N. Vasudeva Gramani and Others vs S. Jagadeesan and S. Viswanathan

V. Ramasubramanian, J.—This Civil Revision Petition arises out of an order passed by the trial Court rejecting an application u/s 9 of the Madras City Tenants Protection Act, and confirmed by the lower Appellate Court on appeal.

Heard Mr. R. Shanmugham, learned Counsel for the petitioners and Mr. B.T. Seshadri, learned Counsel for the respondents.

The respondents filed a suit against the petitioners herein, for recovery of possession and for damages for use and occupation, in O.S. No. 2777 of 2002, on the file of the XII Assistant Judge, City Civil Court, Chennai. Pending suit, the petitioners herein filed an application in I.A. No. 18354 of 2003 u/s 9 of the Madras City Tenants Protection Act, on the ground that the land was taken on lease from the respondents and the superstructure was constructed by them at their own cost and that therefore they had a right to buy the land.

By a judgment and decree dated 12.6.2006, the trial Court dismissed the application in I.A. No. 18354 of 2003 and decreed the suit as prayed for. Challenging the dismissal of the application I.A. No. 18354 of 2003, the petitioners filed CMA No. 12 of 2007, on the file of the II Additional Judge, City Civil Court, Chennai. But the same was dismissed by a judgment dated 24.6.2008, compelling the petitioners to come up with the present Civil Revision Petition.

Mr. B.T. Seshadri, learned Counsel appearing for the respondents raised a preliminary objection to the maintainability of the revision petition on the ground that the petitioners failed to challenge the decree for recovery of possession passed in the main suit. Since that decree has attained finality, as a consequence of the failure of the petitioners to challenge the same, nothing would survive in the revision, arising out of the application u/s 9.

Mr. R. Shanmugham, learned Counsel for the petitioners admitted the fact that the petitioners did not challenge the decree passed in the suit. But he contended that the application as well as the suit were disposed of by a common judgment and that therefore the challenge to the same in either way, is permissible. He also submitted that the procedure adopted by the trial Court in disposing of the application and the suit together, was erroneous. In any case, the dismissal of the suit, according to the learned Counsel for the petitioners, was only consequential to the order passed in the application u/s 9 and hence if the order passed in the application u/s 9 goes, the consequential judgment in the suit would also go.

I have carefully considered the rival submissions. Before adverting to the law on the point, it is necessary to take a note of a few facts, which may have a bearing upon the law on the point.

It is seen from the plaint that the case of the respondents in the suit was that they let out the land together with the compound wall and water and drainage connection to the petitioners and that the petitioners put up asbestos sheet roof with poles erected on the compound wall and were using it for their welding business. The petitioners filed a written statement merely denying the above averments and claiming that they put up a superstructure. The petitioners did not give any details of the superstructure put up by them, in the written statement. Even in the affidavit in support of the application u/s 9, the petitioners did not give details of the superstructure put up by them. In view of such poor pleadings, the trial Court framed one issue in the application u/s 9 and three issues in the suit itself, as seen from paragraph-5 of the judgment of the trial Court. After framing one issue in the application u/s 9 and three issues in the suit, the Court below proceeded with the trial. Unfortunately, it appears that the parties merely filed affidavits on evidence along with 10 documents on the side of the petitioners and 27 documents on the side of the respondents. The list of exhibits appended to the judgment of the trial Court, does not indicate any oral evidence taken on record. Therefore, on the basis of the aforesaid documents marked as exhibits in the application u/s 9, the Court below found the only issue raised in the application, against the petitioners. Consequently, the trial Court found all the three issues raised in the suit, in favour of the respondents herein and hence dismissed the application and decreed the suit by the judgment dated 12.6.2006.

The procedure adopted by the trial Court as above, appears to my mind, to be erroneous. Section 9 of The Madras City Tenants Protection Act, 1921, substituted by Madras Act XIX of 1955 and amended from time to time, prescribes a detailed procedure for the conduct of an enquiry, when an application is filed thereunder, pending a suit for ejectment. In brief, the Section prescribes the following steps:

(a) If a suit for ejectment is brought against a tenant, who has erected a building on the leasehold land and who is entitled to compensation for such building u/s 3, such tenant should apply to the Court within one month of service of summons on him in the suit.

