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Tottal Monthemmal Naidu Vs. Kottikkollan Edavalath Nabeesa and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1980)2MLJ110
AppellantTottal Monthemmal Naidu
RespondentKottikkollan Edavalath Nabeesa and anr.
Cases ReferredChanderkali Bai v. Jagdish Singh Thakar
Excerpt:
- .....is barred under section 10 of the act and that the civil court had no jurisdiction to pass a decree in ejectment. that contention was negatived and the suit was held to be maintainable. however, the question whether reliance can be placed on the provisions of the act was left open to the stage of execution of the decree, thereafter, the first respondent herein filed e. p. no. 5 of 1978 before the district munsif, mahe, praying for recovery of possession of the property on the basis of the decree in o.s. no. 26 of 1971 dated 31st may, 1972. that application was resisted by the petitioner herein on the ground that the petitioner could not be evicted from the property in question in view of the extension of the act to mahe on and from 17th october, 1972, and therefore under section.....
Judgment:

V. Ratnam, J.

1. The first defendant in O.S. No. 26 of 1971, District Munsif's Court, Mahe, is the petitioner in this civil revision petition. The first respondent herein instituted a suit in ejectment against the petitioner and the second respondent herein in respect of a non-residential building situate at Mane, after giving a notice of termination of tenancy. It was pleaded that the tenant-petitioner herein had committed wilful default in the payment of rents and also sublet the premises without obtaining her consent. The trial Court decreed the suit on 31st May, 1972, and an appeal against that, at the instance of the petitioner, proved unsuccessful on 17th November, 1973. Thereupon, the petitioner preferred a second appeal to this Court in--Tottal Monthemmal Naida v. Smt. Kottikollam Edavalath Nabeesa S.A. No. 1389 of 1974, which was disposed of on 7th November, 1977. In the course of the second appeal, a contention was put forth on behalf of the petitioner that consequent to the coming into force of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, hereinafter referred to as the Act, effective from 17th October, 1972, in the town of Mahe, the suit instituted by the first respondent is barred under Section 10 of the Act and that the civil Court had no jurisdiction to pass a decree in ejectment. That contention was negatived and the suit was held to be maintainable. However, the question whether reliance can be placed on the provisions of the Act was left open to the stage of execution of the decree, Thereafter, the first respondent herein filed E. P. No. 5 of 1978 before the District Munsif, Mahe, praying for recovery of possession of the property on the basis of the decree in O.S. No. 26 of 1971 dated 31st May, 1972. That application was resisted by the petitioner herein on the ground that the petitioner could not be evicted from the property in question in view of the extension of the Act to Mahe on and from 17th October, 1972, and therefore under Section 10(1) of the Act, a decree in ejectment could not be executed. The executing Court held that the provisions of the Act do not contemplate that decrees passed even before the coming into force of that Act should not be executed, and therefore, there was no bar to the executability of the decree passed against the petitioner in O.S. No. 26 of 1971. On this finding, the learned District Munsif ordered delivery.

2. In this civil revision petition, the question that arises for consideration is whether the order of the executing Court is correct. The learned Counsel for the petitioner contends that having regard to the provisions of Section 10 of the Act, it is not open to the first respondent to execute the decree and seek an order for delivery of possession of the property against the petitioner amounting to the eviction of the petitioner from the premises in question. On the other hand the learned Counsel for the first respondent contends that the petitioner had ceased to be a tenant after the termination of the tenancy in his favour and after passing of a decree in ejectment and therefore, on the date when the provisions of the Act were extended to Mahe, the petitioner was not a tenant entitled to benefits of the Act and could not therefore call in aid Section 10 of the Act. The further submission of the learned Counsel for the first respondent is that the twin grounds on the basis of which a decree in ejectment was sought against the petitioner, viz., wilful default and subletting were found in favour of the first respondent, and therefore, there could really be no objection to the decree being executed, because they are also grounds which could be relied upon in an application under Section 10 of the Act and it would only be a technicality to say that an order for eviction under the Act should be obtained again on the same grounds. Before proceeding to consider these rival contentions it is necessary to set out certain facts about which there is no controversy. The suit in ejectment was instituted by the first respondent herein on the ground that the petitioner had committed wilful default in the payment of rent and had also sublet the premises without obtaining her consent. The defence raised by the petitioner thereto was negatived and both the grounds were found in favour of the first respondent and she was granted a decree in ejectment on 31st May, 1972. Against that decree, the petitioner preferred an appeal in A.S. No. 76 of 1972, on the file of the learned Additional District Judge, Pondicherry and during the pendency of this appeal on 17th October, 1972, the Act came into force. A.S. No. 76 of 1972 was disposed of on 17th November, 1973. As stated already, the second appeal before this Court was disposed of on 7th November, 1977. It is thus obvious that though the Act had come into force even during the pendency of the appeal in A.S. No. 76 of 1972, the objection that Section 10 of the Act would bar the maintainability of the suit was not raised by the petitioner but such an objection was raised only during the course of the second appeal, which was, however, overruled. It is not in dispute that the provisions of the Act would apply to the present ease. The provisions of the Act may now be referred to.

