P. Parthasarathy Chetty vs S. Chitra Pillai and Another

Natesan, J.—This second appeal by the first Defendant is having its third round in this Court and that too on the intangible claim of a sub-

tenant to maintain his possession of a premises in respect of which the owner has obtained an order for eviction against his tenant. The facts and

proceedings in which the subtleties of law and procedure have had their full play may be briefly set out. The Appellant is the owner of a premises in

the City. The second Respondent herein was his tenant, and he initiated against him proceedings for eviction, House Rent Case No. 3036 of 1955,

under the Madras Buildings (Lease and Rent Control) Act, 1949. On 17th January 1956, the owner secured the order for eviction and applied,

u/s 9 of the Madras Buildings (Lease and Rent Control) Act, 1949, to the City Civil Court, Madras, in execution, Execution Petition No. 592 of

1956, for the issue of a warrant for delivery of possession. The present first Respondent obstructed delivery and this led to Execution Application

No. 382 of 1956, by the owner for removal of obstruction. On 16th July 1956, an order was passed directing the removal of the obstruction, the

Court granting time to the present 1st Respondent, who will be hereafter referred to as the obstructor or subtenant according to the context to

vacate the premises by 31st July 1956. Thereupon, the obstructor instituted the suit Original Suit No. 1236 of 1956, alleging that he was a direct

tenant of the owner, that the tenancy was only of the site and not of the building, that he was entitled to the protection and privileges conferred by

the City Tenants Protection Act, that the order for eviction had been obtained collusively and that in the circumstances, the order for eviction was

not binding on him. Appropriate declaration and injunction were prayed for. On 30th January 1957, this suit was dismissed, the trial Court finding

that the obstructor was only a sub-tenant under the tenant and that the order of eviction was not a collusive order. The Court further found that the

City Tenants Protection Act had no application to the premises in question, the lease being of land and superstructure. There was an appeal

therefrom by the sub-tenant, Appeal Suit No. 70 of 1957, City Civil Court, Madras and the appellate Court differed from the Court of first

instance and held that the obstructor was not a sub-tenant and that the proceedings for eviction had been instituted collusively. In the result, it has

found that the eviction order was not binding on the obstructor. The matter was then brought up to this Court by the owner in second appeal, and

this Court set aside the judgment of the lower appellate Court and remanded the matter for fresh disposal. On remand the lower appellate Court

agreed with the findings of the trial Court and confirmed the decree of dismissal of the suit. Against that decree, the sub-tenant came up in second

appeal to this Court. Second Appeal No. 1323 of 1961. This Court, in second appeal, upheld the findings of the trial Court that the obstructor

was not a direct tenant of the owner and that the lease was not of vacant land but of land with superstructure thereon. Observing that the question

depended entirely on appreciation of evidence and that the findings of both the Courts below were findings of fact, this Court refused to interfere in

second appeal.

An attempt was made in second appeal to contend that by the repeal of the Madras Buildings (Lease and Rent Control) Act of 1949 and by

reason of the provisions under the new Act, the Madras Buildings (Lease and Rent Control) Act. 1960, a new situation had arisen, and that the

owner could not in the circumstances avail himself of the eviction order obtained under the old Act. It was contended that for the sub-tenant to be

bound by an order for eviction under the Madras Buildings (Lease and Rent Control) Act, he must, under the new Act, be made a party to the

proceedings. The obstructor was, however, not permitted to raise this new ground. It was pointed out that the plea that was taken by the

obstructor, that he was a tenant entitled to certain benefits under the 1960 Act, was in direct contravention of the stand taken by him in the

execution proceedings and in the suit which had been taken up to second appeal. The second appeal was dismissed with costs on the 9th of April

