N. Devarajan vs D.V. Munirathnam

Ratnam, J.—The tenant in House Rent Case No. 2963 of 1977 Twelfth Judge, Court of Small Causes, Madras, is the Petitioner in this civil

revision petition. That application was filed by one Kannappan against the Petitioner herein u/s 10(2)(i) of the Tamil Nadu Buildings (Lease and

Rent Control) Act, XVIII of 1960 as amended by Act XXIII of 1973 (hereinafter referred to as the Act), praying for an order of eviction on the

ground that the Petitioner has committed wilful default in the payment of the monthly rent of Rs. 170 for the period from 1st March, 1975 to 31st

August, 1977. The Petitioner resisted that application contending that the rents for the period March to July, 1975 was paid and received by

Kannappan, but that receipts were not issued and when the rent for the month of August, 1975 was tendered by The Petitioner, Kannappan

refused to receive the same and thereafter, the rents had been sent by the Petitioner regularly by money-order from August 1975 upto-date. These

money-orders had been unlawfully refused to be received by Kannappan. The Petitioner, therefore claimed that he did not commit any wilful

default in the payment of rents.

Before the Rent Controller (Twelth Judge, Court of Small Causes,) Madras, Kannappan examined himself as P.W.1 and relied on exhibits P-1

to P-3, while the Petitioner examined himself as R.W.1 and filed exhibits R-1 and R-2 in support of his case. On a consideration of the oral as well

as the documentary evidence the Rent Controller, by his order, dated 15th February, 1979, held that the version as well as the explanation of the

Petitioner contract be accepted as a proper ground for condoning the non-payment of rents as claimed by Kannappan and that the Petitioner has

wilfully defaulted to pay the rents for the period in question. On these conclusions, an order for eviction was passed against the Petitioner.

Aggrieved by this order the Petitioner prefer an appeal in House Rent Appeal No. 704 of 1979 to the Appellate Authority (seventh Judge, Court

of Small Causes,) Madras, on 17th April, 1979. To that appeal, Kannappan, who initiated the proceedings for eviction against the Petitioner herein

was impleaded as the Respondent, Subsequently, the Respondent herein filed on 14th April, 1980 Miscellaneous petition No. 929 of 1980

purporting to be u/s 27 of the Act, to bring himself on record as the Respondent in House Rent Appeal No. 704 of 1979, on the ground that under

a sale deed, dated 12th March, 1980 he had purchased the property from Kannappan and that the fact of such purchase had also been duly

communicated to the Petitioner. The Respondent further stated that the order already obtained by his vendor Kannappan would also ensure for his

benefit. This application was opposed by the Petitioner on the ground that there is no provision in the Act to bring a third party purchaser on

record and that the purchaser cannot take advantage of the order of eviction obtained by his vendor on the ground of wilful default. The Petitioner

also raised a further objection that the Respondent had no right to continue the proceedings and that the appeal in House Rent Appeal No. 704 of

1979 should be dismissed. The Appellate Authority (Seventh Judge, Court of Small Causes) Madras, relying upon the decision of this Court in A.

Thiruvengadaswamy Naidu Vs. C.T. Nachiappan, through his father and guardian V.P.C.T. Chidambaram Chettiar and Another, held that the

petition to bring on record the Respondent herein as the second Respondent in the appeal is maintainable and that the Respondent is also entitled

to get himself impleaded as a party to the appeal. On this conclusion, Miscellaneous Petition No. 929 of 1980 filed by the Respondent herein was

allowed. It is the correctness of this order that is challenged in this Civil revision petition.