3. Under Section 2(7) of the Act, 'landlord' is defined thus--

(7) 'landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of any other or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian, or who would so receive the rent, or be entitled to receive the rent; if the building were let to a tenant--Explanation--A tenant who sublets shall be deemed to be a landlord within the meaning of this Act in relation to the subtenant.

Section 2(1) of the Act defines a tenant thus--

(10) 'tenant' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse or any son, or daughter, or the legal representative of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family upto the death of the tenant and a person continuing in possession after the termination of the tenant in his favour but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughterhouse or of rents for shops have been farmed out or leased by a municipal council.

Section 10 enables a landlord who seeks to evict his tenant to make an application to the Controller in that behalf and obtain an order for eviction on one or more of the grounds stated therein. Wilful default in the payment of rent and subletting constitute grounds under Section 10(2) (i) and Section 10(2) (ii) of the Act for obtaining an order for eviction. In the instant case, the question is not whether the first respondent has made out grounds for obtaining an order for eviction against the petitioner, but whether the decree obtained can be executed against the petitioner in view of the language employed in the opening part of Section 10(i) of the Act which runs thus:

10(1). A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 14 to 16;

Relying upon this section, the learned Counsel for the petitioner contends that it is immaterial whether the decree is passed before or after the Act, but that what is prohibited is eviction in execution of a decree otherwise than in accordance with the provisions of the Act. The Act has been passed with a view to regulate the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the Union Territory of Pondicherry. It is true that under Section 10, provision has been made for the obtaining of an order for eviction by the landlord against the tenant. But the opening words of that section put an embargo upon the process of eviction from buildings falling within the Act and in the occupation of tenants, except in accordance with an order for eviction obtained under Section 10 or Sections 14 to 16. The words 'in execution of a decree' are not in any manner qualified and giving the natural and normal meaning to those words decrees passed before the Act as well as after the Act remaining unexecuted would be covered by the section. Section 10 of the Act is modelled on the lines of the comparable provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. Section 7(1) of the Tamil Nadu Act XXV of 1949, DOW Section 10 of Act XVIII of 1960 ran thus:

7(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section.

In relation to this provision, the question arose in Thalai Vadivu Anandar v. Venugopala Chettiar : AIR1960Mad365 , whether this would apply only to decrees in ejectment made before the Act. In dealing with that question, a Division Bench consisting of Rajamannar, CJ. and Ganapatia Pillai, J., held that it is not correct to say that Section 7 of the Tamil Nadu Buildings (Lease and Rent Control) Act would apply only to cases of decrees in ejectment passed after the coming into force of the Act, but that the section prohibits eviction of tenants in execution of decrees whether the same is made before or after the Act and whether the decree is based on a compromise or after contest. It was also further pointed out that when an application for execution is filed after the Act had come into force, the executing Court was bound to take note of the provisions in the statute and give effect to it. In the present case, the petition for execution was filed on 25th March, 1978, long after the Act bad come into force on 17th October, 1972. Admittedly, therefore the execution petition had been filed after the Act had come into force and therefore, there is BO question of any principle against retrospective operation being offended in this case as the executing Court would put it. Therefore, at the time when the application for execution came to be dealt with by the executing Court, the bar against the execution of decrees had been imposed by the provisions of Section 10(1) of the Act and therefore, the decree obtained by the first respondent against the petitioner could not be executed in the face of the prohibition contained in Section 10(1) of Act, The reasoning of the executing Court, that Section 10(1) of the Act does not contemplate decrees passed before the enactment came into force is, therefore, not sustainable. Giving effect to Section 10(1) of the Act which came into being on 17th October, 1972 long prior to the filing of the execution petition on 25th March, 1978, it must be held that the decree obtained by the first respondent against the petitioner was not executable. Indeed in Balakrishna Rao v. Hajee Abdulla Salt : [1980]1SCR875 , the Supreme Court points out thus:

Be that as it may, we are of the view that having regard to our finding that the suit, stood abated on 19th June, 1964, by virtue of the provisions of Section 3 of the Amending Act, the original defendant, Seetharama Rao became a statutory tenant of the premises in question and he could not be evicted from the premises except in accordance with the procedure specified in the principal Act. The position would not have been different even if a decree for eviction had been passed against him before 19th June, 1964 and the decree had not been executed or satisfied in full on that date.

