L. Balaji Singh v. Kandaswami — 1993 DIGILAW 243 (MAD)

Judgment :- 1. The above second appeal and civil revision petition are connected, as they both relate to an application under S. 9 of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as ‘the Act’) filed by the defendant-tenant, the above referred to Kandaswami, in Ejectment Suit No. 229 of 1967. The said suit was filed by the above referred to Balaji Singh, the landlord, on the file of the III Judge, Court of Small Causes at Madras, for ejectment of the said tenant, who is the petitioner in the abovesaid C.R.P. No. 2962 of 1989 and appellant in the above Second Appeal No. 1873 of 1987. The civil revision petition no doubt arises out of M.P. No. 690 of 1987 filed by the said tenant for directing the said landlord to execute the sale deed in relation to the suit land in that Ejectment Suit No. 229 of 1967, which is of an extent of 38? 40??, pursuant to the earlier order of the trial Court in M.P. 345 of 1968 in the said ejectment suit directing such a sale and fixing the sale price thereof and also pursuant to the deposit of the said sale price fixed by the tenant, into Court. The said M.P. No. 690 of 1987 was allowed by the order dated 28-4-1989 and aggrieved by the said order, the plaintiff has preferred the said civil revision petition. 2. S.A. No. 1873 of 1987 arises out of O.S. No. 1483 of 1982 filed by the plaintiff in Ejectment Suit No. 229 of 1967 for a declaration that the particular order passed by the trial Court in Ejectment Suit No. 229 of 1967 in one of the miscellaneous petitions therein relating to the abovesaid S. 9 application is not correct. The said O.S. No. 1483 of 1982 has been concurrently dismissed by the trial Court as well as the first appellate Court on the ground inter alia that such a suit would not lie. Aggrieved by the said concurrent dismissal, the second appeal has been filed by the said plaintiff. 3. But, the learned Counsel for the appellant did not advance any serious argument to contend that the said dismissal of the suit O.S. No. 1483 of 1982 was wrong. Aggrieved by the said concurrent dismissal, the second appeal has been filed by the said plaintiff. 3. But, the learned Counsel for the appellant did not advance any serious argument to contend that the said dismissal of the suit O.S. No. 1483 of 1982 was wrong. On the other hand, the said Counsel concentrated his arguments in contending that the abovesaid order in M.P. No. 690 of 1987 was erroneous and that the civil revision petition should be allowed, setting aside the order in the abovesaid C.M.P. No. 690 of 1987. Even otherwise since I also find that O.S. No. 1483 of 1982 is not maintainable. I straightaway dismiss S.A. No. 1873 of 1987 without cost and proceed to deal with the argument of the learned Counsel in relation to the abovesaid civil revision petition. 4. In the abovesaid civil revision petition, C.M.P. No. 16233 of 1992 has been recently filed seeking permission to raise additional grounds. No counter has been filed to the said petition and the said petition has not been specifically opposed by the learned Counsel for the respondent. It also appears that only a further question of law has been raised in the additional grounds. Therefore, C.M.P. No. 16233 of 1992 is allowed. 5. Now, coming to the arguments in C.R.P. No. 2962 of 1989, I may first of all set out some relevant facts. In the abovesaid M.P. No. 345 of 1968 filed by the abovesaid tenant under S. 9 of the Act for purchasing the abovesaid land in Ejectment Suit No. 229 of 1967, by order dated 11-8-1969, the abovesaid Court of Small Causes held that the said tenant was entitled to purchase the said sites of 38? 40?? for the value to be fixed by the Court. Then, the Commissioner appointed by the Court for fixation of the price of the land, fixed the value for the said land at Rs. 6000/- and odd. Then, at the request of the abovesaid landlord, the Commission was reissued for refixing the said price since the landlord complained that the abovesaid price was low. Then, the same Commissioner filed his second report, fixing the value of the said site at a higher figure, viz., Rs. 11,400/-. That report is dated March, 1972. 6000/- and odd. Then, at the request of the abovesaid landlord, the Commission was reissued for refixing the said price since the landlord complained that the abovesaid price was low. Then, the same Commissioner filed his second report, fixing the value of the said site at a higher figure, viz., Rs. 11,400/-. That report is dated March, 1972. Then by order dated 8-9-1972 in the above said M.P. No. 345 of 1968, the abovesaid Court of Small Causes fixed the value of the said site at Rs. 11,400/- and the tenant was directed to pay the said amount in 30 equal monthly instalments. But, the tenant defaulted in the payment of the said instalments, However, he filed M.P. No. 1321 of 1980 for condoning the delay in the payment of 13 instalments. Though that petition was dismissed by the trial Court, on appeal, in Ejectment Appeal No. 19 of 1980, the delay was excused by order dated 2-4-1981 on condition that the said instalment amounts were deposited into Court within the stipulated time (on or before 20-6-1987) along with a sum of Rs. 500/- towards cost. According to the tenant, the said conditional order was complied with and he had deposited the said instalments and also, the abovesaid sum of Rs. 500/- pursuant to the abovesaid order and so, he filed the abovesaid M.P. No. 690 of 1987 for the Court to direct the landlord to execute the sale deed in favour of the said tenant. The said M.P. was allowed by order dated 28-4-1989 and aggrieved by the said order, the abovesaid civil revision petition has been filed by the abovesaid landlord. 