Madras High Court
Gopal Naidu (Deceased) And 9 Others vs Thirunavukkarasu Mudaliar on 26 February, 1998
Equivalent citations: 1998(1)CTC394, (1998)IIMLJ121
ORDER
1. The first petitioner who is the tenant and in possession of the land in question, aggrieved against the order passed in I.A.No.656 of 1986 in O.S.No.947 of 1975, has filed the above revision.
2. The respondent filed a suit in O.S.No.947 of 1975 on the file of the learned District Munsif, Vellore for ejectment of the petitioner/tenant from the vacant site in question wherein the petitioner has put up his own superstructure. The petitioner filed I.A.No.180 of 1976 under Section 9 of the City Tenants Protection Act seeking an order to direct the respondent/landlord to sell the site for value to be fixed by the Court. Accordingly, the trial court in the said application fixed the market value of the site to be sold to the tenant at Rs.7 per sq.ft., in its order dated 31.3.1978. This amount was directed to be paid in six months in three instalments, of two months intervals. Aggrieved against the same, the tenant filed appea1 in C.M.A.No.31 of 1979 and the landlord filed another appeal in C.M.A.No.32 of 1979. The lower appellate Court dismissed C,M.A.No.31 of 1979 filed by the tenant and allowed the appeal in C.M.A.No.32 of 1979 filed by the landlord, by its order dated 2.11.1981, fixing the market value at Rs.10 per sq.ft. The lower appellate court also directed the tenant to deposit the amount in six months in two instalments of three months intervals. Still aggrieved the respondent/landlord filed C.R.P.No.34 of 1982 and in the said C.R.P., the landlord obtained an order of stay. Fakkir Mohammed, J., as he then was, in his order dated 21.7.1983 fixed the value at Rs.12 per sq.ft. The learned Judge directed the trial court to give sufficient opportunity to the tenant for depositing the balance amount fixed therein for the value of the suit site. It is relevant to mention here that the learned Judge has not given any direction regarding the time limit to deposit the amount fixed. Thereafter the respondent/landlord filed an application in I.A.No.656 of 1986 to give effect to the judgment and decree in O.S.No.947 of 1975 dated 31.3.1978 and declare that the suit has been decreed and also holding that I.A.No.180 of 1976 stands dismissed. That application was contested by the tenant/petitioner herein. That petition was ordered by the court below and directed the tenant to deliver vacant possession of the property in question within three months from the date of the order. Aggrieved against the same, the tenant has filed the above Revision.
3. The only question that has to be decided in this case is whether the tenant has discharged his obligation under Section 9(1)(b) of the Madras City Tenants Protection Act, 1922.
4. Section 9(1)(b) of the said Act reads as follows:-
"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".
5. According to the abovesaid Section, two steps have to be taken by the Court, one after another are: (1) to decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant and (2) after having decided the minimum extent, to fix the price of such minimum extent. After fixing the price for such minimum extent, the Court has to pass order directing the tenant to pay the price so fixed 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. Thereafter if the tenant pays the amount as directed by the Court, the final order under sub-section(3) should be passed directing the conveyance by the landlord to the tenant with respect to the extent fixed by the Court, for which the price was paid. At the same time the tenant will be directed to put the landlord in possession of the remaining extent of the land if any. If the tenant fails to comply with the direction regarding payment of the amount fixed by the Court, sub-section (2) of section 9 of the said Act provides for the dismissal of the application. On such dismissal of the application filed by the tenant, under sub-section(2) of section 9, 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. Thereafter, section 3 of the Act will come into play. According to the said provision the tenant is entitled to be paid as compensation the value of any building, which may have been erected by him, by any of his predecessors - in-interest, or by any person not in occupation at the time of ejectment who derived title from either of them, and for which compensation has not already been paid. The tenant is also entitled to compensation for the value of trees which may have been planted by him on the land and of any improvements which may have been made by him.
6. In the present case, the tenant has deposited a sum of Rs. 5,063,83 on 26.6.1978, another sum of Rs. 5,063.83 on 27.9.1978 and another sum of Rs. 5,063.83 on 4.1.1979. On 11.4.1986, a sum of Rs. 27,463.95 was also deposited. On the basis of the said deposits, the learned counsel appearing for the petitioner/tenants has submitted that the tenants have deposited the entire amount within three years from the date of the order in C.R.P.No.34 of 1982, namely, 21.7.1983, and so the trial court is not correct in dismissing their application filed in I.A.No.180 of 1976.
