M.R. Nataraja Naicker vs M. Kamalamma

Ramachandra Iyer, J.—This revision petition raises the question as to the correctness of the decision on a preliminary issue by the Judge of

the Court of Small Causes, Madras, u/s 41 of the Presidency Small Cause Courts Act (XV of 1882). The tenant is the petitioner. By a registered

document Exhibit P-1, dated 12th August, 194.9, the respondent, landlord granted a lease of immovable property to the petitioner with a condition

annexed that if the tenant (petitioner) defaulted in payment of rent for two consecutive months or sub-let or assigned the premises to any person the

lessor would be entitled to terminate the tenancy. On 27th April, 1951, by Exhibit D-1 the tenant granted a lease for ten years to one Rudra Pillai.

There is a dispute as to whether this lease comprised the superstructure only or the land as well. But for the purpose of the present controversy it is

assumed that the lease covered the land as well. Founding on the ground that Exhibit D-1 amounted to a breach of the conditions of the lease and

also on the ground that the tenant had defaulted in payment of rent for two consecutive months the respondent purported to terminate the lease by

a notice, dated 5th February, 1955 and filed an application for ejectment against the present petitioner u/s 41 of the Presidency Small Cause

Courts Act. The tenant contested the application but at the request of both the parties and learned Judge took up for consideration as a preliminary

issue the question of jurisdiction of the Court to entertain the application of the respondent. The contention on behalf of the tenant was that as ex

facie the lease in his favour had not expired and that as the case of the landlord was based upon an alleged forfeiture, the question for

determination by the Court involved a question of title to immovable property and therefore such an adjudication is barred by the provisions of

Section 19(g) of the Act. The learned Judge held that the application was maintainable. This revision petition is filed against the finding of the

learned Judge on the preliminary issue holding that he had jurisdiction to try the application. It is contended on behalf of the petitioner that the

determination of the question as to whether there has been a forfeiture and on that account the lease had been put an end to involves the question

of title to immovable property as according to him the lease is still current and if the landlord says that it has been put an end to there arises a

dispute in regard to title to the property. He relies in this connection upon Section 19(g) of the Act, and argues that the Court has no jurisdiction to

decide the dispute u/s 41.

Section 41 of the Act is the first of a series of sections relating to recovery of possession of immovable property. Both u/s 41 of the Act and the

Rules framed under the Act though the application is to be in the form of plaint it has been held that it does not become a suit but is only an

application (Vide M. Doraswami Iyengar Vs. K. Narayana Aiyangar and Others, . Section 19(g) which applies only to suits will not apply to a

case of this kind. Section 19(g) excludes from the cognizance of the Small Cause Court suits for recovery of immovable property whereas Chapter

VII of the Act expressly deals with recovery of possession of immovable property. Apart from the distinction that Section 19 (g) will apply only to

suits and not to applications there is the further distinction that Sections 19 and 41 apply to different subject'' matters. As Chapter VII of the Act

provides for recovery of possession of immovable property Section 19 cannot apply. Chapter VII of the Act is a complete Code in regard to

application filed u/s 41. Section 48 states that in all proceedings under this Chapter (Chapter VII) the Small Cause Court shall as far as may be

and except as therein otherwise provided follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure. This is

different from the procedure which regulates the trial and disposal of suits by the Court. Sections 46 and 49 enact that recovery of possession of

immovable property under this Chapter will not debar the institution of suit in the appropriate Court for trying the question of title in regard to the

property. These two sections impliedly recognise the necessity of summary adjudication of title subject no doubt to a final adjudication in a

properly constituted suit. Section 41 enables the owner of a property to recover possession by a summary process as against the tenant or licensee

or their representatives where such tenancy or license had been determined or withdrawn. Under this section it is open to the owner of the

property to apply to the Court for a summons against the occupant calling upon him to show cause why he should not be compelled to deliver up

the property. Section 43 enables the Court to direct delivery of possession in case the occupant does not appear at the time appointed and show

cause to the contrary. There is, however, no provision as to what is to happen if the occupant appears and fails to show cause but from the

explanation to Section 43 it is clear that in such a case the Court is entitled to order delivery of possession of the property. It is obvious from a

reading of Sections 41, 43 and 49 of the Act that the Court performs a judicial function and is entitled to investigate, though summarily, any

defence that may be put forward by the defendant. The Court has undoubtedly jurisdiction to decide whether the tenancy or license has been

terminated and whether the owner of the property has a right to apply for the summary process u/s 41 of the Act. It is, therefore, clear that any

question of title that may be necessary to be decided for the purpose of exercising jurisdiction u/s 41 could be decided in a summary manner. I do

not, therefore, accept the argument advanced on behalf of the petitioner that whenever a tenant or a licensee raises a dispute in regard to the title of

the applicant the Court would cease to have any jurisdiction to decide the dispute. The jurisdiction of the Court depends upon the averments in the

application and upon proof of the things necessary u/s 41 of the Act and it cannot, therefore, depend upon an accident of the defendant raising a

dispute as to the title of the applicant. In this connection reference may be made to a decision of the Bombay High Court in Institute of Radio

Technology v. Pandurang ILR (1945) Bom. 1038 : AIR 1946 Bom. 212. In that case there was a lease of four blocks on the second floor of a

building and after notice to quit the landlord filed an application u/s 41 of the Presidency Small Cause Courts Act. The tenant resisted the

application pleading protection under the Bombay Rent Restriction Act and contended that when such a defence is raised the question was outside

the scope of the Small Cause Court. The learned Judges overruled the contentions on behalf of the tenant. Divatia J., observed at page 1041

whether a tenancy has been legally determined or not is to be decided on the provisions of Section 111 of the Transfer of Property Act which says

among other things, that a lease of immovable property determines on the expiration of a notice to determine the lease or to quit. Therefore when

the landlord gives the tenant a valid notice to quit, the tenancy is determined at the expiration of the period and the Smail Cause Court gets

jurisdiction to entertain the application for summons. Even if the tenant relies on the provisions of Section 11 (Section 11 of the Rent Restriction

Act) the tenancy will be deemed to be subsisting only if his defence suceeds and it is the Court which is seized of the application which has the

power to decide whether the defence is good. The jurisdiction is not, therefore, ousted by taking up the defence. The only result of the defence

being successful is that the Court cannot pass an order of eviction and the application would be dismissed.

In my opinion the termination of tenancy based upon the landlord taking advantage of the forfeiture clause comes within Section 41 of the Act

and the Court has jurisdiction to decide the question. The fact that a defence raises the question of title to the property in that the tenancy has not

been validly terminated does not oust the jurisdiction of the Court which is bound to decide the question under the provisions of Chapter VII of the

Act. In this view this Civil Revision Petition is dismissed and the petitioner will pay the costs of the respondent.