Bharath Insurance Co. Ltd. v. Kadir Kunju Bivathu — 1953 DIGILAW 5 (KER)

Judgment :- 1. The defendant is the Bharat Insurance Company, Limited, represented by its Secretary of the Ernakulam branch. The plaint schedule building was given on rent to the Bharat Insurance Company Limited by one Shri Marath Achutha Menon, who was then having possession of the building as a trustee of the trust to which the building belonged. The rent agreed was Rs. 50/- per mensem from 1-4-1943. Shri Achutha Menon, subsequently sold the property to one Ismail Sait on 12-11-1120 under Ext A sale deed. Even before the sale of the house, Shri Achutha Menon had issued a notice for surrender of the building. But the defendant sent a reply demanding an extension of tenancy for seven months from 25-2-1945 under the provisions of the Non-residential Building Rent Control Order of 1118. Shri Achutha Menon moved the Rent Controller for an order to disallow the extension claimed. But his petition was dismissed and the appeal filed by him against that order was also dismissed. Thus the defendant-company was entitled to retain possession of the building till 25-9-1945. After obtaining the sale deed Ismail Sait who is now dead and whose legal representatives are the plaintiffs had demanded of the defendant to surrender possession of the building as they wanted the same for their personal use. This notice was sent on 21-9-1945. It is Ext. XII. The defendant straight away sent a cheque for Rs. 50/- to cover the rent for September 1945; but it was returned unaccepted since the landlord was" unwilling to continue the tenancy any longer after the date of the termination of the extended period. The tenancy had terminated on 25-9-1945 and so the plaintiffs claimed immediate possession by the suit. They claimed rent at Rs. 50/- per mensem from the first September till 25th September 1945. Thereafter they claimed compensation at the rate of Rs. 150/- a month for use and occupation. Interest on the amounts was also claimed. 2. The tenancy had terminated on 25-9-1945 and so the plaintiffs claimed immediate possession by the suit. They claimed rent at Rs. 50/- per mensem from the first September till 25th September 1945. Thereafter they claimed compensation at the rate of Rs. 150/- a month for use and occupation. Interest on the amounts was also claimed. 2. The defendant contended that the building was rented not exclusively for office use, but partly for office use and partly for the residence of the Secretary, that only four rooms on the ground floor were used as office and the remaining portion of the building and the premises were used for residential purposes, that the term of tenancy was therefore governed by the provisions of the Cochin House Rent Control Order of 1117, that the building was occupied only from 10-4-1943, that in the petition filed by Shri Achutha Menon, the Rent Controller and the appellate authority had found that this was not a building falling under the purview of the House Rent Control Order, that this finding was incorrect, that the Company had claimed extension of the period of their tenancy under the Non-residential Building Rent Control Order by notices Exts. VII and VIII, that the period mentioned therein would expire only on 25-11-1946, that the suit was premature, that there was no valid notice issued at any time to determine the tenancy, that the plaintiffs were not entitled to any interest as the rent happened to be in arrears because of the refusal of the plaintiffs to receive the same End that the compensation claimed for use and occupation was in any event excessive. 3. The trial Court found that the case was governed by the Non-residential Rent Control Order of 1118, that the defendant was entitled to retain possession of the property only till 25-9-1945, that the plaintiffs could therefore claim for eviction from 26-9-1945, that the suit for eviction was maintainable, that the defendant was entitled only to exercise his right for renewal only once, that from 26-9-1946 the plaintiffs were entitled to compensation for use and occupation at Rs. 150/- a month and that the interest claimed was allowable. The suit was therefore decreed as prayed for with costs to the plaintiffs. On appeal against this decree, the learned Temporary District Judge of Anjikaimal confirmed the trial Court decree. 4. 150/- a month and that the interest claimed was allowable. The suit was therefore decreed as prayed for with costs to the plaintiffs. On appeal against this decree, the learned Temporary District Judge of Anjikaimal confirmed the trial Court decree. 