Alamelu Ammal and Others vs K. Gopal and Others

The Appellants are the tenants of the properly in question. On 1-10-81 the Respondents, who are the landlords, filed O.S. No. 3286 of 1981 for eviction of the Appellants from the said property before the District Munsif, Coimbatore. An ex-parte decree was passed against the Appellants in this proceeding on 12-1-82. According to the Appellants they were unaware of the suit as the writ of summons was not served on them. It was only on 1-7-83, when the Court Amin came to execute the decree that they came to know about the ex-parte decree in the above suit. The Appellants applied on 14-7-83 for setting aside the ex-parte decree. It was the contention of the Appellants that they were not served with the writ of summons in the suit and hence they could not appear and defend the suit. The ex-parte decree was set aside on 20-12-92. The Addl. District Munsif, Coimbatore passed a short order as follows: -

"Petition is allowed or payment of cost of Rs. 100/ on or before 21.12.1992. Call on 22.12.1992."

On 18-1-93 the Appellants filed an application u/s 9 of the Tamil Nadu City Tenants Protection Act, 1921 for directing the Respondents to sell the land In question to them. This application was rejected by the trial court on the ground that the application was delayed by 3459 days and no satisfactory explanation was forthcoming for the delay. A Civil Revision petition from this order was rejected by the High Court. (Reported in (Reported in 1994-2-L.W. 393 - Ed.) Hence the present appeal.

The relevant provision of Section 9 of the Tamil Nadu City Tenants Protection Act, 1921 (hereinafter referred to- as the Act) are as follows:

Any tenant who is entitled to compensation u/s 3 and against whom a suit in ejectment has been instituted...may within one mouth after the service on him of summons, apply to the court for an order that the landlord shall be directed to sell for a price to ne fixed by the court, the whole or part of the exert of land specified in the application.

The Appellants contend that they could exercise their right u/s 9 only when a suit in ejectment was pending against them. They are required to apply u/s 9 within one month of the service of the summons in such a suit on them. In the present case ''the writ of summons in the ejectment suit was not served in them, So they could not make an application u/s 9. They came to know about the suit and the ex-parte decree of eviction only when the Court Amin came to execute the decree on 1-7-83. Even thereafter, in view of the decree, they could not apply u/s 9 of the Act because by then there was no pending suit. It was only when the ex-parte decree was set aside and the suit for eviction was revived, that they could apply u/s 9. This application has been made within 30 days of the ex-parte decree being set aside. Hence there is, in fact, no delay in exercising their rights u/s 9 of the Act. However, the application for condonation of delay was made ex abundanti cautela; and it should have been granted looking lo the circumstances.

There is considerable force in this submission. Under the scheme of Section 9, the tenant has to exercise the right of applying for purchase within 30 days of the service of the writ of summons in an ejectment suit on the tenant Unless the summons is served, the period of limitation does not begin to run. There is a further provision u/s 9 which covers cases where the provisions of Section 9 have been extended to the area in question after a decree in ejectment is passed. The tenant can, in this situation, exercise his rights u/s 9 within 30 days of the Act being extended to that area, provided the tenant is still in possession and the ejectment decree has not. been executed. Much emphasis was laid on these provisions and it was contended that even when a decree was passed, the tenant could have applied within 30 days of coming to know of the decree. We fail to see how the present case can be brought under that part of Section 9, which provides for an application being made in cases where decrees have been passed prior to the application of the provisions of Section 9 to the area in question. In the case of proceedings for ejectment which are instituted after the provisions of Section 9 of the Act become applicable to that area, the only period prescribed for an application u/s 9 is 30 days from the service of the summons. As the summons was not served and the Appellants were not aware of the ejectment suit, they could not apply u/s 9.

It is submitted before us by Learned Counsel for the Respondents that in the proceedings u/s 9, it has been found by the trial court, as well as by the appellate courts that, in fact, summons was served on the tenant in the ejectment suit by affixation as the tenant had refused to accept service. It is also submitted that the right to apply u/s 9 of the Act arose on such service by affixation and should have been exercised within 30 days of such service being effected. These findings, however, are recorded in the application u/s 9 of the Act. The order under which the ex-parte decree was set aside is silent on this aspect. But it is common ground that the application for setting aside the ex-parte decree was made on the ground that the summons was not served on the tenants and, hence, they could not appear to defend the suit. This application has been allowed. We will have to proceed on the basis that the ex-pane decree was set aside on the grounds urged by the tenants in their application which were accepted by the court. If there was any other reason for setting aside the ex-parte decree, it ought to have been stated in the order. We cannot now speculate regarding the grounds on which the ex-parte decree was set aside. If this is so, we cannot now come to a finding that although the ex-parte decree was set aside, in fact, the tenant was secured within the summons in the ejectment proceedings in which the exparte decree was passed. Our attention has been drawn to two decisions of the Madras High Court reported in M.K. Rajagopal Chettiar v. Razak Sahib @ Abdur Razak (AIR (37) 1950 Madras 759) and S. Venkitachalam Iyer v. S. Rama Iyer (1983) 86 L.W. 251 = (AIR 1984 Madras 75). . Both these decisions turn on different facts and have no application to the present situation. In the present case, since the tenant came to know about the ejectment proceedings only after the decree was passed, he could not have applied before the ex-parte decree was passed. After the ex-parte decree was passed and the tenants learnt about it, they could not have applied as there was no pending proceeding for ejectment. It was only when the ex-parte decree was set aside and the eviction proceedings were restored to the file of the court that the tenants could make an application u/s 9. Since they filed the application within 30 days of restoration of the eviction proceedings on the file of the court, it cannot be said that there has been any delay in making the application u/s 9 of the Act. The application, therefore, ought not to have been rejected on the ground of delay. We are not pronouncing on the merits or otherwise of the application, which will be decided in accordance with law. The appeal is, therefore, allowed. The application shall be accordingly decided by the Munsiffs Court on merit. In the circumstances, there will be no order as to costs.