7. The learned Senior Counsel appearing for the respondent/landlord, on the other hand, has submitted that the date of order mentioned under Section 9(1)(b) of the said Act has to be construed as the date of the order of the trial court, and, if any amount is increased by the appellate Court or by the High Court, for payment of such amount as increased by the appellate Court or the High Court, the period should be calculated from the date of the order of the respective courts. According to him, in the present case, the tenant has not deposited the amount either as directed by the trial court or by the appellate within the stipulated period. In support of his submission, the learned Senior Counsel has relied on the decision in Agastheeswarar & P.V. Perumal Dev. v. Varada Reddy, 1978 (II) M.L.J. 537 wherein the learned Judge has held as follows:-
"It appears to me that the Court can grant time to a tenant for the payment of the price fixed upto a period of three years, and not beyond. The contention of the learned counsel for the respondents is that this date is to be computed from the date of not only the order of the Court of first instance, but also of the order or judgment of the appellate Court as well as the revisional Court. If this argument is accepted, there would be no outer limit for payment by a tenant. Suppose, the trial Court grants a period of three years in the first instance, and an appeal is filed from the order of the trial Court and is pending for a period of five years, and the appellate Court, at the end of it, pronounces the judgment confirming the order of the trial Court and in doing so grants a further period of three years for payment, what would follow? The tenant would gain 5+3, eight years. A revision may be filed against that order and it may be pending for another period of five years, and if the revisional Court grants a further period of three years, the tenant would gain 5+5+3, thirteen years. In certain circumstances, there may be an appeal to the Supreme Court also and if the period is to be extended further, what would follow? These are the consequences that have to be visualised if the argument of the learned counsel for the respondents is to be accepted and it is held that the date of the order contemplated in section 9(1)(b) is the date of the final order of the ultimate authority. That would indeed be the tenant's paradise! However, I am unable to stretch the words of section 9(1)(b) to mean what the learned counsel for the respondents contend that they mean"
8. The learned Judge to come to such conclusion has relied on the decision of Ramaprasada Rao, J., as he then was, in Panchapakesan v. Swaminathan, 1975 (I) M.L.J. 338 in which the learned Judge has decided about the date for the purpose of determining the fixation of price, and has held as follows:-
"It is his specificity in the event that is pressed into service by Mr. Sundaram Iyer when he says that it is only that date, when the rights of the tenants under the Act are affirmed which enters into the computation for purposes of fixing the price of the land to which the tenant would be entitled in accordance with the provisions of the Act and that date alone has to be taken into account. If the argument of Mr. Balasubramaniam is accepted it would be difficult to find any other alternative specific date for the ascertainment of such price. It may be that appeals or other proceedings before the higher hierarchy may be filed by the landlord opposing the conferment of such a statutory benefit on the tenant and the appellate Court or the Court of revision might take some time before deciding whether the tenant is entitled to such benefits or not".
9. But the said decision in Panchapakesan v. Swaminathan, 1975 (I) M.L.J. 338 has been overruled by the Division Bench of this Court in Arasan v. Narasimhalu's Estate Trust, 1980(2)M.L.J. 13 wherein the learned Judges have held, while considering what is the 'date of the order', as follows:-
"The question for consideration is what then can be the date of the order referred to in the third sentence of section 9(1)(b). We are of the opinion that the date of the order referred to in the third sentence and the fourth sentence in section 9(1)(b) cannot mean the same date. It must mean two different dates. There is no controversy that as for as the date of the order occurring in the fourth sentence in section 9(1)(b) is concerned, it is the date of the order fixing the price to be paid by the tenant to the landlord because it contemplates a period of time to be not less than three months and not more than three years in future with reference to the date of the order. The difficulty arises only with regard to the expression date of the order occurring in the third sentence. If the expression date of the order occurring in the third and fourth sentences means the same date, namely, the date when the Court fixes the price to be paid by the tenant to the landlord, the third sentence will not be workable for the reasons already indicated, namely, at the time when the parties are called upon to adduce evidence regarding the average market value of the land for a period of three years, the parties could not know and from the nature of the case, nobody can know with reference to what date the three years period should be calculated, because the passing of the order will be in future. Therefore, we ave to give a meaning to the expression the date of the order occurring in the third sentence in section 9(1)(b) different from the meaning which we have given to the expression date of the order occurring in the fourth sentence in section 9(1)(b). Having given our careful consideration, we are of the opinion that the expression date of the order occurring in the third sentence in section 9(1)(b) must mean the date on which the Court decided the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. Once that decision has been arrived at, whatever might have been the interval between the date and the date on which the price was ultimately fixed, the period of three years backwards from that date is definitely known and there will be no difficulty for any particular party adducing evidence in that behalf"
