Madras High Court
Bharath Kumar Jain vs Kanta Ben on 4 September, 1997
Equivalent citations: 1998(2)CTC111, (1998)IIMLJ156
ORDER
1. The present revision has been preferred against the fair and decretal order dated 31.3.1997 in E.A.No.827 of 1997 in E.P.No.1721 of 1996 in O.S.No.5485 of 1994 on the file of the IX Assistant Judge, City Civil Court, Madras. The respondent is the owner of the premises bearing door No.71, Mulla Sahab Street, Chennai. He let out the house and premises, being flat situated in the left hand side in the ground floor of the said premises bearing door No.71 to the petitioner herein on a monthly rent of Rs.1800 for residential purpose on and from 1.9.1989.
2. The respondent instituted O.S.No.5485 of 1994 for recovery of possession and for recovery of Rs.18,000 being arrears of rent due for the period commencing from May, 1993 to February, 1994. The suit was presented on 10.3.1994. The petitioner herein, though served with the suit summons, absented himself and the trial Court passed an ex parte decree on 12th October, 1995, directing the defendant in the suit to pay Rs.18,000, together with interest at 6% per annum, to deliver vacant possession of the suit property and to pay Rs.4,470-50 towards the cost.
3. Based on the said decree, the respondent instituted E.P.No.1721 of 1996 to execute the decree. In the said execution petition, the petitioner filed a detailed applications, besides raising other contentions, contending that the decree is a nullity, that the execution petition cannot be proceeded that it deserves to be dismissed in terms of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and that the decree is inexecutable. The petitioner/tenant also filed an Execution Application No.820 of 1997 under Section 47 of the Code of Civil Procedure. In the said application also the revision petitioner herein mainly contended that the decree passed by the Civil Court is inexecutable as the exemption granted under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as Act) will not enure beyond period of five years from the date of completion of the building and the decree passed by the Civil Court is a nullity and it is inexecutable as Section 10(1) of the Act is a bar against the eviction of tenants either in execution of a decree or otherwise except in accordance with the provisions of Section 10 or 14 to 16 of the Act. In the said application, the petitioner also challenged that even on the date of filing of the suit itself, the suit is not maintainable as more than five years have elapsed and that the exemption granted under Section 30 had already lapsed on the date of institution of the suit and that the plaint itself is inherently defective and the suit is not maintainable.
4. After contest, the Court below overruled the objection raised by the revision petitioner and dismissed the Execution Application No.827 of 1997 by its fair and decretal order dated 31.3.1997. Being aggrieved by that order, the present revision has been preferred. The revision was admitted on 11.4.1997 and the Court granted interim stay and subsequently, the respondent came with the petition to vacate the interim stay. At that stage, the counsel for either side represented that the revision itself be taken up for disposal. Accordingly, the revision was taken up for final disposal, and detailed arguments were advanced on various dates by the counsel appearing on either side.
5. The counsel for either side cited number of reported decisions of the Apex Court as well as this Court and also referred to an order passed by Nainar Sundaram, J. on 21.9.1990 in CRP No.2591 of 1990. It is true that the reference made by Nainar Sundaram, J. is pending and it has not been posted before the larger Bench to answer the questions formulated by the learned Judge. Nainar Sundaram, J. formulated the following three questions and referred the matter to a larger Bench, for being answered.
"1. Whether in a suit for eviction instituted before a Civil Court during the period of exemption under Section 30(1) of the Act, a decree for eviction is passed after expiry of the period of exemption can the decree for eviction be executed?
2. Whether, in a suit for eviction institute in a Civil Court during the period of the exemption under Section 30(i) of the Act, a decree for eviction is also passed before expiry of the period of exemption can the decree for eviction be executed after the expiry of the period of exemption?
3. Will the fact that the execution of the decree for eviction has been levied before the expiry of the period of exemption and the execution not having been completed; being prosecuted after the expiry of the period of exemption, matter and till any answer to be given to question number (2)?"
6. In the present revision, the learned counsel for the petitioner had not challenged the findings rendered by the Executing Court in the Execution Petition as well as the application and mainly contended that the decree passed in O.S.No.5485 of 1994 on 12.10.94 is inexecutable and is a nullity. The Executing Court has rendered a definite finding on that date when the suit was instituted; viz., on 10.3.1994; and exemption period of five years has not lapsed, and on the date of filing of the suit the building was not governed by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. The Court below found that the building was constructed during September, 1989 and it was assessed to property tax for the first time for second half of 1989-90 and that on 10.3.1994 the date of institution of the suit, the provisions of the Rent Control Act had no application. The Court below also found that on the date of institution of the suit, the building was exempt in terms of Section 30(1)(i) of the Act as the period of five years from the date on which the construction is completed and notified to the Local Authority has not elapsed. The learned counsel for the revision petitioner accepts the said findings of the Executing Court. The learned counsel contends that though a decree has been passed, the said decree is inexecutable as on the date of filing of execution petition as well as the enforcement of the decree, the statutory exemption granted was no longer available and in terms of Section 10, the Petitioner/tenant shall not be evicted in execution of the said decree or otherwise, except in accordance with the provisions of Section 10 or Section 14 to 16. In other words, after expiry of five years period, during which five years period the building in question was exempt and the decree obtained by the respondent is inexecutable as the building on the date of execution is governed by the provisions of the Rent Control Act.
7. The learned counsel for the petitioner stressed on the said legal contentions and tried to sustain the same by relying upon the various pronouncements of this Court as well as of the Apex Court. In so far as the findings with respect to the date of institution of the suit and the date on which the period of exemption in terms of Section 30 lapses, are not in dispute and it is also not open to the petitioner to challenge the same.
