Kasi Viswanathan Ambalam vs Mr. R.M. Muthiah Chettiar

Venugopal, J.—The Defendant is the Appellant before this Court and the Plaintiff is the Respondent. The Plaintiff filed a suit for eviction against the Defendant stating that the suit property was purchased by him from the previous owner and the Defendant was a tenant occupying a portion on a monthly rent of Rs. 18 and the building was used for non-residential purpose and he had determined the tenancy and filed the suit for recovery of possession. The Defendant contended that he is entitled to protection under the City Tenants Protection Act, and the suit is not maintainable.

The trial Court held that the superstructure put up by the Defendant on the land based out to him was used for non-residential purposes and it does not come under the purview of the City Tenants Protection Act and the notice issued is valid and accordingly it decreed the suit for eviction. Subsequent to the decree by the trial Court, a notification was issued u/s 1(2) of the Act extending the Act to non-residential buildings in Pudukottat town. It was contended for the Defendant in the lower appellate Court that in view of the notification extending the Act to non-residential building, Section 11 of the Act is applicable and as there is non-compliance of the mandatory provision u/s 11, the Plaintiff''s suit should be dismissed. The lower appellate Court held that on the date when the notice Exhibit A-1 was issued by the Plaintiff giving 15 days time for vacating the property, the Act had not been extended to non-residential buildings and the Defendant is not a titled to notice u/s 11 of the Act and on that finding it confirmed the decree and judgment of the trial Court. Hence the present second appeal by the Defendant.

The learned Counsel for the Defendant-Appellant contended that in view of Section 3 of the Madras City Tenants Protection (Amendement) Act, 1964 (XVI of 1964) the moment the City Tenants Protection Act is extended to non-residential building in the area in which the suit property is situated, all pending proceeding abate, and the rights and privileges accrued to the Plaintiff as landlord in respect of the building and subsisting immediately before the date of notification ceased and become unenforceable and the Plaintiff''s suit without a proper notice u/s 11 is not maintainable. In support of the contention, the learned Counsel for the Defendant-Appellant relied on a decision of this Court reported in Pattu Iyer and Another Vs. Arunachala Padayachi, and the decision reported in M. Arumugham Pillai v. K.S. Kullappan (1978) 92 L.W. 685. The learned Counsel for the Respondent contended that during the pendency of the suit, notification was issued u/s 1(2) extending the Act to non-residential buildings in Pudukottai town and Section 10 of the Act enumerates the sections that can be made applicable to pending proceedings and the absence of any reference to Section 11 in Section 10 clearly denotes that Section 11 is not to be applicable in respect of pending proceedings and when the Act has been extended to non-residential buildings in Pudukottai town, the Defendant''s remedy is to claim compendsation u/s 9 and the Plaintiff can not be non suited on the ground of want of notice u/s 11.

Section 3 of Madras Act XVII of 1964 clearly provided that when the Act is extended to any area all pending proceedings in respect of the tenancies covered by the notification will stand abated. The benefits given to the tenant under the Act are

(a) compensation to tenant on eviction;

(b) a prior notice of three months u/s 11; and

(c) a right to purchase the land u/s 9 on a value to be fixed by court.

By virtue of the notification u/s 1(2), the Act has been extended to non-residential buildings in Pudukottai on 25th June, 1975. As a result of the notification, the Defendant has become entitled to the benefits conferred under Sections 3, 9 and 11. The Plaintiff has instituted the suit long prior to notification and without due notice as contemplated u/s 11 of the Act. It is no doubt true that on the date when the suit was instituted by the Plaintiff is was not obligatory on his part to issue the notice as provided u/s 11. It is precisely for this reason Section 3 of Madras Act XVI of 1964 provides that all pending proceedings for recovery of properties in respect of tenancies covered by the notification stand abated. This has also been the view expressed by this Court in the decision reported in Pattu Iyer and Another Vs. Arunachala Padayachi, In view of the notification dated 25th June, 1975 extending the Act to no-residential buildings in Pudukottai town, the Plaintiffs suit abates and the Plaintiff is not entitled to a decree for recovery of possession.

The learned Counsel for the Plaintiff-Respondent contended that by making a claim for compensation u/s 9 of the City Tenants Protection Act, the Defendant must be taken to have waived the benefit of statutory notice provided u/s 11, and being a benefit conferred on the tenant, it can be waived by the tenant (Defendant) and the Plaintiff''s suit cannot, therefore, be dismissed for want of notice u/s 11. In support of this contention the learned Counsel for the Respondent relied on Vedachala Naicker v. P.K. Duraiswami Mudaliar (1950) M.L.J. 732 and Bodi Venakataswami v. Addada Mahalakshmi (1949) 91 M.W.N. 341 Even granting for argument''s sake that the tenant by making a claim for compensation u/s 9 can waive the statutory notice u/s 11, still the Plaintiff has to overcome the obstacle u/s 3 of Act XVI of 1964. Section 3 of Act XVI of 1964 provides that all pending proceedings for recovery of properties in respect of tenancies covered by the notification stand abated and the rights and privilege accrued to the landlord in respect of the building and subsisting immediately before the date of notification ceased and become unenforceable. Section 3 having been conceived in public interest and based on public policy, the benefits conferred under that section cannot be the subject matter of waiver by the tenant. In view of Section 3 of Act XVI or 1964 the Plaintiff''s suit is bound to fail and has to be dismissed.

In the result the second appeal is allowed, the decree and judgment of the courts below are set aside and the suit by the Plaintiff stands dismissed, in the circumstances without costs.