Lakshmi Opticals by Proprietor, E.N. Mohanasundaram vs N. Ramakrishnan

S. Ratnavel Pandian, J.—This petition has been filed by the seven tenants (respondents in E.P. No. 847 of 1979) in H.R.C. No. 3274 of

1976 pending on the file of the VII Judge, Court of Small Causes, Madras, seeking transfer of the said execution proceedings to the file of the XI

Assistant City Civil Judge, Madras, to be heard along with O.S.No. 5394 of 1979.

The brief facts of the case which led to this transfer petition are as follows: One, M. Ramakrishnan as landlord filed the above H.R.C. No. 3274

of 1976 for eviction of 21 tenants inclusive of the seven petitioners herein from the shops occupied by them as tenants, on the ground of demolition

and reconstruction, u/s 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act). The

landlord and the tenants inclusive of the seven petitioners herein entered into an agreement on 18th January, 1979, under which the landlord agreed

to demolish and reconstruct the shops, each with some specific dimensions, after obtaining the sanction of the plan and getting all necessary

materials therefore on or before 18th April, 1979 and in default, as per the agreement the tenants were to continue their occupation of the shops on

the same terms and conditions as before, and also could restrain the landlord, by an injunction, from seeking to evict them in execution of the

abovesaid order of eviction. In pursuance of the said pre-decretal agreement, the petitioners herein and some other tenants and the landlord filed a

memorandum of compromise before the Rent Controller, stating that they had arrived at a mutual agreement and that they had consented for an

order of eviction being made granting the tenants time till 31st July, 1979, to vacate the premises in their occupation. Taking into consideration the

unrebutted evidence of P.W. 1, the documents Exs. P-l to P-28 relied on by the landlord and the consent of the parties, the Rent Controller

passed his final order allowing the petition and ordering eviction as prayed for against all the tenants, but granting time till 31st July, 1979 for

vacating the premises. As the petitioners herein entertained an apprehension that the landlord would not comply with the terms and conditions

stipulated in the agreement entered into between them and that the landlord might seek the execution of the abovesaid order of eviction without

notice to them, they filed a suit O.S. No. 5394 of 1979 on the file of the XI Assistant Judge, City Civil Court, Madras, for a declaration that the

order of eviction is not an executory one and for an injunction. Along with the said suit they also filed an application for an interim injunction against

the landlord restraining him from executing the eviction order. It is further said by the tenants that the landlord filed E.P. No. 847 of 1979 even

before the expiry of the time granted and obtained a warrant for possession, deliberately suppressing all the material facts and hence they moved

the Court of Small Causes for stay of the execution petition and the said stay petition is pending. Besides, the tenants have also filed an application

u/s 47, Civil Procedure Code, in the said Court for enquiring into the executability of the order of eviction in view of the pre-decretal agreement.

The grievance of the tenants is that the landlord with the deliberate view of rendering the suit filed by the tenants infructuous, is insisting on the Rent

Controller to proceed with the execution of the order of eviction without any enquiry with reference to the objection raised by the tenants relating

to the executability of the order. Hence, they have filed this petition for transfer of the above execution petition to the file of the City Civil Court for

being heard along with O.S. No. 5394 of 1979.

It is submitted by Mr. M.R. Krishna Iyer, learned Counsel for the petitioners-tenants, that the issues involved in the execution petition and in the

above suit, are the same, viz., whether the order of eviction passed by the Court of Small Causes (Rent Controller) is executable, whether the City

Civil Court has also jurisdiction to order delivery of possession as the Rent Controller (Small Cause Court) has, u/s 18 of the Act and whether

under these circumstances, the execution petition could be transferred to the City Civil Court for disposal along with the suit.

The landlord, besides contending that under the Code of Civil Procedure, as amended, no suit would lie to set aside a decree on the ground that

the compromise, on which the decree is based, was not lawful, would state that under the provisions of the Act it is only the Rent Controller who

has exclusive jurisdiction to order eviction and to execute the the same and that the City Civil Court, which is not a competent authority under the

Act, has absolutely no jurisdiction to exercise such powers and therefore, this petition u/s 24, Civil Procedure Code, cannot be sustained.

