E. Mohanlal vs S.M. Thirumalai Chettiar

K.M. Natarajan, J.—This revision is directed against the order passed by the district Munsif, Ootacamund, allowing the application E.A.

No. 8 of 1984, u/s 47, C.P.C.

The facts which are necessary for the disposal of the revision can be briefly stated as follows: The revision petitioner herein obtained a decree

for recovery of the same (sic). The respondent herein, who is the defendant in the suit, filed the petition u/s 47 read with Section 151, C.P.C.

contending that in the written statement filed by him in O.S. No. 203 of 1974 he has specifically pleaded that he is entitled to the benefits of the

Tamil Nadu Buildings (Lease and Rent Control) Act and that the remedy of the revision petitioner herein is to proceed against him for eviction

before the Rent Controller. The said plea was not accepted by trial court as well as the District Court. However, in A.S. No. 1153 of 1978, this

Court observed that the executability of the decree passed in the matter will have to be consid ered by the executing Court. It is stated that the

construction of the building in question was completed by 1.4.197l and has the same was assessed to property tax with effect from the said date.

The period of five years given in the Tamil Nadu Buildings (Lease and Rent Control) Act exempting from the operation of the provisions of the said

Act so far as new buildings are concerned, expired with effect from 31-3-1976. Hence, from 1-4-1976, he has become the statutory tenant under

the Tamil Nadu Buildings (Lease and Rent Control) Act and is entitled to the benefits of the said Act. According to him, therefore, the decree in

O.S. No. 203 of 1974, passed on 19-6-1976 is not executable by virtue of the provisions of Section 10 of the Tamil Nadu Buildings (Lease and

Rent Control) Act, and as such, he is not liable to be evicted and that he is entitled to continue in possession.

The said application was resisted by the revision petitioner herein and he inter alia contended that the provisions of the Tamil Nadu Buildings

(Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973, are not applicable in executing the decree for possession dated 19-6-1976,

which was confirmed by the District Court as well as the High Court. It is further stated that the building in question was exempted u/s 30(1),of the

Act, and that the suit itself was filed on 12-7-1974, after the commencement of the amended Act and it ended in a valid decree. There was no

change of law by way of further amendment of the Act. Though the decree was passed subsequent to the expiry of five years period, the same has

not the effect of rendering the suit incompetent or nullifying the decree passed therein or adversely affecting its executability. Hence, there is no bar

in executing the decree for recovery of possession. The right of the revision petitioner is a vested one and that there is no provision in the Madras

Buidlings (Lease and Rent Control) Act, to take away that right. The tenancy was terminated by a valid notice and the suit has been filed for

recovery of possession. The revision petitioner was also awarded a decree for damages for use and occupation. The respondent did not have the

status of tenant from 1-5-1974 and the suit was filed on 12-7-1974. Hence he prayed for dismissal of the application.

The District Munsif accepting the case of the respondent-tenant held that the revision petitioner herein, who is the decree holder, is not entitled

to execute the decree in view of the specific provision contained in Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act and

consequently allowed the application. Hence, the aggrieved decree holder, the revision petitioner herein, has preferred this revision.

The only question that arises for consideration in this revision is whether the plaintiff is entitled to execute the decree for ejectment, since the

period of five years from the date of/notification of the building expired by the time when the execution petition is filed.

The lower Court relied on the decisions of this Court reported in Thalai Vadivu Anandar Vs. Venugopala Chettiar, and Chand Basha Vs. Pyari

Bi, and Krishnaswami v.Resheeda (l980) 2 M.L.J. 463 : 93 L.W. 378, held that the revision petitioner herein is not entitled to execute the decree

and evict the respondent in view of the specific provisions contained in Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act. The

lower Court did not follow the ruling rendered by a single Judge of this Court reported in Arunachalam Vs. Kesavan Chettiar, , which is contrary

to the above rulings. I had also an occasion to consider similar question in Akka Naicker v. Rajagopalammal 1985 T.L.N.J. 162 and relied on the

decision of the Supreme Court reported in Vineet Kumar Vs. Mangal Sain Wadhera, and held, that the decree was not executable. Nainar

Sundaram, j., took the same view in the Madras Wines v. B Abraham 1985 T.L.N. J. 89: 98 L.W. 373.

The learned Counsel for the revision petitioner drew my attention to the decision in S.N. Kuba v. P.P.I. Vaithianathan 1988 T.L.N. J.1 where in

a Division Bench of this Court held that the above decision rendered by us have been obviated by a later decision of the Supreme Court in Nand

Kishore Marwah and Others Vs. Samundri Devi, . In that case Nand Kishore Marwah and Others Vs. Samundri Devi, , a Bench of two Judges

have taken the view that the decision of a Bench of three Judges in Bishan Chand Vs. Vth Additional District Judge, Bulandshahr (Uttar Pradesh)

and Another, . It was held in the latter case, that the expiry of the period of exemption of ten years under the U.P. Urban Buildings Regulation

(Letting, Rent and Eviction) Act, 1972, would not affect the rights of parties and the landlord was entitled to obtain a decree in the suit which could

be executed. The view that rights of the paties will be determined on the basis of the rights available to them.The above decision of the Bench of

this Court S.N.Kuba v. PP.I. Vaithianathan 1988 T.L.N.J. 1 arose in a revision challenging the executability of a decree for possession passed

against him on the basis of a compromise, evidenced by a joint endorsement made by the parties on the plaint in the suit after the pronouncement

of the Supreme Court on 16-4-1988 striking down Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as violative of

Article 14 of the Constitution of India.It was held in the above decision, that the tenant is not entitled to the protection of the Act and the order of

the executing Court directing delivery of possession cannot be said to be erroneous, and it Was held that the executing Court is well within the

jurisdiction in directing delivery of possession. In Nand Kishore Marwah and Others Vs. Samundri Devi, it was held:

Within 10 years as provided for in Section 2(2) restriction on the institution of suit as provided for in Section 20(1) will not be applicable.

