Mrs. Ragini Nagesh vs Kishin B. Chhabria

Rengasamy, J.—This is a suit for ejectment of the tenant on the ground of arrears of rent. The plaintiff has alleged that the defendant

occupied her building on 1.5.1969 on a monthly rent of Rs. 800, that from September 1977 onwards, he had committed willful default in payment

of the rent, that she issued a notice terminating the tenancy ending with 31.12.1977 and calling upon the defendant to de liver vacant possession of

the premises, but the defendant sent a reply alleging falsely that there is an agreement for sale between them and he is in possession of the property

in pursuance of the sale agreement and therefore he was not bound to surrender possession. It is further stated in the plaint that as the monthly rent

payable by the tenant is. Rs. 800, and u/s 30 (2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, a residential building fetching the

monthly rent above Rs. 400 is exempted from the purview of the Act, the suit was filed for recovery of possession and also for damages for use

and occupation. The defendant resisted the suit contending that the plaintiff has entered into a sale agreement for the suit property in favour of

himself and his sister Pushpa, but as the plaintiff failed to comply with the terms of the agreement, they have filed a suit C.S. No. 445/78 for

specific performance in this Court and the remedy could be worked out only in that suit. The validity of the termination of the tenancy also is

questioned by the defendant.

This suit and the other suit C.S. No. 445/78 filed by the defendant along with his sister for specific performance, were tried jointly and this suit

for ejectment was decreed as prayed for by this plaintiff and the defendant''s suit for specific performance was dismissed on 9.3.1984. The

defendant filed appeal in both the suits in O.S.A. No. 118/84 and 119/84 before the Bench of this Court. During the pendency of the Appeal, the

Supreme Court in Rattan Arya and Others Vs. State of Tamil Nadu and Another, struck down the Section 30(2) of Tamil Nadu Buildings (Lease

and Rent Control) Act as violative of Article 14 of the Constitution. In view of this decision, the exclusion of the buildings, for which the rent is

more than Rs. 400, cannot be allowed and such buildings also are brought under the provisions of Tamil Nadu Buildings (Lease and Rent Control)

Act. While disposing of the first appeal, the findings of the trial judge in the defendant''s suit for specific performance were confirmed and the

appeal was dismissed. But so far as this suit is concerned, in view of the change of law, on account of the decision in Rattan Arya and Others Vs.

State of Tamil Nadu and Another, , the Bench of this Court felt that the matter has to be considered afresh and disposed of according to law by

the trial Court applying the law which came into force subsequently and remitted back the suit for final hearing for disposal. Therefore, the matter

has come back to this Court for fresh consideration in the light of the existing law.

Now the only question to be considered is whether the eviction of the defendant is governed by the provisions of the Tamil Nadu Buildings

(Lease and Rent Control) Act, hereinafter to be referred to as Act, in view of the removal of the exemption given u/s 30(2) of the said Act by the

decision of the Supreme Court in Rattan Arya and Others Vs. State of Tamil Nadu and Another, or is liable to be ejected under the common law

in view of the fact that the Act was not applicable at the time of the filing of the suit in the year 1983. The Learned Counsel for the plaintiff Mr. K.

Ravi contended that under the Act, there is no express ouster of jurisdiction for passing a decree for recovery of possession of a building from the

tenant though the execution alone is barred under the said Act by the civil Court and therefore, the decree can be passed in this suit for the reason

that the building was exempted from the purview of the Act in the year 1983 when the suit was filed. He also relied upon series of decisions in

support of his argument that the civil Court has powers to grant the decree for possession though the execution could be carried out only under the

provisions of the Act.

Initially this Court took the view in Mahmood H.Y. Vs. The Kerala Corporation Ltd., ) that the Civil Court has no powers for granting the

decree for possession of a building which falls within the purview of the provisions of the Act for the reason that the Tribunal has got exclusive

jurisdiction to grant that relief and there is no purpose in giving the mere decree for possession when it could not be executed except by the

Tribunal constituted under the Act. The Court observes as follows:

One is that when a special Tribunal is engaged for obtaining a particular relief it is that Tribunal that has got exclusive jurisdiction to grant that relief

and to that extent the jurisdiction of the Civil Courts is ousted. Secondly even if it is held that the Court has jurisdiction to grant a decree for

eviction, it cannot be called upon to indulge in a mere pastime and pass orders which would be brutum fulmen and which cannot be carried out into

effect without resort being had to other persons or Tribunals in whom a discretion is vested to decide if eviction is to be ordered or not. The

remedy of the plaintiff is to go before the Controller.

