P. Chinnakannu Pillai vs Gomathi Ammal and Another

Subramania Iyer, J.—This is before me a second time, my order dated 1-10-1951, having been reversed by a Division Bench in A. S. Nos. 937 and 1016 of 1951 preferred by Respondents 1 and 2 respectively and the case remanded to me for disposal afresh. Respondent 1 is an assignee from the owner with direction to redeem the property from a mortgagee who had leased it to the Petitioner. On the supposition that the release of the mortgage directed Respondent 1 to pay Rs. 800/- as value of improvements to the lessee, he, Respondent 1admitted before the Controller in his deposition and the Petitioner here averred that liability in his affidavit which was not controverted in the counter. It was thus before me a case of admitted liability to pay value of improvements and I dealt with the case on that basis. The lease and release deeds were produced and accepted as evidence in appeal which revealed that the admission had no foundation - which was therefore regarded as not made. Hence the reversal and remand.

Sub-joined is the order of remand which does not record any decision but points out the matters for consideration.

These two appeals arise from an order of Subramania Iyer, J. under Article 226 of the Constitution of India quashing a rent control order for eviction which the Appellate Authority and the Government had confirmed. Peeling aggrieved by the order the landlord has preferred A. S. No. 937. The State which was counter-Petitioner 2 to the application before the learned Judge has filed A. S. No. 1016. The learned Judge made the State also liable for costs and that is the main reason for the State''s appeal. For reasons which we shall presently state we feel constrained to set aside the order and direct the learned Judge to re-hear the matter and dispose of the same afresh.

The main ground on which the learned Judge founded his order has now turned out to have no real foundation on the facts of the case. The order proceeds on the assumption that the release the landlord, who purchased the equity of redemption from the previous owner, obtained from the mortgagee, reserves for payment to the tenant Rs. 800/- towards value of improvements. Such an averment is no doubt seen made in the affidavit the tenant filed in support of his petition and the same is not traversed in the counter-affidavit filed on behalf, of the landlord. We have, however, the release- deed itself produced before us and that clearly shows all that was reserved with the landlord for payment to the tenant is an amount of Rs. 200/- representing the premium amount. Because the learned Judge thought that there was was an admission of the liability to pay value of improvements he held that this was a case where the Rent Controller had no jurisdiction to order eviction. We do not know what the learned Judge''s order would have been had this unfortunate error not crept into his mind. The responsibility for the error has to be laid mainly on the shoulders of the landlord. In fairness to all concerned we are inclined to think that instead of proceeding to decide the question ourselves the matter should be remanded for rehearing and disposal.

We do not understand the learned Judge as meaning to say that the moment the tenant claims before the Rent Controller that he is entitled to value of improvements the Rent Controller''s jurisdiction will be ousted. If that were so the Rent Control Order would become almost nugatory. In a case where under law or contract the tenant has ho right to claim value "f improvements the tenant were to set up a claim in that behalf, to say that the Rent Controller should at once wash his hands off the matter will be to create an impossible position. While that is the question which has really to be tackled in this case, on the assumption the learned Judge proceeded to pass the order he had not to pronounce upon the matter at all. Without a decision whether the tenant in this case is entitled to value of improvements or not it is not possible to decide the question of the jurisdiction of the Rent Controller one way or the other. As that question now remains an open one a re-hearing by the learned Judge has become necessary.

Further the learned Judge, and even in the appeal the parties too, omitted to notice that at an earlier stage the Rent Controller has said:

The counter-Petitioner''s contention that he has spent a sum of Rs. 2000/- for improving the building is not substantiated by any evidence, and no written consent of the owner for that purpose has been produced. (Vide paragraph 9 of the original order of the Rent Controller dated 28-11-1124.)

Though the appellate, authority directed a reenquiry, in revision Government had restricted the scope of the further enquiry to two questions, namely, (1) whether there was default payment, of Tent on the date of the application and (2) whether the allegation that the building is necessary for the landlord''s own use is true? Naturally the Rent Controller confined the further enquiry to these questions and we do not find the tenant seeking to challenge the original finding of the Rent Controller which must be deemed to have become final by the first Government order in revision. Even in the proceeding in this Court there has been no attempt to impugn that finding. As such it is a point words (sic) considering whether the ground on which learned Judge has found his order is at available to the tenant now.