The principal objection raised by the learned Counsel for the Petitioner is that there is no provision either in the Act or in the Rules framed there-

under to enable an Appellate Authority to implead parties to proceedings pending before it on the ground of devolution of interest during the

pendency of the appeal. It is further pointed out that Section 27 of the Act under which the petition had been filed by the Respondent herein covers

only cases where as a result of the death of a party proceedings may be continued by or against the legal representatives and that that provision will

not have any application to the instant case. Atetntion has also been drawn to Rule 25 of the rules under the Act in which a time limit of one month

is prescribed for taking out an application to bring on record the legal representatives and it is urged that even this rule will have no application in

the present case and consequently, the order of the Appellate Authority directing that the Respondent be impleaded as the sacred Respondent in

the appeal is without jurisdiction. Reliance in this connection is also placed upon the decision in Arupukottai Dravida Munnetra Kazhagam,

Velayuthapwam sub-Court Through is secretary K. Srinivasan v. M. Periaswami and Anr. Civil Revision Petition No. 1728 of 1973, dated 9th

January, 1974 and also other decisions which hold that the authorities functioning under the provisions of the Act are not courts as ordinarily

under-stood and CPC Code provisions do not apply to them. On the other hand the learned Counsel for the Respondent would rely upon the

decision in A. Thiruvengadaswamy Naidu Vs. C.T. Nachiappan, through his father and guardian V.P.C.T. Chidambaram Chettiar and Another, .

and contended that the purchaser is entitled to be brought on record to continue the proceedings as the landlord within the meaning of the Act in

the place of the esrtwhile landlord, it is also pointed out that the benefit of the order of eviction secured by the predecessor-in-title of the

Respondent will ensure to the Respondent as well and that the proceedings were rightly directed to be continued by impleading the Respondent as

the second Respondent in the appeal.

Before proceeding to consider these rival contentions, it is necessary to notice the relevant statutory provisions relating to appeals under the Act.

Section 23(1)(b) of the Act provides for an appeal against the order of eviction passed by the controller at the instance of an aggrieved person.

Such an appeal has to be preferred within fifteen days from the date of the order of the Rent Controller, excluding the time taken to obtain certified

copy of the order appealed against. Section 23(2) of the Act enables the Appellate Authority to stay further proceedings pending a decision on the

appeal. Section 23(3) of the Act deals with the scope of the power of the Appellate Authority in deciding the appeals filed before it. That

provisions enables the Appellate Authority to call for the records of the case from the Rent Controller and to afford an opportunity to the parties of

being heard, and further empowers the Appellate Authority, if found necessary, to make such further enquiry as it thinks ''fit, either by it self or

through the Controller and there after decide the appeal. Section 23(4) of the Act is not relevant for the present purpose. A consideration of the

provisions of the Act as well as the Rules framed thereunder disclose that the Act is intended 10 be a complete Code with reference to matters for

which provision has been made. Instances can be found in the Act which make it clear that the general provisions of the Code of CPC are not

intended to apply to proceedings under the Act. The specific provision for bringing on record the legal representatives within a month from the date

of death or the date of knowledge, as the case may be, is one such. Where the provisions of the Code of CPC are to apply, then it is so

mentioned, as for instance, in the case of execution of orders of eviction for which a specific provision is made to the effect that the order shall be

executed as a order of a civil Court for which purpose, the Controller shall also have all the powers of a civil Court. Generally, therefore, there is

an exclusion of the applicability of the provisions of the Code of CPC and where it is either made applicable or even intended to apply, provision is

made to that effect, But even so, the question still remains whether in the absence of any specific provision either in the Act of in the rules framed

thereunder, a purchaser can be brought on record, as in the instant case. In my view, the exercise of the jurisdiction by the Appellate Authority in

the hearing of an appeal u/s 23(3) of the Act involves the giving of an effective and adequate - opportunity to the parties and if a party who is likely

to be affected by the result of the appeal is not heard, then the Appellate Authority may not be exercising its jurisdiction in the matter of hearing the

appeals u/s 23(3) of the Act in accordance with the statutory provisions. In order, therefore, to decide the appeal, the Appellate Authority u/s

23(3) of the Act should hear the parties and in order to hear the parties, the parties interested in the subject-matter of the dispute must be before it.

In order to do so, the Appellate Authority would be entitled to insist that the parties interested should be brought on record and in this context, the

power of the Appellate Authority to do so is really part of the power to hear the appeal itself. Therefore, in my view, there is not need to go into

the question whether Order I, Rule 10(2) and Order XXII Rule 10, Code of CPC would apply to proceedings under the Act or not.

