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T.P. Abdul Khadar and ors. Vs. Rajammal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1980)1MLJ331
AppellantT.P. Abdul Khadar and ors.
RespondentRajammal and ors.
Cases ReferredD.V. Sanjeevi Naidu v. M.N. Chittibabu Mudaliar
Excerpt:
- v. ratnam, j.1. defendants 2, 14 to 22 are the appellants in this second appeal which arises out of a suit in o.s. no. 418 of 1959 on the file of district munsif court, coimbatore, instituted by the 1st respondent herein for delivery of possession of the suit property and for recovery of a sum of rs. 3,300 towards arrears of rent and for recovery of damages for use and occupation till delivery of possession and for other incidental reliefs. the case of the 1st respondent is that she is the owner of the suit property having purchased the vacant site on 23rd june, 1944. thereafter, according to the 1st respondent, she put up a shed measuring (o'x l2' and was in possession and enjoyment of the same through her watchman who was in occupation as caretaker. the deceased 1st defendant in the.....
Judgment:

V. Ratnam, J.

1. Defendants 2, 14 to 22 are the appellants in this Second Appeal which arises out of a suit in O.S. No. 418 of 1959 on the file of District Munsif Court, Coimbatore, instituted by the 1st respondent herein for delivery of possession of the suit property and for recovery of a sum of Rs. 3,300 towards arrears of rent and for recovery of damages for use and occupation till delivery of possession and for other incidental reliefs. The case of the 1st respondent is that she is the owner of the suit property having purchased the vacant site on 23rd June, 1944. Thereafter, according to the 1st respondent, she put up a shed measuring (O'x l2' and was in possession and enjoyment of the same through her watchman who was in occupation as caretaker. The deceased 1st defendant in the suit, whose legal representatives are appellants 2 to 10, was carrying on business in timber and firewood under the name and style of Janatha Timber Mart. On 1st March, 1958, the suit property was leased by the 1st respondent through her son Nagaraajn to the deceased 1st defendant on a monthly rental of Rs 100. In addition to the rent, the deceased 1st defendant had also to pay the municipal taxes. According to the case of the 1st respondent, the tenancy was oral and it was from month to month. The deceased 1st defendant was very irregular in payment of rents. According to the 1st respondent on 19th June. 1965, a sum of Rs. 300/- was paid by the deceased 1st defendant which was adjusted and appropriated towards the dues between 1st December, 1964 to 1st December, 1965 and that no payment thereafter was made by the tenant, the deceased 1st defendant. It was the further case of the 1st respondent that the deceased 1st defendant had also unauthorisedly sublet without the knowledge and consent of the 1st respondent to other defendants viz., defendants 2 to 9 who had been inducted into possession as sublessees. The deceased 1st defendant, therefore, had ceased to do timber business and used the premises in question for the purposes other than for which it was originally let out. Thereupon, the 1st respondent issued a notice to quit on 14th November, 1968 terminating the tenancy with effect from 1st December, 1968 and calling upon the deceased 1st defendant to pay the arrears of rent and also to deliver possession of the property. In the reply sent by the deceased 1st defendant, it was claimed that what was leased out was only a vacant site prior to 1956, that the deceased 1st defendant was entitled to the benefits of the City Tenants' Protection Act and that he had also paid the rents upto December, 1967. Those claims, according to the 1st respondent, were false and the deceased 1st defendant was not entitled to any of the benefits of the Act as the lease itself had commenced before the extension of the provisions of the Tamil Nadu City Tenants' Protection Act, to Coimbatore City. The shed, which was originally leased out in favour of the deceased 1st defendant, was demolished by him and he had instead put up a superstructure which had been subleased in favour of other persons and therefore, according to the 1st respondent, the deceased 1st defendant was not entitled to the benefits of the Tamil Nadu City Tenants' Protection Act. The subtenants were also likewise not entitled to any of the benefits. It was the case of the 1st respondent that the deceased 1st defendant and the sub-tenants were also not entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control Act XVIII of 1960(as amended by Act XXIII of 1973.) The 1st respondent would have it that defendants 10 to 13 had come into possession of a portion of the property during the pendency of the suit with the collusion of the deceased 1st defendant and therefore, they are bound by the result of the suit. The 1st defendant died pending the suit and defendants 14 to 22 were brought on record as his legal representatives.