But in the later years, this Court changed its view and has held in series of cases that the decree for possession in respect of a building within the

purview of the Act, could be granted though the execution could be carried out only by the Tribunal and there was no bar under the Act for

passing the decree for recovery of possession.

In Muhummudunny v. Melepurukkal Unni (63 L.W. 1050=1949 (1) M.L.J. 458), the Bench of this Court has held that there is nothing in the

Madras Buildings (Lease and Rent Control) Act expressly prohibiting the institution of a suit for possession or prohibiting a civil Court from passing

a decree for possession nor is there any things in Clause 8 which takes away by necessary internment, the ordinary jurisdiction of the civil Court to

entertain a suit by a landlord for recovery of possession of his property in the occupation of a tenant and hence the jurisdiction of the Civil Court to

entertain and pass a decree for eviction by a landlord against his tenant, is not expressly or impliedly taken away by the provisions of the Act. The

Supreme Court also in B.V. Patankar and Others Vs. C.G. Sastry, while considering the Mysore Rent and Accommodation Control Order, held

that there is no prohibition under the Mysore Mouse Control Order from the passing of the decree but only against execution and hence the

objection to its excitability can only be taken in the execution proceedings. Again this Court in Haji Abdullah Sait Vs. K. Sanjeevi Rao and Others,

has held that the Act itself does not prohibit a landlord from tiling a suit for recovery of possession of property from his tenant and obtain decree

and it only bars the execution of the decree contrary to the provisions contained therein and therefore the suit for recovery of possession of the

building from the tenant by the landlord and obtaining a decree in ejectment therein is maintainable. In A. Krishnaswami Vs. S. Rasheeda, a case in

which the landlord filed the suit for recovery of possession of a building situated in a place in Tiruchirapalli district, to which the Act was not

extended and the decree also was granted by the trial Court, but while the appeal was pending, the Act was extended to the town in which the

building was situated and this Court, following the previous decisions, observes as follows:

The resultant position is that the filing of a suit for recovery of possession of a property from a tenant or the passing of a decree therein by the

Court in favour of the landlord is not prohibited under the Act but the decree cannot be executed so long as the Act remains in force.

The Learned Counsel for the plaintiff Mr. Ravi relied upon a recent decision of this Court in A.V. Hanifa Vs. Salima Dhanu, ), a case in which the

building was exempted u/s 30(1) of the Act and suit was filed and decreed within 5 years from the date of the completion of the building, but when

the appeal was pending, the exempted period was over. For the objection raised by the tenant that the building was covered under the Act when

the appeal was heard and the decree cannot be passed for eviction except by the Tribunal constituted under the Act, this Court has held that the

decree for possession obtained in a suit, which was filed at the time when the Act was not applicable, could be executed till its completion even

though, the Act became applicable to the building subsequently and it cannot be said that if the Act would apply to the building at the time of

executing the decree, then eviction could be sought for only under the Act and not in the execution of the decree. So, according to this view, if a

decree for possession was granted when the Act was not applicable, the same could be executed even though the Act comes into force

subsequently. My learned brother Srinivasan, J. has relied upon two decisions of the Supreme Court which are Omprakash Gupta v. Dig

Vijendrapal Gupta (AIR 1982 S.C. 1230) and Nand Kishore Marwah and Others Vs. Samundri Devi, . In both these cases, suit was filed for

possession of a new building before the expiry of the exempted period u/s 2(2) of the U.P. Urban Buildings Act, similar to Section 30(1) of the

Act, except for the difference in the duration of the period of exemption and the decrees were passed within the period before the Act came into

force automatically, after expiry of the period and the Supreme Court relying upon Omprakash Gupta v. Dig Vijendrapal observed in the latter

decision (Nand Kishore v. Samundari Devi) as follows:

This ultimately indicates that the restriction put u/s 20 is to the institution of the suit itself and therefore it is clear that the provisions of this Act apply

then no suit for eviction can be instituted except on the grounds specified in the sub-sections of this Section Keeping in view the language of this

Section, if we examine the provisions contained in sub-section 2 of Section 2, it will be clear that for a newly constructed building, the provisions of

this Act will not apply for 10 years and therefore so far as the restriction u/s 20 is concerned, they will not apply and therefore it is clear that within

10 years as provided for in clause 2 of Section 2 restriction on the institution of suit as provided for in Section 20 clause 1 quoted above, will not

be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired, the restriction will not be attracted as the suit has

been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted.