10. The conclusion of the said Division Bench regarding the scope of section 9 has been set out in para 13, which is as follows:-
"From the above conclusion of ours on the interpretation and scope of section 9, the following consequences will follow:-
(1) If controversy arises whether a particular tenant is entitled to the benefits of the Act or not, in the sense that he is a tenant complying with the definition of the term tenant in section 2(4), that question has necessarily to be considered by the Court because, an affirmative decision in favour of the tenant alone will enable the Court to proceed further with the application made under section 9(1)(a) of the Act and a negative decision against the tenant will render any application filed by the tenant under section 9(1)(a) as not maintainable and such an order is not an order under section 9 and the date of that order has no relevancy to the fixation of the price of the land to be sold by the landlord to the tenant;
(2) When once the Court has decided that the tenant is entitled to the benefits of the Act or there is no controversy that the tenant is entitled to the benefits of the Act, the Court will have to dispose of the application filed by the tenant under section 9(1)(a);
(3) For the purpose of disposing of this application, the Court must first decide upon the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. Any such decision of the Court, from the very nature of the case, can only be by means of an order and the date of that order will be the relevant date for the purpose of fixing the price mentioned in the third sentence in section 9(1)(b). If the decision of the Court on the minimum extent is taken up further by way of appeal or revision and that decision is either affirmed or modified and if there had been a stay of further proceedings during the pendency of such appeal or revision, naturally, the date of the order contemplated in the third sentence in section 9 (1)(b) will the date of the order of the appellate or revisionsl Court;
(4) After having determined the minimum extent of the land or if such determination had been the subject-matter of further proceedings and those proceedings have concluded, the Court will then proceed to fix the price of the land;
(5) For the purpose of deciding upon the minimum extent of the land or for the purpose of fixing the price of the land, certainly it is open to the Court to appoint a Commissioner to record evidence and submit a report to the Court;
(6) After the price to be paid by the tenant to the landlord for the purchase of the land has been determined, the Court will have to pass an order directing the tenant, within a period to be determined by the Court, not more than three years from the date of such order, to pay into Court or otherwise as directed by it, the price so fixed in one or more instalments with or without interest.
(7) If the tenant complies with such a direction, then the Court will pass a final order under section 9(3)(a) of the Act directing the landlord to convey the extent of the land decided to the tenant for the price so fixed and in the same order directing the tenant to put the landlord into possession of the remaining extent of the land, if any;
(8) If, on the other hand, the tenant commits default in the payment of the amount as directed and the Court itself had not excused the delay by giving further opportunity, the application filed by the tenant under section 9(1)(a) shall stand dismissed and;
(9) If the tenant has fulfilled the directions given by the Court and the Court has passed the order under section 9(3)(a), then the suit or proceeding shall stand dismissed and any decree or order in ejectment that might have been passed therein, but which has not been executed shall be vacated. If, on the other hand, the tenant has committed default and the application filed by him under section 9(1)(a) stands dismissed under section 9(2) then the suit or proceedings will proceed or any decree or order in ejectment that may have been passed therein shall stand"
11. In view of the above decision of the Division Bench, overruling the decision in Panchapakesan v. Swaminathan, 1975 (I) M.L.J. 338, the decision in Agastheeswarar & P.V.Perumal Dev. v. Varada Reddy, 1978 (II) M.L.J. 537, decided on the basis of the decision in Panchapakesan v. Swaminathan, 1975 (1) M.L.J. 338, cannot be put against the petitioners.
12. In this case, admittedly, at the instance of the landlord, the amount was varied both by the appellate Court and in the revision by the High Court. So, the final order is only the order of the High Court as the order of the lower Courts merge with the order of the High Court.
13. In Mohammed Sulaiman Khan v. Muhammed Yarkhan, 1989 (II) AH. 267, Sri John Edge, following the view taken in Veerappa v. Sivagami, AIR 1942 Mad. 291 has held as follows:-
"In my opinion the effect of S.S79 of the Code (1882) (corresponding to O.41, R.35, Civil P.C. 1908) is to cause the decree of the appellate Court to supersede the decree of the Court below even when the decree of the appellate Court is one which merely affirms that decree and does not reverse it or modify it. In my opinion the only decree that can be amended is the decree to be executed, and the decree to be executed is the decree of the appellate Court and not the decree of the Court below".
