should be stayed.

3. This application was opposed by the respondent on the ground that no reason has been given for claiming that the decree is not executable and that there was no reason whatever for stay of execution of the decree or the delivery proceedings. A further plea was also raised that the petition is not maintainable. The learned District Munsif found that the decree passed in O.S. No. 36 of 1980 is executable and in that view, over-ruled the objections raised by the petitioner and dismissed the petition. It is the correctness of this order that is challenged in this civil revision petition.

4. The learned Counsel for the petitioner contended that at the time of the passing of the decree on 28th January, 1982, and the filing of the execution petition on 6th January, 1982, praying for delivery of possession, the exemption from the provisions of the Act was no longer available with the result that Section 30 of the Act applied rendering the decree inexecutable. Reliance in this connection was placed by the learned Counsel for the petitioner on the decisions reported in Thottal Moothammal Naidu v. Kottikkollan Edavatath Nabeesa and Anr. (1980) 93 L.W.202. A. Krishnaswami v. S. Rasheeda : (1980)2MLJ463 . Chanda Basha v. Pyaribi ( : (1978)1MLJ46 and Abdul Azeez & Sons v. Mavalirajan (1977) T.L.N.J. 69. On the otherhand, the learned Counsel for the respondent submitted that at the time of the institution of the suit, the provisions of the Act did not apply by virtue of the exemption under Section 30(1) of the Act and therefore, any decree passed in such a suit can be executed even after the expiry of the period of five years, as otherwise, the exemption will not have any meaning nor serve any purpose. It was also pointed out that the benefit of the exemption granted under Section 30(i) of the Act can easily be defeated merely by prolonging the proceedings for over five years and that was not the intention with which the exemption had been granted. In other words, the learned Counsel would contend that when once the proceedings for the recovery of possession have been initiated on the strength of the exemption from the provisions of the Act granted under Section 30(i), a decree passed therein subject to the fulfilment of the other requirements, can be executed even after the expiry of the period of the five years under Section 30(i) of the Act. In this connection, the learned Counsel for the respondent strongly relied upon the decision in K.S.K. Zafruliakhan v. Arunachalam and Ors. : (1976)2MLJ491 .

The object of the Act is to prevent unreasonable eviction and to secure this end, the status of irremovability has been conferred on the tenants by the provisions of the Act, excepting in certain cases, where such irremovability is lost enabling the landlord to seek an order for eviction against the tenant. Under Section 10 of the Act, a landlord can seek an order for eviction against his tenant on one or other of the grounds mentioned therein and make an application to the Controller in that behalf. Likewise, Sections 14 to 16 of the Act provide for the securing of an order for eviction on certain other grounds. It is well-settled that it is open to a landlord to initiate a suit against his tenant in a civil Court and obtain a decree for recovery of possession. Even so, it would not be possible for the landlord to put the decree in execution and recover possession of the premises in the occupation of the tenant, owing to the interdict in the operative part of Section 30 of the Act. In such cases also, the landlord before he can recover possession of the building in the occupation of the tenant, has to secure an order for eviction under one or other of the enabling provisions of the Act. Under Section 30(i) of the Act, an exemption from the operation of the provisions of the Act is made available with reference to a building for a period of five years from the date on which the construction is completed and notified to the local authority concerned. The exemption is the outcome of a realisation that having regard to the enormous hike in prices and rents, the activity of building construction would suffer a serious set back, if the rents are pegged at the rates prevailing in 1940. It was thus conceived and made available with a view to encourage the construction of new buildings so that more and more buildings would become available for residential as well as non-residential purposes so that the shortage of accommodation could be relieved. The exemption also enabled the landlord and the tenant to stipulate the rent in respect of such newly constructed premises and facilitated the recovery of possession of the premises by the landlord without recourse to the provisions of the Act. The exemption in the shape of the non-applicability of the provisions of the Act to newly constructed building for five years was thus conceived in the interests of both the landlord as well as the tenant.