1964. On the 14th of April 1964, the suit, out of which the present second appeal arises, was instituted by the obstructor as Plaintiff, impleading

therein the owner as the first Defendant and the erstwhile immediate tenant as the second Defendant. The plaint sets out the original order of

eviction, the subsequent proceedings and the dismissal of the second appeal-It refers to the fact that the owner was applying for the removal of

obstruction and delivery in terms of the order he had secured. The plaint purports to rely on the dismissal of the second appeal on 9th April 1904,

as giving a fresh cause of action. It is submitted in the plaint that by reason of the finding of sub-tenancy in the second appeal, read with Sections

26 and 35 of the Madras Buildings (Lease and Rent Control) Act 1960, the original order passed in House Bent Case No. 3036 of 1935 became

inexceutable against the obstructor, that is, the sub-tenant. There is no specific prayer for a declaration that the order passed by the executing

Court directing the removal of obstruction is bad. However, a declaration is prayed for that the order, dated 17th January 1956, in House Rent

Case No. 3036 of 1955, was inexecutable against the sub-tenant, the Plaintiff in the suit, in view of the findings in second appeal No. 1323 of

1961. Injunction was claimed restraining proceedings for eviction.

The learned City Civil Judge, in the Court of first instance, rejected the pleas put forward observing that the non-impleading of a sub-tenant

would not exculpate him from the effect of the valid eviction order against the principal tenant or confer immunity in a petition for removal of

obstruction filed under the Code of Civil Procedure. It was further observed that the petition for removal of obstruction, Execution Application No.

38:2 of 1956, had been allowed on 31st July 1956 and the Original Suit No. 1236 of 1956, which included a prayer for a declaration against that

order, had been dismissed finally and the dismissal was confirmed in second appeal. The present suit which did not even contain a prayer relating

to the order for removal of obstruction and filed beyond one year from the date of the order, cannot efface or ignore the effect of the

conclusiveness of the order for removal of obstruction under Order XXI, Rule 103 Code of Civil Procedure. In the result, the suit was dismissed.

But the obstructor, sub-tenant, has succeeded in the appeal therefrom and it is this, that has led to the present second appeal. The learned

Additional Judge, City Civil Court, Madras, while noticing that the obstructor is a sub-tenant under the second Defendant against whom an order

for eviction had been passed, overrules the plea of limitation on the ground that it is without substance. The following observations of the judgment

show the approach:

The suit is to establish the Plaintiff''s title as a sub-tenant. It is in that view that he has prayed for the declaration that the eviction order obtained by

the first Defendant against the second Defendant is not binding on him. It cannot however be denied that the effect of granting that declaration

would amount to upholding the objection which the Plaintiff put forward in execution taken out by the first Defendant against the second

Defendant. But that cannot be helped, for, the scope of the present suit is entirely different from the scope of the suit which the Plaintiff filed to set

aside the summary order. The suit to set aside the summary order was based on the title of the Plaintiff to present possession as a direct tenant

under the first Defendant. But the basis of the present suit is that the Plaintiff is entitled to present possession as a sub-tenant. Both these being

different, I do not think that there is any substance in the plea or limitation.

I am unable to follow this reasoning. No doubt, the Plaintiff in a suit under Order XXI, Rule 103 institutes the suit to establish the right which he

claims to the present possession of the property. The claim to evict the obstructor, which was put forward by the owner, was on the ground that he

was only a sub-tenant. This the sub-tenant resisted claiming certain superior rights in the property. When it was found in the summary proceedings

that he was only a sub-tenant and eviction ordered, he filed a suit to have the summary order set aside. The basis of the order being the sub-

tenancy of the obstructor, I fail to see how the effect of the order can be got over by contending that previously the obstructor did not admit his

sub-tenancy, but had been persisting in his claim to independent rights and that now only he is coming forward admitting his sub-tenancy. If the

subtenancy is admitted the validity of the order is beyond question. When in second appeal, the order of the trial Court holding that the obstructor

was a subtenant was confirmed, the Court was not making out for the first time a relationship which did not previously exist. The effect of the

findings in the previous proceedings is that the obstructor had been a subtenant from the beginning of his tenancy. The judgment in the second

appeal, confirming the findings of the Courts below affirming the view taken in the summary proceedings, cannot give rise to a fresh cause of action