2. Defendants 4, 11 and 12 in the suit remained ex parte.

3. The deceased 1st defendant filed a written statement which was adopted by defendants 2, 8, 14 to 22. The suit was resisted on the ground that what was leased out was only a vacant site and that too in May, 1956. It was the contention of those defendants that no superstructure was put up by the 1st respondent. According to their case, the deceased 1st defendant put up a tiled shed and was running the business in a portion of the shed and also sub-leased to defendants 2 to 9 in the suit. The deceased 1st defendant further stated that he was regular in the payment of rents up to December, 1967, and that the rents were due from January, 1968. Since there was no prohibition, according to the deceased 1st defendant to sublet the premises and the 1st respondent was also aware of the fact that he had sublet the premises, the sub-leases are not objectionable. The deceased 1st defendant claimed that he is entitled to the benefits of the Tamil Nadu City Tenants' Protection Act and also compensation for the superstructure. In addition, the deceased 1st defendant also claimed that he will be entitled to the benefits of Section 9 of the Tamil Nadu City Tenants' Protection Act. A further plea regarding the invalidity of the notice to quit, since it did not conform to Section 11 of the Act, was also raised by him. The second defendant in the suit filed a written statement mainly adopting the written statement of the deceased 1st defendant, but further stating that he took a portion of the premises on lease from the 1st defendant in 1958 and had been running a timber business and that even that business was stopped in 1960. The 5th defendant contended that he took on lease a vacant site from the deceased 1st defendant viz., 70 'x 40' and put up a superstructure for running a timber shop. It was his further case that he had invested nearly a sum of Rs. 17,000 and therefore, he is entitled to be paid compensation. It was also contended by him that the 1st respondent did not object while he was putting the superstructure. The 6th defendant was running a petty shop after taking the premises on lease from the deceased 1st defendant on a rental of Rs. 30 per month. The case of the 6th defendant was that though the 1st respondent and her son knew about the sub-lease and his hiving put up a shop, they did not raise any objection. He claimed that he is entitled to recover the expenses of Rs 600, The 7th defendant claimed that he was a lessee from the deceased 1st defendant of a premises on a monthly rent of Rs. 60 for running provision store and he, besides reiterating the contentions of the deceased 1st defendant, claimed compensation of Rs. 4,500. The 9th defendant filed a written statement contending that he took on lease from the deceased 1st defendant a portion of the premises on a monthly rent of Rs. 60 wherein he was running a foot wear shop and he would also claim a compensation of Rs. 830. Defendants 10 and 13 claimed that they were tenants under the deceased 1st defendant for two years prior to the institution of the suit and that they did not come in during the pendency of the suit.

4. On a consideration of the evidence on record, the learned District Munsif, Coimbatore, held that the lease by the 1st respondent in favour of the deceased 1st defendant was prior to 19th February, 1958, when the provisions of the Tamil Nadu City Tenants' Protection Act were extended to Coimbatore Municipality and not in 1956 as claimed by the deceased 1st defendant or on 1st March, 1958 as claimed by the 1st respondent. The subject matter of the lease was also held to be not only the vacant site, but also a superstructure measuring 60 'x 12 and that the subtenants (defendants 2 to 13) under the deceased 1st defendant were not entitled to any benefits. Regarding the arrears of rent claimed by the 1st defendant, the learned District Munsif accepted the case of the deceased 1st defendant and held that the 1st respondent was entitled to recover at Rs 100 per month from 1st January, 1968 to 1st December, 1968 and at the same rate for the subsequent period also on payment of court-fee. The validity of the notice terminating the tenancy issued under Exhibit A-1 was upheld. Though the learned District Munsif was inclined to grant the relief of recovery of possession of the suit property, yet, he held that the appellants 2 to 10 were entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act and that the 1st respondent cannot execute the decree for possession in so far it related to the portion in the occupation of the appellants 2 to 10. Accordingly, a decree was granted consistent with the findings given by him that the 1st respondent cannot execute the decree for possession to take delivery of the suit property but that she is entitled to initiate appropriate proceedings before the Rent Controller to recover possession of the property. A decree for future damages for use and occupation at the same rate as was prayed for the prior period till the delivery of the suit property was also given.

