Madras High Court
Mohammed Haneef vs Haleel Basha And Anr. on 19 April, 1996
Equivalent citations: (1996)2MLJ301
JUDGMENT S.S. Subramani, J.
1. Defendant in O.S. No. 290 of 1986, on the file of the District Munsif's Court, Panruti, is the appellant.
2. Respondents filed the above suit for recovery of property, on the allegation that the appellant is in possession of the property as a tenant and that he has defaulted in paying the rent. It is further contended that the tenancy has been terminated by issuing a notice under Section 196 of the Transfer of Property Act and, therefore, the respondents are entitled to get possession from the defendant.
3. In his written statement, defendant did not challenge the title of the property. But his contention was that he has taken the land on lease and has put up a non-residential building and, therefore, he is entitled to the benefits of the Tamil Nadu City Tenants Protection Act, 1921. Within the statutory period, he also filed an application under Section 9 of the Act to purchase the property. Evidence was taken on the application filed by the defendant wherein it was held that since for non-residential building, the Act will have no application, the same was dismissed. Since there was no other defence, the suit was also decreed. Against the judgment, the defendant preferred A.S. No. 81 of 1988, on the file of Principal Subordinate Judge, Cuddalore. The appeal was also dismissed for the same reasoning. The second appeal is preferred against the concurrent finding, on the following substantial questions of law:
(1) Whether the Tamil Nadu City Tenants Protection Act, i.e., Tamil Nadu Act III of 1922 does not apply to non-residential buildings in Nellikuppam as held by the court below in view of G.O. Ms. No. 1285, Revenue, dated 31.5.1975?
(2) Whether the present suit in the absence of a Notice under Section 11 is maintainable? and (3) Whether the appellant is not entitled to compensation under Section 3?
4. After the second appeal was filed, defendant preferred a civil miscellaneous appeal before the District Court, with an application to condone delay, against the dismissal of his application under Section 9 of the City Tenants Protection Act. The lower appellate court dismissed the delay condone petition on the ground that no sufficient cause has been made out. The civil revision petition is filed against the dismissal of Section 5 petition, refusing to condone delay.
5. When the civil revision petition came for arguments, learned Judge directed the second appeal also to be posted along with the revision Petition. That is how both these matters have come together for arguments.
6. Both the courts below have held that the defendant is not entitled to the benefits of the City Tenants Protection Act on the ground that in respect of a non-residential building, the Act has no application. It is not on the basis of any evidence, but on the basis of certain assumptions, which have been shown to be patently incorrect. The Extension Notification is dated 31.5.1975, extending the provisions of the Madras City Tenants' Protection Act to non-residential buildings in all Municipal towns in the State. The said Notification is published in the Tamil Nadu Government Gazette, Part II, Section dated 25.6.1975 at pages 302 and 303.
7. When this was brought to the notice of the respondents, they contended that the same was not placed before the Legislature and, therefore, the Notification has no force. It was argued on behalf of the respondents that in the subsequent editions of the Book, this Notification was not published and hence his inference that the said notification is not in force has to be accepted.
8. I cannot accept the said contention in view of the binding decision in respect of the very same Notification reported in R. Govindasamy v. Bhoopalan and Ors. (1977)2 M.L.J. 206. In paragraph 2 of the said judgment, at page 208, a learned Judge of this Court has considered a similar question and has held that the Notification need not be placed before the Legislature and, therefore, it is valid. For the sake of convenience, it is better to incorporate the very same reasoning of the learned Judge, which reads thus:
The respondents have filed counter affidavits both in the petition under Section 9 and in the petition to excuse the delay, filed in this Court. It was contended by the learned Counsel for the respondents that the notification in G.O. Ms. No. 1285, Revenue, dated 31st May, 1975 had not been shown to have been placed before the Legislature as required in Section 1(6) of the Act and unless the said notification was placed before the Legislature, it will not be of any effect and will not confer any right on the petitioner to invoke the provisions of Section 9 of the Act. Under Sub-section (6) of Section 1, every notification issued under Sub-Section (2) or Sub-section (4) of that section shall be laid before the Legislature, if it is sitting, as soon as may be after the issue of the notification, and if it is not sitting within seven days of its re-assembly, and the State Government shall seek the approval of the Legislature to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before it. As seen from this provision, this requirement relating to the placing before the Legislature is required only with reference to the notifications issued under Sub-section (2) or Sub-section (4). The Act, as originally enacted, was made applicable by the Legislature to the City of Madras. But Sub-section (2) enabled the State Government by notification in the Fort St. George Gazette to extend the Act to any other municipal town. Sub-section (4) authorised the Government by notification in the Fort St. George Gazette to cancel any notification issued under Sub-section (2). These provisions show that only when the Act is extended or a notification under Sub-Section (2) is cancelled, it had to be placed before the Legislature. The Act was extended to the municipal town of Vellore by notification dated 8th January, 1973 which was published in the Fort St. George Gazette on 31st January, 1973. Section 2(1) defined 'building' as meaning a building used for residential or non-residential purposes in the City of Madras and for residential purposes only, in any other area. Thus when the Act was extended to the Municipal town of Vellore, it applied only for residential buildings. But Section 2(1)(i) also empowered the Government by notification to make the definition of "building" as including residential or non-residential building even in cases of any other municipal town. In exercise of the power under the said G.O. Ms. No. 1285, Revenue, dated 31st May, 1975, the Government specified the municipal town of Vellore as a municipal town for the purposes of Section 2(1)(i) from the date of publication of the notification in the Tamil Nadu Government Gazette. This notification under Section 2(1)(i) is not required to be placed on the table of the Legislature. The learned Counsel for the respondents is, therefore, not well-founded in his contention that the notification had not taken effect in this case. It should not be assumed that even in the case of a notification under Section 1(2) that the notification will take effect only after it is laid before the Legislature. In fact, that question does not arise for consideration as I have said that Sub-Section (6) of Section l is not applicable to notification issued under Section 2(1)(i).
