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1976 DIGILAW 311 (MAD)

Hajee Abdullah Sait v. Mohandas and others

1976-06-15

P.S.KAILASAM, V.BALASUBRAHMANYAN

body1976
Kailasam, CJ.- This appeal is filed against the order of the City Civil Court in C.M.P.No.41 of 1975 (in O.S.No.3023 of 1961), an application under section 47 of the Code of Civil Procedure filed by the legal representatives of the deceased judgment-debtor praying for an order that the decree in S.A.No.83 of 1965 was not executable under section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act (Tamil Nadu Act XVIII of 1960). The Court accepted the contention and allowed the petition holding that the decree in the second appeal (S.A.No.83 of 1965) in favour of the appellant herein was not executable: The decree-holder has now preferred this civil miscellaneous appeal. 2. The only question that arises for consideration in the appeal is whether the respondents are tenants entitled to the benefits of section 10 of Tamil Nadu Act XVIII of 1960. It is necessary to set out the relevant facts in this dispute between landlord and tenant which commenced in 1961 and has lasted for over fifteen years. On 20th February, 1954 a lease deed was executed between the appellant’s father (landlord) and K.D. Moorjani (tenant). On 4th April, 1961 the landlord terminated the tenancy and on 4th October, 1961 the landlord filed O.S.Noi 3023 of 1961 on the file of the III Assistant Judge, City Civil Court, Madras for evicting the tenant, Moorjani. On 30th November, 1961 the suit was decreed ex parte for possession. In pursuance of the ex parte decree the landlord took possession in execution of the decree in E.P.No.210 of 1962. The next day, i.e., 13th February, 1962, the tenant filed a petition, T.A.No.180 of 1962, for setting aside the ex Parte decree. On 5th May, 1962 T.A.No.180 of 1962 was dismissed. On 29th October, 1962 the Principal Judge, City. Civil Court, allowed the appeal filed by the tenant in C.M.A.No.39 of 1962, set aside the ex parte decree and restored the suit. After the suit was restored and after fresh trial, the suit was decreed on 8th February, 1964. On the same day an execution petition filed by the tenant for restitution was dismissed. Civil Court, allowed the appeal filed by the tenant in C.M.A.No.39 of 1962, set aside the ex parte decree and restored the suit. After the suit was restored and after fresh trial, the suit was decreed on 8th February, 1964. On the same day an execution petition filed by the tenant for restitution was dismissed. After the suit was decreed, on 10th June, 1964 an amendment was made to the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, withdrawing the exemption in the case of non-residential buildings and providing that all pending proceedings relating to such buildings for which exemption was withdrawn shall abate. On 8th December, 1964 the Additional Judge, City Civil Court, allowed the appeal filed by the tenant in A.S.No.130 of 1964 and dismissed the suit. He also ordered restitution of possession to the tenant. The tenant took redelivery of possession on 23rd February, 1965. The landlord preferred an appeal (S.A.No. 83 of 1965) to this Court against the judgment in A.S.N0. 130. of 1964. While it was pending, on 2nd January, 1967, Moorjani died and his legal representatives were brought on record. On 10th December, 1974 this Court allowed S.A. No. 83 of 1965 reversing the judgment in A.S. No. 130 of 1964 and restored the decree for possession in OS. No. 3023 of 1961. C.M.S.A.No. 4 of 1965 filed by the landlord against the order directing restitution to the tenant was also allowed by this Court. The petitions filed by the respondents for leave to appeal to the Supreme Court were dismissed on 23rd December, i9/4. The special leave petition to the Supreme Court also met with the same fate on 15th January, 1975. The dispute now before us arises after this stage. 3. In pursuance of the decree obtained in the second appeal, the landlord contemplated taking execution proceedings. In order to forestall it, the respondents filed C.M.P. No. 7673 of 1974 praying that, if the landlord filed any execution petition, they must be given notice and that execution must be stayed. The landlord filed a petition for execution on 23rd December, 1974. On the next day notice of the execution petition was given to the legal representatives of the tenant, and they filed C.M.P. No. 41 of 1975 under section 47 of the Code of Civil Procedure for a declaration that the decree was in executable. The landlord filed a petition for execution on 23rd December, 1974. On the next day notice of the execution petition was given to the legal representatives of the tenant, and they filed C.M.P. No. 41 of 1975 under section 47 of the Code of Civil Procedure for a declaration that the decree was in executable. The present order under appeal was passed by the executing Court on 3rd May, 1975 holding that the decree was in executable on the ground that the respondents would be tenants within the meaning of the definition of the term in the Amending Act XXIII of 1973. 4. Various contentions were put forward by Mr. Parasaran, learned counsel for the appellant-landlord, questioning the correctness of the judgment of the lower Court. He submitted that, if the respondents had any valid objection to the execution of the decree for possession, they ought to have raised it in the second appeal and that they should not be allowed to raise it in the execution stage. The basis of his argument is that the executing Court cannot go into the question as to whether a decree for possession is executable or not. In reply to this contention, Mr.Govind Swaminathan, learned counsel for the respondents, referred us to the decision of this Court in Muhammadunny v. Melepurakkal Unniri1and that of the Supreme Court in B.V. Patankar v. C.G. Sastry2. These two decisions are clear authority for the position that the jurisdiction of the civil Court in maintaining a suit for possession against a tenant is not taken away because of the Rent Control Act and that the civil Court has ample jurisdiction but the remedy of the tenant is at the stage of execution when be can insist that under section 10 of the Rent Control Act or similar provisions execution can only be in accordance with the provisions of the particular Act. In this view we are unable to accept the contention of the learned counsel for the appellant that the question whether the decree could be executed or not should be raised at the stage of the trial of the civil proceedings. 