8. On the other hand, the learned counsel for the respondent contends that the suit has been instituted when the building was exempt and the decree has been passed belatedly and merely because the building ceased to be an exempted building, it cannot be contended that the decree is inexecutable and the further contention that the respondent has to go before the Rent Controller, invoking Section 10 or 14 to 16 of the Act, afresh applying for eviction is untenable.
9. Section 10(1) of the Act provides that: 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; Sub-Section (2) of Section 10 of the Act provides: A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf, ordering eviction on one or more grounds as provided in Section 10 or Sections 14 to 16. One other relevant provision is in Sub-Section (1) of Section 30 of the Act, which reads thus:
"Any building for a period of five years from the date on which the construction is completed and notified to the Local Authority concerned."
In terms of Sub-Section (i) of Section 30, it is admitted that on the date of institution of the suit five years period has not come to an end from the date on which the construction of the building is completed and notified to the Local Authority concerned.
10. The learned counsel for the petitioner contends that on the date when the decree was passed on 12th October, 1995, the building was no longer enjoying the exemption under Section 30 of the Act and even if a decree has been passed, it is contended that it is inexecutable, as the exemption under Section 30 ceased from September, 1994.
11. The learned counsel for the revision petitioner pointed out that even before passing of the decree and the institution of the Execution Petitions, the five years exemption period in respect of the building ran out and the decree passed by the Civil Court is inexecutable. In this respect, the learned counsel for the petitioner relied upon the following decisions of this Court as well as of the Apex Court:
(1) Thalai Vadiuv Ananda v. Venugopala Chettiar, 1960 (1) MLJ 356; (2) Nanda Rao and others v. Lakshmanaswani Mudaliar, 1969 (1) MLJ 153; (3) K.Ramachandran Chettiar v. G.Lakshminarayanaswami Chettiar, 1976 (2) MLJ 107 : 89 LW 487; (4) Hajee Abdullah Sait v. Mohandas and others, 1977 (90) LW 573; (5) Chand Basha v. Parai Bi, 1978 (1) MLJ 46; (6) Thottal Morthemmal Naidu v. Kattikollan Edavalath and another, 1980 (93) LW 202; (7) A. Krishnaswami v. S.Rasheeda, 1980 (2) MLJ 463 : 93 LW 378; (8) Kushan Das J. Vithalani v. Bhamidi Kameswara Rao and others, 1987 (1) RCJ 255; (9) S. Ramiah v. Ariyakudi Kalyana Krishna Hospital Trust by Managing Trustee etc.. 1988 (1) LW 409; (10) K.V.Nayak v. Mrs. Chandra Devesagayam, 1988 (2) LW 99; (11) P. Mohanlal v. S.N.Thirumalai Chettiar, 1989 TLNJ 59 : 1989 (1) LW 334; (12) The Order of the Reference made by Nainar Sundaram, J. in CRP No.2591 of 1990 on the file of this Court dated 21.9.1990.
The learned counsel also sought to distinguish the following pronouncements of the Apex Court:
(1) Nand Kishore Marwah and others v. Samundri Devi, ; (2) Ramesh Chandra v. III Additional District Judge and others, The learned counsel for the petitioner also sought to distinguish the judgment of the Division Bench of this Court in S.N.Kuba v. P.P.I.Vaithyanathan, 1988 TNLJ 1
12. On the other hand, the learned counsel appearing for the respondent contended that the judgments of this Court reported in, Thalai Vadiuv Ananda v. Venugopala Chettiar, 1960 (1) MLJ 356; Nanda Rao and others v. Lakshmanaswami Mudaliar, 1969 (1) MLJ 153: Hajee Abdullah Sait v. Mohandas and others, 90 LW 573; Chand Basha v. Parai Bi, 1978 (1) MLJ 46 and Thottal Morthemmal Naidu v. Kattikollan Edavalath and another, 1980 (93) LW 202 are no longer good law in view of the subsequent pronouncements of Apex Court.
13. In S.N.Venkatarama Reddiar v. Abdul Ghani Rowther, 1980 (93) LW 436 (F.B), the Full Bench opposed the question for consideration as "Whether a tenant induced into possession by an usufructuary mortgagee can claim the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1969, as against the mortgagor, after the redemption of the mortgage?
The Full Bench ultimately answered the question referred to above in the negative, however, at the twenty eight paragraph of the judgment, the Full Bench answered the question, as to whether the Civil Court has jurisdiction to entertain the suit in ejectment or pass a decree against the appellant when his defence is that he is statutory tenant and liable to be evicted only under the provisions of the Tamil Nadu (Buildings Lease and Rent Control) Act.
The Full Bench of this Court has held thus:
"Before parting with the judgment, it is necessary to deal with another question which was, however, not seriously canvassed before us. The question is whether the Civil Court has jurisdiction to entertain the suit in ejectment or pass a decree against the appellant when his defence is that he is a statutory tenant and liable to be evicted only under the provisions of the Tamil Nadu (Buildings Lease and Control) Act So far as this matter is concerned, it is by now well settled that there is nothing in Section 10 of the Act prohibiting a Civil Court from passing a decree for possession. What is prohibited under the Section is only the execution of a decree for ejectment passed by a Civil Court. We may only refer to Muthumandunni v. Melapurakkal Unniri, 1949 (1) MLJ 452 and B.V.Patankar v. C.C.Sastry, in this behalf. As we have held that the appellant is not a tenant entitled to claim protection under the Tamil Nadu (Buildings and Lease Control) Act, it follows that even the bar of execution of the decree, contained in Section 10 will not be attracted."
This view of the Full Bench is sought to be contended as per-incuriam as the Full Bench has held that the appellant is not a tenant entitled to claim protection under the Act and also concluded that the power of execution of the decree contained under Section 10 will not be attracted.