5. On appeal by the present appellants and on a memorandum of cross-objections filed by the 1st respondent, the learned District Judge, Coimbatore, held that the lease by the 1st respondent in favour of the deceased 1st defendant must have been prior to 19th February, 1958, when the Act was extended to Coimbatore municipality. The learned District Judge found that at the time of the lease, a superstructure measuring 60' x 12' was there already and that was included in the lease in favour of the deceased 1st defendant and therefore, none of the defendants in the suit is entitled to the benefits of the Tamil Nadu City Tenants' Protection Act. On this finding the learned District Judge further held that inasmuch as the provisions of the Tamil Nadu City Tenants' Protection Act are not applicable, the notice under Section 11 of that Act is unnecessary and the notice issued on 14th November, 1968 terminating the tenancy was a valid one. With reference to the arrears of rent, the learned District Judge concurred with the finding of the trial Court that the non-payment of rent from 1st January, 1968 to 14th November, 1968 when the lease had been terminated by issuing a notice under Exhibit A-1, was nothing but wilful default and that the deceased 1st defendant was bound to pay the rent at the rate of Rs. 100 per month from 1st January, 1968 to 1st December, 1968. For the period subsequent to 1st December, 1968. though the learned District Munsif decreed the damages claimable by the 1st respondent at the same rate, yet, the learned District Judge relegated the same to be determined in separate proceedings under Order 20, Rule 12 of the Code of Civil Procedure. Dealing with the question whether the 1st respondent can have an executable decree for recovery of possession, the learned District Judge held that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act would not apply at all to the instant case and therefore, the fetter placed on the executability of the decree by the learned District Munsif was held to be erroneous and the 1st respondent was given a decree for recovery of possession of the suit property after allowing the defendants to remove the superstructure existing thereon for which purpose they were granted three months time. In the result, the decree of the trial Court was modified by the learned District Judge to the extent indicated above.

6. In this second appeal, the learned Counsel for the appellants raises two contentions:

(1) that the lease was of the vacant site in May, 1956 and therefore, the appellants 2 to 10 will be entitled to the benefits of the Tamil Nadu City Tenants, Protection Act, and

(2) that the decree for recovery of possession granted by the lower appellate Court is erroneous in view of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) as amended by Act XXIII of 1973.

7. It may be mentioned here that after the service of summons on the deceased 1st defendant, he filed I. A No. 783 of 1959, purporting to claim the benefits of Section 9 of the City Tenants, Protection Act Since there was delay in filing the application, I.A. No 782 of 1969, was also filed under Section 5 of the Indian Limitation Act to excuse the delay in filing the application under Section 9 of the Tamil Nadu City Tenants' Protection Act. By an order dated 11th February, 1974, the learned District Munsif had dismissed both these applications and that order has become final. What now remains to be considered is, when was the lease granted and what was its subject-matter.

8. Admittedly, there is nothing in writing to evidence the lease transaction between the deceased 1st defendant and the 1st respondent herein. Neither the 1st respondent nor her son Nagarajan who is stated to have been present at the time of the lease arrangement has been examined in order to throw light on the precise terms of the lease deed and the property demised. The only evidence is that of P.W. 1 younger son of the 1st respondent, about the details of he lease, and his evidence has been rejected as not inspiring confidence. Therefore, the oral evidence is not very helpful in deciding this question.

9. Considering the documentary evidence, the chalans Exhibits B-5, B-6 and B-7, the receipt Exhibit B-9, the communication Exhibit B-10 and the letters Exhibits B 28, B-32, B-34, B-36, B-38 and B-40(the translations of which are Exhibits B-29, B-33, B-35, B-37, B-39, and B 4l) clearly establish that the business in timber under the name and style of Janata Timber Mart had been run in the suit property for some time prior to 19th February, 1958. The superstructure had been registered in the name of the said timber mart for the year 1957-58, as shown by Exhibit B-2. From the materials referred to above, the conclusion is irresistible that the lease by the 1st respondent in favour of the deceased 1st defendant must have been prior to 19th February, 1958 The question whether the lease comprised of the building or it was only of the vacant site has to be considered in the light of the documentary evidence. Though the 1st respondent relied upon Exhibits A-3, A-7, A-8 to A-11 evidencing payment of property tax, it is seen that Exhibits A-3 to A-5 and A-8 to A-10 relate to another building and therefore it may not really be very useful. Exhibit A-6 dated 22nd March, 1958 and Exhibits A-11 dated 3rd April, 1958 establish that in respect of the superstructure bearing No. 434 in the suit property, the 1st respondent had paid property tax and only for the later period, tax payments have been made by Janata Timber Depot. The payment of tax by 1st respondent for the second half year 1957-58 would bear out the ownership of the superstructure in the plaintiff. It is significant that in the reply notice Exhibit A-2, in response to the notice issued by the 1st respondent under Exhibit A-1. the deceased 1st defendant had unequivocally stated that after a lease of the vacant site alone, he sublet a portion thereof to the 2nd defendant in the suit and later on he put up the superstructure on the site and conducted the business before the superstructure was conveyed to him in pursuance of an agreement in that regard. There is no mention in Exhibit A 2 that the super structure was put up by the deceased 1st defendant in the suit property. The most important circumstance is that in the coarse of the adjudication of the deceased 1st defendant as an insolvent in the summary proceedings as is shown by Exhibits A-12 to A-14, the deceased 1st defendant had not made any claim with reference to the superstructures and his property. If the superstructure had been put up by him as claimed in the course of the suit nothing prevented him from raising such a claim in the course of the insolvency proceedings. On the contrary in those proceedings, he has estimated his worth at Rs. 60 in the shape of his apparel. This conduct of the deceased 1st defendant clearly shows that the superstructure in the suit property could not have been put up by the deceased 1st defendant and the other documents referred to above clearly point out that the superstructure must have been in existence even before and at the time of the lease and was let out only as such to the deceased 1st defendant. The deceased 1st defendant would, therefore, be not entitled to the benefits of the Tamil Nadu City Tenants' Protection Act. It is therefore not possible to accept the contention of the learned Counsel for the appellants that what was leased out was only a vacant site and that the deceased 1st defendant put up a super-structure and therefore, he will be entitled to the benefits of the Tamil Nadu City Tenants' Protection Act.