for resuscitating the proceedings; it does not confer any fresh title to the obstructor for him to start on a third round of litigation on it. The question

in the prior proceedings which got a finality by the dismissal of the second appeal, was whether the obstructor was a sub-tenant. The owner''s right

to evict the obstructor was based on the sub-tenancy only and if the finality of that order is not otherwise affected, say by reason of the repeal of

the old Rent Control Act and the fresh enactment in 1960, the order has to stand. If the order directing the removal of any obstruction by the sub-

tenant is not otherwise a nullity it cannot ignored: its effect could be got round only in the way pointed out by law and the obstructor has tried the

remedy and failed. The learned Additional Judge himself notices that any declaration granted to the Plaintiff in the present suit would amount to

upholding the obstruction which the Plaintiff had put forward in the execution proceedings but feels helpless in the face of the averments in the new

plaint. But does it answer the existence of an order of the civil Court overruling the claim of the obstructor to possession by a judicial order which

had obtained a finality? By simply bypassing the order the sub-tenant cannot get over the order. The order if not superseded otherwise has to be

set aside by a suit filed within one year. Assuming that the basis of the present claim is different, as the object even now is to maintain only the

present possession, the very effort in the prior suit, both the letter and the spirit of the CPC and the Limitation Act would require that this suit must

be looked upon as a second suit to get over the same order for removal of obstruction. It is the substance of the plea that counts not the form in

which it is presented, or the language in which it is couched. Rights of parties cannot be concluded that way nor liabilities evaded. Unless it is

established that the order for removal of obstruction has been superseded by the new Act, as contended for the obstructor, the suit would be

clearly barred by limitation besides res judicata.

In a suit instituted under Order XXI, Rule 103 of the CPC by a person in possession who is sought to be dispossessed the questions that are

tried are questions of title to the present possession. The claim to the same relief cannot be tried once over again between the same parties, just

because in the latter suit the title on which relief is claimed purports to be different from the one the Plaintiff had put forward earlier. The opposite

party had resisted the Plaintiff''s claim on the very title of sub-tenancy now conceded, and succeeded in non-suiting ...the Plaintiff on the very title.

There is no plea of any subsequent change in the jural relationship, or acquisition of any independent and paramount title since the owner obtained

his order of eviction for founding the second suit.

The crucial point for consideration is whether by reason of the repeal of the Rent Control Act of 1949 under'' which the order in question was

passed and the enactment of 1960, the Plaintiff had acquired new rights which he could set up against any fresh proceedings for his dispossession

in execution. The appellate Court is of the view that under the new Act, an order for eviction will not be binding on a sub-tenant unless he had been

made a party even in the proceedings before the Rent Controller between the landlord and the chief tenant. In that view, relying on Section 35 of

the new Act, the learned Additional Judge would hold that the sub-tenant not having been impleaded as a party to the eviction proceedings as

required u/s 26 of the new Act he is not bound by the order. Thus holding against the owner the suit has been decreed and an unqualified

declaration and injunction granted to the Plaintiff.

Here again, 1 find there is a misunderstanding of the Relevant provisions in the Rent Control Act relating to a sub-tenant. It must first be noticed

that the sub-tenant as such has not been given any protection under the Act. ''We are not concerned here with the relationship between the tenant

and the sub-tenant. The embargo against eviction is only in favour'' of tenants. Section 10 of the new Act, which corresponds to Section 7 of the

old Act, starts with the prohibition.

A tenant shall not be evicted whether in execution of a decree or otherwise, except in accordance with the provisions of this section or Sections 14

to 16.

It is clear that no protection is given to a sub tenant from being evicted. Any rights ho can claim to continue in possession must, therefore, be

looked for under the common law. In the 1949 Rent Control Act, Section 12-C specifically provided that any order for the eviction of the tenant

passed under the Act shall be binding on all sub-tenants under such tenant, whether they were parties to the proceedings or not. provided that such

order was not obtained by fraud or collusion. Under the present Act of 1960, which repeals the 1949 Act, the related provision, Section 26 is

different and runs thus:

Any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants who were made parties in the application for

eviction but any person who became a sub-tenant after the date of the application for eviction shall be bound by the order of eviction and be

evicted as if he were a party to the proceedings, provided that such order was not obtained by fraud of collusion.

