Mohammed Haneef vs Haleel Basha and Another

S.S. Subramani, J.—Defendant in O.S. No. 290 of 1986, on the file of the District Munsif''s Court, Panruti, is the appellant.

Respondents filed the above suit for recovery of property, on the allegation that the appellant is in possession of the property as a tenant and

that he has defaulted in paying the rent. It is further contended that the tenancy has been terminated by issuing a notice u/s 196 of the Transfer of

Property Act and, therefore, the respondents are entitled to get possession from the defendant.

In his written statement, defendant did not challenge the title of the property. But his contention was that he has taken the land on lease and has

put up a non-residential building and, therefore, he is entitled to the benefits of the Tamil Nadu City Tenants Protection Act, 1921. Within the

statutory period, he also filed an application u/s 9 of the Act to purchase the property. Evidence was taken on the application filed by the

defendant wherein it was held that since for non-residential building, the Act will have no application, the same was dismissed. Since there was no

other defence, the suit was also decreed. Against the judgment, the defendant preferred A.S. No. 81 of 1988, on the file of Principal Subordinate

Judge, Cuddalore. The appeal was also dismissed for the same reasoning. The second appeal is preferred against the concurrent finding, on the

following substantial questions of law:

(1) Whether the Tamil Nadu City Tenants Protection Act, i.e., Tamil Nadu Act III of 1922 does not apply to non-residential buildings in

Nellikuppam as held by the court below in view of G.O. Ms. No. 1285, Revenue, dated 31.5.1975?

(2) Whether the present suit in the absence of a Notice u/s 11 is maintainable? and

(3) Whether the appellant is not entitled to compensation u/s 3?

After the second appeal was filed, defendant preferred a civil miscellaneous appeal before the District Court, with an application to condone

delay, against the dismissal of his application u/s 9 of the City Tenants Protection Act. The lower appellate court dismissed the delay condone

petition on the ground that no sufficient cause has been made out. The civil revision petition is filed against the dismissal of Section 5 petition,

refusing to condone delay.

When the civil revision petition came for arguments, learned Judge directed the second appeal also to be posted along with the revision Petition.

That is how both these matters have come together for arguments.

Both the courts below have held that the defendant is not entitled to the benefits of the City Tenants Protection Act on the ground that in respect

of a non-residential building, the Act has no application. It is not on the basis of any evidence, but on the basis of certain assumptions, which have

been shown to be patently incorrect. The Extension Notification is dated 31.5.1975, extending the provisions of the Madras City Tenants''

Protection Act to non-residential buildings in all Municipal towns in the State. The said Notification is published in the Tamil Nadu Government

Gazette, Part II, Section dated 25.6.1975 at pages 302 and 303.

When this was brought to the notice of the respondents, they contended that the same was not placed before the Legislature and, therefore, the

Notification has no force. It was argued on behalf of the respondents that in the subsequent editions of the Book, this Notification was not

published and hence his inference that the said notification is not in force has to be accepted.

I cannot accept the said contention in view of the binding decision in respect of the very same Notification reported in R. Govindaswamy Vs.

Bhoopalan and Others, . In paragraph 2 of the said judgment, at page 208, a learned Judge of this Court has considered a similar question and has

held that the Notification need not be placed before the Legislature and, therefore, it is valid. For the sake of convenience, it is better to

incorporate the very same reasoning of the learned Judge, which reads thus:

The respondents have filed counter affidavits both in the petition u/s 9 and in the petition to excuse the delay, filed in this Court. It was contended

by the learned Counsel for the respondents that the notification in G.O. Ms. No. 1285, Revenue, dated 31st May, 1975 had not been shown to

have been placed before the Legislature as required in Section 1(6) of the Act and unless the said notification was placed before the Legislature, it

will not be of any effect and will not confer any right on the petitioner to invoke the provisions of Section 9 of the Act. Under Sub-section (6) of

Section 1, every notification issued under Sub-Section (2) or Sub-section (4) of that section shall be laid before the Legislature, if it is sitting, as

soon as may be after the issue of the notification, and if it is not sitting within seven days of its re-assembly, and the State Government shall seek

the approval of the Legislature to the notification by a resolution moved within a period of fifteen days beginning with the day on which the

notification is so laid before it. As seen from this provision, this requirement relating to the placing before the Legislature is required only with

reference to the notifications issued under Sub-section (2) or Sub-section (4). The Act, as originally enacted, was made applicable by the

Legislature to the City of Madras. But Sub-section (2) enabled the State Government by notification in the Fort St. George Gazette to extend the

Act to any other municipal town. Sub-section (4) authorised the Government by notification in the Fort St. George Gazette to cancel any

notification issued under Sub-section (2). These provisions show that only when the Act is extended or a notification under Sub-Section (2) is

cancelled, it had to be placed before the Legislature. The Act was extended to the municipal town of Vellore by notification dated 8th January,