(b) If such an application is made by the tenant, the Court should first decide the minimum extent of land which may be necessary for the convenient enjoyment of the tenant and then fix the price for the same. Thereafter, the Court should fix a time limit of not less then 3 months and not more than 3 years for the tenant to pay into Court, the price so fixed, in one or more instalments, with or without interest.

(c) If the tenant commits default in payment of even one instalment, the application is liable to be dismissed, unless sufficient cause is shown. If the tenant pays the price, the Court should pass an order, directing the conveyance of so much of the land, as fixed by it, by the landlord to the tenant. Simultaneously the Court should also pass an order directing the tenant to put the landlord in possession of the remaining portion of the land, which is not required to be sold.

(d) Once the tenant complies with the conditional order for payment of the price of the land and a direction is issued by the court for the execution of the sale deed under clause (a) of Sub-section (3) of Section 9, the court shall then dismiss the suit under clause (b).

In M. Arasan Chettiar v. S.P. Narasimhalu Naidu''s Estate Trust Vol. 93 1980 L.W. 392, a Division Bench of this Court listed out the various steps to be taken by a Court before it ultimately passes an order u/s 9(3). Paragraph-12 of the said decision is as follows:

From the above conclusion of ours on the interpretations and scope of Section 9, the following consequence will follows:

(1) If a controversy arises whether a particular tenant is entitled to the benefits of the Act or not, in the sense that he is a tenant complying with the definition of the term "tenant" in Section 2(4), that question has necessarily to be considered by the Court, because, an affirmative decision in favour of the tenant alone will enable the Court to proceed further with the application made u/s 9(1)(a) of the Act and a negative decision against the tenant will render any application filed by the tenant, u/s 9 (1)(a) as not maintainable and such an order is not an order u/s 9 and the date of that order has no relevancy to the fixation of the price of the land to be sold by the landlord to the tenant;

(2) When once the Court has decided that the tenant is entitled to the benefits of the Act or there is no controversy that the tenant is entitled to the benefits of the Act, the Court, will have to dispose of the application filed by the tenant u/s 9(1)(a);

(3) For the purpose of disposing of this application, the Court must first decide upon the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. Any such decision of the Court, from the very nature of the case, can only be by means of an order and the date of that order will be the relevant date for the purpose of fixing the price mentioned in the third sentence in Section 9(1)(b). If the decision of the Court on the minimum extent is taken up further by way of appeal or revision and that decision is either affirmed or modified and if there had been a stay of further proceedings during the pendency of such appeal or revision, naturally, the date of the order contemplated in the third sentence in Section 9(1)(b) will be the date of the order of the appellate or revisional Court;

(4) After having determined the minimum extent of the land or if such determination had been the subject matter of further proceedings and those proceedings have concluded, the Court will then proceed to fix the price of the land;

(5) For the purpose of deciding upon the minimum extent of the land or for the purpose of fixing the price of the land, certainly it is open to the Court to appoint a Commissioner to record evidence and submit a report to the Court;

(6) After the price to be paid by the tenant to the landlord for the purchase of the land has been determined, the Court will have to pass an order directing the tenant, within a period to be determined by the Court, not being less than three months and not more than three years from the date of such order, to pay into Court or otherwise as directed by it, the price so fixed in one or more instalments with or without interest;

(7) If the tenant complies with such a direction, then the Court will pass a final order u/s 9(3)(a) of the Act directing the landlord to convey the extent of the land decided to the tenant for the price so fixed and in the same order directing the tenant to put the landlord into possession of the remaining extent of the land, if any;

(8) If, on the other hand, the tenant commits default in the payment of the amount as directed and the Court itself had not excused the delay by giving further opportunity, the application filed by the tenants u/s 9(1)(a) shall stand dismissed; and

(9) If the tenant has fulfilled the directions given by the Court and the Court has passed the order u/s 9(3)(a), then the suit or proceeding shall stand dismissed and any decree or order in ejectment that might have been passed therein but which has not been executed shall be vacated. If, on the other hand, the tenant has committed default and the application filed by him u/s 9(1)(a) stands dismissed u/s 9(2), then the suit or proceedings will proceed or any decree or order in ejectment that may have been passed therein shall stand.