10. The learned Counsel for the appeliants strenuously contends that the lower appellate Court was wrong in having granted an executable decree for possession in view of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. The learned Counsel submits that it may be open to a civil Court under certain circumstances to entertain a suit for the recovery of possession of the property, but the decree cannot be executed, unless the order of eviction is obtained under one or more provisions of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960 as amended by Act XXIII of 1973 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:

Provided that nothing contained in the said sections, shall apply to a tenant whose landlord is the Government:

Provided further that whether the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded...

Section 10(2) provides the grounds upon which the Rent Controller might be approached to obtain an order of eviction on any of the grounds mentioned in Section 10(3)(i) to (vi). It may be noticed that under Section 10(2)(viii), denial of title of the landlord which is not bona fide is a ground for eviction. It may also be mentioned that the opening words of Section 10, 'A tenant shall not be evicted whether in execution of a decree or otherwise...' would indicate that it is open to the landlord to approach the civil Court to obtain a decree for possession in respect of a building, but the interdict is on the dispossesion of the tenant by execution thereof. In B.V. Patankar and Ors. v. C.G. Sastry : [1961]1SCR591 the Supreme Court was dealing with the question of the applicability of the provisions of the Mysore Rent Control Orders of 1945 and 1948 and how far they were applicable to proceedings in suit and execution. The Supreme Court pointed out that the prohibition on account of the House Rent Control Order was not against the pissing of the decree but its execution and therefore, the objection to the executability could only by taken at the time of the execution of the decree. It may also be noticed that there is no express bar of jurisdiction of the civil Court under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, The question therefore that arises for decision is whether a decree for possession can straightway be granted by the civil Court in the light of the second proviso to Section 10(1) of the Tamil Nadu Act XVIII of 1960 as amended by Act XXIII of 1973. In this connection, the learned Counsel for the appellants relies upon a decision reported in Mahmood v. Kerala Corporation Ltd. : AIR1945Mad181 wherein it was held that the defendants, who were in the position of tenants holding over ware entitled to the benefits of the Madras House Rent Control Order and that as they had validly exercised the option by means of notice, they were not liable to be ejected. It was further held that the amendment to the Rent Control Order which came into effect after the suit was filed could be given effect to, because in those cases what the Court had to see is the state of the law when the order of eviction is sought and not as it was when the suit was filed. It was further held that the remedy of the plaintiff in the case was to go before the Rent Controller and that he could not invite the Court to pass a decree for possession so that he might then go before the Rent Controller for possession. Justice Chandrasekhara Iyer at page 47 replied the contentions thus:

Mr. Venugopalachari ingeniously contended that there could be no objection to a decree being passed in this suit, though after the decree it might be that he might have to go before the Controller to get possession. This argument fails to take note of two answers. One is that when a special tribunal is indicated for obtaining a particular relief, it is that tribunal that has got exclusive jurisdiction to grant that relief, and to that extent the jurisdiction of civil Court is ousted. Secondly even if it is held that the Court has jurisdiction to grant a decree for eviction it cannot be called upon to indulge in a mere pastime and pass orders which would be brutumfulmen and which cannot be carried into effect without resort being had to other persons or tribunals in whom a discretion is vested to decide if eviction is to be ordered or not. The remedy of the plaintiff is to go before the Controller.

