Eswari Ammal and others vs C. Guruswamy Naidu

Ratnam, J.—The defendants in Ejectment suit No. 156 of 1977, IV Judge, Court of Small Causes, Madras, are the petitioners in this civil

revision petition. According to the case of the respondent, the petitioners herein have been in occupation of a portion of land measuring 8, east to

west and 24, north to south in the rear portion of the premises bearing door No. 8, Subbaraya Chetti 4th St., Nammalwarpet, Madras 12, as

tenants from 26-10-1971, on a monthly rent of Rs. 10, the month being reckoned according to English calendar. The further case of the

respondent was that the petitioners who are related as mother and sons, had put up a hut in the plot in their occupation and they have been residing

there and that by notice dated 21-4-1977, the tenancy in favour of the petitioners was determined and they were called upon to quit and deliver

vacant possession of the land after removing the hut put up by them. The petitioners did not remove the hut and surrender possession of the land

leased out to them and thereupon, the respondent instituted Ejectment Suit No. 156 of 1977 praying for a decree in ejectment against the

petitioners and for recovery of vacant possession of the land let out to the petitioners. Upon receipt of the summons in the suit on 18-8-1977, the

petitioners filed M.P. 1920 of 1977 on 8-9-1977 under S.9 of the Madras City Tenants Protection Act praying that the respondent should be

directed to sell to the petitioners, the plot of land measuring east to west 20 ft. and north to south 27 ft. in door No. 8, Subbaraya Chetti 4th St,

Nammalwarpet, Madras 12, for a price to be fixed by the court. In this application, the petitioners claimed that the lease of the vacant site

commenced in 1949 in favour of one Ayil Achari, father of the first petitioner and the grandfather of the petitioners 2 and 3 and that the plot leased

out was 20 ft., east to west and 27 ft. north to south and not 8 ft. east to west and 24 ft. north to south as claimed by the respondent in the

application for ejectment. The petitioners also stated that it is incorrect on the part of the respondent to say that the petitioners were in possession

and occupation of the land in question only from 26-10-1971. The further case of the petitioners was that after the demise of Ayil Achari, the lease

continued in the name of the first petitioner and her husband and after his death, the lease continued in the names of the petitioners. The petitioners

also claimed that Ayil Achari, after obtaining the vacant site on lease, erected a superstructure and the petitioners thus became entitled to claim the

benefits of S.9 of the Madras City Tenants Protection Act (hereinafter referred to as the Act).

In the counter filed by the respondent, he maintained that the petitioners became tenants of the land in question only on 26-10-1971, and that

there was therefore no question of the lease having been granted earlier in the name of Ayil Achari and continued in the names of the other persons.

Since the petitioners took the land on lease only on 26-10-1971, they were not entitled to claim the benefits of S.9 of the Act.

Before the IV Judge, Court of Small Causes Madras on behalf of the petitioners, P.Ws.1 to 3 were examined, while on behalf of the respondent

Ex.R1 and R2 were marked and the respondent gave evidence as R.W.1. On a consideration of the oral as well as the documentary evidence, the

learned IV Judge, Court of Small Causes, Madras, held that the petitioners had failed to establish that they had been inducted into possession of

the vacant site in question prior to the coming into force of the Madras City Tenants Protection Act 1955 and that the petitioners came to occupy

the property only in 1971 and therefore, they are not entitled to claim the benefits of S.9 of the Act. On this conclusion, the application in M.P.

1920 of 1977 filed by the petitioners was dismissed. Aggrieved by this, the petitioners preferred an appeal in Ejectment Appeal No. 11 of 1981

before the Chief Judge, Court of Small Causes Madras. The appellate court also concurred with the conclusion of the trial court that the petitioners

failed to prove by reliable evidence that they became tenants of the property in question before 1955. Adverting to the claim of the petitioners

under S.9 of the Act, by virtue of the Madras City Tenants Protection (Amendment) Act 1979 (Tamil Nadu Act 2 of 1980) (hereinafter referred

to as the Amendment Act 1979) the appellate court took the view that as the petitioners did not file an application within one month of the date of

publication of the Amendment Act, 1979 in the Tamil Nadu Government Gazette, the petitioners were not entitled to any relief. It is the correctness

of this that is questioned by the petitioner in this civil revision petition.