13. A. In A.Krishnaswami v. S.Rasheeda, 1980 (2) MLJ 463 : 93 LW 378 on the date when the decree for ejectment was passed, subsequent to the date of passing of the ejectments by the Civil Court, the provisions of Act was notified and extended to the area. In that context, Natarajan, J. held that the decree passed against the tenant is not a null and void one and there can be a declaration that so long as the petitioner merits the status of tenant under the Act and so long as Section 10(1) remains in the statute book; the decree obtained by the respondent will be inexecutable. It has been held thus;
"For the aforesaid reasons, the contentions of the petitioner have to be sustained. However, it is made clear that the decree passed against the petitioner is not a null and void one. Only its executability has been impugned by Section 10(1) of the Act. Therefore, there can only be a declaration that so long as the petitioner merits the status of tenant under the Act and so long as Section 10(1) remains on the statute book, the decree obtained by the respondent will be inexecutable. There will be a declaration to that effect in the petitioner's application. The revision will stand allowed accordingly, but there will be no order as to costs. It is also made clear that not with standing the decree for possession already obtained by the respondent it is open to him to seek eviction of the petitioner by instituting appropriate proceedings under Section 10(1) of the Act, if there are grounds for the same."
In, Natesan Pillai v. Sethumani Ammal, 1992 (2) LW 564 a different question arose; viz., denial of title by the tenant and as a consequence the landlord withdrew the eviction petition without obtaining the finding of the Rent Controller, as to whether the denial was bona fide or not; but instead filed a fresh suit after withdrawing the eviction petition. The said decision has no bearing on the question raised in this revision petition.
14. In P.Rukmani v. R.Narayani and six others, 1996 (1) LW 639, Sathasivam, J. had an occasion to consider the scope and maintainability of the suit instituted by the landlord for eviction of a tenant from a building railing within the ambit of the Act, otherwise than as stipulated by the Section in the Act. In that context, Sathasivam, J. has held thus:
"The abovesaid decisions clearly show that although the jurisdiction of the civil court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and the Supreme Court, such jurisdiction is impliedly vested except to the limited extent specially provided by the statute. Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act, otherwise than as stipulated by the Section is, therefore, incompetent for lack of jurisdiction of the Court and any decree of the Court in such a suit is null and void and of no effect. In view of the law laid down by the Apex Court and the subsequent decision of this Court, I am in entire agreement with the arguments of the learned counsel for the respondents and, consequently, confirm the judgment and decree of the lower Appellate Court, holding that the suit filed by the plaintiff is not maintainable,"
In S.N. Kaba v. P.P.I. Vaithyanathan, 1988 TNLJ 1, the Division Bench of this Court referred to the earlier decisions of this Court reported in 1949 (1) MLJ 376; Muhamandunni v. Melapurakkal Unniri, 1949 (1) MLJ 452; Thalai Vadiuv Ananda v. Venugopala Chettiar, 1960 (1) MLJ 356; 88 LW 410; K.V. Nayaki v. Mr.s. Chanda Devasahayam, 1983 (2) MLJ 166; 1985 TNLJ 162 as well as pronouncements of the Apex Court reported in Nand Kishore Marwah and others v. Samundri Devi, ; Bishan Chand v. The 6th Additional District Judge Bullandshar (U.P) and another, and declined to interfere with the order of delivery of possession by the Executing Court in O.S.No.27 of 191982 on the file of the City Civil Court, Madras for recovery of possession. In the said case, the building in question was exempt under Section 30(2)(i) of the Act as the rent agreed to was Rs.1,000 and purpose for which the building has been let out was residential. Sub-Section 2(i) of Section 30 of the Act was held to be violative of the Article 14 of the Constitution by the Apex Court in Rattan Arya Etc. v. State of Tamil Nadu and another, by judgment dated 16.4.1966. The Supreme Court held that the pronouncement in that judgment was entitled to have an effect from the date of its delivery and Section 30(2)(i) of the Act is deemed to be invalid from 16.4.1986. In RCOP No.130 of 1987 on the file of the Rent Controller, Madras, the respondent field a petition for eviction under Section 10(3)(a)(i) of the Act and the order of eviction was passed on 28.5.1987 directing delivery on 29.6.1987. Pursuant to the said order of eviction and delivery, the respondent took delivery of the property on 4.7.1987. The revision was preferred against the order passed on 28.5.1997. In the revision, it was contended that the Executing Court has no jurisdiction to direct delivery of possession as the decree ceased to be executable on account of the judgment of the Supreme Court in Rattan Arya's v. State of Tamil Nadu, striking down Section 30(2)(1) of the Act. On the other hand, the respondent landlord submitted that the order of the Executing Court below was in accordance with law, the revision Court should not interfere under Section 115 of the Code of Civil Procedure. The Division Bench ultimately accepted the contentions of the respondent and declined to interfere with the delivery ordered by the Rent Controller while holding that the revision under Section 115 of the Code of Civil Procedure should not he exercised when the order of the Court subordinate, has rendered justice on the facts of the case. The Division Bench has held thus in S.N. Kaba v. P.P.I. Vaithyanathan, 1988 TNLJ 1;
"Reliance was then placed upon the decision of the Supreme Court in, . That judgment of the Supreme Court was followed by Nainar Sundaram, J. in F. Mohanlal v. S.N.Thirumalai Chettiar, 1985 TNLJ 89, wherein similar question arose with reference to a building which stood exempted from the provisions of the Act from the filing of the suit by virtue of Section 30(i) of the Act, as if was constructed within a period of five years prior to the date of the suit. By the time the suit came to be disposed of, the five year period of exemption under Section 30(i) of the Act has elapsed and the question whether the decree was executable was answered in the negative by the learned Judge on the ground that it was covered by the decision of the Supreme Court in, . The learned Judge dissented from the decision of Ratnam J., in K. V. Nayakj v. Mrs. Chandadevasahayan, 1983 (II) MLJ 166 and held that the said decision was not good law after the decision of the Supreme Court in . Another single Judge of this Court, viz., K.R.Natarajan, J. expressed the same view as that of Nainar Sundaram, J. in 1985 TNLJ 162.
