Vasudeva Pillai Trust v. Thirugnanasambandam — 1987 DIGILAW 33 (MAD)

ORDER T. Sathiadev, J. 1. Plaintiff in ejectment suit No. 40 of 1974 on the file of the II Judge, Court of Small Causes, Madras is the petitioner herein and the defendant is the respondent. Plaintiff filed the suit as owner of I ground and 28 sq.ft. in R.S. No. 1523/4, at Rathnasabapathi Pillai St., Madras 7, and that a superstructure now exists thereon bearing door No. 10 Rathnasabapathi Pillai Street. Plaintiff leased out the plot of land originally to one Rajamanickammal on a monthly rent of Rs. 3.25 and she left behind huge arrears and expired 27 years ago intestate, and that in September 1970, on plaintiff being told that defendant is claiming to be the lessee of the property and collecting ground rent from sub-tenants, a notice was sent on 15.9.1970 calling upon him to prove that he is the successor-in-interest of Rajamanickammal, He replied through his Counsel on 26.9.1970, stating that he is her son and may be treated as a lessee under the plaintiff and undertook to pay the arrears of rent for three years, but failed to do so, and therefore, under Section 106 of the Transfer of Property Act, a notice was issued on 7.10.1970. This was replied on 26.11.1970, by defendant promising to pay the arrears of rent, but committed default. Again, another notice was sent and reply was received and that having received only a sum of Rs. 117, for the balance of the amount, a separate suit is being filed for recovery of arrears. Hence the suit has been laid for evicting the defendant. The suit was filed on 15.4.1974, by the plaintiff called Vasudeva Pillai Trust represented by its Honorary Secretary and that was recognized in Appln. No. 241 of 1982 in C.S. No. 246 of 1930 by order dated 22.4.1982 by the High Court. On filing the suit on 15.4.1974, defendant filed M.P. No. 2747 of 1947 invoking Section 9 of Tamil Nadu Act III of 1922, stating that originally the suit property had been leased to his grand-father Appavoo Chetti, who had settled the property in favour of his mother, Rajamanickammal, and after her death, as the only son, he had become entitled to the lease-hold rights and that he has applied for the purchase of the suit land. 2. 2. The said petition was opposed and after the Commissioner having been appointed to ascertain the value of the property, on 4.8.1976 it was ordered that the extent involved was 2,810 sq. ft. and that the market value was Rs. 16,000 per ground, and therefore, the defendant was directed to pay with interest a sum of Rs. 18,733 towards the value of the land at Rs. 624.43 every month in 30 equal monthly instalments commencing from 1.11.1976. 3. Aggrieved against this order, Ejectment Appeal No. 20 of 1977 was filed and it was allowed on 11.9.1978, fixing the market value at Rs. 15,333 per ground. In spite of it, he filed M.P. No. 1371 of 1979 for review of the judgment so as to fix the market value at Rs. 10,000, per ground, and this was dismissed for default, once on 13.10.1979, and later it was restored and again on 17.12.1979 it was dismissed for non-appearance, and thereafter M.P. No. 115 of 1980 was filed to restore it, and it was dismissed on 15.3.1980, holding that the tenant was bent upon protracting the proceedings during the past six years, and the reason claimed in the supporting affidavit for non-appearance by counsel and party was not correct. 4. It is admitted by defendant that-the order in ejectment appeal No. 20 of 1977 had become final and the instalment of Rs. 511 fixed therein to be paid monthly with interest at 6 per cent per annum had not been complied with because of financial difficulties. Defendant filed M.P. No. 1556 of 1984 by invoking Section 5 of the Limitation Act, for condoning the delay of 42 months in paying the market value as fixed by the order dated 11.9.1978 claiming that he could not possess the necessary funds to pay on time. By order dated 11.2.1985, this was rejected. Reliance was placed by the Court below on Section 9(2) of the Act, which provides that even if the tenant commits default in payment of one instalment, the application under Clause (a) of Sub-section (1) has to be dismissed, and time could be granted for payment if sufficient cause is shown and that Court can extend time for payment only upto three years. 5. 5. M.P. No. 1342 of 1984 was filed by the plaintiff under Sections 3 and 4 of the Act for the appointment of a Commissioner to fix the value of the supersturcture, so that it could get possession of the property in the ejectment suit and pay the value of the supersturcture to the tenant. The Court below held as follows- ...The suit itself appears to have been disposed of on 4.8.1976. The plaintiff had not succeeded in the suit. If the plaintiff had applied for appointment of a Commissioner for valuing the superstructure immediately after the expiry of the time fixed for payment by the tenant or immediately after the first default, this objection now raised by the tenant about the application being not maintainable, may not be accepted. But as it is, the suit itself appears to have been disposed of on 4.8.1976. Even if it is a wrong order, this Court cannot now review or set aside the same.... Hence it rejected the application. It is against the said order, this revision petition is preferred by the plaintiff. 6. The main thrust of the contention of the plaintiff is that the suit having never been dismissed, and by institution of M.Ps. by defendant the proceedings have been kept alive right through, and when tenant having interdicted the proceedings in the suit by filling a petition under Section 9 of the Act, and having failed therein, the landlord is entitled to invoke the statutory rights under Section 4 of the Act and consequently pay the compensation under Section 3. Ejectment Suit No. 40 of 1974 having not been disposed of, the Court below is in error in holding that the suit itself appears to have been disposed of on 4.8.1976. 