When the landlord approached the Civil Court the tenant contended that the Rent Controller alone had jurisdiction and when the. Rent Controller was moved and an adverse order was passed against him, the tenant started con-, tending that the Civil Court alone had jurisdiction. The learned Judge''s order would seem to leave the landlord in a sad plight. The Rent Controller''s order for eviction has been quashed'' and under the Rent Control Order the tenant- shall not be evicted even in execution of a decree except in accordance with the provisions of Cl. 9 of the said order.

In the circumstances it appears to us to be worth considering whether the Rent Control provisions could not be worked out so as to complement the ordinary law of the land as was attempted in - 39 Cochin 94 (A)'', or as indicated in - ''1947 KERLR 813 (B).

Lastly, the order under appeal does not show that the decision in - Rai Brij Raj Krishna and Another Vs. S.K. Shaw and Brothers, was cited, before the learned Judge or that he had the benefit on considering the same before preparing his order. The decision in - ''Krishnamurthy v. Parthasarathy'' AIR 1949 Mad 780 (D) would also seem to be on the same lines as the Supreme Court case now mentioned.

On the whole we think the proper order to be passed in these appeals is to allow them, set aside the Judge''s order and direct him to rehear and dispose of the matter afresh. Respondent 2 in A. S. 1016 will pay the State, the Appellant therein, their costs of the appeal. No further order as to costs is made in these appeals.

Order accordingly.

Though the appeal has deprived the order appealed against of its factual basis in so far as the value of improvements is" concerned it has supplied Anr. basis similar to the one that was dislodged and sufficient to serve the same purposes and lead to the same consequence.

Ground No. 3 in the Memorandum of Appeal (A. S. 937) filed by Respondent 1 is as follows:

The learned Judge has misread and misunderstood the deposition of the husband of the Appellant. He has not admitted that any amount is due to Respondent 1 as value of improvements. A sum of Rs. 800/- has not been recited to be paid to Respondent 1 in the release deed taken by the Appellant from the mortgagee. A sum of Rs. 200/- which had been received from Respondent 1 by the mortgagee as premium has been directed to be paid back to Respondent 1 on eviction. The Appellant begs to produce the copies of the rent deed and release deed in appeal. The question and the answer recorded in the deposition of the witness refer to this recital and the entry in the deposition as Rs. 800/-. is a mistake for Rs. 200/-.

Copies of the rent deed and release deed mentioned herein constitute fresh evidence admitted and marked as Exs. I and II in appeal. The release deed declares-and creates a charge on the property for the amount of Rs. 200/- paid as advance by the tenant which was reserved with the mortgagee for payment to the tenant and discharge of the said obligation. The Petitioner is in law entitled to take advantage of this arrangement through he was not a party thereto, as a charge is created for the amount due to him, the liability to-pay which is admitted as aforesaid and is unquestionable.

A person lawfully in possession of immovable property and who is entitled to get a sum of money charged thereon from the person seeking possession thereof is entitled and should be permitted, to withhold such possession until the amount due is paid. A tenant, to whom an advance given as security is repayable can retain possession till payment. In this case the release deed creates la charge by way of trust for the benefit of the tenant whose possession cannot be disturbed before payment. The result is that the Petitioner is in the same situation now as regards this amount of Rs. 200/- as he through to be in my previous order, as both the rights, namely, to receive money and retain possession until such receipt, which I held he had, as a person entitled to compensation for improvements, he now has though the amount is smaller and the count of claim is different.

If the Rent Controller had no jurisdiction to direct eviction of a tenant to whom is owing value of improvements admittedly and beyond question, before payment and unconditionally as I held he had not, his position is not different when a tenant from whom possession is sought is entitled to retain possession until payment of an amount though not due for value of improvements. The real ratio of my decision was that the order that the Rent Controller can pass is an unconditional order. No conditional order by him is contemplated by the statute and if the substantive law imposes a disability upon the landlord to claiming possession unconditionally he cannot free himself therefrom and I enlarge his rights and deny the corresponding, rights of the tenant by recourse to the Rent Control Order and the proceedings for eviction, provided for therein. In my view, therefore, all the considerations contained in my prior order to sustain the conclusion reached alike apply to the new situation, that arose in and after the appeal and what has to be done by me is only to repronounce my original order substituting the admitted right of the Petitioner to receive the advance of Rs. 200/- for the claim to Rs. 800/- by way of value of improvements with the consequential light of retention of possession till payment.