Strong reliance is placed on this provision by learned ""Counsel for the obstructor. He would have this read with section 35 of the new Act

which contains inter alia the following saving clauses:

Notwithstanding the repeal of the said Act (Act XXV of 1949) ...all ...orders passed or deemed to have been passed, decisions made or deemed

to have been made, proceedings or action taken or deemed to have been taken, and things done or deemed to have been. done under any

provision of the said Act, shall be deemed to have been made, issued, passed, taken or done by the appropriate authority under the corresponding

provision of this Act and shall have effect accordingly.

By Clause (b) it is provided:

Any liability or penalty incurred or deemed to have been incurred ...any application made or deemed to have been made ...under any provision of

the said Act shall be deemed to have been incurred ...made or commenced under the corresponding provision of this Act.

The argument is that, under the new Act, the sub-tenant must be made a party to the eviction proceedings. Section 26 states it shall he binding

on the sub-tenant if made a party. 11 is argued that by implication the order would not be binding on the sub tenant if he is not made a party; and

that it followed that as the order of eviction now in question must u/s 35 be deemed to be one under the new Act and as admittedly the sub-tenant

was not a party to the proceedings before the Rent Controller the order ceased to be binding on the sub-tenant, on the new Act coming into force.

This argument in my opinion proceeds on a fallacy. Section 26 does not say that ii a sub-tenant is not impleaded it shall not be binding on him.

No doubt under the old Act, the provision was only that an order passed against a tenant was binding on the sub-tenant in the absence of any

fraud or'' collusion and there is a substantial variation in the new section. The object of the particular provision in the old Act and the effect of the

variation by the new Act can be appreciated only it the general law in regard to the matter and the processual law relating to execution of the order

in question is understood. u/s 9 of the old Act, the order for eviction u/s 7 off Section 8 and orders on appeal or revision therefrom have to be

executed in the civil Courts indicated and they shall be executed as if it were a decree passed by that Court. The corresponding provision under

the present Act is Section 18 and there is no material change therein from the old provision. Under both the Acts, there is a provision taking away

appeals from orders passed in execution. Obviously this would refer'' to orders appealable u/s 47, Code of Civil Procedure. It is settled law that a

decree in ejectment passed against a tenant at the instance of a landlord is not only binding upon the tenant, but also upon his sub-tenants, provided

they have no right, independent of the right of their tenant in the demised premises. Under Order XXI Rule 35, Code of Civil Procedure, where a

decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it baa been adjudged, if necessary

by removing any person bound by the decree who refused to vacate the property. Therefore, the landlord who has obtained an order for eviction

will be entitled under this provision to have the premises delivered to him, if necessary removing any sub-tenant in possession as he would be

bound by the order for eviction. If the eviction order had been obtained collusively or by fraud, it is an established principle of jurisprudence that it

is void as against every person who is not a party to the decree or order. Section 12-C of the Act of 1949, only declared these principles to avoid

the contention that these principles of law may not apply to proceedings in execution under the Rent Control Act. But a subtenant not a party to the

proceeding against whom possession is sought under Order XXI Rule 35 of the CPC may set up independent rights to continue in possession of

the demised premises. He may, for instance, set up his own title or he may plead a direct tenancy as in the present case, apart from contending that

the eviction order had been obtained fraudulently and in collusion. In such of circumstances, the provisions or Order XXI, Rule 97 have to be

availed of by the decree-holder and thereunder'' if the Court is satisfied that the objection was wanton and made without just cause, the obstruction

could be directed to be removed and the decree-holder placed in possession dispossessing the sub-tenant. If the Court finds that the obstruction