6. I may first of all dispose of the only points raised by the learned Counsel for the petitioner pursuant to the abovesaid addition grounds raised in the Civil Revision Petition The submission there, is, that the abovesaid Rs. 500/- was not at all paid and according the learned Counsel since that condition was not complied with, M.P. No. 345 of 1968 itself stood dismissed. But, the learned Counsel for the respondent points out that on 16-6-1981 itself, the abovesaid sum of Rs. 500/- was deposited into Court, the receipt number relating to the said deposit being 74385. 500/- was not at all paid and according the learned Counsel since that condition was not complied with, M.P. No. 345 of 1968 itself stood dismissed. But, the learned Counsel for the respondent points out that on 16-6-1981 itself, the abovesaid sum of Rs. 500/- was deposited into Court, the receipt number relating to the said deposit being 74385. The relevant plea in this regard in the written statement in O.S. No. 1483 of 1982 is as follows:— “The defendant submits that as directed by the learned Chief Judge, Court of Small Causes, he paid the sum of Rs. 500/- to the credit of the Plaintiff therein on 16-6-81 vide receipt No. 74385.” No doubt the learned Counsel for the petitioner argues that no such payment was made on 16-6-1981. But, he has not substantiated it by any evidence elicited in O.S. No. 1483 of 1982. Since the written statement gives the date of payment as well as the receipt number, unless the learned Counsel for the petitioner shows from any evidence given in the said suit or otherwise that no such payment was made, I have to take it that the said payment had been made on 16-6-1981, that is, within the time allowed. Therefore, there is no merit in the abovesaid additional grounds raised. 7. Then, in so far as the original grounds raised in the civil revision petition, the learned Counsel for the petitioner very strongly urges one point, viz., while under S. 9 of the Act, a mandatory duty is cast on the Court to “first decide in the abovesaid M.P. No. 345 of 1968, the minimum extent of the land which may be necessary for the convenient enjoyment of the tenant”, the Court below, has, without discharging that duty first, has straightaway fixed the price for the entire suit land, and thereby has committed a jurisdictional error. According to the learned Counsel, in the abovesaid suit land of 38 - 40, the abovesaid suit land of 38 - 40, the abovesaid tenant was having a superstructure of only 11-1/2 - 12-1/2. Where he carried on firewood business. 7. -A. That apart, according to the learned Counsel, there was also a hut in a portion of the suit site belonging to the landlord and that the said portion also cannot be sold to the tenant under S. 9 of the Act. Where he carried on firewood business. 7. -A. That apart, according to the learned Counsel, there was also a hut in a portion of the suit site belonging to the landlord and that the said portion also cannot be sold to the tenant under S. 9 of the Act. In this connection the learned Counsel relies on the decision in Arasan Chettiar v. Narasimhalu Naidus Estate Trust ((1980) II M.L.J. 303 = 93 L.W. 392(D.B.)), wherein the different stages of enquiry in a S. 9 application are specifically stated. Further according to the learned Counsel, M.P. No. 690 of 1987 has been filed as a separate petition, but actually there was no necessity to file such an M.P. and necessary orders could be and should be passed in M.P. No. 345 of 1968 itself, since actually the final order that is spoken to in under S. 9(3) of the Act has not been passed yet in the abovesaid M.P. No. 345 of 1968. Therefore according to the said learned Counsel there can be no scope for the application of the principle of res judicata. The order that has been passed in M.P. No. 690 of 1987 should be construed only as an order passed in M.P. No. 345 of 1968 itself. Further, according to the said learned Counsel, the trial Court erred in dismissing the abovesaid contention of the landlord on the ground that it was not raised earlier in M.P. No. 345 of 1968. Further, according to the said learned Counsel, the doctrine of estoppel or waiver of right on the part of the landlord, cannot be put against the