Further discussion on this aspect of the matter with regard to the aforesaid four decisions has been obviated by the latest decision of the Supreme Court in Nand Kishore Marwah v. Samundri Devi, . In that case, a Bench of two Judges have taken the view that the decision in, was not binding as it ran counter to the decision of Bench of three Judges in Bishan Chand v. VI Additional District Judge, (2). It was held in the latter case that the expiry of the period of exemption (ten years) under the U.P. Urban Buildings (Regulation of Letting, rend and Eviction), Act, 1972, would not affect the rights of parties and the landlord was entitled to obtain a decree in the suit which could be executed. The view that rights of parties will be determined on the basis of the rights available to them on the date of suit was accepted and reiterated."
The learned counsel for either side relied upon the various portions of the Judgment in S.N. Kaba v. P.P.I. Vaithyanathan, 1988 TNLJ 1 supra. The counsel for the respondent submitted that even in the present case justice has been rendered by the Executing Court and no interference is called for in this revision as has been laid down by the said Division Bench. I find there is force in this contention put forth by the counsel for the respondent.
15. In F.Mohanlal v. S.N.Thirumalai Chettiar, 1989 TNLJ 59 : 1989 (1) LW 334, K.M.Natarajan, J. had an occasion to consider the question where a suit for recovery of possession was decreed and the period of five years from the date of notification expired by the time when Execution petition was filed and the learned Judge considered the question as to whether the plaintiff as decree holder is entitled to execute the decree? In the said case also, the tenant who is the defendant in the suit filed a petition under Section 47 read with S. 151 of the Code of Civil Procedure and contended that he is entitled to the benefits of the Act and that the remedy of the landlord is to proceed against the tenant for eviction before the Rent Controller. Such a plea raised by the learned counsel was not accepted by the trial Court and the first Appellate Court. In the Second Appeal, this Court observed that the executability of the decree could be considered by the Executing Court. The decree passed on 19.6.1976 according to the contentions raised by the tenant is not executable by virtue of Section 10 of the Tamil Nadu (Buildings Lease and Rent Control) Act, 1960 as the decree was passed subsequent to the expiry of five years exemption period, Natarajan, J. as he then was considered the question, as to whether the plaintiff is entitled to execute the decree for ejectment even after the period of five years exemption expired by the time when the execution petition is filed? Natarajan, J. as he then was, following the decision of the Judgment of the Division Bench of Supreme Court in Bishan Chand v. The 6th Additional District Judge Bullandshar (U.P) and another, held that the decree is executable. The learned Judge in that case, F.Mohanlal v. S.N.Thirumalai Chettiar, 1988 TLNJ 59 held thus:-
"The learned counsel for the revision petitioner drew my attention to the decision in S.N. Kaba v. P.P.I. Vaithyanathan, 1988 TLNJ 1 wherein a Division Bench of this Court held that the above decisions rendered by us have been coviated by a later decision of the Supreme Court in Nand Kishore Marwah v. Samundri Devi, . In that case, Nand Kishore Marwah v. Samundri Devi, a Bench of two Judges have taken the view that the decision in, was. not binding as it ran counter to the decision of a Bench of three Judges in Bishan Chand v. The 6th Additional District Judge Bullandshar (U.P) and another, . It was held in the later one that the expiry of the period of exemption of ten years under the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, would not affect the rights of parties and the landlord was entitled to obtain a decree in the suit which could be executed. The view that rights of the parties will be determined on the basis of the rights available to them on the date of suit was accepted and reiterated. The above Division Bench case of this Court S.N. Kaba v. P.P.I. Vaithyanathan, 1988 TNLJ 1 arose in a revision challenging the executability of a decree for possession passed against him on the basis of a compromise evidenced by joint endorsement made by the parties on the plaint in the suit after the pronouncement of the Supreme Court on 16.4.1986 striking down Section 30(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as violative of Article 14 of the Constitution of India. It was held in the above decision that the tenant is not entitled to the protection of the Act and the order of the Executing Court directing delivery of possession cannot be said to be erroneous, and it was held that the Executing Court is well within the jurisdiction in directing delivery of possession. In Nand Kishore Marwah v. Samundri Devi, , it was held.
"Within 10 years as provided for in Section 2(2) restriction on the institution of suit as provided for in Section 20(1) will not be applicable. Therefore, during the pendency of the litigation even if 10 years expired the restriction under Section 20 will not be attracted as the suit had been instituted within 10 years. It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit."
In that case, the decision reported in Vineet Kumar v, Mangal Sain Wadhera, was dissented from. That case arose under the U.P.Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972. It is clear from the above decisions that the rights of the parties will be determined on the basis of the rights available to them on the date of the filing of the suit and not on the date when the execution is made.
"The earlier decision reported in 1982 SCC 51, a case rendered by three Judges, wherein a similar view was taken was relied on while dissenting from the decision rendered in Vineet Kumar v. Mangal Sain Wadhera, . It is only on the basis of these decisions, the learned counsel for the revision petitioner submitted that the order passed by the Court-below is not sustainable, that it has to be set aside and that the Executing Court should be directed to proceed with the execution.
I find much force in the contentions of the learned counsel for the revision petitioner. It is clear from the decision of the larger Bench of the Supreme Court reported in Bishan Chand v. The 6th Additional District Judge Bullandshar (U.P) and another, , referred to above, that when the Act itself is not applicable to a particular building, it cannot be said that Section 10 could be applicable. In the above quoted decision which is under the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1973, it was held:
"In order to attract Section 29, the suit must be pending on the date of commencement of the Act, which is 15th of July, 1972, but the suit giving rise to the present appeal was filed on 23rd of March, 1974, long after the commencement of the Act. There is yet another reason why Section 29 will have no application to the present case. In view of Sub-Section (2) of Section 2 of the Act, the Act is not applicable to a building which has not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that Section 29 thereof would be applicable."