Learned counsel for the petitioners contended, drawing attention to the amendments made by the Amendment Act 1979 that even if the tenancy

in favour of the petitioners had commenced on 26-10-1971, as claimed by the respondent, nevertheless, the petitioners would be entitled to claim

the benefits under S.9 of the Act, as such benefits could be claimed with reference to the tenancies created prior to 3-3-1980. On the other hand,

learned counsel for the respondent submitted that even on the footing that the provisions of the Amendment Act 1979 would govern the tenancy on

and from 26-10-1971, yet, an application under S.9 of the Act has to be filed, and as such, an application had not been made by the petitioners,

they cannot take advantage of the provisions of the Amendment Act 1979. Certain undisputed facts may now be noticed. The respondent

instituted the suit in ejectment on 22-7-1977 and summons in the suit was served on the petitioners on 18-8-1977. The application filed by the

petitioners in M.P. 1920 of 1977 claiming the benefits of S.9 of the Act was filed by them on 8-9-1977. The Amendment Act 1979 was published

in the Tamil Nadu Government Gazette to 3-3-1980. Under that Act (Act 2 of 1980) S.1. (3) of the Principal Act was substituted as follows�

(a) in the areas in which this Act is in force on the date of publication of the Madras City Tenants Protection (Amendment) Act 1979 in the Tamil

Nadu Government Gazette, only to tenancies of land erected before that date.

There is no dispute that prior to the aforesaid substitution, the provisions of the Act were in force in the City of Madras, though with reference to

tenancies created prior to 1955. By the provisions of Act 2 of 1980. (Amendment Act 1979), the applicability of the provisions of the Act was

extended to even tenancies created before the date of publication of the Amendment Act 1979 in the Tamil Nadu Government Gazette i.e., 3-3-

1980 Even on the finding recorded by the courts below that the petitioners became tenants only on 26-10-1971. It follows that they would be

entitled to claim the benefits of S.9 of the Act with reference to the tenancy in their favour, which was created prior to 3-3-1980. Though by the

time the trial court dealt with the matter, the provisions of Act 2 of 1980 had come into force, no reference was made to the applicability or

otherwise of the provisions introduced by the Amendment Act 1979. However, the appellate court took the view that as the petitioners did not

make any application within one month of the date of publication of the Amendment Act 1979 in the Government Gazette, the petitioners cannot

take advantage of the provisions of the Amendment Act 1979 and maintain the application under S.9 of the Act. Earlier, it has been seen that even

as far back as 8-9-1977, the petitioners had filed an application in MP 1920 of 1977, under S.9 of the Act claiming benefits thereunder. At the

time when that application was made by the petitioners, they certainly could not have invoked the benefits under S.9 of the Act, as the tenancy in

their favour was only from 26-10-1971, and not prior to 1955, as per the provisions of the Act, as they then stood. In other words, at the time

when M.P. 1920 of 1977 was filed by the petitioners claiming benefits under S.9 of the Act, such a petition could not have been maintained by

them as they did not fulfil the requirements as to the commencement of the tenancy prior to 1955, especially in view of the finding that the tenancy

commenced only on 26-10-1971. Be that as it may when the provisions of the Amendment Act 1979 came into force extending the benefits

arising under that Act even with reference to tenancies created prior to 3-3-1980 the application already made by the petitioners in MP. 1920 of

1977 was pending. Though under the provisions of the Amendment Act 1979, an application under S.9 has to be filed within one month from the

date of publication of the Amendment Act 1979, in the Tamil Nadu Government Gazette extending the provisions of the Act even to tenancies

created prior to 3-3-1980, there cannot be any serious objection to treat the application already filed by the petitioners on 8-9-1977 in MP. 1920

of 1977, as one filed immediately after the coming into force of the Amendment Act 1979 and on that very day. Though at the time of filing of

M.P. 1920 of 1977, the petitioners having regard to the date of commencement of tenancy in their favour only on and from 26-10-1971 did not

have the right to maintain the application, yet, by reason of the provisions of the Amendment Act 1979, they became entitled to avail the benefits of

the provisions of the Act, even though the tenancy had commenced only on and from 26-10-1971, as such benefits had been extended to all

tenancies created prior to 3-3-1980. The Court below was of the view that the non-filing of an application by the petitioners within one month

from the date of publication of the Amendment Act 1979, in the Government Gazette, would be fatal to the claim of the petitioners. It is difficult to

agree with this view, for, as seen already, on the facts of this case, a petition claiming the benefits under S.9 of the Act with reference to tenancy

created on 26-10-1971, had been put into court even earlier to the date when the provisions of the Amendment Act, 1979 came into force or

even published in the Government Gazette. Thus, if at the time of the filing of the application in M.P. 1920 of 1977, that application was, in a

manner of speaking, premature, it follows that after the amendment of the Act by the Amendment Act 1979, the application filed already with

reference to the tenancy in favour of the petitioners on and from 26-10-1971 became an application competently laid and entertainable by the

Court, despite the fact that such an application was not filed within one month from the date of coming into force of the Amendment Act 1979.

Consequently, the courts below were in error in summarily rejecting the application filed by the petitioner in MP. 1920 of 1977. For the aforesaid

reasons, the civil revision petition is allowed and the orders of the courts below are set aside and MP. 1920 of 1977 is remitted to the IV Judge,

Court of Small Causes, Madras, to be dealt with and disposed of according to law There, will be however no order as to costs.