5. The more substantial point raised by the learned counsel for the appellant is that the respondents are not tenants in order to enable them to claim the benefits of section 10 of the Act. 5. The more substantial point raised by the learned counsel for the appellant is that the respondents are not tenants in order to enable them to claim the benefits of section 10 of the Act. Section 10 (1) provides that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of that section or sections 14 to 16. It is not disputed that, even though the decree has been obtained in the civil Court, it cannot be executed except in accordance with the provisions of the Rent Control Act. But before claiming the benefits of the Act the person seeking relief should establish that he is a tenant. 6. In S.A. No. 83 of 1965, which arose out of O.S. No. 3023 of 1961, filed by the landlord in the City Civil Court for possession, a Bench of this Court held that the legal representatives of Moorjai, who died on 2nd January, 1967 were not tenants but were in the position of trespassers. The Bench further held that the legal representatives of a statutory tenant had no personal right, that they could not put forward any claim other than that the deceased himself could have, that the statutory protection available to Moorjani was personal to him, that it came to an end on his death and that his legal representatives could only be treated as trespassers. The Bench construed the expression ‘tenant’ as it stood before the Amendment Act XXIII of 1973. 7. There is a clear finding that the legal representatives of Moorjani who died in 1967 do not have the status of a tenant, but are only trespassers. If this finding is final, the legal representatives cannot resist the application for execution filed by the landlord for possession. But the plea made by Mr. Govind Swaminathan, learned counsel for the respondents, is that on the date when the judgment was rendered in the second appeal, the Amendment Act XXIII of 1973 had come into force and that by virtue of that amendment the legal representatives would be in the position of tenants and would therefore be entitled to raise the plea that they were tenants entitled to the protection of section 10 of the Act. According to the lerned counsel for the respondents all that is necessary for the respondents is to prove that, on the date of the execution petition the respondents were tenants and that that requirement was satisfied because of the Amendment Act XXIII of 1973. We find two impediments in the way of the learned counsel raising this plea. First of all, on the date of the judgment the Amendment Act XXIII of 1973 had come into force. If, according to the respondents, they were tenants by virtue of the amendment and were entitled to the benefits of the Act, they ought to have made a specific plea. Having failed so to do, it is not open to them now to plead that the judgment is erroneous and that they are entitled to contend at the time of execution they are tenants. It was also submitted that there is a subsequent decision of the Supreme Court which has held that under similar circumstances legal representatives will be tenants ; But, as the judgment has become final between the parties, any subsequent decision would not enable the respondents to contend in execution proceedings that they are tenants. In this view, we do not deal with the judgment of the Supreme Court in Civil Appeal No. 884 of 1968 rendered on 7th May, 1976. 8. The position therefore is that the rights of the parties have been finally determined and the respondents have been declared to be, not statutory tenants, but only trespassers. They are therefore not entitled to the benefits of section 10 of the Act as they do not satisfy the requirement that they should be tenants. It is not open to them to contend that the decision in the second appeal is erroneous, when their petition for leave to appeal against that judgement has been dismissed by the Supreme Court. It is not their case that there has been any supervening legislation which has affected the status of the parties enabling the respondents to claim benefits under the Act as tenants. We therefore hold that the respondents are not entitled to resist the execution levied by the landlord. In this view, we allow the appeal and set aside the order of the lower Court. There will be no order as to costs. 9. We therefore hold that the respondents are not entitled to resist the execution levied by the landlord. In this view, we allow the appeal and set aside the order of the lower Court. There will be no order as to costs. 9. After the judgment was delivered, Mr.Govind Swaminathan, learned counsel for the respondents, prayed for stay of execution of the decree for a period of two months to enable him to prefer an appeal to the Supreme Court. While we were examining the question of the powers of this Court to grant such stay of execution, on behalf of the respondents it was submitted that they would accept the judgment as final and would not prefer any appeal, provided the landlord gave them time till 31st December, 1976 on which date they undertake to vacate the premises and hand over possession to the landlord Mr. Parasaran, learned counsel for the appellant-landlord, after consulting his client, agreed to this course. In view of this specific understanding between the parties, time is given to the respondent till 31st December, 1976 to vacate the premises and deliver possession to the landlord.