It is provided under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act that nothing contained in this Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to the Local Authority concerned. It cannot be said that Section 10 of the Act is applicable after the expiry of the period of five years contemplated therein. Similarly, it was held in the above decision, which is reiterated by the latest decision of the Supreme Court reported in Nand Kishore Marwah v, Samundri Devi, and also of a Division Bench of this Court reported in. S.N. Kaba v. P.P.I. Vaithyanathan, 1988 TNLJ 1 that the rights will be determined on the basis of the rights available to them on the date of the suit and not at the time of execution and unless there has been amendment to the Act or any change in the statute it cannot be said that the decree is inexecutable. On both the grounds, the revision is to be allowed. In the facts of the above decision of the Supreme Court, which have been followed by this Court, the earlier decisions relied on by the learned counsel for the respondent and also by the lower Court reported in Vineet Kumar v. Mangal Sain Wadhera, ; Thalai Vadiuv Ananda v. Venugopala Chettiar, 1960 (1) MLJ 356; A. Krishnaswami v. S.Rasheeda, 1980 (2) MLJ 463; Hajee Abdullah Suit v. Mohandas and others, 1977 (90) LW 573; Chand Basha v. Parai Bi, 1978 (1) MLJ 46; Nanda Rao and others v. Lakshmanaswami Mudaliar, 1969 (1) MLJ 153 and B.V.Patankar v. C.C.Sastry, are of no avail and they cannot be relied on."
16. In this judgment, a distinction which was also sought to be made on the terminology of U.P.Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972 was considered by Natarajan, J., as he then was. Mr.S.M.Hameed Mohideen, learned counsel for the petitioner also sought to distinguish the judgment of the Supreme Court on the same terminology and it is to be pointed out that identical contentions have been rejected by Natarajan, J. as he then was. This Court also with respect shares the same view.
17. The case reported in Nanda Rao and others v. Lakshmanaswami Mudaliar, 1969 (1) MLJ 153 was also relied upon by the learned counsel for the petitioner, where Natesan, J. held that a decree in ejectment can be passed by the Civil Court and what the Madras Buildings (Lease and Rent Control) Act ensures is that during the subsistence of the Act, the decree passed by the Civil Court is inexecutable. In that view, the learned Judge held that the decree holder will not be entitled during subsistence of the statutory tenancy to evict the tenant in execution of the decree already obtained and the remedy is for eviction to be obtained in accordance with and under the terms and provisions of the Tamil Nadu Act 18 of 1960 by initiating proper steps under the provisions of the said Act.
18. In K.Ramachandran Chettiar v. G.Lakshminarayanaswami Chettiar, 1976 (2) MLJ 108 : 89 LW 687 supra relied upon by the counsel for the petitioner, N.S.Ramaswami, J. had an occasion to consider the question as to whether the decree in ejectment could be executed when the provisions of the Tamil Nadu Act, 18 of 1960 is made applicable, and N.S.Ramaswami, J, has held thus:
"That means, the provisions of Act 18 of 1960 would be applicable as far the building is concerned. Of-course on that score the suit in ejectment is not so be dismissed. The fact that the provisions of Act 18 of 1960 are applicable does not mean the jurisdiction of the Civil Court to entertain a suit in ejectment is ousted. However, the decree in ejectment cannot be executed unless the plaintiff obtains an order of eviction as per the provisions of the above said Act. Anyway, because of my finding regarding the question of validity of the notice to suit, the plaintiff is not entitled to a decree in ejectment."
19. Mr.Hameed Mohideen, the learned counsel for the petitioner also relied on the judgment of this Court reported in 90 LW 573. On the facts of the case, the Division Bench held that the rights of the parties have been finally determined and the respondents have been declared to be not statutory tenants, but only trespassers and therefore, they are not entitled to the benefits of Section 10 of the Act as they do not satisfy the requirement that they should be tenants. The cases reported in Morthemmal Naidu v. Kattikollan Edavalath and another, 1980 (93) LW 202; 1988 (2) MLJ 203; K.V.Nayak v. Mrs.Chandra Devasagayam, 1988 (2) LW 99 were also relied upon by the Counsel for the petitioner.
20. Ratnam, J. as he then was, in K.V.Nayak v. Mrs.Chandra Devasagayam, 1988 (2) LW 99 had taken the view that the decree, passed in a suit instituted within the period of exemption though passed after the period of exemption is not rendered ineffective or inexecutable. The learned Judge relied upon the pronouncement of the Supreme Court in the case reported in 1967 (4) SCC 353, and held thus:
"Even widely construeing the definition of the expression 'tenant' occurring in Section 2(8) of the Rent Control Act, the appellant cannot claim to be a tenant continuing in possession after the termination of the tenancy in his favour. Apart from it, on the facts of this case, it is seen that the appellant had been actually evicted also on 12.1.1976 and after that date, the appellant could not have continued in possession of the premises as a tenant under Section 2(8) of the Rent Control Act, and he cannot, therefore, claim that he is entitled to be restored to possession of the premises from which he had been evicted. It is seen from the plaint that the appellant had also taken exception to ejectment decree passed on 5.11.1975 on the ground that by the time that decree came to be passed, the period of exemption, viz., five years had lapsed rendering the provisions of the Rent Control Act automatically applicable to the premises in question. This objection of the appellant is without any substance, for, it is now well settled that if the suit is instituted within the period of exemption, the decree passed therein, though after the expiry of the period of exemption, is not rendered ineffective, or inexecutable, in view of the provisions of the Rent Control Act. Vide Nand Kishore Marwah v. Samundri Devi, . Thus on a consideration of the scope of the prior adjudication in ejectment suit 18 of 1975 as well as the subsequent happenings, referred to above it is obvious that the appellant is not entitled to any of the reliefs prayed for in the suit. The Courts below were right in non-suiting the appellant No case is made out to interfere with the judgments and decree of the Courts below."