5. In this case, it has been found that the building in question was constructed in March, 1975 and notified and that finding has become final. Therefore, when the suit in O.S. No. 36 of 1980 was instituted on 4th January, 1980, the provisions of the Act did not apply to the building in question and the respondent was quite in order in having instituted the suit taking advantage of the exemption granted under Section 30(i) of the Act. The suit had been decreed on 28th January, 1981 admittedly beyond the period of five years after the date of construction and notification to the authority. The execution petition was filed on 6th January, 1980. It is thus seen in this case that though proceedings were instituted by the respondent herein for the recovery of possession of the building during the period of the availability of the exemption, he was able to secure a decree and file an E.P. only after the expiry of the period of five years. Is he to be deprived of the benefit of the exemption merely on account of the passage of time between the date when the suit was instituted and the decree was passed or the date on which the E. P. was filed? To say that it would be so lost, in my view, would be to take away by the left hand the benefit of the exemption granted under Section 30(i) of the Act by the right hand. The processual delay cannot wipe out or operate to deprive a person of the benefit of the statutory exemption conferred on him. In other words, a litigant can expect such a just and speedier disposal of his cause as to claim that he is entitled to a decree or order even on the very day on which the proceedings are instituted and thereafter to realise the fruits or benefits of the decree or order. It is only on account of the time consumed in the several steps through which a proceeding has to inevitably pass that he is unable to so obtain his relief or realise the benefits thereof. Merely, therefore, owing to the passage of time, the benefit of a statutory exemption already availed of cannot be lost to the person for whose benefit it is granted. It has also to be remembered that by the adoption of recalcitrant and obstructive attitude and tactics, it will be very easy to defeat the exemption and also render it totally illusory. For instance, even in a case where the proceeding or suit for eviction is instituted on the very first day of the availability of exemption, all that the opposite party in such a proceeding has to do to defeat the exemption as well as the proceeding based on it, is to prolong the proceedings upto a point of time beyond the time limit for the availability of such exemption. The exemption granted under Section 30(i) of the Act, in my opinion, was not intended to be such an empty and hollow one as to be liable to be defeated by a party to the proceeding depending upon his dilatory ability or capacity or pro longing it. A close and fair reading of the scope of the exemption appears to me to be this. Where a new building is constructed and the construction thereof is notified to the local authority, the building would be exempt from the operation of the provisions of the Act for a period of five years therefrom. During this period of five years, if no proceedings are initiated, then the exemption will lapse on the expiry of the period of five years. But on the other hand, if within the period of five years proceedings are taken based on the exception, then, even though by the time the decree or order in the proceedings is passed and further proceedings are taken thereafter to realise the benefits thereof, the five year period had elapsed, nevertheless, the benefit of the decree or order so obtained would be available to the party, who secured it. The Act does not appear to have contemplated a situation as in this case and made any provision relating to the non-availability of the benefiit of exemption to a case, where, within the period of five years during which the exemption is available, proceedings have been taken, but the proceedings have not terminated within that period or have been terminated beyond the period of five years. The irremovability of the tenant from the' premises in his occupation despite a decree except in accordance with an order under Section 10 or 14 to 16 of the Act lost as a result of the exemption under Section 30(i) of the Act is not restored statutorily in a case where the decree or order is passed after the expiry of five years or the execution is levied after that period. It cannot therefore be readily assumed that in such cases the benefit of exemption or the fruits of the proceedings based on such exemption are totally lost to the party for whose benefit also the exemption was granted. Having regard to those considerations, the decree obtained by the respondent in this case in O.S. No. 36 of 1980, D. M. C. Ramanathapuram, on 28th January, 1981 on a suit instituted within the period of five years from the date of the construction of the building, would not be in any manner affected by the provisions of the Act, particularly Section 10 of the Act.