4. In appeal before this Court it was first argued that this suit for eviction and compensation was not maintainable as the civil courts had no jurisdiction to entertain such a suit after the Proclamation IV of 1122 (c). This is not made the subject matter of an issue because the Proclamation itself was passed with effect from 11-2-1122, that is, after the present suit was filed. But this objection was taken as ground No. 6 in the memorandum of appeal. The argument was based on clause 2 of section 7 of the Proclamation which directed the landlord who sought to evict his tenant to apply before the Rent Controller for a direction in that behalf. Nowhere in the Proclamation is there any indication to show that the jurisdiction of the civil courts is taken away by the Proclamation. The Courts would be entitled to entertain suits for eviction, determine the rights between the parties and then pass a decree for eviction; but in execution, it would be open to the defendant to contend that the decree for that purpose could not be executed as the circumstances under which eviction could be allowed were given in the Proclamation. That does not mean that the jurisdiction of the civil courts to entertain suits of this nature and pass appropriate decrees is ousted. The Rent Controller could give only an order for eviction. He is not entitled to determine other rights of the parties such as the amount of the arrears of rent which the tenant has to pay. The jurisdiction of the Rent Controller is limited to the enquiry of the conditions mentioned in section 7 of the Proclamation IV of 1122 (C). This has been the subject matter of three decisions of the Cochin High Court, the earliest of which is Varunni v. Ouseph reported in 1122 Cochin Law Reports page 252. It clearly says that the House Rent Control Order only regulates the method of relief and does not oust the jurisdiction of the civil courts from entertaining a suit for eviction from a house. This dictum is followed in two other decisions, Eastern Trading Co. It clearly says that the House Rent Control Order only regulates the method of relief and does not oust the jurisdiction of the civil courts from entertaining a suit for eviction from a house. This dictum is followed in two other decisions, Eastern Trading Co. Ltd., v. Abdul Wahab & Co. (1122 Cochin Law Reports, p. 436) and Abdul Kadir Yosuff v. Abdul Karim Mohammad. 1122 Cochin Law Reports p. 477). It was further pointed out in Abdul Kadir Yosuff v. Abdul Karim Mohammad, 1122 C. L. R.477, that the House Rent Control Order or the Proclamation IV of 1122 (C.) only controlled the actual eviction of the tenant and did not in any way oust the jurisdiction of civil courts from passing decrees for eviction. In Mohammed Unni v. M. Unniri (A.I. R. 1949 Mad. 765) it was laid down that the eviction of a tenant could only be in accordance with the provisions of the Rent Control Order, and that there was nothing in that clause or in any of the other clauses of the Order, expressly prohibiting the institution of a suit for possession, or prohibiting a civil court from passing a decree for possession. A contrary view had been expressed by a single judge of that court in Mohammod v. Kerala Corporation, reported in A. I. R. 1945 Mad. 181. This latter decision by the Single Judge now stands overruled. Their Lordships who wrote the judgments in the three Cochin cases mentioned above had also declined to follow the ruling in Mohammod v. Kerala Corporation, A. I. R. 1945 Mad. 181. In interpreting an analogus provision, the decision reported in A.I.R. 1949 Mad. 765 was also followed in a subsequent decision of a single judge in a case reported at page 60 of A.I.R. 1950 Madras. In Chandrasekharan Nair v. Moideen Rowther reported in 1947 T. L. R. 813, the Travancore High Court also had held that the jurisdiction of the civil courts to pass a decree for evicting a tenant was not taken away by any of the provisions of the Rent Control Order. Thus the contention that the suit was not maintainable in the Civil Court has to be repelled. The actual eviction of the tenant arises only in execution. Thus the contention that the suit was not maintainable in the Civil Court has to be repelled. The actual eviction of the tenant arises only in execution. It will then be open to the defendant who is sought to be dispossessed to take shelter under the provisions of the Bent Control Order and put forward this plea, because, for securing actual possession of the buildings governed by the Rent Control Order, the procedure prescribed in that Order has invariably to be followed. The Proclamation