While Section 9 prescribes a detailed procedure for the conduct of an enquiry thereunder, Section 4 prescribes the procedure for disposal of the suit. Section 4 (1) mandates the Court, before passing a decree in ejectment, to declare the amount of compensation payable u/s 3, towards the value of the building put up by the tenant and to direct the landlord to pay the amount so determined within 3 months, after which the tenant should put the landlord in possession of the land with building.

From a decree in ejectment passed u/s 4, the parties have a remedy of filing a regular appeal only u/s 96, CPC. On the other hand, an order passed u/s 9 is appealable u/s 9-A. Thus the remedy of appeal u/s 9-A is statutory and special in nature, since the decision on such appeal is actually declared to be final by Sub-section (1) of Section 9-A. But an appeal against the judgment in the suit u/s 4, being an appeal u/s 96, leaves scope for a second appeal also.

Therefore on a combined reading of Sections 3, 4, 9 and 9-A of the Act, it is clear that the application u/s 9 and the suit cannot be disposed of together. The disposal of the application u/s 9, one way or the other, would not result in an automatic decree of ejectment or dismissal of the suit, since something more is required to be done by the Court while disposing of the suit. If the application u/s 9 is allowed, the further proceedings in the suit will have to await the payment of the price by the tenant and the execution of the sale deed. The suit cannot be automatically dismissed since the order favouring the tenant is coupled with an obligation which, if not performed, may entitle the landlord to a decree in ejectment. Similarly, if the application u/s 9 is dismissed, the suit need not automatically be decreed, since the tenant may be entitled to compensation for the value of the building and the Court is obliged to adjudicate upon such claim, simultaneously with the claim for ejectment. Therefore, the Act does not permit a simultaneous disposal of the application u/s 9 and the suit. Hence, the procedure adopted by the Court below in disposing of both together, is not in accordance with law.

The practice followed by some Courts below disposing of the application u/s 9 and the suit for ejectment, together, was deprecated by M. Srinivasan, J., in Pudukkulam alias Kuttikulam Vahayara Trust, Pattukottai by its Mg. Trustee C. Veerasami Chettiar v. T.Kamalambal 1988 (1) L.W. 187 . The said decision was also followed by P. Sathasivam, J., in V.M. Subramania Mudaliar and Sons and others Vs. Bhavasarakshriya Seva Samaj, and S. Sardar Zackria Hussain, J., in Tmt. Pakkirathammal v. Tmt. Velambal and Ors. 2004 (2) MLJ 209.

Though the procedure adopted by the trial Court in disposing of the application u/s 9 and the suit together, is not in accordance with law, there is nothing that could be done now. The petitioners have not chosen to challenge the decree in the suit, by way of a regular appeal u/s 96 CPC. They only filed a statutory appeal u/s 9-A of the Act, against the order passed in the application u/s 9. The present revision is also only u/s 115 CPC, against the order passed in the appeal u/s 9-A, which does not permit of any interference with the decree passed in the suit, in the absence of a regular appeal. The petitioners have not even pleaded the type of construction that they have put up or the extent of superstructure built by them and hence even the invocation of the extraordinary powers of superintendence, is not warranted in this case.

Coming now to the issue of maintainability of a challenge to the order u/s 9, without a challenge to the decree of ejectment, Mr. R. Shanmugham, learned Counsel for the petitioners contended that the proceedings u/s 9 require independent adjudication and that therefore such adjudication has to take place, irrespective of the result of the suit. In this connection, he relied upon a decision of Chandra Reddy, J., in Vedachala Naicker Vs. P.K. Duraiswami Mudaliar, . But that was a case, where the owner filed a suit in ejectment. When the tenant filed an application u/s 9, the land owner sought to withdraw the suit with liberty to file a fresh suit under Order XXIII, Rule 1, CPC. The suit was allowed to be withdrawn and the tenant was before this Court. It was in that connection that the learned Judge held that irrespective of the application of the land owner to withdraw the suit, the Court ought to have adjudicated the application u/s 9. Therefore the said decision is not on the point now raised.

Mr. B.T. Seshadri, learned Counsel for the respondents submitted that there is no judicial precedent directly on the issue of maintainability now raised. Therefore one has to look for precedents from situations analogous to the one on hand.