Therefore, during the pendency of the litigation even if ten years expired the restric-tion u/s 20 will not be attracted as the suit had been instituted

within ten years. It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit.

In this case, the decision reported in Vineet Kumar Vs. Mangal Sain Wadhera, , was dissented from. That was a case which arose under U.P.

Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972. It is clear from the above decisions that the rights of parties will be

determined on the basis of the rights available to them on the date of the filing of the suit and not on the date when the execution is made. The

earliest decision reported in Bishan Chand Vs. Vth Additional District Judge, Bulandshahr (Uttar Pradesh) and Another, , a case rendered by three

Judges, wherein a similar view taken was relied on while dissenting the decision rendered in Vineet Kumar Vs. Mangal Sain Wadhera, . It is only

on the basis of these decisions, the learned Counsel for the revision petitioner submitted that the order passed by the Court below is not

sustainable, that it has to be set side and that the executing Court should be directed, to proceed with the execution

I find much force in the contention, of the learned Counsel for the revision petitioner in two respects. It is clear from the decision of the larger

Bench of the Supreme Court reported in Om Prakash Gupta Vs. Dig Vijendrapal Gupta, , referred to above, that when the Act itself is not

applicable to a particular building, it cannot be said that Section 10 would be applicable. In the above quoted, decision which is under the

U.P.Urban Building (Regulation of Letting Rent and Eviction) Act, 1972, it was held.''

In order to attract Section 39, the suit must be pending on the date of commencement of the Act, which is the 15th July, 1972; but the suit giving

rise to the present appeal Was filed on 23rd March, 1974 long after the commencement of the Act. There is yet another reason why Section 39

will, have no application to the present case. In view of Sub-section (2) of Section 2 of the Act, the Act isnot applicable to a building which has not

standing of ten years, and if the Act itself was nbt applicable, it Would be absurd to say that Section 39 thereof would be applicable.

It is provided u/s 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act that nothing contained in this Act shall apply to any building for a

period of five years from the date on which the construction is completed and notified to the local authority concerned. It cannot be said that

Section 10 of the Act is applicable after the expiry of the period of five years contemplated therein. Similarly, it was held in the above decision,

which is reiterated by the latest decision of the Supreme Court reported in Nand Kishore Marwah and Others Vs. Samundri Devi, , and also of a

Division Bench of this Court re-: ported in S.M Gupta v. P.P.I. Vaithianathan 1988 T.L.N.J. 1, that the rights of the parties will be determined on

the basis of the rights available to them on the date of the suit and not at time of execution unless there has been amendment to the Act or any

change in the statute, it cannot be said that the decree is inexecutable. On both the grounds, the revision is to be allowed. In the face of the above

decisions of the Supreme Court which have been followed by this Court, the ear-lier decision relied on by the learned Counsel for the respondent

and also by the lower Court reported in Vineet Kumar Vs. Mangal Sain Wadhera, , Thalai Vadivu Anandar Vs. Venugopala Chettiar, , A.

Krishnaswami Vs. S. Rasheeda, , Chand Basha Vs. Pyari Bi, , Nanda Rao v. Lakshmanasami Mudaliar (1969) 1 M.L J.153, and B.V. Patankar

and Others Vs. C.G. Sastry, , are of no avail and they cannot be relied on. It is also pointed out by the learned Counsel for the petitioner that in the

decision of Venkataraman Reddiar v. Abdul Ghani (1980) 2 M.L J. 179, the reference made to the Full Bench is only on the question whether a

tenant inducted into possession by an usufructuary mortgagee of non-agricultural property can claim the benefits of the Tamil Nadu Buildings

(Lease and Rent Control) Act, 1960, as against the mortgagor, after the redemption of the mortgage, and, this question is not the subject matter of

the said decision of the Full Bench, However, by way of observation and obiter dietum at the end of the judgment, without reference to Section 30

of the Act, is generally observed-

It is by now well settled that there is nothing in Section 10 of the Act, prohibiting the institution of a suit for possession, or prohibiting a civil court

from passing a decree for possession. What is prohibited under the section is only the exertion of a decree for ejectment passed by a civil Court.

That is only in consonance with Section 10 of the Act.. The question now arises for consideration in this revision is, whether in respect of a building

for a period of five years from the date on which the construction is made, the Act, is not applicable. That question was not at all considered in the

said decision and no finding is rendered. Hence, the decisions relied on by the learned Counsel for the respondent cannot prevail over the latest

decisions of the Supreme Court and the Division Bench of this Court and that they are no longer good law (including decisions rendered by me in

Akkanaicker v. Rajagopala 1985 T.L.N.J. 162 and that of Nainar Sundaram, J. in the Madras Wines v. Abraham 1985 T.L.N.J. 89 : 98 L.W.

For all these reasons the revision is allowed. The order passed by the Court below is set aside and EA. No. 8 of 1984 filed by the

respondent is dismissed and the Court below is directed to proceed further with the execution petition and dispose of the same as expeditiously as

possible. However, in the circumstances pf the case, there will be no order as to costs.