After pronouncement of Ratnam, J., in 1989 TNLJ 89 Natarajan, J., as he then was, had occasion to consider identical issue as well as the view already expressed by Nainar Sundaram, J. in P. Mohanlal v. S.N.Thirumalai Chettiar, 1989 TNLJ 59 : 1989 (1) LW 334, Nainar Sundaram, J. has held thus:
"It is provided under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act that nothing contained in this Act shall apply to any building for a period of five years from the date on which the construction is completed and notified to the Local Authority concerned. It cannot be said that-Section 10 of the Act is applicable after the expiry of the period of five years contemplated therein. Similarly it was held in the above decision, which is reiterated by the latest decision of the Supreme Court and also of a Division Bench of this Court reported in S.N. Kaba v. P.P.I. Vaithyanathan, 1988 TNLJ 1 that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit and not at the time of execution unless there has been amendment to the Act or any change in the statute. It cannot be said that the decree is inexecutable. On both the grounds, the revision is to be allowed. In the fact of the above decisions of the Supreme Court, which have been followed by this Court, the earlier decisions relied on by the learned counsel for the respondent and also by the lower Court reported in Vineet Kumar v. Mangal Sain Wadhera, ; Thalai Vadiuv Ananda v. Venugopala Chettiar, 1960 (1) MLJ 356; A Krishnaswami v. S.Rasheeda, 1980 (2) MLJ 463; Hajee Abdullah Sait v. Mohandas and others, 1977 (90) LW 573; Chand Basha v. Parai Bi, 1978 (1) MLJ 46; Nanda Rao and others v. Lakshmanaswami Mudaliar, 1969 (1) MLJ 153 and B.V.Patankar v. C.C.Sastry, are of no avail and they cannot be relied on. It is also pointed out in 1980 (2) MLJ 179 the reference made to the Full Bench is only on the question whether a tenant inducted into possession by an unufructury mortgagee of non-agricultural property can claim the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as against the mortgager, after the redemption of the mortgage and this question is not the subject matter of the said decision of the Full Bench. However, by way of observation obiter dictum at the end of the Judgment, without reference to Section 30 of the Act, it is generally observed:
"It is by now well settled that there is nothing in Section 10 of the Act prohibiting the institution of a suit for possession or prohibiting a Civil Court from passing a decree for possession. What is prohibited under the Section is only the execution of a decree for ejectment passed by a Civil Court."
That is only in consequence with Section 10 of the Act The question now arises for consideration in this revision is whether in respect of a building, for a period of five years from the date on which the construction is made, the Act is not....
"applicable. That question was not at all considered in the side decision and no finding is rendered. Hence, the decisions relied on by the learned counsel for the respondent cannot prevail over the latest decisions of the Supreme Court and the Division Bench of this Court and they are no longer a good law (including the decision rendered by me in 1985 TNLJ 162 and that of Nainar Sundaram, J., in 1985 TNLJ 89. For all these reasons, the revision is allowed. The order passed by the Court below is set aside and E.A.No.8 of 1984 filed by the respondent is dismissed and the Court below is directed to proceed with the execution petition and dispose of the same as expeditiously as possible."
21. In Motor General Traders and another v. State of Andhra Pradesh and others, AIR 1984 SC 121 : 97 LW 42 S.N. relied upon by the counsel for the petitioners, the point that has been decided is totally different and the Supreme Court has considered the facts and struck down the impugned provision.
22. In Vineet Kumar v. Mangal Sain Wadhera, S.N., their Lordships of the Division Bench, while distinguishing Bishan Chand v. VI Additional District Judge, , held thus:
"The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency of the litigation. We see no reason why the benefit of the new Rent Act be not given to the appellant. Section 20 of the new Rent Act provides a bar to a suit for eviction of a tenant except in the specified grounds as provided in the Section. Sub-section (4) of Section 20 stipulated that in any suit for eviction on the grounds mentioned in C1.(a) to Sub-section (2) viz., the arrears of rent, if at the first hearing of the suit, the tenant in default pays all arrears of rent to the landlord or deposited in Court the entire amount of rent and damages for use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine percent per annum and the landlord's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under Sub-sec. (1) of Sec. 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground. Section 39 and 40 of the new Rent Act also indicated that the benefit of the new Act will be given to the tenant if the conditions contemplated in these Sections are satisfied. Section 39 also indicates that the parties are entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary."
23. On behalf of the petitioner, reliance was also placed upon the judgment of the Andhra Pradesh High Court reported in Kushan Das J. Vithalani v. Bhamidi Kameswara Rao and others, 1987 (1) RCJ 255 as well as S. Ramiah v. Ariyakudi Kalyana Krishna Hospital Trust by Managing Trustee etc., 1988 (1) LW 409. It is not necessary to refer to these decisions in detail. In Firm Amar Nath Basheshar Dass v. Tek Chand, the three Judges Bench of the Apex Court, while considering the provisions of Punjab Urban Rent Restriction Act, 1949 where a landlord who obtained a decree for ejectment was resisted at the stage of execution on the ground that the condition prescribed in the notification of exemption was not complied with. The Apex Court, after considering the provisions of the Punjab Urban Rent Restrictions Act, 1949 has held thus:
"It is contended by the learned advocate for the appellant that the decree in that suit having been passed on August 14, 1969, after the period of five years from the date of construction, the exemption from the restriction placed by Section 13 will not be available, because according to him not only the suit should be filed but the decree for eviction should be obtained within the said period of five years. This contention on the very face of it would lead to incongruity or would, if accepted, have the effect of nullifying the very purpose for which the exemption was being given." ..............