6. It now remains to refer to the decisions to which attention was drawn. In Thotta Mouthammal Naidu v. Kottikkollan Edavalath Nabeesa and Anr. (1980) 93 L.W.202 the question that arose for consideration was whether the provisions of the Pondicherry Buildings (Lease and Rent Control) Act, particularly Section 10 thereof, would not affect the execution of a decree for recovery of possession obtained prior to the coming into force of that Act. In dealing with that question, it was held that Section 10 of the Pondicherry Buildings (Lease and Rent Control) Act, which was made applicable subsequent to the date of the passing of the decree to the area in question, would bar the execution of the decree. That case was not concerned with the decision of the question of availability of the benefits of the exemption recognised by a decree or the execution thereof five years after the date of construction of the building as in the present case. In A. Krishnaswami v S. Rasheeda : (1980)2MLJ463 the Court was dealing with the executability or otherwise of a decree in ejectment obtained at a time when the provisions of the Act had not been extended to the area in question where the property was situate In dealing with that, this Court again reiterated the settled position that the filing of a suit for the recovery of possession of a property from a tenant or the passing of the decree therein by the civil Court in favour of the landlord, is not prohibited under the terms of the Act, but that the decree cannot be executed, so long as the provisions of the Act apply. It was in that view, while upholding the validity of the decree passed, it was held to be inexecutable in view of Section 10(1) of the Act. This case cannot assist the petitioner in the present case, where the exemption under Section 30(i) of the Act had been availed of before the expiry of the period of five years. In Chand Basha v. Pyari Bi : (1978)1MLJ46 a decree for eviction was obtained on 13th April, 1973 and that decree was put into execution on 5th August, 1974. Meanwhile, as a result of an amendment to Act XVIII of 1960 by Act XXIII of 1973, the building which was outside the purview of the Act, was brought within the scope of the provisions of the Act. In view of that, a plea was raised that the provisions of the Act would be applicable rendering the decree inexecutable.

That plea was rejected by the Courts below, but was upheld by this Court. In doing so, reliance was placed upon the change in the statutory provision with effect from 30th June, 1973, brought into force by amending Act XXIII of 1973 as justifying the applicability of Section 10 of the Act resulting in the inexecutability of the decree. That case was concerned with the non-availability of the exemption on account of the introduction of an amendment to that effect by Tamil Nadu Act XXIII of 1973 and the consequent applicability of the provisions of Section 10 of the Act. To put it differently, the exemption was removed by an amendment of the Act resulting in the bottom of the decree being knocked out rendering it inexecutable. The question whether the benefit of an exemption conferred by the statute continuing to remain intact, it can be availed of beyond the period of five years, though proceeding had been taken for the enforcement of rights on the footing of its availability within that period, was not touched upon. Further, the decision is based mainly on the amendment of the Act in question. That decision cannot therefore be applied to the instant case. In Abdul Azeez and Sons v. Mavalirajan (1977) T.L.N. J.69 the question arose whether a decree for recovery of possession obtained prior to the amendment of Section 30(i) of Tamil Nadu Act XXIII of 1973 would render the decree invalid or nullify it. Referring to the scope of Section 30(i) of the Act, as it stood prior to its amendment by Act XXIII of 1973, it was held that that provision had granted a permanent exemption from the scope of the Act, while, under the amended provision, the building was exempt only for a period of five years from the completion of the construction and the notification thereof to the local authority and therefore a decree passed at the time when the amendment had not come into force was a valid decree and could not be nullified by the subsequent amendment of the Act unless the Legislature had stated so. However, the plea whether the decree cannot be executed in view of the amendment of Section 30(i) of the Act was directed to be investigated in the course of the execution proceedings. Even this decision would reaffirm the validity of the decree obtained in this case, bur does not establish that the decree is inexecutable as that question was not gone into at all.

7. In K.S.K. Zafrullakhan v. Arunachalam and Ors. : (1976)2MLJ491 one of the questions that arose for consideration was the effect of the amendment of Section 30(i) by Tamil Nadu Act XXIII of 1973 and following a decision of a Bench of this Court in Killick Nixon Limited v. V.R. Narayana Rao (1974) 1 M.L.J. 16 it was held that in the absence of any provision, the amendment had to be taken as prospective and therefore, proceedings commenced earlier to the amendment made in 1973 to Section 30(i) of the Act, would not be affected. This decision does not assist the respondent as the Court in that case was not concerned with the executability or otherwise of a decree obtained in the circumstances as in the present case. Thus, none of the decisions relied on by counsel on both sides is of any assistance.