landlord and the landlord is free to raise the abovesaid contention that the abovesaid minimum extent must be first decided, before fixing the price for the land in the present M.P. No. 690 of 1987 itself, because it is only a continuation of M.P. No. 345 of 1968 and because no final order has been passed in M.P. No. 345 of 1968. To contend that there was no necessity for M.P. No. 690 of 1987, praying for execution of the sale deed, and the said prayer also would form part of the prayer in M.P. No. 345 of 1968 itself, the learned Counsel relies on the decision in Narayanan Chettiar v. Alagar Thevar (87 L.W. 96(S.N.) = (1974) II M.L.J. 386). To contend that there was no necessity for M.P. No. 690 of 1987, praying for execution of the sale deed, and the said prayer also would form part of the prayer in M.P. No. 345 of 1968 itself, the learned Counsel relies on the decision in Narayanan Chettiar v. Alagar Thevar (87 L.W. 96(S.N.) = (1974) II M.L.J. 386). He also relies on the decision in Ananthakrishnan Nair, P. v. Dr. G. Ramakrishnan (100 L.W. 1093 (S.C.)), where also, the Supreme Court has emphasized that the first duty of the Court in an application under S. 9 of the Act is to decide the abovesaid minimum extent. 8. But, on the other hand, the learned Counsel for the respondent argues that at no point of time prior to M.P. No. 690 of 1987 for nearly two decades, the landlord did not plead at all that only a smaller extent than the total extent of the suit land was actually required for the convenient enjoyment of the tenant. Further, according to the said learned Counsel for the respondent, even assuming that the res judicata principle could not be applied, he should be held to have impliedly waived his right to make such a plea that the tenant required only a smaller extent for his convenient enjoyment. 9. I have considered the rival submissions and I see great force in the argument of the learned Counsel for the respondent in view of the following features:— (1) Admittedly, the landlord did not raise earlier the abovesaid contention at all despite the fact that the affidavit in support of the said M.P. stated that the tenant was in occupation of the abovesaid extent of 40 - 8. (2) Further, in the above referred to report of the Commissioner, after the Commission was reissued, the Commissioner states as follows:— “Taking all documents before me and deposition of parties, I have no hesitation to fix the market value per ground is Rs. 18,000/- and the petitioner is now enjoying to an extent of 58 - 40 = 1520 sq. ft. which is in his actual possession and enjoyment. The price payable for plot to be sold to the tenant-defendant works out Rs. 18,000/- and the petitioner is now enjoying to an extent of 58 - 40 = 1520 sq. ft. which is in his actual possession and enjoyment. The price payable for plot to be sold to the tenant-defendant works out Rs. 11,400/-.” Despite the fact that the said report also says that the tenant was then enjoying the entire extent of 38 - 40, and for the said entire extent the price was fixed at the abovesaid total sum of Rs. 11,400/-admittedly the landlord did not file any petition to the said Commissioners report. (3) Pursuant to the said report, the trial Court by order dated 8-9-1972, in the abovesaid M.P. No. 345 of 1968, concluded as follows:— “In the result the value of the site is fixed at Rs. 11,400/- and the petitioner is directed to pay this amount in 30 equal monthly instalments of Rs. 380/- per mensem commencing from 10-10-72 and on the complete payment of these instalments, the landlord will execute the sale deed.” So, the Court also directed the tenant to pay the abovesaid sum of Rs. 11,400/- for the entire site of 38 - 40. As against the said order also, there was no appeal by the landlord contending that only a smaller extent was actually required for the convenient enjoyment of the tenant. (4) Further even in the above referred to M.P. No. 1321 of 1978 which was filed by the tenant for excusing the delay in paying the above referred to instalments, the above referred to present contention of the landlord was not raised at all in the counter filed to the abovesaid M.P. No. 1321 of 1978. Further, the abovesaid order in the abovesaid M.P. No. 1321 of 1978 was also the subject matter of appeal and the subsequent revision also. In none of those proceedings, the said point was raised by the landlord. (5) After the tenant deposited the full compensation as directed by the Court, a creditor of the landlord has also attached the said money, lying in the Court for realising the sum due to him. 10. After all these things have happened, the landlord cannot be now allowed to contend for the first time in M.P. No. 690 of 1987 that without determining the abovesaid minimum extent, the Court should not have fixed the price etc. 10. After all these things have happened, the landlord cannot be now allowed to contend for the first time in M.P. No. 690 of 1987 that without determining the abovesaid minimum extent, the Court should not have fixed the price etc. Further, the cases like 100 L.W. 1093 (supra) only dealt with a situation where the landlord disputed even at the very first instance that the tenant did not require the entire extent of the land in question, but only a smaller extent for his convenient enjoyment. So, those decisions cannot be applied to the present case. Further, in the context of the above features it could also be held that there was an implied finding by the Court below that the tenant required the entire suit land for his convenient enjoyment. 