14. The abovesaid view was followed in Manavikrama v. Unniappan, 2 M.L.J. 23 and later affirmed by the Full Bench in Pichu Iyengar v. Sesha Iyengar, 5 MLJ 39.
15. Further, in Kristanamachariar v. Mangammal, ILR 26 Mad.91, it has been held as follows:-
"When an appeal is preferred from a decree of a Court of first instance, the suit is continued in the Court of appeal and reheard either in whole or in part, according as the whole suit is litigated again in the Court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of the first instance"
16. In view of the abovesaid decided cases, and also in view of the fact that the order of the court of first instance got merged with the order of the High Court in revision, and in the light of the decision of the Division Bench in Arasan v. Narasimhalu's Estate Trsut, 1980 (2) M.L.J. 13 'the date of the order' mentioned in section 9(1)(b) of the Act should be construed only as the date of order in Revision. If different meaning is given, the period of three years mentioned under section 9(1)(b) of the Act is to be extended to the date of the order passed by the respective courts, namely, the Court of first instance, the appellate Court and the High Court, there cannot be any different period for different orders at different stages with respect to the obligation of that has to be discharged by the tenant. The statute has provided three years period as outer limit for payment of the amount from the date of the order. In this case it is not in dispute that as on 11.4.1986 the petitioners had deposited the entire amount. The revision in this Court was disposed of on 21.7.1983. Admittedly, this Court, while disposing of the revision in C.R.P.No.34 of 1982 has not fixed any time limit. The landlord should have requested the High Court to fix the time within which the tenant has to pay the amount fixed by the Courts. In the absence of any such time limit prescribed by the Court, the tenant is entitled to take benefit of the provision, to say that he is entitled to pay the amount within three years from the date of the order. Once the orders of the Court below has got merged with the order in revision, it cannot be said that the date of the order in appeal or in revision can be taken into consideration only to deposit the amount over and above which the court of first instance has fixed.
The learned Senior Counsel appearing for the respondent has relied on the last sentences of the order in C.R.P.No.34 of 1982, which is as follows:-
"Consequently the trial court will give sufficient opportunity to the tenant for depositing the balance amount now fixed for the value of the suit site and pass suitable orders in the above lines"
On the basis of the abovesaid direction, it cannot be alleged that the learned Judge, while disposing of the revision, has given direction to the court below to give time only with respect to the increased amount and not for the amount fixed by the court below. Such a meaning cannot be given to the direction given by this Court in revision. As discussed earlier, the order of the court below has got merged with the order in the revision, and the time contemplated under section 9(1)(b) of the Act will start from the date of the order in the revision, and so the submission of the learned Senior Counsel cannot be countenanced.
17. The learned Senior Counsel appearing for the respondent has further submitted that even the amount already deposited by the tenant was attached by a pro-order dated 20.1.1986 in O.S.No.10 of 1986, filed by a creditor of the tenant. On the basis of the said attachment, the learned Senior Counsel has submitted that though the amount was deposited, the landlord could not withdraw the same. I find it difficult to accept such contention. It is not in dispute that the said attachment was raised on 28.11.1990, and on the date of the passing of the order in the application, the amount was available for the landlord to withdraw the same and so merely because some third party has attached the amount, the respondent cannot come forward with the plea that the amount already deposited, cannot be taken into consideration for the purpose of finding out as to whether the tenant has discharged his obligation under section 9(1)(b) of the Act or not. Even according to the learned Senior Counsel, till the date of executing the sale deed under section 9(3) of the Act, the amount deposited should be construed as one of the tenant. That being so. merely because of some attachment in the interregnum period, the same cannot be put against the tenant.
18. On the basis of the facts set out earlier, it can be easily concluded that the tenant has deposited the entire amount within three years from the date of the order, namely, the order in the revision, dated 21.7.1983, and so the tenants had complied with his obligation under Section 9(1)(b) of the Act and he is therefore entitled for the conveyance as prescribed under section 9(3) of the Act.
19. In view of the above discussions, the order passed in I.A.No.656 of 1986 is set aside and the court below is directed to proceed further with the application in I.A.No.180 of 1976 in accordance with law. Consequently, this revision is allowed. No costs.