In para. 3 of the order of remand the question that has really to be tackled in this case is stated to be whether in a case where under law or contract the tenant has no right to claim value of improvements, the tenant were to set up a claim in that behalf to say that the Rent Controller should at once wash his hands off the matter will or not be to create an impossible position. The question can have but one answer. If the tenant has no right to claim value of improvements under law or contract he could never have a right to set up such a claim and the setting up of a claim obviously or admittedly false, and/or unsustainable can certainly not oust the jurisdiction of the Rent Controller. The question can arise only if there is a doubt or dispute as to the existence of improvements or the right to claim value therefor. Such a question is not suggested in the order of remand as arising for consideration. It is a vexed question which does not arise on the its and does not fall to be decided in this case.

The decision of the High Court of Cochin and that of the High Court of Travancore referred to in the order of remand are in accordance with my prior order except in one particular. The Travancore case decides that the Rent Control Order does not oust the Jurisdiction of the civil Court. I thought so too. The Cochin case is authority for the following positions: 1. The Rent Controller would be acting without jurisdiction should he adjudicate upon the truth, admissibility or otherwise of a claim by the tenant for value of improvements. 2. No tenant can be evicted without payment of the value; of improvements effected by him or by his predecessor-in-interest. 3. There is nothing in the House Bent Control Order abrogating that right; and the legislature never intended to deprive the tenant of such a valuable right by implication. 4. It would be a dangerous doctrine to lay down that the landlord can under cover of an order passed by the Rent Controller for eviction obtain possession of the holding without payment to the tenant of the value of improvements effected by him.

The view expressed in the case is that though the Rent Controller can pass an order for eviction even in a case where a claim for value of improvements arises, without adjudicating upon that claim, the tenant is entitled to agitate it when possession is sought to be taken from him in execution before a civil Court. The only difference between my view expressed in my previous order and the view taken in the Cochin case is that, whereas in my judgment the order of the Rent Controller should be capable of being immediately implemented and therefore in a case where there is a real claim for value of improvements the adjudication of which is beyond the competence of the Rent Controller an application for eviction would be beyond his jurisdiction to consider, the Cochin decision concedes jurisdiction to the Controller to pass an order for eviction reserving that claim for adjudication by the civil Court in execution though the view that the question of improvements must be gone into by the executing Court would necessarily involve considerable delay for the landlord to get his tenant evicted in cases where the House Rent Control Order has application.

The Rent Control Order is a piece of emergency legislation and expedition is its essence. Cases to which the Rent Control Order applies should, therefore, be such as admit of being dealt with and final results achieved without delay and by the tribunal specially constituted for the purpose according to the true intent of the legislature. A case which does not admit of that kind of treatment has, therefore, to be regarded as falling outside the ambit of the enactment as otherwise we have to say that though the statute applies to the landlord he will not have the advantage of the application on its provisions. With great respect, for the aforesaid and the other reasons given in my prior order I am unable to accept the solution suggested in the Cochin case to reconcile the substantive law of landlord and tenant and the procedure under the Rent Control Order.

The point raised in para. 4 of the order of remand as to whether the question of value of improvements has not become final against the tenant on account of the adverse decision reached by the Rent Controller which had not been appealed against and which is not reserved for consideration, in the order of remand passed by the Government must be answered in the negative. The Rent Controller had no jurisdiction to decide it and anything done by him outside his jurisdiction would be void and of no-effect. It could not assume effect afterwards by its not being subjected to an appeal. If an order is ''ultra vires'' it is ''non est'' and a non-existent order need not be made the subject of appeal and no consequence ensues if it has not been appealed against, though it is open to a party aggrieved by an order passed on usurpation of Jurisdiction to get it vacated by an appeal should that remedy be open if the jurisdiction exercised be assumed to exist. Such an order has to be disregarded whenever and -wherever it is set up as a thing with life.

The decision of the Supreme Court in - ''AIR 1951 SO 115 (C)'', mentioned in para. 7 of the order of remand was not referred to in the order appealed against as it is obviously inapplicable. The Bihar Buildings, Lease, Eviction and Control Order under which that decision was rendered is essentially and materially different from the enactment under consideration here. Section 11 of the Bihar Act extracted by their Lordships starts by providing "Notwithstanding anything contained in any agreement or law to the contrary" and this expression is relied upon by their Lordships in para. 5 of their judgment to say that "Section 11 is a self contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not and under what conditions he can be evicted."