The respective contentions of the parties in the present petition raise an important question, viz., whether the City Civil Court is also competent,

as the Rent Controller (Court of Small Causes) is, to execute the order of eviction passed by the Rent Controller (Small Cause Court) in

proceedings taken under the Act. Section 24(1)(b), Civil Procedure Code, empowers the High Court or the District Court to withdraw, at any

stage, any suit, appeal or other proceeding pending in any Court subordinate to it and (i) try or dispose of the same, or (ii) transfer the same for

trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (iii) to retransfer the same for trial or disposal to the

Court from which it was withdrawn. Therefore, in ordering an application for transfer of any proceeding from one subordinate Court to another

subordinate Court, this Court, exercising the general power u/s 24, Civil Procedure Code, has to see whether the pre-requisite condition, viz. that

the Court to which the proceeding is sought to be transferred, must be competent to dispose of the said proceeding, is satisfied. In other words, a

superior Court (High Court or the District Court) can validity transfer a suit, appeal or proceeding pending before a Court subordinate to it, to

another subordinate Court, only if, at the time of the transfer, the Court to which the said case or proceeding is to be transferred is competent to

try or dispose of the same. In this connection, I would like to refer to some of the decisions dealing with the meaning of the word ""competent

occurring in Section 24 of the Code.

In In Re: Bagiammal and Another, the question arose whether a suit filed on the file of the Small Cause Court could be transferred to the City

Civil Court and in answering the question, Sir John Wallis, C.J., of this Court observed as follows:

Section 24 of the Civil Procedure Code, only authorises transfer to a Court competent to try the case. The City Civil Court is not such a Court

(Section 8 of the City Civil Court Act) and I do not think Section 24(4) of the Civil Procedure Code, makes it so. It can only become so by the

Chief Justice of the High Court authorising the City Civil Judge to try the case in his capacity of Small Cause Court Judge u/s 5(2) of the City Civil

Court Act.

A Division Bench of this Court, in Srinivasa Aiyangar v. The Official Assignee of Madras ILR (1892) Mad. 472 held that it is not competent for

the High Court to transfer u/s 90 of the Presidency Towns Insolvency Act and under Sections 24 of the Civil Procedure Code, an insolvency

petition before it under the Presidency Towns Insolvency Act for disposal by a mufassal District Court under the Provincial Insolvency Act, as the

jurisdictions conferred by the two Acts on the High Court and the mufassal Court respectively are distinct and different.

Conversely, in Goculdoss Jumnadoss and Co. and Another Vs. N.M. Sadasivier and Others, it has been held by this Court that a transfer

cannot be made u/s 24, Civil Procedure Code, of an insolvency petition pending in a mufassal Court to the High Court. A similar view has also

been taken by a Bench of this Court consisting of Rajamannar, CJ., and Viswanatha Sastri, J., in Mallampati Kondayya and Others Vs. The

Official Receiver and Others, by holding that the High Court is not competent to try and dispose of an insolvency proceeding pending in the

mufassal Court within the meaning of Section 24(1)(b)(i) of the Code, because, in the exercise of its Original Insolvency Jurisdiction, it is bound by

the provisions of the Presidency Towns Insolvency Act and cannot administer the law as laid down in the Provincial Insolvency Act.

The Supreme Court, in Lakshmi Narain Vs. First Additional District Judge, Allahabad, , has pointed out that Section 24, Civil Procedure Code,

postulates that the Court to which the suit or appeal or other proceeding is transferred should be competent to try or dispose of the same.