11. I think that I will also be justified in holding that in view of abovesaid conduct of the landlord, he has waived his abovesaid right to contend that the tenant requires for his convenient enjoyment only a smaller extent than the entire extent of the suit land. No doubt construing the present M.P. No. 690 of 1987 as only a continuation of the abovesaid M.P. No. 345 of 1968, there can be no scope for the application of the res judicata principle. 12. Further, in the light of the abovesaid features it can also be held that the landlords present version that the tenant requires only a lesser extent than the total extent of the suit land for his convenient enjoyment cannot be believed. I think, it has been raised for the first time now in the abovesaid M.P. No. 690 of 1987 only as a device to drag on the proceedings further after such a long time. 13. The same thing could also be said with reference to the other allegations that there was a hut of the landlord in a portion of the suit land. It must also be noted that the very ejectment suit itself proceeded on the footing that the demised land was the entirety of the suit land and not part of it. If that is so, the landlord cannot claim that any portion of the abovesaid demised land was actually in his possession wherein his above referred to hut is situate. It must also be noted that the very ejectment suit itself proceeded on the footing that the demised land was the entirety of the suit land and not part of it. If that is so, the landlord cannot claim that any portion of the abovesaid demised land was actually in his possession wherein his above referred to hut is situate. Even assuming that actually the material which went to make up the abovesaid hut (superstructure) was that of the landlord, on that ground alone, it cannot be said that the portion of the land on which the said hut or superstructure was situate was in his possession, when admittedly the lease in favour of the tenant was in respect of the entirely of the suit land. Further, the Court below, in its order in M.P. No. 690 of 1987 has specifically found as a finding of fact as follows:— Tamil Therefore, there is absolutely no error of jurisdiction in the present case for me to interfere. 14. That apart, even assuming there is any error of jurisdiction, I do not think that I would be justified in interfering in this civil revision petition in view of the following two decisions dealing with the scope of a revision petition under S. 115 C.P.C. The first decision is Chennichi alias Parilkal v. Srinivasa Chetti ((1970) I M.L.J. 234 = 83 L.W. 366) by Ismail, J., as he then was, and the relevant passage is as follows:— “The exercise of the revision powers of the High Court under S. 115, C.P.C. is purely discretionary. ‘The High Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper, if such interference will produce hardship or injustice. The revisional jurisdiction of the Court is intended to secure and subserve ends of justice and not to ldeny or defeat it. If interference in a particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction, even if the order is found to be one without jurisdiction.” 15. If interference in a particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction, even if the order is found to be one without jurisdiction.” 15. The abovesaid relevant passage has also been approved by a Division Bench of this Court in S.N. Kuba v. P.P.I. Vaidhyanathan (1988 T.N.L.J. 1) as follows:— “We are also inclined to accept the contention of the respondent that the discretionary jurisdiction under S. 115, C.P.C. should not be exercised when the order of the Court subordinate renders justice to the parties on the facts of the case. A single Judge of this Court had occasion to consider this question in Ghennichi v. Srinivasa (83 L.W. 366 = 1970 I M.L.J. 234) We agree with the above observation of Ismail, J.” It has also been similarly held earlier also, (vide Kuppusamy pillai v. Alwar Chettiar (45 L.W. 20 = AIR 1935 Madras 89) and MT. Kuti Baru Bibi v. Jitendranath Roy and others (AIR 1931 Calcutta 425). In Dominion of India v. Gobhardhandas Shroff (AIR 1952 Calcutta 384) it was held that before interfering in revision, the High Court would take into consideration the conduct of the petitioner.” 16. Therefore, the Civil Revision Petition is dismissed. However, in the circumstances of the case, there will be no orders as to costs.