9911796707
TMI Blog1979 (10) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the city of Madras. He leased it out in favour of the defendant, K. Seetharama Rao under a lease deed dated July 8, 1940 for the purpose of Running a restaurant known as 'Modern Cafe' in it for a period of three years with effect from July 15, 1940 on a monthly rent of ₹ 950/-. The agreed h period of lease expired in July, 1943 but the defendant continued to be in possession of the building as a tenant holding over. On the coming into force of the Madras Non-residential Buildings Rent Control order in 1946, the defendant became a statutory tenant of the said building and fair rent in respect of it was fixed under that order in the year 1946 at ₹ 1,680/- per month. The aforesaid order was replaced by the Madras Buildings (Lease and Rent Control) Act. 1949 which was also applicable to the said building. On the death of the landlord Haji Mohamed Hussain Sait in 1955, under a partition amongst his heirs the plaintiff became the owner of the building. The protection which the defendant was enjoying under the Act of 1949 came to an end on the passing of the principal Act by virtue of section 35 thereof which repealed the Act of 1949 and section 30(iii) thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree or order passed has been executed or satisfied in full before the date mentioned in this section. The statement of objects and reasons appended to the Bill which ultimately became the Amending Act read as follows:- The Madras Buildings (Lease and Rent Control) Act, 1960 (Madras Act 18 of 1960), relates to the regulation of the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Madras. Under section 30 of the said Act, certain buildings are exempted from the provisions of the said Act. Any non-residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees is one such building or part is exempted under the said section 30. It has been brought to the notice of the Government that the landlords of such non-residential buildings, taking advantage of the exemption, referred to above, demand exorbitant rents from the tenants of such buildings, who mostly belong to the business community, and threaten to evict the tenants when the latter do not concede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt dated December 4, 1964. Both the above applications were allowed by the City Civil Court on August 3, 1965. On August 13, 1965, the defendant filed an additional written statement before the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act. He also filed two revision petitions against the order passed by the City Civil Court allowing the two applications on August 3, 1965. In the meanwhile, on an application made under section 24 of the Code of Civil Procedure by the plaintiff, the suit was withdrawn to the file of the High Court and it was renumbered as C.S. No. 218 of 1965. It should be mentioned here that owing to the alteration of the pecuniary jurisdiction of the City Civil Court, the suit stood transferred to the file of the High Court on May 1, 1964 itself. The defendant died on January 15, 1968. He had made will on January 7. 1968 appointing executors and administrators in respect of his assets and issuing directions regarding the manner in which his assets should be disposed of. By an order dated July 20, 1970 made by the High Court, defendants Nos. 2 to 10 who had been appointed executors an administrators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rent Control) Act, 1960, as amended by Act 23 of 1973 ? 5. Whether the tenancy came. to an end upon the death of K. Seethararma Rao ? 6. Whether the defendants have no legal interest in the premises and consequently liable to be rejected ? 7. To what reliefs are the parties entitled ? At the conclusion of the trial, the learned Judge held on issue No. 1 that the suit was maintainable, on issue No. 2 that the notice to quit had validly terminated the tenancy, on issue No. 4 that the defendants were not entitled to protection under the Madras Buildings (Lease and Rent Control) Act, 1960; on issue No. S that the tenancy had come to an end even on March 1, 1964 and on issue No. 6 that the defendants had no legal interest in the premises. He, however, declined to record any finding on issue No. 3 which related to the question whether the suit had abated ar not on June 10, 1964 by virtue of section 3 of ,; the Amending Act. The learned Judge proceeded to dispose of the suit as if it was a fresh suit instituted after the death of the original defendant No. 1 on January 15, 1968 even though there was no specific issue on the question whether it cd be treated su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt only to the extent it granted a period of three years to the defendants to deliver possession of the premises. Defendant No. 2 in his appeal questioned the entire decree. Both the appeals came up for hearing before a Division Bench of the High Court. In the course of its judgment, the Division Bench formulated the following points for its consideration:- 1. What was the status of late Seetharama Rao after the termination of the tenancy-whether he was a trespasser or a tenant holding over or a tenant at sufferance ? 2. Did the suit building come within the purview of the Act and did late Seetharama Rao become a tenant as defined in the Act, on the coming into force of the Tamil Nadu Act XI of 1964 ? 3. Whether the suit instituted by the plaintiff abated in view of section 3 of the Tamil Nadu Act XI of 1964 ? 4. Whether the tenancy came to an end upon the death of Seetharama Rao ? 