The quintessence of all the above decisions, in my opinion, is that the Court or authority to which a suit or proceeding is sought to be transferred

u/s 24(1)(b)(ii) of the Code, should have the power to try, hear or dispose of such a suit or proceeding, under the relevant provisions of law

governing such trial, hearing or disposal of such suits or proceedings. The word ''competent'' in this section does not refer to the territorial

jurisdiction, but only to the pecuniary value and the nature of the suits or proceedings which the Court has power to try or dispose of. Under the

Tamil Nadu Buildings (Lease and Rent Control) Act, which is a special enactment, only the person appointed by the Government by notification,

to exercise the powers of a Rent Controller under the said Act for such area as may be specified in the notification, is the competent authority to

hear and dispose of the petitions under the Act and to execute the orders for eviction passed by him and also the orders passed either on appeal

u/s 23 or on revision u/s 25 of the Act.

Now, in the light of the above meaning assigned to the word ''competent'' occurring in Section 24 of the Code, on the basis of the

interpretations given in the above-cited decisions, it has to be seen whether the City Civil Court is competent to dispose of the execution

proceeding arising out of the order of eviction passed by the Rent Controller (Court of Small Causes).

The present Section 11 of the Act, dealing with the execution of orders passed under the Act has been substituted in the place of the old

Section 18, by Section 15 of Tamil Nadu Act XXIII of 1973. Originally, under the Madras House Rent Control Orders of 1941 and 1945, every

order of eviction passed under Sub-clause (2) or Sub-clause (2-A) of Clause 7-A of each of the said two Orders, directing a tenant to put the

landlord in possession of a house, was to be executed-

(1) in the City of Madras, by the Principal Judge of the Madras City Civil Court (as per the 1945 Order, during the vacation of that Court, by the

Vacation Judge of the Court of Small Causes, Madras), and

(2) elsewhere, by the Subordinate Judge having jurisdiction over the area in which the house was situate, and if there was no such Subordinate

Judge, by the District Judge having such jurisdiction, as if it were a decree passed by him.

Under Section 9 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1946 (Act XV of 1946), the power to execute an order made u/s 7

or u/s 8 or on appeal u/s 12 of the said Act, similarly vested in the same Civil Courts as prescribed under the above-mentioned 1941 and 1945

Orders. Then, under Tamil Nadu Act XXV of 1949, as amended in the years 1951 and 1957, the position as per Section 9 thereof, was that

every order made u/s 7 or u/s 8 or an order on appeal u/s 12 or on revision u/s 12-B, was to be executed in the City of Madras by the same

authorities as mentioned in the previous Act of 1946. But, in the case of mofussal, the power of execution lay with the District Munsif, and if there

were more District Munsifs than one, with the Principal District Munsif, having jurisdiction over the area concerned and if there was no such

District Munsif in the area, with the Subordinate Judge, and if there was no District Munsif or Subordinate Judge, with the District Judge. A

proviso was appended to the Act of 1949, to the effect that an order passed in execution under the section should not be subject to an appeal, but

should be subject to a revision u/s 12-B.

Now, coming to Tamil Nadu Act XVIII of 1960, under the unamended Section 18 thereof, the power to execute the Orders of eviction made

under Sections 10, 12 to 17, 23 and 25, was to be exercised-

(1) in the City of Madras, by the Madras City Civil Court, and

(2) in the mofussal, by the same authorities as provided under Act XXV of 1949.

Be it noted that the power granted to the Vacation Judge of the Court of Small Causes during the vacation of the City Civil Court, as per the

provisions of the 1949 Act and the previous Acts and Orders, has been omitted in the section. The important feature to be noticed in the relevant

clauses and section of the above-mentioned Orders and Acts is that the orders to be executed were to be treated by the executing Courts or

authorities as decrees passed by the said Courts or authorities themselves.

Ramaprasada Rao, J. as he then was, while dealing with the scope of Section 11 of the Act, as it stood before the 1973 amendment in V.

Ramaswamy Iyer Vs. K. Ramakrishnayya, made the following observation:

While dealing with the execution of orders, this section provides that every order passed by the Rent Controller (it is not necessary to set out other

details in this section for the purpose of this case) shall be executed by the City Civil Court in the City of Madras as if it were a decree passed by

the said Court. By such a fiction, the order passed by the Rent Controller is converted into a decree of a Civil Court and the notional conversion

by the operation of the fiction makes it a decree of a Civil Court.