In order that the Appellate Authority may effectually adjudicate upon the correctness or otherwise of the order of the Rent Controller, the

presence of the landlord as well as the tenant before the Appellate Authority is essential. A mere change in the landlord cannot by itself terminate

the proceedings initiated already. The devolution of interest of the landlord, who had earlier commenced proceedings on another, will merely result

in the substitution of one landlord for the other and would not terminate the proceedings. The question whether the successor-landlord can take

advantage of the order secured by the predecessor has been considered under the provisions of the Rent Control Act as well as other allied

enactments, As regards the entitlement of successor-landlord to take advantage of willful default in payment of rents committed by the tenant when

the property was owned by the predecessor. Shah Dhanraj Kantilal v. Additional Judge, Court of Small Causes, Madras (1949) 2 M.L.J. 28

(S.N.) rules that he can. Though in that case, the landlord who applied for eviction on the ground of wilful default died and his son claimed the

benefits of such default, it was held that the right to claim eviction was not something peculiarly personal to the father which could not survive him

and it cannot be said that the deceased landlord''s sun could not claim the benefit of the default which accrued during the lifetime of his father.

Though this decision was rendered with reference to the provisions of the Madras Buildings (Lease and Rent Control.) Act (XV of 1946), the ratio

therein is applicable even to the present case where there is a devolution of interest, as the ground of eviction was not peculiarly personal to the

predecessor-in-title of the Respondent. Even with reference to cases of sub-letting, it has been held that the successes-landlord can take advantage

of the absence of concert in writing from the predecessor-landlord. In Somasundara Mudaliar v. Mad. Prov. Co-op. Mar. Soc. Ltd. (1950) 1

M.L.J. 635. a portuoion was suble without the written consent of the owner in October, 1947 and there was a transfer of the property on 17th

February, 1949. An application for eviction was filed both by the vendor and the purchaser on the ground that the building had been sublet after

the commencement of the Act without the consent of the landlord and an order for eviction was passed. In dealing with the argument whether a

subletting without the written consent of the then landlord can be availed of by the subsequent purchaser to file an application for eviction, the

Bench held that there is nothing in the provisions of the Act which compels the conclusion that a subsequent purchaser cannot take advantage of

the action of the tenant before his purchase. In doing so, the Bench also pointed out that according to the definition of the term land lord the vendor

and the purchaser would be included and that it would be an unreasonable construction to confine the rights of the landlord to right which secured

to him only after he became a landlord.

VISWANATHA SASTRY J. in Appa Rao v. [Salimumissa Bibi Saheba (1955) And. W.R. 173 (S.N.) had occasion to consider whether a

purchaser from a landlord who had initiated proceedings for eviction on the ground of wilful default can take advantage of the same, though such

purchase was not the landlord at the time when default was committed The provision that came up for interpretaion was Sections 7(2), (3) and (6)

of the Tamil Nadu Buildings (Lease and Rent Control) Act, XXV of 1949. Considering the provisions of that Act, the learned Judge observed

thus:

The definition of landlord in Section 2, Clause (3) in wide enough, to include the vendor and the purchaser. Nothing in the wording of the Section

7(2)(ii) compels the view that the arrears should have been of the rents due to the landlord who applies for eviction after his purchase from the

previous landlord. Section 7(2) allows a landlord who seeks to evict his tenant to apply to the Rent Controller and Section 7(2)(l) does not insist

or require that the arrears should have been due to the applicant. It is sufficient that the rent had not been paid or tendered by the tenant within

fifteen days of the expiry of the time fixed in the agreement of tenancy with his landlord. The landlord'' here referred to might be either the applicant

or the person who happened to be the landlord at the time when the rent fell into arrear. The right to evict an erring tenant is not a personal right

peculiar to a landlord so as to be unavailable to his heirs or legatee, or a purchaser from him. If Section 7(2)(l) is interpreted as referring only to the

landlord who applied for eviction, it would mean that heir or legatee of a deceased landlord could not avail himself of the default in payment of rent

which accrued during the time of the deceased. There is nothing in the language of Section 7(2)(l) which compels one to uphold that the default in

payment of rent u/s 7(2)(l) is limited in its effect so as to be available only to the person, who, at the time of the default was the landlord.