5. Whether defendants 2 to 10 are entitled to protection against eviction from the suit property by virtue of the Act as amended by the Tamil Nadu Act 23 of 1973 ? The Division Bench held that the status of the defendant, Seetharama Rao from March 1, 1964 was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit stood transferred to the file of the original side of the High Court with effect from May 1, 1964 and that the suit was, therefore, deemed to be pending in law on the file of the High Court on June 10, 1964 on which date the Amending Act was published in the official Gazette even though in fact the file was Lying on that date with the City Civil Court. The other proceedings which have been referred to above in some detail are not relevant for the purpose of deciding the question whether the suit abated on the publication of the Amending Act in the official Gazette. Section 2 (ii) of the Amending Act repealed clause(iii) of section 30 of the principal Act. Consequently any non-residential building, the rental value of which on the date of the commencement of the principal Act as entered in the property tax assessment book of the municipal council, district Board, panchayat or panchayat union council or the Corporation of Madras, as the case may be exceeded four hundred rupees per mensem was also brought within the scope of the principal Act and the relationship between the landlord and tenant of such building came to be regulated by it with effect from June 10, 1964. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it the filing of a suit by a landlord for recovery of possession of the property from a tenant but only a decree passed in the said suit could not be executed except in accordance with the provisions of the principal Act and if that was the true legal position in respect of the buildings to which the principal Act applied from its commencement' there was no justification whatever for the Legislature making a contrary provision in respect of non-residential buildings to which the principal Act became applicable by virtue of the Amending Act. The Division Bench, therefore, held that section 3 of the Amending Act was not applicable to the case on hand. We are of the view that the above conclusion of the Division Bench is erroneous. It is not for the Court to ask whether there was any justification for the Legislature to make a contrary provision in respect of the suits of the present nature. It was not the contention of the plaintiff that section 3 of the Amending Act was unconstitutional. In that situation, the High Court had no option but to apply the provision in question to the case on hand without going into the question whether there was any justification for enacting it. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h may accrue to the landlord, and which are to cease and determine. We do not think that in the context in which section 3 of the Amending Act was enacted, it could be said that it was not possible to identify the proceedings to which that provision referred. In the case of P. J. Gupta Co. (supra), the effect of section 3 of the Amending Act is set out as follows:- The obvious result of section 30(iii) of the Act, as it stood before the amendment, was that, if the rental value of a non-residential building,, as entered in the property tax book of the Municipality exceeded ₹ 400/-per mensem, a description which applies to the premises under consideration before us the landlord would have no right to proceed against the tenant for eviction under section 10(2) (ii) a) of the Act. Section 3 of the Amending Act, on the face of it, applies to two kinds of cases. Its heading is misleading in so far as it suggests that it is meant to apply only to one of these two kinds. It applies: firstly, to cases in which a proceeding has been instituted on the ground that a non-residential building was exempt from the provisions of the principal Act and is pending; and secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (ii) (a) of the principal Act which contained a prohibition against sub- letting which involved parting with possession. On appeal to this Court, the decision of the Madras High Court was affirmed holding that the effect of the amendment was that the landlord acquired a new right to evict a tenant under section 10(2) (ii) a). This Court held that by virtue of section 3 of the Amending Act, all rights and privileges which might have accrued before the date of publication of the Amending Act in the official Gazette to any landlord in respect of any non-residential building or part thereof by reason of clause (iii) of section 30 of the principal Act alone became enforceable. But the right to seek eviction of the tenant Under section 10(2) (ii) (a) was unaffected even though the sub-letting of the building had taken place prior to the enactment of the Amending Act. From a reading of he above decision, it is obvious that This Court held that the right which the landlord acquired under section 10(2) (ii) (a) to evict the tenant was a now right and was not a pre-existing right which could possibly be affected by section 3 of the Amending Act. It is, however, clear from the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminated with effect from the expiry of February 29, 1964. The plaintiff prayed for eviction of the original defendant and also for a decree for damages for use and occupation at the rate of ₹ 6000/- per month from the date of the plaint till delivery of the vacant possession on the assumption that after the termination of the lease the original defendant No. 1 was not a tenant and was liable to pay damages and not the rent of ₹ 1,680/- per month which was the fair rent fixed in respect of the building in a former proceeding under the rent control law in force then. The suit in the above form could be filed for the relief referred to above only because of the exemption granted by clause (iii) of section 30 of the principal Act because in the absence of such exemption, no effective decree for ejectment could be passed by the City Civil Court in view of section 10 of the principal Act which provided that no tenant could be evicted from a building except in accordance with the provisions of section 10 and section 14 to 16 thereof. The plaintiff could not also have asked for a decree for damages at ₹ 6000/- per month which he had claimed in the plaint but for such ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one Panchand and the Bullion