Thus, it can be seen that before the 1973 amendment orders of eviction passed by the Rent Controller and the appellate and revisional orders

were executable by the City Civil Court as if those orders were decrees passed by the City Civil Court.

Now, the position is completely different after the introduction of the new section. For a ready reference and a better appreciation of the

change of law on the point after the 1973 amendment, I shall extract below both the sections:

Section 18 of the Act, as it stood before the 1973 Amendment:

Execution of orders : Every order made under Sections 10, 12, 13, 14, 15, 16 and 17 and every order passed on appeal u/s 23 or on revision u/s

25 shall be executed-

(i) in the City of the Madras by the Madras City Civil Court;

(ii) elsewhere-

(a) by the District Munsif or if there are more than one District Munsif, by the Principal District Munsif having original jurisdiction over the area in

which the building is situated ; or

(b) If there is no such District Munsif by the Subordinate Judge, or if there are more than one Subordinate Judge, by the Principal Subordinate

Judge having original jurisdiction over the area aforesaid; or

(c) if there is no such District Munsif or Subordinate Judge, by the District Judge having jurisdiction; as if it were a decree passed by the said Court

or by him:

Provided that an order passed in execution under this section shall not be subject to an appeal, but shall be subject to revision u/s 25.

Section 18 after the said Amendment:

Execution of orders : (1) Every order made under Sections 10, 14, 15, 16 and 17 and every order passed on appeal u/s 23 or on revision u/s 25

shall be executed by the Controller, as if such order is an order of a Civil Court and for this purpose, the Controller shall have all the powers of a

Civil Court.

(2) An order passed in execution under Sub-section (1) shall not be subject to any appeal or revision.

Thus, it is clear that under the new section, the power of execution of orders under the Act is vested exclusively in the Controller, viz., the person

appointed by the Government by a notification, to exercise the powers of the Controller, as defined in Section 2(3) of the Act, whereas under the

section before the amendment, the power of execution vested in the City Civil Court.

Under notification II-1-3006(e) of 1973, Home Department, the Government, in supersession of the Home Department Notification No. II-1-

3380/61, dated 11th July, 1961, appointed the VI, VII and VIII Judges of the Court of Small Causes, Madras to perform the functions of the

Controller under the Act for the areas in the Madras City specified under the Notification. Thereafter, by G.O.Ms. No. 2750, Home dated 8th

November, 1978, under Notification No. 11(2) /H.O/ 6450/78, the Government has amended the previous notifications and included in the list of

Controllers in addition to the VI, VII and VIII Judges of the Court of Small Causes, IX, X XI and XII Judges of the said Court. Therefore, the

position as at present is that only the VI to XII Judges of the Court of Small Causes, Madras, are the Controllers competent to pass the orders

under the Act and to execute the said orders and the appellate or revisional orders arising therefrom under Sections 23 and 25 of the Act. No

Judge of the City Civil Court, Madras, has been appointed as a Controller within the meaning of the Act. Therefore, if at all any transfer could be

effected of a proceeding under the Act pending before any of the above-mentioned Controllers, the transfer could be made only to another

Controller mentioned in the notification, who alone would be competent to hear and dispose of such proceeding. In this connection, it is significant

to note that Rule 14 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974, which speaks of transfer of proceedings from one

Controller to another, says that either the Appellate Authority or the Chief Judge of the Court of Small Causes, Madras, may transfer a case from

the file of one Controller to that of another Controller within its or his jurisdiction for the reasons mentioned in the said rule.

The above discussions and the various notifications and Rules extracted above, make the position clear that the execution proceeding arising

out of an eviction order passed by a Controller in the City of Madras (any one of the VI to XII of Judges of the Court of Small Causes) cannot be

transferrred to any other Judge of the Court of Small Causes, not notified, much less to a Judge of the City Civil Court, as the position stands at

present.

In the result, this petition is not maintainable and accordingly it is dismissed.