Madras High Court
A.V. Hanifa vs Salima Dhanu on 8 July, 1991
Equivalent citations: AIR1992MAD111, (1991)IIMLJ325, AIR 1992 MADRAS 111, 1991 (2) MADLJ3325, (1991) 2 MAD LJ 325, (1992) 1 RENCR 598
ORDER
1. Defendant has preferred this revision petition against the order of the executing Court directing delivery of possession of the suit property overruling the contentions raised by him.
2. The short facts are : The respondent filed O.S. No. 543 of 1977 and O.S. No. 216 of 1977 on the file of the District Munsif's Court, Salem. O.S. No. 543 of 1977 is for recovery of possession while the other suit is for an injunction restraining the defendant from utilising the suit property for any purpose other than that for which it was leased out. Both the suits were tried together and disposed of by a common judgment on 8-3-1979. The contention raised by the defendant, who is the petitioner herein, was that the suit for recovery of possession was not maintainable as he was entitled to the benefits of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter referred to as 'Act'. That contention was met by the plaintiff on the ground that the building was a new one completed in 1974 and the Act would not apply for a period of five years from the date of completion. It was stated on behalf of the plaintiff that the old building which existed was destroyed by a fire accident and the plaintiff had to erect a new structure. It was argued before the trial Court that the plan which was sanctioned by the municipality showed that what was done by the plaintiff was only to change the roof and there was no new construction by the plaintiff. That aspect of the matter was dealt with by the trial Court in para 21 of its judgment. The relevant passage in the judgment reads thus :
".....According to him, as a tenant he is entitled to protection under the Madras Buildings (Lease and Rent Control) Act. The plaintiff has filed the suit in O.S. No. 216 of 77 for a permanent injunction to restrain the 1st defendant who is the defendant in that suit from using the leasehold premises for any purpose other than the present business and from putting any additional power service. In that suit, the plaintiff has stated that the building was completely reconstructed in the year 1974. In his written statement in O.S. 216/77, the defendant has categorically admitted that there was fire accident in the row of shops, that five shops were damaged and that in the process of reconstruction in that place the shops and a staircase were constructed. It is in evidence that the fire accident took place in the year 1973. Ex. B1 is a copy of the plaint in O.S. 241 of 76, on the file of the Sub Court, Salem. That was a suit for damages filed by defendants 3 to 8 and the plaintiff against one Kasim and others for loss caused to them as a result of the fire accident. It is stated that the shops bearing Door Nos. 32 to 36 and 38 were completely gutted and burnt. The date of accident is proved to be 20-4-1973. Ex. B.2 is the plan filed by the 3rd defendant before the Municipality snowing the proposed re-roofing of the existing shops destroyed by the fire accident in T.S. No. 42 Ward Block 1 in the bus stand road, Salem. It is also stated therein that it is a proposal for conversion of the roof. The evidence of p.w. 1 is that the building was not constructed according to the plan, Ex. B.2. It is seen from Ex.B. 2 that the width of the shop is 8'5", but the report of the commissioner shows that it is about 10' and this is also spoken to by P.W. 1. The evidence of P.W. 2, who is the husband of the plaintiff, is that the building is a new building. A perusal of the plan filed in this case shows that the cubical content of the enclosed space has increased. It was contended by the learned counsel for the plaintiff that if the building had not been constructed according to the plan, it was for the municipality to take action against the owner of the building and that the tenant cannot take advantage of it. There is force in this contention. Thus, it is abundantly clear that the suit property is a new building constructed after the fire accident and that it was completed in the year 1974 just prior to leasing out of the same to the 1st defendant. The evidence of D.W. 1 is that the construction was completed in the year 1974."
On the basis of the above finding the trial Court held that it had jurisdiction to decide the suit and grant a decree for possession. Thus the contention of the petitioner herein was overruled on the basis of finding of fact that the building in question was a new building constructed in 1974.
3. There was an appeal by the petitioner in A.S. No. 168 of 1979 on the file of the Subordinate Judge's Court, Salem. The same contention was put forward by the petitioner before the appellate Court but the appeal was dismissed. There was a second appeal in this Court in S.A. No. 849 of 1980. That was dismissed on 10-2-1986. It is necessary to extract the judgment of this Court in that second appeal and the relevant portion reads thus :
".....The main contest of the first defendant, amongst other grounds, was that the suit is not maintainable because the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, hereinafter referred to as the Act, would be applicable to the premises in question. But it has been found, as a finding of fact, that the premises is a new building completed in the year 1974, just prior to the leasing out of the same to the first defendant and hence the exemption u/ S. 30(1) of the Act would apply and in this view it was held that the civil court could entertain the suit. It should be noted that the suit had come to be laid in 1977, before the lapse of the period of five years. With or without the exemption, the Civil Court can entertain a suit for ejectment and pass a decree thereon if there is a case made out therefor. But the question of executability of the decree will depend upon the applicability of the Act to the building at the time when eviction through execution of that decree is sought for. If at the time of executing the decree, the Act applies to the building, then eviction could be sought for only under the Act and not in execution of the decree. I do not think that the decree passed by the first Court and confirmed in appeal by the lower appellate Court has got to be set aside on the ground that the Civil Court lacked jurisdiction to entertain the suit. Accordingly the substantial questions of law formulated by this Court at the time of the admission of the second appeal touching this aspect have got to be answered against the first defendant, the appellant herein".
