Dharmalingam vs S. Mahalingam (deceased by Lrs.) and Others

M.N. Chandurkar, C.J.—This revision filed by the landlord arises out of the orders passed by the X Assistant Judge, City Civil Court,

Madras and the First Additional Judge, City Civil Court, Madras on a petition filed u/s 9 of the City Tenants Protection Act, seeking a direction to

the landlord to sell the petition land to the tenant for a price to be fixed by the Court. It appears that the original tenant died during the pendency of

the proceedings and his legal representatives have been brought on record They will, however, be described as a ''tenant'' hereafter.

The tenant''s case was that he was a tenant under the grandfather of the present petitioner of an open site and he had put up a superstructure

over the same. His further case was that he was also a tenant under the present petitioner-landlord and he was entitled to claim the right u/s 9 of

the City Tenants Protection Act. It is not necessary to refer in detail to the several defences raised with regard to the status of the tenant. For the

purpose of the present revision petition, it is enough to refer to the contention raised on behalf of the landlord that the petition u/s 9 itself was not

maintainable because no proceeding for ejectment had been taken by the landlord.

The X Assistant Judge, City Civil Court, Madras, however, allowed the original petition and appointed a Commissioner to determine the market

value. This order was confirmed by the First Additional Judge, City Civil Court, Madras in appeal.

The only contention which is relevant for the purpose of the present revision petition is whether the present respondent who has described

himself as a tenant is entitled to invoke the provisions of Section 9 of the Tamil Nadu City Tenants Protection Act, even though there is no

proceeding taken by the landlord for his eviction. The original petitioners have been served but there is no appearance on their behalf.

It appears on a bare reading of the provisions of Section 9 that recourse to the provisions of Section 9 can be taken only by a tenant against

whom a suit in ejectment has been instituted or against whom a proceeding u/s 41 of the Presidency Small Cause Courts Act, 1882 has been taken

by the landlord. The relevant provision in Section 9(1)(a)(1) of the Act reads as follows:--

Any tenant who is entitled to compensation u/s 3 and against whom a suit in ejectment has been instituted or proceeding u/s 41 of the Presidency

Small Cause Courts Act, 1882 taken by the landlord may, within one month of the date of the publication of the Madras City Tenants Protection

(Amendment) Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the Municipal town,

township or village in which the land is situate or within one month 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 be fixed by the court, the whole or part of extent of land specified in the application.

A bare reading of Section 9(1)(a)(1) of the Act will show that a person who claims to be a tenant before he could claim the right u/s 9, must first

satisfy the condition that he is entitled to compensation u/s 3 and the tenant must be a tenant against whom a suit in ejectment has been instituted or

proceeding for ejectment u/s 41 of the Presidency Small Cause Courts Act, 1882 has been taken by the landlord. When Section 9(1)(a)(1) refers

to entitlement to compensation u/s 3 and when we read Section 3 of the Act, it is clear that the entitlement to compensation arises only on

ejectment. Section 3 of the Act reads as follows: --

Payment of compensation on ejectment: Every tenant shall on ejectment be entitled to be paid as compensation the value of any, building, which

may have been erected by him by any of his predecessors-in-interest or by any person not in occupation at the time of the ejectment who derived

title from either of them, and for which compensation has not already been paid. A tenant who is entitled to compensation for the value of any

building shall also be paid the value of trees which may have been planted by him on the land (and of any improvements which may have been

made by him.)

Under Section 3, it is made very clear that it is only in ejectment that the tenant will be entitled to be paid as compensation the value of any

building, which may have been erected by him, by any of his predecessors-in-interest or by any person not in occupation at the time, of the

ejectment who derived title from either of them, and for which compensation has not already been paid. Therefore, both u/s 3 and Section 9, a

proceeding for ejectment is the sine qua non before a claim u/s 9 can be made. There does not appear to be any other provision under the Act

which: entitles a person claiming to be a tenant to have his right to purchase the superstructure claimed to have been erected by him and sold to him

by the landlord through the medium of the Court. On this short ground, in my view, the original petition filed by the tenant should have been

dismissed. It is, therefore, not necessary to go into the other controversy as to whether the tenant had constructed the superstructure because it is

obvious that the findings recorded on the other issues would be findings without jurisdiction as there is no jurisdiction in the Court to entertain a

petition u/s 9 simpliciter without any proceeding for ejectment pending against the original tenant. It is also, therefore, not necessary to decide as to

whether the proceeding should have been taken in the civil Courts or in the Small Cause Court.

Apart from the fact that the position of law that Section 9 can be invoked only if and when a proceeding for ejectment is taken is clear from the

terms of the section itself, the position seems to be well settled as far back as in M.K. Rajagopal Chettiar Vs. Razak Sahib alias Abdur Razack, in

which the learned single Judge has taken the view that reading Sections 3 and 9 of the Madras City Tenants Protection Act, together it is clear that

the tenant''s right to file a petition u/s 9 of the Act accrues on his being served with a notice of a suit in ejectment. To the same effect is the decision

in Syed Ibrahim and Others Vs. Jalma and Others, , in which Ismail, J. as he then was, has also taken the view that a person to come within the

scope of Section 9 of the Act must be a person against whom a suit in ejectment has been instituted and the expression ''to institute'' which has a

definite connotation in law meant, in relation to any proceeding when the machinery is set in motion. Accordingly, the orders of both the courts are

set aside and this revision petition is allowed. Their original petition u/s 9 of the City Tenants Protection Act stands dismissed. There will be no

order as to costs.