1973 which was published in the Fort St. George Gazette on 31st January, 1973. Section 2(1) defined ''building'' as meaning a building used for

residential or non-residential purposes in the City of Madras and for residential purposes only, in any other area. Thus when the Act was extended

to the Municipal town of Vellore, it applied only for residential buildings. But Section 2(1)(i) also empowered the Government by notification to

make the definition of ""building"" as including residential or non-residential building even in cases of any other municipal town. In exercise of the

power under the said G.O. Ms. No. 1285, Revenue, dated 31st May, 1975, the Government specified the municipal town of Vellore as a

municipal town for the purposes of Section 2(1)(i) from the date of publication of the notification in the Tamil Nadu Government Gazette. This

notification u/s 2(1)(i) is not required to be placed on the table of the Legislature. The learned Counsel for the respondents is, therefore, not well-

founded in his contention that the notification had not taken effect in this case. It should not be assumed that even in the case of a notification u/s

1(2) that the notification will take effect only after it is laid before the Legislature. In fact, that question does not arise for consideration as I have

said that Sub-Section (6) of Section l is not applicable to notification issued u/s 2(1)(i).

Learned Counsel for the respondents also submitted that since Section 9 application has been dismissed and that has become final, the appellant

cannot purchase the property, and at the most, he can be given only the right to get the value of improvements, According to him, once the

application u/s 9 of the City Tenants Protection Act is dismissed, the right to purchase the property is also lost.

The said reasoning also cannot be accepted. The application u/s 9 of the said Act is filed only in a pending suit. The only condition is that the

application should be filed within the statutory time fixed by the statute. If such an application is filed, evidence is taken and it will be decided

whether the person who wanted the benefit under that section is entitled to purchase the property. But, when an application is filed in a suit,

naturally, it can only be an interlocutory application therein. The dismissal of the interlocutory application in a suit will not bar the remedy. Section

105 of the CPC enables a party to challenge the finding on an interlocutory application when he files an appeal against the decree. The said legal

position is now settled by the Supreme Court in the decision reported in Thailammal v. Janardhan Raju (1992)1 S.C.J. 126. That is also a case

where in an eviction petition under the Rent Control Act, the defendant filed an application under the Tamil Nadu City Tenants Protection Act,

1921. That application was dismissed, from which he did not file an appeal. But, ultimately, the Supreme Court held that the dismissal of the

application u/s 9 of the said Act and its conclusiveness will not affect the right of the party in challenging that finding or the final decision in the rent

control petition. In paragraph 10 of the judgment, their Lordships have held thus:

So far as the contention of the learned Counsel for the plaintiffs is concerned , we are of the opinion that according to Section 9 it is open to a

defendant to file an application thereunder in the suit for ejectment filed by the landlord against him. Such an application would be in the nature of

an interlocutory application in the suit. In such a situation, it follows that once an appeal is filed by the defendant against the decree of the trial

court, he is entitled to challenge the correctness of any interlocutory order passed in the suit, in such appeal, by virtue of Section 105 of the Civil

Procedure Code. It is not necessary in such a case that he should prefer an independent appeal against the order dismissing an interlocutory

application, even if it is appealable. This principle is of equal application herein even though the interlocutory application is one u/s 9 of the Act.

Accordingly, it must be held that in the appeal/second appeal against the decree of the Trial court, it was open to the defendants to challenge the

correctness of the order dismissing their application u/s 9. The High Court was, therefore, not right in holding that the said application having been

dismissed by trial court and no fresh application having been filed, it must be held that there was no application u/s 9. The High Court was,

therefore, not right in holding that the said application having been dismissed by trial court and no fresh application having been filed, it must be held

that there was no application u/s 9. The application filed by defendants in the trial court must be deemed to be pending during the pendency of the

appeal/second appeal....

In view of the binding decision, it has to be held that the conclusiveness is also lost once the second appeal is filed against the main decree. The

application u/s 9 must be deemed to have been pending for all purposes.

The courts below have not decided the case of the appellant whether he is entitled to the benefits of Section 9 and purchase the property. It

dismissed the application only on the ground that the Act has no application to non-residential buildings. Once that finding is set aside, the entire

matter will have to go back to the trial court for re-determination of the issues.

Insofar as the revision is concerned, in view of the reasoning given by me, an appeal to the lower appellate court itself was not necessary. Only

by way of abundant caution, the appellant filed an appeal before the lower appellate court, of course, belatedly. Even without an appeal, he can

challenge the correctness of the finding rendered by the courts below on the application u/s 9. Since I hold that no appeal was necessary, the

dismissal of the same on the ground of delay will not affect the right of the appellant. The revision against the Order is also, therefore, unnecessary.

In the result, I set aside the judgments of the courts below and allow the second appeal. Original Suit No. 290 of 1986, on the file of the

District Munsif''s Court, Panruti, is restored to file, and the trial court is directed to consider the case of the appellant namely, whether he is entitled

to the benefits of the Tamil Nadu City Tenants Protection Act, 1921, in accordance with law. There will be no order as to costs in the second

appeal. The parties are directed to appear before the trial court on 28.6.1996. C.R.P. No. 426 of 1991 is dismissed as unnecessary, however,

without any order as to costs.