The endeavour made by the tenant in that case was to import the provisions of Section III, T. P. Act which grants a concession to a tenant in the matter of forfeiture of a tenancy occasioned by default in payment of rent by directing condonation, on deposit in Court of the rent overdue within a time specified. Eviction sought in the case under the Bihar Rent Control Order was on foot of arrears of rent. That by itself was a ground thereunder enabling the landlord to get an order for eviction. The argument invoking the aid of the aforesaid provision of the Transfer of Property Act on behalf of the tenant which was upheld by the High Court was repelled by their Lordships of the Supreme Court thus:

It seems to us that the view taken by the High Court is not correct. Section 11 begins with the words "Notwithstanding anything contained in any agreement or law to the contrary and hence any attempt to import the provisions relating to the law of Transfer of Property Act for the interpretation of the section would seem to be out of place.

The corresponding section in the Travancore Cochin House Rent Control Order does not contain the ''non abstante'' clause. The statement in their Lordships'' judgment that:

The Act sets up a complete machinery for the investigation of these matters upon which the jurisdiction of the controller to order eviction of a tenant depends and it expressly makes his order final and subject only to the decision of the Commissioner.

applies to cases within the Controller''s jurisdiction but their Lordships do not define the scope of that jurisdiction.

''AIR 1949 Mad 780 (D), mentioned in the order of remand is also equally inapplicable. There the question that arose was whether a notice to quit, to terminate the tenancy before taking action under the Rent Control Order was necessary. The learned Judges said: No. They held that a plea of the subsistence of the tenancy and the unsustainability of the application for eviction under the Rent Control Order without terminating the tenancy by the requisite notice could be raised before the Rent Controller as in their view he had jurisdiction to decide that question. If he does decide it in his order whether rightly or wrongly the decision being one in regard to a matter within his jurisdiction it is beyond the competence of a civil Court to interfere. The case, was one in- which the civil Court was invoked to set aside the order, of the Rent Controller as ''ultra vires'' and in the view taken by the learned Judges that the question notice was one within the jurisdiction of the Controller they held that the party aggrieved should, pursue the remedy provided by the Rent Control Order by way of an appeal to the Small Causes. Court and was not entitled to have recourse to'' the civil Court for redress independently of and apart from the Rent Control Order.

After remand the Petitioner applied for amendment of his application by introducing a new ground to quash the proceedings before the Rent Control authorities in that he had questioned the; landlord''s title in his objection before the Controller and that the question of want of title having been raised, the Rent Controller was first to start an enquiry as to the bona fides of the plea and can, continue the proceedings only if he finds that the claim is mala fide. If on the other hand he finds the claim to be bona fide then the Rent Controller should stay his hands leaving the matter to the civil Court for adjudication. The amendment was opposed by the Respondent.

In my first order I indicated this point in para. 12 and this move by the applicant is perhaps taking a cue therefrom. But whatever that may be, the entire proceedings before the Rent Control Authorities are before this Court for considering the validity of the order in which they culminated. In my previous order I reserved the question whether the Court can or need have regard to the point of jurisdiction if it emerges from the records though not raised by the parties. It is not necessary for me to decide the question finally even now, though I must record my inclination in favour of the Court considering it, in view of the application for amendment made by the Petitioner which I consider should be allowed. The application, therefore, as amended contains a ground that the Rent Controller has no jurisdiction to pass an order for eviction without first considering the question of title of the landlord which was denied by the tenant.

Clause 1 of Section 9, Travancore-Cochin Building Lease and Rent Control Order, 1950, enacts that:

A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this clause:

Provided that nothing contained in this clause shall apply to a tenant whose landlord is Government:

provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this clause notwithstanding, that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.

The Controller could, therefore, first start an enquiry as to the bona fides of this plea and it is only if it is found to be mala fide that he can pass an order for eviction. If the claim is found to be bona fide the Controller should stop his enquiry leaving the party to seek relief in the civil Court. The controller not having considered this plea of denial of the landlord''s title raised by the tenant, his order for eviction cannot be supported as in one view he may not have jurisdiction to pass an order at all. The Order for eviction passed in the proceedings is therefore ultra vires and all the proceedings terminating in the order of Government for evicting the tenant Petitioner from possession are quashed.

Under the peculiar circumstances'' of this case, I direct the parties to pay themselves their respective costs.

I take this opportunity of adverting to Clause (1) of S. 9, Travancore-Cochin Building Lease and ''Bent Control Order which reads:

shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this clause.

That clause contains only two provisos. There are 5 more causes to that section, with Sub-clauses to some of them. It appears to me that the last word ''clause'' in Clause (1) is a mistake for section. This defect does not affect the decision of this case. Attention of those concerned is invited to this for such rectification as may be necessary as the defect may have effects and repurcussions though the error may be accidental.