4. Thereafter, the respondent filed the execution petition for delivery of possession. The petitioner resisted the same on the strength of the observations made by this Court in the said Second Appeal, as extracted above. It was the contention of the petitioner before the Court below that the decree was not executable as the provisions of the Act were applicable to the suit building at least at the time of execution. The executing Court overruled the contention and ordered delivery of possession. Hence this revision petition.
5. It is contended by learned counsel for the petitioner that the observations of this Court in S.A. No. 849 of 1980 clearly give a right to the petitioner herein to contest the executability of the decree (i) on the footing that the Act is applicable to the building at the time of execution and (ii) on the footing that the Act was applicable to the building even at the time of the filing of the suit.
6. With regard to the first limb of the argument it may be pointed out that the view taken by the learned judge that if the Act would apply to the building at the lime of executing the decree then eviction could be sought for only under the Act and not in execution of the decree, is not sustainable in view of a clear pronouncement of the Supreme Court in Nand Kishore Marwah v. Samundri Devi . Before referring to the said judgment I should refer to two earlier judgments of the Supreme Court taking two different views on the question. In Om Prakash Gupta v. Dig Vijendrapal Gupta, it was held that if at the time of the filing of the suit the Act was not applicable then the plaintiff was entitled to execute the decree though the Act became applicable to the building during the pendency of the proceedings. In Vineet Kumar v. Mangal Sain Wadhera a contrary view was taken by the Supreme Court and it was found that if the Act became applicable to the building during the pendency of the proceedings the decree ceased to be executable. It was on the strength of the latter judgment referred to above it was observed by this Court in the above second appeal (S.A. No. 849 of 1980) that if at the time of executing the decree the Act applied to the building eviction could be sought only under the Act and not in execution of the decree. That view was based on the law as enunciated by the Supreme Court in Vineet Kumar's case (supra) and it was not based on any finding of fact. In Nand Kishore Marwah's case (supra) the Supreme Court has clearly laid down that the above view taken in Vineet Kumar's case (supra) was not sustainable and that the decision in Om Prakash Gupta v. Dig Vijendrapal Gupta laid down the law correctly. The Supreme Court observed that it was well settled that the rights of the parties should be determined on the basis of the rights available to them on the date of the suit. It was on that footing the Supreme Court held that a decree obtained in a suit which was filed at a time when the Act was not applicable, could be executed till its completion even though the Act became applicable to the building subsequently.
7. In view of the said pronouncement in Nand Kishore Marwa's case (supra) the present contention of learned counsel for the petitioner that the applicability of the Act should be considered only as on the date of execution and not as on the date of suit cannot be accepted.
8. As regards the second limb of the argument learned counsel submits that the question which really arose for consideration and which should have been considered by the Court was whether it was a case of a new construction altogether or it was a case of merely a change of roof of the building which existed previously. According to learned counsel, Exhibit B-2, the plan sanctioned by the Municipality proved beyond doubt that it was only a case of change of roof and it was not a case of a new construction as such. Hence learned counsel submits that the question can be raised u/S. 47, Civil P.C. before the executing Court and it is the duty of the Court to decide whether there was a new construction and whether the Act was applicable to the building on the date of suit or not. I cannot agree with this contention.
9. Learned counsel for the petitioner submits that u/S. 47(1), Civil P.C. all questions arising between the parties to the suit in which a decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Learned counsel wants me to interpret this Section as meaning that any question which is raised by a party to the suit should be considered by the executing Court if it relates to execution, discharge or satisfaction of the decree. Such a wide interpretation is unsustainable. When the Section refers to all questions it only means all questions which were not raised in the suit and decided by the trial Court. If a question was raised before the trial Court at the stage of trial and decided by the trial Court it is not open to the parties to raise it again at the stage of execution. Similarly, if a question ought to have been raised by a party before the trial Court at the stage of trial and if he omits to raise it, even then he cannot raise it u/S. 47 before the executing Court.
10. In this case, the question was raised before the trial Court and it was answered against the petitioner herein. I have already extracted the relevant part of the judgment of the trial Court. Once that finding was arrived at by the trial Court and the question was answered, it is not open to the petitioner to canvass the same before the executing Court once again.
11. Learned Counsel submits that the liberty given by this Court in second appeal (S.A. 849 of 1980) to raise the question of applicability of the Act to the building at the time of executing the decree would entitle the petitioner to raise also the question of the applicability of the Act to the building at the time of the institution of the suit. Learned counsel also submits that but for the liberty given by this Court he would have pressed for a decision of this Court on the issue as to whether the building was a new building or there was only a change of roof of an old building. I cannot accept this contention. This Court has dismissed the second appeal by observing that the finding of fact that the premises was a new building was against the petitioner herein. This Court also observed at the end that the substantial questions of law framed in the second appeal were to be answered against the petitioner herein. The decree passed in the second appeal was one of dismissal simpliciter and there was no question of permitting the petitioner to raise the very same contention which was raised by him in the trial Court and negatived by the trial Court again before the executing Court.
12. In the circumstances of the case, I do not find any merit in this revision petition and it is dismissed with costs.
13. Petition dismissed.