Mohanambal Ammal vs Selvanayaki Ammal

Srinivasan, J.—The petitioner was the defendant in Ejectment suit No. 220 of 1953, on the file of the Court of Small Causes, Madras, an

application under S. 41 of the Presidency Small Causes Courts Act, and this application appears to have been dragged on till 1958, by reason of

certain proceedings between the same parties in relation to the tenancy in the City Civil Court, Madras. Apparently the petitioner-tenant''s

contention in that City Civil Court action failed. Thereafter this application under S. 41 was taken up for disposal. It would appear that during the

pendency of this application a petition was filed by the tenant-defendant for valuing the superstructure under the relevant provisions of the City

Tenants Protection Act. This was done by the appointment of a Commissioner, and on the 19th of August, 1958, the Third Judge of the Court of

Small Cause, Madras made an order in these terms :

The petition is accordingly allowed and the value of the superstructure is fixed at Rs. 900. The plaintiff-respondent is granted three months time to

pay this amount to the petitioner-defendant.

The application itself came up for final disposal only on the 21st September, 1959, when, after going into merits of the case, the third Judge of the

Court of Small Causes, Madras, granted a decree for possession, and directed the defendant to surrender vacant possession on 21st November,

1959. It is against this order that the present revision petition has been filed.

The principal point that has been Argued by the Counsel for the petitioner-tenant is that the Court having passed an interim order within the

meaning of S. 4 (2) of the City Tenants Protection Act on the 19th August 1959, granting three months time to pay the amount of Rs. 900, it could

have taken note of the failure of the plaintiff to pay the amount within the time stipulated and that the consequences of non-compliance with the

directions of the Court there under must entail the dismissal of the application under S. 4 (4) of the Act.

It is conceded on behalf of the respondent-petitioner before the lower Court that, of the sum of Rs. 900 found to be the value of the

superstructure, which the tenant was entitled to be paid as compensation, Rs. 664 was deposited in Court on 27th October 1958, and the balance

of Rs. 238 was not deposited till 17th December 1959, that is, within three months after the passing of the final order in the ejectment application

itself.

It seems to me that the order made on 19th August 1958 was not an interim order within the meaning of S. 4 (2). What the provision

contemplates is that, at the time of disposal of the application under S. 41 of the Presidency Small Causes Courts Act, in which ""the landlord

succeeds"", the Court shall ascertain the amount of compensation payable. It is quite clear that the stage, at which the Court is called upon to

determine the amount of compensation is the date on which it comes to the conclusion that the landlord is entitled to vacant possession of the

premises, and it is at this stage that the Court is under a duty to pass what is called an interim order declaring the amount so found due, and

directing its payment within three months from the date. This obviously amounts to a conditional order; in the sense that, if the amount is deposited

as directed the landlord would be entitled to vacant possession, and, if he fails to make the deposit his application for ejectment would stand

dismissed. The provisions of the Act do not contemplate an order, determining compensation, and directing its payment at any point of time

anterior to the determination of the ejectment application itself. Even an application proceeding from a party, plaintiff or defendant is uncalled for in

a matter which comes within the scope of S. 4 (2) of the City Tenants Protection Act. The Court is under a mandatory duty in such cases to

determine the compensation and make an order in terms of the section. It is clear, therefore, that the order dated 19th August 1958 when the

Court had not thought fit to come to a decision as to the right of the plaintiff landlord to vacant possession was wholly beyond the jurisdiction of the

Court.

The proper order under S. 4 (2) of the Act is one made when the Court decides that the landlord is entitled to a decree for vacant possession.

The order that was made in this application, the one dated 21st September 1959 did not incorporate any determination of the compensation or its

payment into Court, as required by S. 4 (2). At the stage of disposal of the application for eviction, this matter appears to have been completely

lost sight of by the trial Judge. It is, clear, therefore, that the Court has failed to discharge a duty that has been statutorily laid upon it.

The result is that the order of the lower Court has to be set aside and the suit remanded for determination afresh of the only surviving question of

the quantum of compensation payable to the defendant and for passing orders in terms of S. 4 (2). Whether the quantum of compensation, already

determined in 1958, is to prevail or is to be determined afresh, is a matter for the lower Court to decide. The petition is allowed. No order as to

costs.