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The Music Academy, Represented by Its Present Trustee and Convenor Trust Board, S. Ramaswami Vs. K. Raman Nair - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1980)2MLJ331
AppellantThe Music Academy, Represented by Its Present Trustee and Convenor Trust Board, S. Ramaswami
RespondentK. Raman Nair
Cases ReferredN. V. Panchapakesan v. K. Swaminathan
Excerpt:
- .....court has powers to extend the time for payment provided under section 9(2) (4) of the tamil nadu city tenants' protection act beyond three years from the date of the order.2. the petitioner instituted a suit in ejectment and also for the recovery of a sum of rs. 112.50 towards damages for use and occupation and also for future damages for use and occupation at rs. 25 p.m. till the date of possession. the respondent filed an application in i.a. no. 5 of 1958 in o.s. no. 1886 of 1958 claiming benefits under section 9 of the tamil nadu city tenants' protection act. on 31st october, 1960, the learned third assistant judge, city civil court, madras held that the respondent is a tenant in respect of 16* north to south and 15 1/2 east to west space in his occupation. in regard to the portion.....
Judgment:

V. Ratnam, J.

1. In this civil revision petition at the instance of the plaintiff in O.S. No. 1886 of 1958, Third Assistant Judge, City Civil Court, Madras, the question that arises for consideration is whether the Court has powers to extend the time for payment provided under Section 9(2) (4) of the Tamil Nadu City Tenants' Protection Act beyond three years from the date of the order.

2. The petitioner instituted a suit in ejectment and also for the recovery of a sum of Rs. 112.50 towards damages for use and occupation and also for future damages for use and occupation at Rs. 25 P.M. till the date of possession. The respondent filed an application in I.A. No. 5 of 1958 in O.S. No. 1886 of 1958 claiming benefits under Section 9 of the Tamil Nadu City Tenants' Protection Act. On 31st October, 1960, the learned Third Assistant Judge, City Civil Court, Madras held that the respondent is a tenant in respect of 16* north to south and 15 1/2 east to west space in his occupation. In regard to the portion under the occupation of the respondent as a tenant, it was held that the respondent will be entitled to an order under Section 9 of the Tamil Nadu City Tenants' Protection Act and that his petition in I.A. No. 5 of 1958 will be dealt with separately. In the result, the suit was dismissed in so far as the demised portion of 16 feet north to south and 15 1/2 feet east to west was concerned and decreed for the recovery of possession in respect of the other area in the occupation of the respondent with mesne profits at the rate of Rs. 10 per month from the date of plaint till the date of delivery. The petitioner herein was also held entitled to recover Rs. 67.50 and the respondent was granted two months time to vacate the encroached portion. The petitioner as well as the respondent preferred appeals against the decree in the suit in A.S. Nos. 18 of 1961 and 36 of 1961, Additional Judge, City Civil Court, Madras. On appeal, the judgment and decree of the learned III Assistant Judge, City Civil Court, Madras were confirmed and the appeals were dismissed. Second Appeal Nos. 746 of 1962 and 892 of 1962 were preferred by the petitioner and the respondent respectively to this Court and both the appeals were disposed of on 6th December, 1965 affirming the judgments of the Courts below.

3. Meanwhile, on 31st July, 1961 in I.A. No. 5 of 1958 filed by the respondent herein claiming the benefits of Section 9 of the Act, an order was passed fixing the valuation of the site on the basis of the report of the Commissioner at Rs. 413.33. This amount was directed to be paid by the respondent in 20 equal instalments, the first of such instalments to be paid on or before 10th September, 1961 and the subsequent instalments on or before that date in the recurring months with the usual default clause. The decree drafted pursuant to this order stated thus:

(1) That the petitioner do pay the respondent the sum of Rs. 413.33(Rupees four hundred and thirteen and thirty three naye paise only) as and for the value of the suit land in 20 equal instalments, the first instalments on or before the 10th September, 1961 and the subsequent instalments on or before that date in the recurring months.

(2) That if the petitioner fails to pay any of the instalments above mentioned, this petition do stand dismissed with costs.

(3) And that there shall be no orders as to costs of this petition.