11. The view expressed above was dissented from by-Byers. J., in V.R.R. Sami Ayyar, In re and in Vennety Satyanarayana v. Pydimarri Satyanarayana : (1946)1MLJ135 . In the first of the cases, Byers, J. stated at page 135:. the wording of the section is not such as to deprive the City Courts of their power to entertain suits for eviction and to adjudicate upon them. What the Control Order prohibits is eviction outside the provisions of Section 7(A) of the order and to hold that the entire jurisdiction of the civil Courts in these matters apart from eviction is excluded would be ignoring the limitations pleased by Rule 81(2)(bb)(ii) on the exercise of the delegated powers.

In the latter case, the same learned Judge observed at page 136 that the words 'preventing the eviction of tenants and sub-tenants from such accommodation in specified circumstances', cannot be said to be wide enough to deprive the civil courts of their jurisdiction to pass decrees; all that the rule contemplates is the control of the relief of eviction. According to the learned Judge, there was nothing which prevented a plaintiff from proceeding to a decree if he chose to do so in the hope that he will be able to execute it when the ban imposed by the control order had been lifted. in Thelepurath Madhavakurup v. K. Muhammad Sukri Sahib : (1948)2MLJ359 Justice Panchapakesa Sastry held:

It must now be taken to be well-settled that a decree in ejectment could be passed by a civil Court and all that the order provides is that during the subsistence of the order, the civil Court cannot execute the decree, but the landlord will have to take appropriate steps under the provisions of the order.

12. In Theruvath Vittil Muhammadunny v. Melepurakkal Unniri and Anr. : (1949)1MLJ452 a Bench of our Court consisting of Rajamannar, C.J. and Raghava Rao, J., considered the scope of the Rent Control Order and held overruling the decision of Justice Chandrasekhara Iyer in H.Y. Mahmood v. Kerala Corporation Ltd. : AIR1945Mad181 thus:

Many of these considerations are found set out in an unreported decision of Wads-worth, J., in Sannedhi Veeraraghavalu v. Fathima Bibi Sahena S.A. No. 80 of 1946. These are such considerations : (1) The cause of action for an application to the Controller would be quite different from the cause of action for a suit in the civil Court; (2) the grounds on which the Controller can order an eviction may be quite different from those on the strength of which the civil Court would grant a decree; (3). The failure by the plaintiff to claim a decree for eviction in the civil Court on grounds which would not justify eviction by the Controller might result in grave complications by way of limitation for a suit filed after the Control Order ceases to operate; (4) The period during which the execution of a decree is prohibited is limited. The order itself is only for a short duration; and when it is repealed or it expires, a decree of a civil Court can be executed in the ordinary way immediately thereafter.

On a consideration of the above, the Bench held that the jurisdiction of the civil Court to entertain and pass a decree in a suit for eviction by a landlord against his tenant is not expressly or impliedly taken away by the provisions of the Rent Control Order.

13 The Rent Control Order of 1945 was replaced by Act XXV of 194k and it was replaced by a more comprehensive legislation in Act XV111 of 1960 as amended by Tamil Nadu Act XXIII of 1973. Though initially the Rent Control Orders were for a very short duration, the provisions of the Tamil Nadu Act XVIII of 1960 were made permanent by Section 28 of the Amendment Act XXIII of 1973. An examination of the provisions of the Tamil Nadu Act of 1949 or Act XVIII of 1960 as amended by Act XXIII of 1973 does not disclose that there is an express bar of jurisdiction of the civil Court under the provisions of the Act. But, on the contrary, the Act itself recognises and preserves the jurisdiction of the civil Court, though to a limited extent, in the second proviso to Section 10(1). This is also indicative that there was no total ouster of the jurisdiction of the civil Court.