One of the situations comparable to the one on hand, to some extent, would arise in a suit filed under Order XXXVII, CPC. Once an application for leave to defend, filed under Order XXXVII, Rule 3 CPC, is dismissed, a decree would almost automatically follow. Therefore, in Ajay Bansal Vs. Anup Mehta and Others, , the Supreme Court had an occasion to consider whether the decree so passed in the suit would automatically go, if the order refusing to grant leave is set aside. In paragraph-14 of its judgment, the Supreme Court held as follows:

Even if this Court were to set aside the order of the Court below and give the defendant leave to defend the suit, the decree that is passed may not go automatically. It may have to be set aside

Again in paragraph-15, it was held as follows:

The theory of "dependant order" may not apply in a case of this nature because even if this Court were to set aside the order refusing leave to defend, the decree subsequently passed may not fall by itself. It has still to be set aside either by resort to Order 37 Rule 4 or by way of an appeal or by some other mode known to law.

Interestingly, the Supreme Court noted in the aforesaid case that under Order XXXVII, Rule 3(6), a Court was entitled to decree the suit as a consequence of the dismissal of the leave to defend application. In paragraph-12 of its judgment, the Supreme Court noted that the decree was almost automatic and that the consequence of passing a decree cannot be avoided. Yet, the Supreme Court held that the theory of "dependant order" cannot be applied even to a decree passed under Order XXXVII. It is an indication to the law on the point that if one order was not dependant on the previous order, a challenge to the former is not maintainable without a challenge to the latter. In other words, an order consequential to another, need not necessarily be dependent on that another order.

Another situation similar to the one on hand, may arise u/s 11 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Section 11(1) of the Act imposes an obligation upon the tenant contesting an application for eviction, to pay all the arrears of rent and also continue to pay the future rent during the pendency of the proceedings. Sub-section (3) of Section 11 empowers the Rent Controller or the Appellate Authority to determine summarily, the rent to be paid, if there is a dispute with regard to the quantum. Sub-section (4) empowers the Rent Controller or the Appellate Authority to stop all further proceedings and to direct the tenant to put the landlord in possession, if he fails to pay or deposit the rent as directed u/s 11(3). While the order u/s 11(3) is an order merely determining the amount payable, the order u/s 11(4), though consequential, is an order of eviction. Before passing the order u/s 11(4), the tenant may even show sufficient cause and pray the Rent Controller not to pass the order of eviction. He may even seek enlargement of time. Therefore one may be consequential to the other but not entirely dependant on the other, in view of the fact that a leverage is granted u/s 11(4) not to pass the order of eviction, if the tenant shows sufficient cause, for not complying with the order u/s 11(3). In view of the same, it may not be possible for a tenant merely to challenge the order u/s 11(3), without challenging the order, if any, passed u/s 11(4). The same analogy may hold good to the case on hand also.

Moreover, from the language employed in Sections 4, 9 and 9-A of the Madras City Tenants Protection Act, it could be deciphered that the decision rendered u/s 4 would be a decree, but the decision rendered u/s 9 would only be an order coming within Section 2(14) CPC and not a decree coming within Section 2(2) of the Code.

In any case, the suit for ejectment is the centre stage on which the play u/s 9 is enacted. Once the curtain is drawn on the stage, the play cannot continue, unless the curtain is once again raised. On the contrary, even if no appeal is filed against the dismissal of an application u/s 9 and the tenant chooses only to file a regular appeal against the judgment and decree of ejectment, he may be entitled to canvass the correctness of the order passed in the application u/s 9 (1), in the regular appeal arising out of the decree for ejectment. In Thailammal and Ors. v. Janardhan Raju and Ors. 1992 (2) L.W. 595, the Supreme Court held as follows:

According to Section 9 of the T.N. City Tenants Protection Act, it is open to a defendant to file an application thereunder in a 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 C.P.C. 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.

In view of the above, I hold that the challenge to the order u/s 9, without a challenge to the decree of ejectment subsequently passed in the suit, is not maintainable. Hence this Civil Revision Petition is dismissed. No costs. Consequently connected miscellaneous petitions are also dismissed.