Market Post Office immediately by executing the decree in so far as The said portion was concerned and the quondam tenant delivering possession of the rest of the portion in his occupation on or before 31st January, 1964 and the quondam tenant paying mesne profits at ₹ 1340/- per month for the period from 1st November 1960 to 31st January, 1963 and further mesne profits at ₹ 800/- per month for the period commencing from 1st February, 1963 till delivery of possession. The decree also provided that if there was default in payment of the sum of ₹ 800/- or the other sum per month, the landlord would be entitled to execute the decree immediately. Time for vacating was extended and before the building was actually vacated the Tamil Nadu 'Act 11 of 1964 intervened. The question was, whether by virtue of the intervention of the Tamil Nadu Act 11 of 1964, the decree could be executed. The learned trial Judge felt that in view of the fact that there had been a surrender of a part of the holding by the quondam tenant's sub-tenant, there was a disruption of the entire holding and therefore the quondam tenant would not be a statutory te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of two judges of the same High Court in Deorajan's case (1953) 58 C.W.N. 64 was cited before the learned Judges' who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the! basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another's decision. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to be let separately for residential or non-residential purposes ........ Consequently it is not every building that comes within the scope of the Act, but only a building let or to be let separately for either of the two purposes. Admittedly on 10-6-1964 the suit building was not let because the tenancy came to an end by 29-2-1964 and late Seetharama Rao was not occupying the building from 1-3-1964 as a tenant, as found by us. Therefore, the only other question is, whether the suit building can be said to be a building to be let separately for non- residential purposes on 10-6-1964. We have already referred to the claim of their plaintiff in his plaint that he needed the building for his own use and the contention of late Seetharama Rao in his written statement dated 25-4-1964 that the plaintiff was merely anxious to extort higher rent and for that purpose had from time to time approached him, that although he was prepared to pay a reasonable rent, he was not willing to pay anything exorbitant and that it is because of that the plaintiff had instituted the present suit on a pretence of requiring it for his own business. With reference to the notice Ex. P-2, late Seethar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building..... let.. also refer to a building which was the subject matter of a lease which has been terminated by the issue of a notice under section 106 of the Transfer of Property Act and which has continued to remain in occupation of the tenant. This view receives support from the definition of the expression 'tenant' in section 2(8) of the principal Act which includes a person continuing in possession after the termination of the tenancy in his favour. If the view adopted by the Division Bench is accepted then it would not be necessary for a landlord to issue a notice of vacancy under section 3 of the principal Act when a building becomes vacant by the termination of a tenancy or any the eviction of the tenant when he wants to occupy it himself. In law he cannot do so. He would be entitled to occupy it himself when he is permitted to do so under section 3(3) or any of the provisions of section 3A of the principal Act. This also illustrates that the view of the Division Bench is erroneous. We, therefore, hold that the building in question was a 'building' within the meaning of that expression in section 2(2) of the principal Act on the date on which section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above contention in the year 1973 when he made the application for 1 amendment of the plaint, the date of the institution of the fresh suit could not be earlier than the date on which the application for amendment was made even if it was permissible to do so. By his judgment the learned single Judge passed a decree for possession against defendants Nos. 2 to 10 and for damages to be determined under order 20 Rule 12 of the Code of Civil Procedure without specifying the date from which damages would be payable. In the absence of such - specification, the plaintiff became entitled to claim damages under order 20, Rule 12 of the Code of Civil Procedure even from the date of the suit i.e. March 2, 1964. The Division Bench by its judgment affirmed that part of the decree of the trial court. The direction for payment, of mesne profits given in the decree of the trial court without specify the date from which damages should be computed could not have been passel consistently with its judgment in which it had been stated that the suit was being treated as a fresh suit. This defect, however is of a 3-473SCI/79 minor character. What is more fundamental in this case is that it was not per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenancy right of the original defendant but as persons who had not inherited the said right . It is thus seen that there was no proceeding in the eye of law rending after June 10, 1964, the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different. Parties could not either by consent or acquiescence confer jurisdiction on court when law had taken it away. In these circumstances, we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e. issues Nos. 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings. In view of our finding on issue No. 3, we hold that the decree passed by the trial court and the appellate court are unsustainable. We accordingly allow the appeal, set aside the decrees passed by the trial court and by the Division Bench of the High Court and dispose of the suit as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