(Italic mine).

4. It is only with a view to wriggle out of this situation, the learned Counsel for the first respondent would urge that there was a cessation of the relationship of landlord and tenant on the passing of a decree in ejectment and therefore, the petitioner could not avail of the provisions of Section 10 of the Act as a tenant. From the definition of landlord and tenant already referred to, it is clear that the first respondent would be a landlord and this is also not disputed; but the question whether the petitioner would be a tenant remains to be considered. According to the definition a person continuing in possession after the termination of the tenancy in his favour would also be a tenant. The circumstances that there was a notice of termination of tenancy in favour of the petitioner and an ejectment suit by the first respondent! was filed in confirmation thereof seeking recovery of possession would only bring about a termination of the tenancy in favour of the petitioner. It is not disputed that the petitioner is continuing in possession even after the termination of the tenancy and the decree against him. The question would therefore arise with reference to the character of the possession of the petitioner--ohether he is still a tenant or whether such wccupation, is unauthorised or wrongful.

5. It is in this connection, the learned Counsel for the first respondent relied upon the decision reported in Chanderkali Bai v. Jagdish Singh Thakar : [1978]1SCR625 . The main question that arose for consideration in that case was whether the tenant was liable to pay damages for use and occupation only from the date of adjudication of the appellate Court by which the decree in ejectment was granted or whether the tenant was liable to pay such damages on and from the date of termination of the contractual tenancy. In dealing with this question, the Supreme Court pointed out while interpreting the definition of 'tenant' in Madhya Pradesh Accommodation Control Act, 1961, that a tenant even after the termination of his contractual tenancy does not become an unauthorised occupant of the accommodation but remains a tenant conveniently called a statutory tenant. It was also laid down that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act, and on such termination his possession does not become wrongful, until and unless a decree for eviction is made, and if he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation. This is quite in keeping with the definition of a tenant in that Act which excludes from the scope of the definition of a tenant under Section 2(i) any person against whom any decree or order for eviction has been made. It was in view of this definition that the Supreme Court pointed out that after the decree is made or an order for eviction is passed against a tenant, his possession is not the possession of a tenant, as such a person is taken outside the category of a 'tenant' as defined in the Madhya Pradesh Accommodation Control Act, 1961, and therefore, mesne profits would be payable by such a person in occupation of the premises as such occupation would be unauthorised. But, in the definition under the Act there is no such exclusion from the scops of the definition of a tenant of persons against whom orders for eviction have been passed or decrees in ejectment had been granted. In the absence of any such exclusion of such persons, it is difficult to apply the ratio of the decision of the Supreme Court to the instant case and hold that the petitioner ceased to be a tenant on the passing of the order for eviction.

6. The object of the enactment as seen already is to prevent unreasonable eviction and the status of irremovability has been conferred on the tenants by the provisions of the Act, except in certain cases where such irremovability is lost giving a right to the landlord to seek an order for eviction against the tenant. It is also further to be noticed that in order to fall within the definition of a tenant as contained in the Act, the assent or the consent of the landlord is totally unnecessary and immaterial and therefore, even assuming that a person continues in possession after the termination of the tenancy in his favour by the landlord and a decree is also obtained against such a person in so far as the definition of a tenant in the Act, does not exclude such person from claiming the benefits as a tenant it follows that the petitioner would still continue to be a tenant within the meaning of the Act and therefore entitled to object to the execution of the decree in ejectment on the footing that Section 10 of the Act interdicts execution of such decrees. In view of the clear and unambiguous language employed in Section 10 of the Act, it is not possible to accept the contention of the learned Counsel for the first respondent that the resort to the Rent Control Court by means of an application for eviction is only formality. The circumstance that findings relevant to an application under Section 1 of the Act have been rendered in different proceedings cannot be taken advantage of by the first respondent or constitute a substitute for the procedure indicated under Section 10 of the Act. In view of Section 10 of the Act, the first respondent has to file an application before the appropriate authority and obtain an order for eviction; but that cannot be characterised as a mere technicality. The conclusion, therefore, follows that the decree in the ejectment suit, as it is, cannot be executed against the petitioner and the order of the Court below in so far as it permitted execution to proced, cannot be sustained. The result is, the civil revision petition is allowed. No costs.


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