7. In narrating the various proceedings initiated by the parties, it has been stated that E.S. No. 40 of 1974 having been filed on 15.4.1974, M.P.2747 of 1974 was filed on 27.7.1974. Thereafter, the Court was concerned with the proceedings under Section 9 of the Act because that is the only aspect which could be done by the Court, in view of Section 9(1)(b) of the Act. Hence, the order passed on 4.8.1976 was only in M.P. 2747 of 1974 and not in E.S. 40 of 1974. Thereafter, the Court was concerned with the proceedings under Section 9 of the Act because that is the only aspect which could be done by the Court, in view of Section 9(1)(b) of the Act. Hence, the order passed on 4.8.1976 was only in M.P. 2747 of 1974 and not in E.S. 40 of 1974. E.A. 20 of 1977 was filed only as against the order in M.P. 2747 of 1974 and not against any order passed in the suit. This order passed on 4.8.1976 had not been looked into by the Court below. The suit bundle does not disclose any order of dismissal or decreeing of the suit at all. It only contains the order in M.P. 2747 of 1974. Thereafter, since the defendant had taken up the matter in appeal, and having not complied with the order of the appellate court, and again sought for review, and condoning the delay in paying the amount as fixed by order dated 4.8.1976, and in view of the pendency of these proceedings upto February 1985, the suit could not be disposed of. The petition by plaintiff under Sections 3 and 4 of the Act was filed on 27.7.1984. Hence, factually the suit is yet to be disposed of, and no order about disposal of the suit had ever been passed. That may be the reason why the Court below has stated that the suit itself appears to have been disposed of on 4.8.1976 instead of extracting any order passed in the suit. Defendant had not filed into Court any order passed in the suit dismissing, it. This sort of approach made by the Court below cannot be appreciated. Because of its failure to look into the records, it necessitated this Court in summoning the original records to find out whether any order had ever been passed dismissing the suit. It had been aware that such an order had not been passed, it had failed in its duty by making it 'appear' as if it had been disposed of, when it had full knowledge that the order dated 4.8.1976 was an order only in M.P. 2747 of 1974 which had been subjected to an appeal in E.A. No. 20 of 1977. Hence, this attitude of the Court below deserves condemnation. 8. Hence, this attitude of the Court below deserves condemnation. 8. After the procedure under Section 9(1)(b) was followed and in the instant matter, on an appeal, a revision of value having been effected; and in M.P. 1556 of 1984, dated 11.2.1985 (the same day on which the order had been passed in M.P. 1342 of 1984), holding that the tenant had not complied with the condition to pay the amount within the period contemplated under Section 9(2) deals with instances in which the price had been paid and as to what extent a decree could be passed for conveyance of the property to the tenant to the extent he had succeeded, and as to what a tenant will have to do in delivering the remaining extent of the land. It is only thereafter, under Section 9(3)(b), having been availed of, but not complied with as in Section 9(2); the tenant had lost his remedies invoked under the Act, and that was why the order in M.P.1556 of 1984 was passed as against him. Hence, the suit has to be taken up for further disposal and the plaintiff is one who could come within the expression 'in which the landlord succeeds' and who could invoke the relief under Section 4 of the Act. In a suit filed for ejectment, on an application filed under Section 9(1)(a) or (b), the suit cannot be dismissed, but will have to be kept pending on the file of the Court, till finality is reached in the proceedings under Section 9 of the Act. This is what the trial Court had done and there was no illegality committed by it. This is the view taken in Mohanambal v. Selvanayaki (1961) 2 M.L.J. 261 : 74 L.W. 382, by holding that the stage at which a court could be called upon to determine under Section 4(2) of the Act, is a date on which the court comes to the conclusion that the landlord is entitled to vacant possession and not at any time anterior to the final determination of the ejectment application itself. Before such an order could be passed in the instant matter. Section 9 application having been filed, and an order having been passed on 4.8.1976, the suit had been kept on the file of the court below awaiting final determination in the remedies invoked by the defendant tenant. 9. Before such an order could be passed in the instant matter. Section 9 application having been filed, and an order having been passed on 4.8.1976, the suit had been kept on the file of the court below awaiting final determination in the remedies invoked by the defendant tenant. 9. In Arasan Chettiar v. Narasimhalu Naidu's Estate Trust, while dealing with the scope of Section 9, it has been held that when a tenant commits default in the payment of the amount as directed by the Court, the application under Section 9 shall stand dismissed and that the suit or proceeding will proceed or any decree or order in ejectment that may have been passed therein shall stand. Defendant herein by filing M.P. 1556 of 1984, sought for extension of time, and which was rejected on 11.2.1985 and thus he made it quite clear that he had lost his right under Section 9 of the Act. The suit having not been disposed of, as held by the Division Bench of this court, the Court has the right to take up the suit and proceed to pass a decree. 10. Except for those decisions no other authority is placed before this Court to hold that the pending suit should be deemed to have been dismissed on the day when an order is passed under Section 9(1)(b) of the Act. 11. Hence, the revision petition is allowed with costs, and the court below is directed to take up the suit and proceed to dispose it of bearing in mind the rights acquired by the plaintiff under the Act by following the procedures contemplated in Sections 3 and 4.