14. The second proviso to Section 10(1) indicates that the landlord shall be entitled to sue and obtain an order of eviction of the tenant in a civil Court on any of the grounds mentioned in Section 10 and Sections 14 to 16 under certain circumstances. The proviso contemplates the following conditions: (1) There must be a denial of the title of the landlord or a claim by him of a right of permanent tenancy; (2) There must be a decision by the Controller that such denial or claim is bona fide; (3) Thereafter, the landlord shall be entitled to sue for eviction of the tenant in a civil Court; and (4) The Court may pass a decree for evietion on any of the grounds mentioned in the said Sections (section 10(2) and Sections 14 to 16) notwithstanding the Court finding that such denial does not involve forfeiture of the lease or that the claim is unfounded. An examination of the provisions of the Act reveals that this is the only case where the landlord is given a right to resort to the civil Court. In all other cases, if the landlord is desirous of obtaining an order of eviction, he has necessarily to apply to the Controller under Section 10(2) on any one of the grounds mentioned therein. The scope of the second proviso to Section 10 has been the subject-matter of consideration in D.V. Sanjeevi Naidu v. M.N. Chittibabu Mudaliar : AIR1953Mad473 . The Beach was dealing with the interpretation of the comparable proviso to Section 7(1) of the Madras Buildings (Lease and Rent Control; Act XXV of 1949. At page 261, the Bench observed thus:

Section 7(1) expressly provides that a tenant in possession of a building shall not be evicted therefrom, whether before or after the termination of the tenancy, whether in execution of a decree of otherwise, except in accordance with the provisions of that section. This provision is a complete answer to the execution petition filed by Sanjeevi for eviction. In this view it is not necessary to consider the effect of the proviso because the procedure indicated in the proviso has not been followed in this case. That proviso contemplates first a petition before the Rent Controller himself for eviction and a denial of title in such proceeding. If the Controller decides that the denial of title is bona fide and records a finding to that effect, then the landlord will be entitled to sue for eviction of the tenant in a civil Court. But even here the decree for eviction can only be passed on any of the grounds mentioned in Section 7. Though the proviso in terms will not have any application to the facts of this case, the principle of the proviso supports the view which we have already taken as regards the status of Chittibabu as a tenant under the Act. The effect of the proviso is that even if a civil Court finds that the claim of the tenant is not well-founded the tenant can be evicted only on any of the grounds mentioned in Section 7. In other words, even when the tenant has denied the title of the landlord and his denial has been found to be without foundation, ha will be entitled to the benefits of Section 7(2).

15. In this case, the deceased 1st defendant had denied the title of the 1st respondent to the superstructure. But in terms of the interpretation of the second proviso to Section 7(new Section 10(1) of the Act even he will be entitled to the benefits of the Act and he can be evicted only in accordance with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act on any one of the grounds mentioned in Section 10(2) as provided for therein. But one of the essential conditions for the exercise of the jurisdiction by the civil Court to order such eviction in this case has not been satisfied viz., a decision by a Controller whether the denial of the claim of title is bona fide and recording of a finding to that effect. It is one of the principal conditions upon which the right of the landlord to move the civil Court is granted to him and in the absence of the fulfilment of such condition, the landlord cannot straightaway rush to the civil Court and seek a decree for eviction on any of the grounds mentioned in Section 10. Indeed, the Bench decision referred to above has also pointed out this aspect of the matter and has categorically stated that the proviso contemplates first a petition to the Rent Controller and only thereafter, the resort to the civil Court can be had. The 1st respondent in this case unfortunately, has not adopted this procedure and consequently, it is not open to the 1st respondent to seek a decree for recovery of possession on any one of the grounds mentioned in Section 10(1).

16. In the course of the present proceedings, it has been found that the denial of title of the 1st respondent to the superstructure is not justified and therefore, it is still open to the Rent Controller to entertain an application under Section 2 itself. It has also been found that that the non-payment of rent between 1st January, 1968 to 1st December, 1968 is also wilful. These would certainly afford grounds to the 1st respondent to evict the appellants in accordance with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. Therefore, the civil Court, in the instant case, cannot by-pass the procedure contemplated under the second proviso to Section 10(2) and straightaway grant a decree for possession without reference to the provisions of the Rent Control Act and obtaining orders thereunder. Even if such a decree is granted, it is liable to be resisted in execution, as pointed out by the decision of the Supreme Court referred to earlier. In this view, the decree for recovery of possession passed against the appellants as per Clause (1) of the decree of the trial Court should be maintained. But the 1st respondent shall not be entitled to execute the decree against the appellant herein and she is at liberty to take appropriate proceedings against the appellants 2 to 10 under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960 as amended by Act XXIII of 1973. In this view I modify the decree of the lower appellate Court and restore the decree for recovery of possession granted by the trial Court. In the result, this second appeal is allowed in part to the extent indicated above. In other respects, the judgment and decree of the Courts below are confirmed. The parties will bear their costs through-out.


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