8. However, there is a decision of the Supreme Court in Firm Amer Nath Basheeher Dass v. Tek Chand : [1972]3SCR922 which appears to me to be nearest to the point for decision in the present case. In that case which arose under the provisions of the East Punjab Urban Rent Restriction Act, a lease of the premises was granted on 1st November, 1959, even as the building was under construction, which was completed in March, 1960. Thereafter, on 14th January, 1963, a suit in ejectment was filed against the tenant in occupation, which resulted in a decree on 14th August, 1969. Under Section 3 of the relevant Act, the State Government was concerned to notify that all or any of the provisions of that Act do not apply to any particular building or rented land or any class of buildings or rented lands and pursuant to this power, on 30th July, 1965, a notification was issued granting an exemption from the applicability of Section 13 of that Act in respect of decrees for ejectment of tenants in possession of buildings constructed in 1959, 1960, 1961, 1962 and 1963 for a period of five years from the date of completion provided the suit had been instituted during that period and a decree therein had been obtained. With a view to execute the decree obtained on 14th August, 1969,the respondent before the Supreme Court filed an execution petition on 29th August, 1969, but that was dismissed on 16th April, 1970 on the ground that the prescribed conditions to avail the benefit of the notification dated 30th July, 1965 were not fulfilled. The dismissal of the execution petition was confirmed in appeal, but on further appeal, the High Court held that the decree was executable, as it enjoyed the benefit of the exemption under the notification. On further appeal before the Supreme Court, it was contended that the decree having been obtained on 14th August, 1969, five years after the date of the construction, the exemption from the restrictions placed by Section 13 will no longer be available, as what was contemplated under the notification by Government was not only the institution of the suit within five years, but also the obtaining of a decrees within that period. The Supreme Court repelled this contention stating that this would lead to incongruity or would have the effect of nullifying the very purpose for which the exemption was given. Proceeding further to consider the scope as well as the operation of the notification, the Supreme Court observed thus:

It is clear from the language of the notification that what is exempted is the decree for ejectment of a tenant from the application of Section 13. The very purpose of exemption of buildings from the operation of Section 13 was to give landlords the rights which as owners of buildings they had under the ordinary law, namely, to give them on lease at rents which they thought were remunerative and to evict tenants during that period without any fetters imposed by the Act. If no provision was made for exempting such decrees in respect of the exempted buildings, the exemption granted will be illusory. Clause (b), therefore, provided for the time during which that suit in which the decree has been passed should be filed. The decree passed in such suits will be executable free from the fetters imposed by Section 13 of the Act. It is obvious that the filing of a suit by itself does not confer any exemption because what is exempted from the provisions of Section 13 is the decree. A suit filed, therefore, must end in a, decree though that decree may be passed subsequent to the expiry of the 5 years' period during which exemption form the application of Section 13 has been granted.

The provisions of Section 13 of the Act dealt with by the Supreme Court are in pari materia with Section 10 the Act. While the benefit of the exemption from the applicability of the provisions of Section 13 of the East Punjab Urban Rent Restriction Act is conferred by a notification under Section 3 thereof, it is made available under the Tamil Nadu Act under Section 30(i) of the Act. Apart from this, there is no difference in the applicability of the principle laid down in that case. It may be said that the exemption from the applicability of Section 13 of the East Punjab Urban Rent Restriction Act was conferred in respect of decrees, while it is not so under Section 30(i) of the Act. That again is a distinction without any difference. Under the notification under Section 3 of the East Punjab Urban Rent Restriction Act, the decree was exempted, but under Section 30(i) of the Act the exemption is with reference to the operation of the provisions of the Act to the building as a whole and that in turn could take in Section 10(1) of the Act as well, whereunder a tenant cannot be evicted in execution of a decree. In other words, the exemption would operate not only on the building, bur also on the decree obtained in respect of the building, as contemplated under Section 10 of the Act. In that view, the applicability of the principle laid down by the decision of the Supreme Court referred to above cannot be distinguished on the ground that the notification in that case exempted only decrees. To this case, the decision of the Supreme Court would clearly apply and therefore, the decree obtained by the respondent can be executed, though the period of five years under Section 30(i) of the Act had expired by the time the decree was granted and the execution proceedings initiated

9. For the foregoing reasons, the Court below was quite correct in over-ruling the objection raised by the petitioner regarding the in-executability of the decree and in dismissing the application for stay. Consequently, the civil revision petition fails and is dismissed with costs.


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