IV of 1122 (C) had its operation only for a limited period. The Buildings (Lease and Rent Control) Order of 1950 is the one passed by the Travancore-Cochin Government under the Public Safety Measures Act V of 1950. For purposes of this appeal, it is not necessary for us to consider the steps that are to be taken by the plaintiffs to secure actual possession of the building. It is enough to hold that the suit as framed is maintainable and that the jurisdiction of civil courts to pass decrees of this nature is not taken away by the provisions of the Rent Control orders in force from time to time. 5. It was also argued that the tenancy originally created had not-been terminated by a proper and valid notice. For this it was assumed that the tenant was in possession on a monthly tenancy as contemplated by section 103 of the Cochin Transfer of Property Act, corresponding to section 106 of the Indian Act. That section provides that leases in such a case can be terminated either by the lessor or lessee by 15 days notice expiring with the end of a month of the tenancy. It was contended that there was no such notice. No doubt, when the tenancy commenced it was a monthly tenancy. But subsequently it lost that characteristic. The Non-residential Rent Control Order of 1118 (C) had made a provision in rule 9 that a tenant in possession, on the termination of the tenancy, could, by a notice, extend the period by not less than six months and not more than twelve months. On 27-11-1944, the landlord had demanded of the tenant to vacate the house within three months from 25-11-1944. On 27-11-1944, the landlord had demanded of the tenant to vacate the house within three months from 25-11-1944. A reply Ext.O was sent the same day acknowledging receipt of the notice and stating that immediately the company got a suitable building for office the plaint building would be vacated. This was again confirmed by another letter Ext. S dated 9-1-1945. Subsequently, on 19-1-1945, the Company sent Ext. I letter giving notice of their intention to get tenancy of the house extended for a period of seven months with effect from 25-2-1945. This date was mentioned to be the last date on which the house was to be vacated as per Shri Achutha Menon's letter of 27-11-1944. It is now admitted that the extension claimed by the company under rule 9 of the Rent Control Rules of 1118 was not agreed to by the landlord. He had, as provided for in that order, applied to the Rent Controller to veto the extension claimed. The Rent Controller, as well as the appellate authority, admittedly disallowed the landlord's petition. Thus the defendant became a tenant as per the provisions of the Statute for a definite period. The tenancy thus expired by efflux of time and such a tenancy is not governed by the provisions of section 103 of the Cochin Transfer of Property Act. Thus a second notice terminating the tenancy was unnecessary. 6. It was then contended on behalf of the appellant that the company had further exercised its option to extend the period of tenancy by two letters Exts. VII and VIII. The courts below had repelled this contention of the company for it was held that the option for extension could be exercised only once. That appears to be correct, for if the option is allowed to be exercised recurringly, the landlord could never get possession of the property. There would also be no meaning in the maximum period of twelve months mentioned in rule 9. It is therefore clear that the tenant is entitled to exercise the option only once. Thus the tenancy had terminated by 25-9-1945. It was after the termination of such tenancy that the present suit was filed. It may be, that the promulgation of Proclamation IV of 1122, while this suit was pending complicated matters. But the suit, in its inception was perfectly maintainable as the tenancy had terminated by efflux of time. Thus the tenancy had terminated by 25-9-1945. It was after the termination of such tenancy that the present suit was filed. It may be, that the promulgation of Proclamation IV of 1122, while this suit was pending complicated matters. But the suit, in its inception was perfectly maintainable as the tenancy had terminated by efflux of time. There is therefore no substance in the contention that the tenancy had not been terminated when the suit was filed. 7. Thus the decrees of the courts below are modified by allowing compensation for use and occupation at the rate of Rs. 106-10-8 from 26-9-1945. In other respects, except in regard to costs, the decrees are confirmed with costs as provided for in the preceding paragraph.