"In other words, the suits must have been already filed during the period of exemption or are to be instituted during such period. This language had to be used because the five years exemption in respect of the buildings constructed in 1969 would and in 1964 while the notification was issued in 1965. There is no question of suits being filed in respect of these buildings hereafter, as such decrees in suits filed before 1964 would be exempted. In respect of the buildings constructed in 1960, there would be some buildings in respect of which the five years' exemption period would have expired before the notification and, therefore, the suits in respect of such buildings during the relevant period in 1958 should have been filed before that period expired and where the exemption expires after the notification, suits could be filed thereafter but before the exemption expires. In respect of 1961, 1962 and 1963 there is of course no difficulty because there is sufficient period of filing suits if they had not been filed by the time the notification was issued. Taking the typical case of a building constructed in 1961, the period of five years' exemption would expire in 1966 and under the first part of Clause (b) it would be open to the landlord to file a suit for ejectment even on the last day of the expiry of the five years' exemption. If so, it would be absurd to postulate that a decree would be given immediately thereafter, so that would be the result, if the contention that both the suit and the decree should be passed within the period of exemption, is accepted. This could not have been the intention of the Government in publishing the notification under Section 3."
24. In Nand Kishore Marwah v. Samundri Devi, 1967 (4) SCC 382 it has been held that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit:
"It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit, but in Vineet Kumar case, this Court took the view that if during the pendency of the proceedings 10 years have elapsed the tenant is entitled to the protection under the Act and in coming to this conclusion the Court also considered the language of Section 39 of the Act and it observed; 1967 (4) SCC p.361, para 17.
"The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency of the litigation. We see no reason why the benefit of the new Rent Act be not given to the appellant. Section 20 of the new Rent Act provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the Section. Sub-section (4) of Section 20 stipulates that in any suit for eviction on the grounds mentioned in clause (a) to Sub-section (2) viz., the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of 9 per cent per annum and the landlord's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under Sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground pass an order relieving the tenant against his liability for eviction on that ground. Sections 39 and 40 of the new Rent Act also indicate that the benefit of the new Act will be give to the tenant if the conditions contemplated in these Sections are satisfied. Section 39 also indicates that the parties are entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary."
"But unfortunately, attention of the Court was not drawn to Om Prakash Gupta case, which specifically considered this Act and the language of Section 39 in particular and is a decision of a Bench of three judges which is binding on us".
Their Lordships of the Apex Court also considered and held that the restriction imposed with respect to the institution of the suit would mean that no suit for eviction can be instituted, except on the ground specified in Section 20 of the said Act. If that be so, in respect of a new construction for a period of ten years, the provisions of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 will have no application for 10 years and that during the pendency of the litigation even if 10 years expired, the restriction will not be attracted as the suit has been instituted.
25. In Ramesh Chandra v. III Additional District Judge and others, , the Apex Court considered the identical question. Their Lordships constituting the Full Bench, after holding that the case reported in Vineet Kumar v. Mangal Sain Wadhera, has been over-ruled, affirmed the decision reported in Nand Kishore Marwah v. Samundri Devi, , the Apex Court has held thus.
"Yet another contention urged by the learned counsel for the tenant on the strength of Vineet Kumar v. Mangal Sain Wadhera, is that inasmuch as the statutory period of ten years expired during the pendency of the suit, the Act became applicable and the suit must be disposed of only in accordance with the provisions of the Act and in particular Sub-section (2) of Section 20. This decision has, however, been explained in a subsequent decision in Nand Kishore Marwah v. Samundri Devi, wherein it has been held that the law applicable on the date of the institution of the suit along govern the suit and the mere fact that the statutory period of 10 years expires during the pendency of the suit/appeal/revision, the Act does not become applicable. It was held that the suit has to be tried and decided without reference to the Act. We are in respectful agreement with the view expressed in Nand Kishore Marwah v. Samundri Devi, 1987 (4) SCC 387." Again Mukherji, J. in speaking for the Bench dissented from Vineet Kumar v. Mangal Sain Wadhera, and followed the judgment reported in Ramesh Chandra v. III Additional District Judge and others, as well as and reiterated the law applicable on the date of institution of the suit governs the suit. The Division Bench held thus:
"The applicability of Section 2(2) of the Act again came up for consideration before this Court in the case of Vineet Kumar v. Mangal Sain Wadheru, . In interpreting the above Sub-section, the Bench first observed that the moment a building became ten years' old to be reckoned from the date of completion, the Act would be applicable; and then passed the question as to whether the Act would be attracted if the building completed ten years during the course of litigation. In answering the same, the Court distinguished its earlier decision in the case of Om Prakash Gupta v. Big Vijendrapal Gupta, supra on the ground that it was not necessary in that case to deal with the question whether the tenant would be entitled to the benefit of Section 39 of the Act as the building had not become ten years' old when the revision petition was heard and decided by the High Court. The Court next dealt with the argument whether it was required to decide a case on the basis of the cause of action that accrued prior to the date of the institution of the suit and not on a new cause of action. In answering this question the Court first noted its earlier observations made in the case of Pasupuleti Venkateswarlu v. Motor and General Traders and said (SCC p.360, para 16):
"Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. The question in the present case is whether by seeking the benefit of Section 39 of the new Act there is a change in the cause of action."
The Court then referred to the case of A.K.Gupta and Sons Ltd., v. Damodar Valley Corporation and concluded as follows: (SCC p.361, para
17):
"The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency of the litigation. We see no reason why the benefit of the new Rent Act be not given to the appellant Section 20 of the new Rent Act provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the Section. Sub-section (4) of Section 20 stipulate mat in any suit for eviction on the grounds mentioned in clause (a) to Sub-section (2), viz., the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposited in Court the entire amount of rent and damages for use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent to getter with interest thereon at the rate of nine per cent per annum and the landlord's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub- section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass on order relieving the tenant against his liability for eviction on that ground."