4. It is not in dispute that excepting a solitary deposit, the respondent did not make the deposits in accordance with the order passed by Court. On 27th September, 1968 in I.A. No. 16160 of 1968 in O.S. No. 1886 of 1958, the respondent filed an application purporting to be under Section 151, Civil Procedure Code, praying for the condonation of the delay in paying a sum of Rs. 413.33 into Court in accordance with the order in I.A. No. 5 of 1958. The case of the respondent was that the instalments were regularly paid by him to the advocate's clerk who, however, did not remit the amounts into Court excepting the first instalment and there fore, it became necessary to seek extension of time for the remittance of the amount of compensation. The petitioner opposed this application contending that the instalments alleged to have been paid to the advocate's clerk were not true and that the respondent had wilfully committed default in remitting the instalments in accordance with the order of Court. It was also contended that time could not be extended for the payment of the amount and delay condoned. The learned Third Assistant Judge, City Civil Court, Madras held that the non-payment of the amount by the respondent into Court was only due to the default on the part of the advocate's clerk to whom the amounts were paid by the respondent but, who, in turn did not deposit those amounts into Court. However, the learned Judge held that even though the reason given by the respondent might be sufficient cause and also made out, yet, there was no power in the Court having regard to the time limit prescribed in Section 9(2) of the Tamil Nadu City Tenant's Protection Act. On these conclusions, the application was dismissed. Aggrieved by this, the respondent preferred an appeal in C.M.A. No. 9 of 1974, First Additional Judge, City Civil Court, Madras. The learned First Additional Judge who dealt with the matter initially called for a finding from the trial Court with reference to the explanation offered by the respondent for the non-payment of the instalments in accordance with the order passed in LA. No. 5 of 1958. A finding was given that the payments of several instalments amounts by the respondent to the clerk of the advocate were true, but that those amounts have been misappropriated by the advocate's clerk. That finding was accepted by the learned First Additional Judge, City Civil Court, Madras. Purporting to apply a special equity in favour of the respondent overriding the time limit the learned First Additional Judge, City Civil Court, Madras not only condoned the delay in the payment of instalments into Court, but also granted a month's further time to the respondent to pay the amounts.

5. In this civil revision petition, the learned Counsel for the petitioner contends that having regard to the specific statutory provisions governing the rights of the respondent viz., Section 9(1)(b) and 9(2) of the Tamil Nadu City Tenant's Protection Act, 1921, there is no power to extend time beyond three years from the date of the order in I.A. No. 5 of 1958, which was on 31st July, 1961. Per contra, the learned Counsel for the respondent contends that only when Second Appeal Nos. 746 of 1962 and 892 of 1962 were disposed or by this Court on 6th December, 1965, his rights under Section 9 became secured and therefore, the respondent will have three years time from that date and the application for extension having been made on 27th September, 1968 would be well within the scope of Section 9(1) (b) of the Tamil Nadu City Tenants' Protection Act. Before proceeding to consider these rival contentions, it is necessary to notice the relevant provisions of the Act. Section 9(1) (b) and Section 9(2) would be relevant in this connection. Section 9(1) (b) reads thus:

(b) on such application, the Court shall first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. The Court shall then fix the price of the minimum extent of the land decided as aforesaid, or of the extent of the land specified in the application under Clause (a) whichever is less. The price aforesaid shall be the average market value of the three years immediately preceding the date of the order' The Court shall order that within a period to be determined by the Court, not being less than three months and not more than three years from the date of the order the tenant shall pay into Court or otherwise as directed the price so fixed in one or more instalments with or without interest.' Section 9(2) is couched in the following terms:

'9(2) In default of payment by the tenant of any one instalment, the application under Clause (a) of Sub-section (1) shall stand dismissed, provided that on sufficient cause being shown, the Court may excuse the delay and pass such orders as it may think fit, but not so as to extend the time for payment beyond the three years above mentioned. On the application being dismissed the Court shall order the amount of the instalment, or instalments if any, paid by the tenant to be repaid to him without any interest.