9. Learned Counsel for the respondents also submitted that since Section 9 application has been dismissed and that has become final, the appellant cannot purchase the property, and at the most, he can be given only the right to get the value of improvements, According to him, once the application under Section 9 of the City Tenants Protection Act is dismissed, the right to purchase the property is also lost.
10. The said reasoning also cannot be accepted. The application under Section 9 of the said Act is filed only in a pending suit. The only condition is that the application should be filed within the statutory time fixed by the statute. If such an application is filed, evidence is taken and it will be decided whether the person who wanted the benefit under that section is entitled to purchase the property. But, when an application is filed in a suit, naturally, it can only be an interlocutory application therein. The dismissal of the interlocutory application in a suit will not bar the remedy. Section 105 of the Civil Procedure Code enables a party to challenge the finding on an interlocutory application when he files an appeal against the decree. The said legal position is now settled by the Supreme Court in the decision reported in Thailammal v. Janardhan Raju (1992)1 S.C.J. 126. That is also a case where in an eviction petition under the Rent Control Act, the defendant filed an application under the Tamil Nadu City Tenants Protection Act, 1921. That application was dismissed, from which he did not file an appeal. But, ultimately, the Supreme Court held that the dismissal of the application under Section 9 of the said Act and its conclusiveness will not affect the right of the party in challenging that finding or the final decision in the rent control petition. In paragraph 10 of the judgment, their Lordships have held thus:
So far as the contention of the learned Counsel for the plaintiffs is concerned , we are of the opinion that according to Section 9 it is open to a defendant to file an application thereunder in the suit for ejectment filed by the landlord against him. Such an application would be in the nature of an interlocutory application in the suit. In such a situation, it follows that once an appeal is filed by the defendant against the decree of the trial court, he is entitled to challenge the correctness of any interlocutory order passed in the suit, in such appeal, by virtue of Section 105 of the Civil Procedure Code. It is not necessary in such a case that he should prefer an independent appeal against the order dismissing an interlocutory application, even if it is appealable. This principle is of equal application herein even though the interlocutory application is one under Section 9 of the Act. Accordingly, it must be held that in the appeal/second appeal against the decree of the Trial court, it was open to the defendants to challenge the correctness of the order dismissing their application under Section 9. The High Court was, therefore, not right in holding that the said application having been dismissed by trial court and no fresh application having been filed, it must be held that there was no application under Section 9. The High Court was, therefore, not right in holding that the said application having been dismissed by trial court and no fresh application having been filed, it must be held that there was no application under Section 9. The application filed by defendants in the trial court must be deemed to be pending during the pendency of the appeal/second appeal....
11. In view of the binding decision, it has to be held that the conclusiveness is also lost once the second appeal is filed against the main decree. The application under Section 9 must be deemed to have been pending for all purposes.
12. The courts below have not decided the case of the appellant whether he is entitled to the benefits of Section 9 and purchase the property. It dismissed the application only on the ground that the Act has no application to non-residential buildings. Once that finding is set aside, the entire matter will have to go back to the trial court for re-determination of the issues.
13. Insofar as the revision is concerned, in view of the reasoning given by me, an appeal to the lower appellate court itself was not necessary. Only by way of abundant caution, the appellant filed an appeal before the lower appellate court, of course, belatedly. Even without an appeal, he can challenge the correctness of the finding rendered by the courts below on the application under Section 9. Since I hold that no appeal was necessary, the dismissal of the same on the ground of delay will not affect the right of the appellant. The revision against the Order is also, therefore, unnecessary.
14. In the result, I set aside the judgments of the courts below and allow the second appeal. Original Suit No. 290 of 1986, on the file of the District Munsif's Court, Panruti, is restored to file, and the trial court is directed to consider the case of the appellant namely, whether he is entitled to the benefits of the Tamil Nadu City Tenants Protection Act, 1921, in accordance with law. There will be no order as to costs in the second appeal. The parties are directed to appear before the trial court on 28.6.1996. C.R.P. No. 426 of 1991 is dismissed as unnecessary, however, without any order as to costs.