was from a person claiming in good faith to be in possession of the property on his own account, the application of the decree-holder would get

dismissed. In the former case, the obstructor would have to make out his claim to possession in a suit instituted by him and in the latter case, the

obstructor''s possession could be maintained pending determination of his title. These provisions of Order XXI, namely, rules 35 and 98 to 103

while securing to the decree-holder possession of the property in execution against persons bound by the decree, ensure the continuance in

possession of a stranger to the decree who in good faith puts forward a claim to continue in possession on his own account or on account of some

person other than the judgment-debtor pending the determination of the title to possession in a suit to be instituted under'' Order XXI Rule 103 of

the Code of Civil Procedure. The scope of Section 26 of the new Act must be understood in this context. The Rent Control Act purports to

regulate in a cheap and expeditious way the relationship between landlord and tenant in respect of building. Statutorily providing for the impleading

of subtenants even before the passing of the eviction order, the possibility of further prolonged proceedings and a long drawn out suit under Order

XXI, Rules 97 to 103 are obviated. While as a general proposition a subtenant''s interest ceases with that of the tenant and he could claim to

tangible right to the property, there may be cases as indicated above where 11 may be possible for him to question the determination of the head

leas. It must be noted that where the tenancy is for a specific period agreed upon between the landlord and the tenant the landlord will not be

untitled to apply u/s Sub-section (3) of the Rent Control Act of 1960, for possession of the building before the expiry of the period. if there is

lawful subletting in such a ease with the written consent of the landlord, it may be that the tenant cannot in collision with the landlord determine his

own tenancy and thereby seek to put an end to the sub-tenancy. It may be that in such circumstances the sub-tenant may be entitled to continue in

possession till the determination of the agreed period .In Great Eastern Railway Co. Smith. (1876) 2 Ch. MD. 235 e(sic)h L.J., observed:

It is a rule of law that, if there is a lease, and he has created an under-lease, or any other legal interest if the lease is forfeited, then the under-lessee,

or the person who claims under the lessee, loses his estate as well as the lessee himself; but if the lessee surrenders he cannot, by his own voluntary

act in surrendering, prejudice the estate of the under-lessee or the person who claims under him.

Section 26 only facilitates enquiries in such circumstances at the time of passing the order for eviction itself. ""While it seeks to ensure that the

sub-tenants are not evicted straightaway in execution by snap orders of eviction obtained behind their backs when they may in fact have a present

right to continue in possession, it saves the landlord from further prolonged litigation at the stage of execution. But this enabling provision in the

absence of specific language cannot be construed to affect the well-established principle that a sub-tenant is bound by the order for'' possession

against the tenant. The Act does not say that a subtenant is a necessary party to a proceeding for eviction. I am unable to read in the provision

more than what is found therein. It will be an intolerable position if the landlord is bound to implead each and every sub-tenant with whom he has

no privity of contract and about -whom he may know little in a case where he is lawfully entitled to vacant possession as against his tenant. There

may be scores of them in a particular building the landlord would only be incurring the risk of obstruction proceedings, by not impleading them. In

Yusuf v. Jyotishchandra Banerji ILR (1931) Cal. 739 the learned Judges discussing the position of a sub-tenant visa-vie the head landlord hold

that when the landlord obtains a decree in ejectment on forfeiture on determination of the lease by notice against his tenant, the latter''s sub-tenants,

licensees or servants in actual possession of the premises are persons bound by the decree within the meaning of Rule 35 of Order XXI of the

Code of Civil Procedure. In Jafferji Ibrahimji v. Miyadin Mangal ILR (1921) 40 Bom. 686 on an application under Order XXI, Rule 97 of the

CPC in execution of a decree in ejectment against a tenant where the obstructor relied upon the old Bombay Rent Act, it is observed at page 528:

No doubt a Plaintiff suing for possession may find it advantageous to join all the persons in possession of the suit premises, to avoid difficulties

which may otherwise arise when he attempts to execute his decree, but there is nothing in the Bombay Rent Act which gives persons in possession

through the tenants a better right to obstruct the execution of the decree than they had apart from the Act.