So, in the view of the Supreme Court, when a suit was filed in the civil court for recovery of possession for the reason that the Act was not

applicable at that lime under the exemption allowed for certain fixed period, the suit instituted already does not get barred after the expiry of the

period during the pendency of the suit and the plaintiff is entitled to the fruits of the decree. Therefore, as Hanifa v. Salima Dhanu also was a similar

case falling wilting section 30(1) of the Act, suit having been filed within the exempted period, the learned Judge followed the above Supreme

Court decisions to hold that the decree passed before the Act came into force, was executable. But, it must be borne in mind that the present case

was filed on the basis of the exemption u/s 30(2) of the Act which later on was struck down by the Supreme Court and therefore now there is no

distinction of the buildings fetching the monthly rent of more than Rs. 800. This aspect has been considered by the Supreme Court in M/s. East

India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., The facts of this case are similar to the case on hand and the suit was filed for recovery of

possession of a building for which the rent was more than Rs. 800, as the Act was not applicable u/s 30(2), regular suit was filed for possession in

the civil Court and the suit also was decreed in favour of the plaintiff. But while the appeal was pending before the Supreme Court, as section

30(2) was struck down in the decision in Rattan Arya v. State of Tamil Nadu ( 99 L. W. 325 ) the Supreme Court has held that the civil Court has

no jurisdiction to pass decree for possession as there is implied ouster of jurisdiction of the civil Court under the Act and therefore the suit was

liable to be dismissed. The Supreme Court took the view that u/s 10 of the Act, eviction of the tenant could be only in accordance with the

provisions of Sections 14 to 16 of the Act except when the Tribunal considered that the denial of title of the landlord by the tenant was bona fide

and only when the Controller u/s 10(1) records the finding to that effect, the civil Court is competent to pass a decree for eviction on the suit filed

by the landlord. The Supreme Court observes:

Significantly, the jurisdiction of the civil court can be invoked only where the Controller comes to a decision and records a finding, that the denial or

claim by the tenant as aforesaid, is bona fide. If the Controller were to come to the opposite conclusion, no question of invoking the jurisdiction of

the civil court would arise. But the decision of the Controller is concerned solely with the bona fides, and not the correctness or validity, of the

denial or claim, for these difficult questions of title are by the statute reserved for decision by the appropriate civil court which is the more

competent forum in such matters.... In such an event, the civil court will become competent to pass a decree for eviction on any of the grounds

mentioned in Section 10 or Sections 14 to 16. On the other hand, if the decision of the Controller is that the tenant''s denial or claim is not bona

fide, the jurisdiction of the civil court cannot be invoked by the landlord and the Controller will then be the competent authority to order eviction,

after affording the parties, a reasonable opportunity of being heard....

The Supreme Court further observes:

Although the statute contains no express bar of jurisdiction of the civil Court, except for eviction of tenants ""in execution or otherwise"", the

provisions of the statute are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it, and their

competence to administer the same remedy as the civil courts render in civil suits. Such tribunals having been so constituted as to act in conformity

with the fundamental principles of judicial procedure, the clear and explicit intendment of the legislature is that all questions relating to the special

rights and liabilities created by the statute should be decided by the tribunals constituted under it. Although the jurisdiction of the civil court is not

expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and this Court, such

jurisdiction is impliedly barred, except to the limited extent specially provided by the statute.

Now, a distinction has to be made between the suits filed on the basis of the exemption u/s 30(1) and 30 (2) of the Act. So far as Section 30(1)

is concerned, the Statute remains the same but due to the efflux of time, the provisions of the Act become applicable to the building after the expiry

of the period provided under the Act. Therefore, the Supreme Court in Nand Kishore Marwah and Others Vs. Samundri Devi, observes that the

rights of the parties will be determined on the basis of the rights available to them on the date of the suit. But so far as the exemption u/s 30(2) is

concerned, it has been struck down and all the buildings are brought under the purview of the Act irrespective of the quantum of rent. Even though

on the date of the filing of the suit the suit alone could be maintained because of the exemption, by the subsequent decision of the Supreme Court,

the exemption is not available to any landlord and necessarily the tribunal alone has the jurisdiction for passing the order of eviction. Therefore, in

view of the decision of the Supreme Court in M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., cited Supra, this suit has to be

dismissed and there is no question of passing a decree for possession when it could not be executed. Therefore, this suit has to be dismissed. In the

result, the suit is dismissed but in view of the peculiar circumstances of this case, the parties will have to bear their own costs.