On such conclusion the Court set aside the Judgment and decree of the High Court in so far as it related to eviction.
In the case of Nand Kishore Marwah v. Samundri Devi, this Court dissented from the view expressed in the case of Vineet Kumar, observing inter alia that the law laid down in the case of Om Prakash was binding on them, being a decision of a Bench of three Judges. Referring to Section 20 of the Act, the Court then observed as under: (SCC 390-91 para 14) "This is put in Chapter IV with the heading 'Regulation and Eviction' and the Section starts with title which is printed in bold 'Bar of suit for eviction of tenant except on specified grounds' and again in the wording of the Section itself it provides: 'No suit shall be instituted for eviction.' This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applies then no suit for eviction can be instituted except on the grounds specified in the sub-sections of this Section. Keeping in view the language of this Section if we examine the provisions contained in Sub- section (2) of Section 20 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in sub-section (2) of Section 2 restriction on the institution of suit as provided for in Section 20 sub-section (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted."
Lastly we may refer to the case of Ramesh Chandra v, III Additional District Judge, . In this case also the judgment was delivered by a Division Bench of this Court consisting of three Judges. In negativing a similar contention raised on behalf of the tenant relying upon the case of Vineet Kumar, the Court observed: (Sec p. 756, para 12) "Yet another contention urged by the learned counsel for the tenant on the strength of Vineet Kumar v. Mangal Sain Wadhera, is that inasmuch as the statutory period of ten years expired during the pendency of the suit, the Act became applicable and the suit must be disposed of only in accordance with the provisions of the Act and in particular Sub-section (2) of Section 20. The decision has, however, been explained in a subsequent decision in Nand Kishore Marwah v. Samundri Devi, wherein it has been held that the law applicable on the date of the institution of the suit alone governs the suit and mere fact that the statutory period of 10 years expires during the pendency of the suit/appeal/revision, the Act does not become applicable. It was held that the suit has to be tried and decided without reference to the Act. We are in respectful agreement with the view expressed in Nand Kishore Marwah v. Samundri Devi, 1987 (4) 382."
In view of the law as now laid down by this Court it must be held that the Act has no application to the facts of the instant case. It was however contended by the learned counsel for the tenant that even if the Act did not apply to the suit premises Section 39 did. This contention cannot also be accepted having regard to the following observations made in the case of Om Prakash Gupta (Sec pp.65-66, para 7):
"Further in order to attract Section 39, the suit must be pending on the date of commencement of the Act which is July 15, 1972 but the suit giving rise to the present appeal was filed on March 23, 1974 long after the commencement of the Act. There is yet another reason why Section 39 will have no application to the present case. In view of Sub-section (2) of SEction 2 of the Act the Act is not applicable to a building which has not a standing of 10 years and if the Act itself was not applicable, it would be ensured to say that Section 39 thereof would be applicable."
26. In the light of the pronouncement of the Supreme Court reported in Nand Kishore Marwah v. Samundri Devi, , Ramesh Chandra v. III Additional District Judge and others, supra; supra, the learned counsel for the respondent contends that nothing further survive in the Order of Reference made by Nainar Sundaram, J. in CRP No.2851 of 1990. As rightly pointed out, in Nand Kishore Marwah v. Samundri Devi, supra; as well as supra, the point that have been referred for the Full bench has already been answered by the Apex Court. The Apex Court has already held that the law applicable on the date of the institution of the suit governs the suit and merely because either the Act has been extended subsequently or the exemption which a particular building enjoyed ceased after the institution of the suit consequent to the lapse of time, will not take away the right which has already accrued to the plaintiff in the suit and the rights of the parties would be determined on the basis of the parties would be determined on the basis of the rights available on the date of filing of this suit. Thus not only the Full Bench judgment reported in Nand Kishore Marwah v. Samundri Devi, but also, the later pronouncement in Ramesh Chandra v. III Additional District Judge and others, supra make it abundantly clear that the law application on the date of institution of the suit governs the suit, and as such the decree obtained by the respondent in the revision petition is not inexecutable and the revision has to be dismissed. On a consideration of the law as laid down by the Supreme Court; this Court holds that the contention that the decree is inexecutable cannot be sustained.
27. Admittedly, the petitioner tenant is in arrears since February, 1994 and from that date no rent has been paid at all by the tenant/revision petitioner. A substantial amount is due to the respondent towards the damages for use and occupation and in fact the tenant/revision petitioner took the stand that it is open to the respondent/landlord to execute the decree and realise the arrears already decreed and/or institute separate suit for the recovery of damages for the subsequent period. Such a hyper technical objection raised by the tenant cannot be appreciated. The tenant who has been in possession and enjoyment of the suit property, even at a very low rate has no mind to pay arrears as decreed by the Court below and for the subsequent period as well, and the object of the tenant is only to continue and perpetuate the possession without paying rent untill the date of institution of the suit or for damages subsequent thereto. Further, following the decision in S.N. Kaba v. P.P.I. Vaithyanathan, 1988 TNLJ 1 (DB), this Court holds that no interference is called for as justice has been done.
28. In the foregoing circumstances, this Court, on a consideration of the pronouncements referred to above and in the light of the law laid down by the Apex Court hods that no interference is called for and the revision petition is dismissed. But, in the circumstances, there is no order as to costs. As the learned counsel for the petitioner referred to innumerable decisions, this Court had to necessarily refer to all the citations and discuss the contentions. Taking into consideration of the unreasonable conduct of the revision petitioner and his conduct in refusing to pay the arrears of rent and damages, this Court is not inclined to grant time to the revision petitioners.
29. Consequently, CMP No. 5437, 8504 and 8505 of 1997 are also dismissed.