The present obstructor is in no better position than the obstructors in that case. It is needless to carry the discussion further as there has been a

full consideration of the question, if I may say so with respect, by my learned brother Ramamurthi J., in Ramachandra Chetty v. Mothahyandan

Chettrar (1965) 2 M.L.J. 265. That was also a case under the earlier Rent Control Act XXV of 1949 and the question for consideration was

whether on the repeal of the Act, the order for eviction could be executed against a sub-tenant who had not been impleaded in the proceedings

before the Rent Controller as a party Respondent as provided in the 1960 Act. The learned Judge observes at page 267:

If before Act XVIII of 1960 an order has become an enforceable and executable order, by reason of the particular provision in Section 9 read

with Section 7-A (4) of the old Act, it cannot cease to be an executable or enforceable order by reason of Section 35 of the Act; such an

interpretation would result in this absurd consequence, that an order for eviction obtained by the landlord under the old Act of 1949 will become

absolutely useless and the landlord will be obliged to commence fresh proceedings. I have no doubt whatsoever that the Legislature never intended

that Section 35 should have such an effect.... In my opinion Section 26 must receive a limited application read with Section 35 (2)(a) only where

the scheme of the enactment can be carried out. In other words Section 26 read with Section 35 would apply only in so far as they are applicable

to a particular situation. But if it would involve a fresh trial reopening the entire matter Section 26 cannot possibly have application to such a

situation. Even otherwise I am not inclined to agree with the learned Counsel for the Petitioner that if the sub-tenant is not impleaded u/s 26, the

order for eviction cannot be, executed against the sub-tenant. It is settled law that if a decree for eviction is passed against the main tenant, the

order of eviction can be straightaway enforced and executed as against the sub-tenant. I do not think that by enacting Section 26 it was the

intention of the Legislature to make deliberate departure from this settled and accepted position in law.

In the present case the matter has gone beyond the stage of the landlord securing for himself an executable order. He has put the order into

execution under the earlier Act itself u/s 9 of the Act in the civil Court for delivery of possession in execution. The civil Court had become seized of

the matter as if it were a decree passed by that Court. Once the matt or had gone to the City Civil Court to be dealt with as a decree of that Court,

its further course has to be governed by the provisions of the Code, unless there is a modification of the procedure by the express provisions of the

Rent Act. There is no such modification and orders passed in proceedings in execution would, therefore, be binding upon the parties thereto, the

finality being governed by the provisions of the Code. As pointed out by the division Bench of this Court in Narayanaswami v. Renuka Devi ILR

(1960) Mad. 512 at page 516:

On an application for execution of an order of eviction passed by the Controller, being presented to the concerned District Munsif (in the present-

case the City Civil Court), he has to execute the order as if it were a decree for possession passed by him.

Learned Counsel for the sub-tenant has not placed before me any authority for the position that by the repeal of Madras Act XXV of 1949,

the orders passed in execution by the City Civil Court have become nullities. The observations in Natesa v. Dhanapal Bus Service ILR (1964) 1

Mad. 288 relied on have no application in the interpretation of the statutory provisions now under consideration. As shown earlier even the order

of eviction in House Rent Case No. 3036 of 1955, continues to be a perfectly valid order which binds the sub-tenant and could, therefore, be

executed against him.

In the result, the Plaintiff''s prayers for a declaration that the order for eviction passed in House Rent Case No. 3036 of 1955, is inexecutable

as against him and for a consequential injunction fail. The judgment and decree of the Court of first instance dismissing the suit has, therefore, to

stand. The Second Appeal is accordingly allowed. The decree and judgment of the trial Court are restored and the judgment and decree in appeal

set aside. The order as to costs made by the trial Court will stand. The Appellant will be entitled to his costs in the second appeal. The parties will

bear their respective costs in the lower appellate Court. The Plaintiff will have time till 31st October, 1966, to vacate and surrender vacant

possession.