Dealing with a similar situation under the provisions of the Cultivating Tenants'' Protection Act, RAMACHANDRA IYER C.J., in Karuppanna

Ambalam v. Agni Ambalam 75 L.W. 30. held that when once the statutory protection of a tenant to remain in possession of the property is lost,

that can also be taken advantage of by the purchaser of property who would be entitled to maintain an application for eviction of the tenant,

Therein, the learned Judge has observed thus:

It would follow that the purchaser of the property would be entitled to maintain an application for eviction of the tenant who has disentitled himself

to continue in possession of the land and to the protection afforded to him u/s 3(1) of the Cultivating Tenants'' Protection Act by reason of default

in-payment of rent to his former landlord (the predecessor-in-interest). It would follow that the subsequent purchaser from the original landlord can

take advantage of the default of the tenant in the payment of rent due to the letter.... The right to evict under the Act is given to a landlord who

should be a parson entitled to evict the tenant, Implicit in it is the requirement that the should be the landlord of the entire holding in respect or

which there is arrears of rent payable.

This decision also recognises that the purchaser of the property from a person to whom the rents had not been paid by the tenant can avail himself

of the default of the tenant in the payment of such rents to the pre-deceossior-in-title. To similar affect is another judgment of the Division Bench of

this Court in Civil Revision Petition Nos. 2399, 2400 and 2401 of 1961 (Chinnamerkathian alias Muthu Gounder v. Ayyavoo alias Perianna

Gounder (1965) 2 M.L.J. 13 (S.N.). That was also a case under the provisions of the Tamil Nadu Cultivating Tenants'' Protection Act, XXV of

1955 and the question that arose was whether a purchaser can maintain an application for eviction on the ground of default in payment of rents for

a period prior to his purchase. The Division Bench held that the purchaser is so entitled. Even a as regards an application for eviction instituted on

the grounds of wilful default and personal occupation, under the provisions of the Tamil Nadu Buildings (Lease and Rent Control), Act it has been

held a Vijayaraghavan Vs. Mohammed Yakub Rowther (died) and Others, that the deatn of the land-lady who secures an order for eviction in her

favour during the pendency of an appeal would not prevent her children from taking advantage of the order already passed. In dealing with, the

incidence of the right of a landlord who has secured an order for eviction, RAMAPRASADA RAO J., (as he then was) observed thus:

In a case where a litigant seeks for a statutory relief in relation to property and obtains it after satisfying the statutory Tribunal that he or she is

entitled to that relief, then that decision which projects a right becomes annexed to the property of that litigant who initiated the action and it cannot

be divested by invocation of any technicalities.

Dealing with the effect of the general principle Actio Personalis Moritur cum persona, the learned Judge observed at page 130 thus:

The Tamil Nadu Buildings (Lease and Rent Control) Act provides for certain reliefs in favour of landlords and concurrently enable the tenants to

continue in occupation of the demised premises unless they are compelled to surrender that possession by an invocation of the special law.

Therefore, if a landlord or a landlady, as the case may be, comes to Court and obtains possession whereby the tenant would be obliged to

surrerder possession not under a contract, but under the provisions of a statute and that too under the stringent clauses, the invecation of which

alone could enable the landlord or landlady to obtain possession, then such a right cannot be barely characterised as a personal right which ought

to die with the person concerned.

Again, it is pointed out that the benefit by way of a decree which a predecessor-in-interest has secured being anccerrreal right and that right having

vested in a landlord or landlady in that a decree for eviction. Has already been passed cannot be divested by his or her death, as it could pass on

to the heirs as it becomes part and parcel of the property owned by the landlord or landlady. In view of the aforesaid considerations, in the instant

case, the Appellate Authority has not only the power to implead the Respondent herein as a party to the proceedings in order to effectively

adjudicate upon the controversy between the parties, but the Respondent has also the right to take advantage of the order of eviction secured by

his predecessor-in-interest, especially when the purchase by the Respondent has not in any manner been disputed by the Petitioner and it is not the

case of the Petitioner that there was any contract to the contrary. The order of the Court below is, therefore, correct and cannot be in any manner

assailed, nor does it suffer from any illegality or irregularity in the exercise of jurisdiction. The civil revision petition, therefore, fails and is dismissed

with costs.