Section 9 of the Tamil Nadu City Tenants Protection Act is an enabling statutory provision which confers rights on tenants to seek directions from the Court by means of an application that the landlord shall be directed to sell for a price to be fixed by the Court the whole or part of the extent of land specified in that application. It is true that this is undoubtedly a benefit conferred on the tenant, but being in the nature of a statutory benefit, a person entitled to avail himself of such benefits must necessarily conform to the requirements of the statute. It is in this context that Section 9(1) (b) has to be looked into. In a case in which the tenant is entitled to claim the benefits of the Act, a duty is cast on the Court first to decide the minimum extent of the land necessary for the convenient enjoyment by the tenant. Thereafter, the price of that minimum extent of the land or the extent of the land specified in the application under Section 9(1) (a) has to be determined by the Court. In the matter of fixation of price, the statute has given the guidelines and the determination of the price shall be on the basis of the average market value of three years immediately preceding the date of that order. After the determination of the price as aforesaid, in order that the tenant may not be saddled with onerous liability of making a lump sum payment the enactment further provides for payment. of the amounts so determined by the Court in instalments. Even in the matter of instalments, the Court has been empowered to fix them in such a manner as to be not less than three months and not more than three years from the date of the order. No doubt, Section 9(2) provides that in default of payment by the tenant of any one of the instalments, the application under Section 9(1) (a) shall stand dismissed. However, this is subject to the tenant being able to establish that he was prevented by sufficient cause from paying the instalment and the Court being satisfied about it and passing an order excusing the delay. Then follows a very important restriction upon the power of the Court. Any extension of time for payment of any defaulted instalment cannot be beyond three years mentioned in Section 9(1) (b) of the Act. This restriction is consistent with the powers confer-red on the Court to fix the instalments ranging from three months to three years from the date of the order. . In other words, it is pro-vided that from the date of the order, the maximum number of instanments could only be 36, i.e., the entire payment should be made and completed within three years from the date of the order. Equally under the terms of Section 9(2), the power to condone the delay in the payment of any one of the instalments is restricted to the same period of three years from the date of the order. If Section 9(2) can be construed in a manner as to permit the excusing or the condonation of the delay in the payment of the defaulted instalments by more than three years, that would be in conflict with the provision already made under Section 8(1) (b), that the maximum number of instalments could only be 36. Therefore, the power to excuse the, delay conferred on the Court under Section 9(2) must be interpreted to apply to cases where the delay is in the payment of the instalment within the outer limit of three years and any order so excusing the delay would also not operate to extend the time for payment beyond the outer limit of three years. Otherwise, the period of three years provided under Section 9(1) (b) would be rendered nugatory if Section 9(2) can be construed as confering a power to excuse the delay irrespective of the three years period mentioned in the section. Indeed, as pointed out already, there is an in-built restriction with reference to the point of time upto which extension can be granted viz., three years from the date of the order. If these pronciples are applied to the instant case, the position is clear that the application itself was made on 27th September, 1968 beyond the period of three years fixed in the order in I.A. No. 5 of 1958 on 31st July, 1961. Any order extending the time further or condoning the delay will result in the extension of time for payment beyond three years from 31st July, 1971 and therefore, the Court acting under Section 9(2) could not have, in the exercise of its statutory powers thereunder, excused the delay. In the instant case, the application has been filed under Section 151, Civil Procedure Code. It is doubtful whether an application under Section 151, Civil Procedure Code, is maintainable. But even treating it as an application under Section 9(2) of the Tamil Nadu City Tenants' Protection Act, there would be no power to excuse the delay. On this ground, the order of the lower appellate Court has got to be set aside. It is necessary to advert to the contention of the learned Counsel for the respondent that three years time from the date of disposal of the second appeals on 6th December 1965 would be available. A perusal of Section 9(1) (b) extracted earlier in the course of this judgment indicates that the three years period is to be reckoned from the date of the order passed under Section 9(1) (b) and not any other date. Indeed, in N. V. Panchapakesan v. K. Swaminathan : (1976)1MLJ338 , the very contention of the learned Counsel for the respondent has been put forth and rejected. Dealing with this, Ramaprasada Rao, J. as he then was, stated thus:

Such ambulatory and indefinite methods of fixation of price of land to be allotted to a tenant in view of his entitlement order under the provisions of the Act has to be necessarily avoided if a definite date is available for such fixation. Such a date for fixation of the price, in my view, would reasonably be the date on which the tenants' entitlement to compensation is first recognised by a competent Court which hears the matter and decides on it Of course, if at any time another competent Court in the higher hierarchy sets aside the directive for the Courts below that the tenant is not entitled to such an entitlement, then the matter is closed. But if the judgments of the higher Courts are judgments of affirmance then such orders or judgments obviously relate back to the date of the order of the first competent Court which decided on the entitlement of the tenant under the Act. As a specific definite and unambiguous date is available for valuation of the land to be purchased by the tenant pursuant to his entitlement under the Act, I am of the view that the date for fixation of such price should relate back to the date when the Court, in the first instance, recognises and confers such a right on the tenant and cannot be relegated to any other uncertain, ambulatuoy ambiguous dates.

With respect, I am in entire agreement with the view expressed by the learned Judge which furnishes a complete answer to the contention raised by the learned Counsel for the respondent. Under the circumstances stated above, the order of the appellate Court is unsustainable and it is set aside. The civil revision petition is allowed. No costs.


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