Perumal and Another vs Talath and Others

S.M. Abdul Wahab, J.—C.R.P. No. 2483 of 1993 is against the order in M.P. No. 1933 of 1988 in Eject Suit No. 96 of 1972 dated

28.2.1972, on the file of the II Judge, Small Causes Court, Madras.

C.R.P. No. 2970 of 1993 is against the order in M.P. No. 1935 of 1988 in Eject Suit No. 97 of 1972, dated 28.2.1992, on the file of the II

Judge, Small Causes Court, Madras.

M.P. Nos. 2933 and 1935 of 1988 were filed by the landlord against the tenant for fixation of the value of the building u/s 4(1) of the Tamil

Nadu City Tenants Protection Act III of 1922 as Amended by Act 2 of 1980. the said two petitions were ordered by the II Judge, Small Causes

Court, Madras, directing the appointment of a Commissioner for the purpose of valuation of the building. Aggrieved by the said orders, the tenants

have filed these two civil revision petitions.

The short facts necessary for the disposal of the civil revision petitions are as follows: the tenants filed a petition u/s 9(1) of the City Tenants

Protection Act for valuation of the land and selling them to the tenants. They succeeded and the valuation was also fixed in both the cases. But the

tenants failed to pay the value of the land fixed by the court within the time. After the valuation were fixed, they preferred objectment appeal. The

appeals were dismissed on 7.7.1977. In the appeal, they challenged the quantum of the value fixed for the land. There upon civil revision petitions

were filed in the High court as against the order of the appellate authority The civil revision petitions were dismissed on 10.11.1978.

Thereupon the tenants filed petitions for extension of time for payment of the compensation fixed It is represented that the petition for extension

of time for payment of compensation was also dismissed. As against the Order passed in the petitions refusing to grant extension, appeals have

been preferred and they were also dismissed. Thereafter, the tenants have preferred civil revision petitions. As there has been delay in filing the civil

revision petitions, they have filed petition for condoning the delay in filing the civil revision petitions in the High Court. Only there-after the landlords

have filed the petition for valuing the superstructures. This is the gist of the earlier proceedings.

Now in these revision petitions, the learned Counsel for the petitioner raised the following contentions; (1) There is no decree in favour of the

respondents as per Section 4(1) of the Tamil Nadu City Tenants Protection Act. Hence petitioners u/s 4(1) of the Act are not maintainable, (2)

notice u/s 11 was not issued, and (3) even if the petition is maintainable, since it has not been filed within three years from 10.11.1978, the petitions

are barred by limitation.

As regards the first contention, the learned Counsel for the petitioners'' contention is that the landlord has not succeed in the ejectment suit. In

the ejectment suit before it was taken up for disposal after the filing of the written statement, Section 9(1) of the Act petition was there. The

proceedings initiated u/s 9( 1) of the Act ended ultimately in the High Court on 10.11.1978 when the other civil revision petition was dismissed,

confirming the fixation of the value of the land fixed by the trial court. Thereafter petition for extension of time for payment of the Compensation for

the land was filed and they were disposed of, but the suit has not yet been disposed of.

In substance the contention is that only when there is final adjudication in the suit and if the landlord succeeds in getting a decree in his favour for

ejectment, only at that time the petition for valuing the superstructure can be filed.

Section 4(1) of the Tamil Nadu City Tenants Protection Act, is as follows:

Disposal of suits for ejectments: (1) In a suit for ejectments against a tenant in which the land-lord succeeds the court shall ascertain the amount

of compensation, if any, payable u/s 3 and the decree in the suit shall declare the amount so found due and direct that on payment by the land-lord

into court, within three months from the date of the decree, of the amount so found due, the tenant shall put the landlord into possession of the land

with the building and trees thereon.

(2) In an application u/s 41 of the Presidency Small Cause Courts Act, 1882, in which the landlord succeeds the court shall ascertain the amount

of compensation payable u/s 3 and shall pass an interim order declaring the amount so found due and stating that on payment by the landlord into

court within three months of the date of the said interim order of the amount so found due, the landlord shall be entitled to the order contemplated

by Section 43 of the Presidency Small Causes Courts Act, 1882.

(3) If in such suit or application the court finds that any sum of money is due by the tenant to the landlord for rent or otherwise in respect of the

tenancy, the court shall set off such sum against the sum found due under Sub-section (1) of Sub-section (2) as the case may be, and shall pass a

decree of interim order declaring as the amount payable to the tenant on ejectment, the amount, if any remaining due to him after such set off.

(4) If the amount found due is not paid into court within three months, from the date of the decree under Sub-section (1) or of the interim order

under Sub-section (2) or if no application is made under section, the suit or application as the case may be, shall stand dismissed and the landlord

shall not be entitled to institute a fresh suit for ejectment, or present a fresh application for recovery of possession for a period, of five years from

the date of such dismissal.

A reading of Section 4(1) of the Act goes to show that no application is required by the landlord to move the court. It is also not state that there

must be a decree in favour of the landlord for ejectment. Sub-section (2) of Section 4 of the Act contemplates passing of an interim order after

ascertaining the amount due to be paid to the tenant as contemplated u/s 3 of the Act. The court also has to pass an interim order, directing

payments by the landlord to the tenant. When the amount is paid within three months, the final order can be passed for ejectment u/s 43 of the

Presidency Small Causes Courts Act, 1882. Sub-section (4) of Section 4 also contemplates interim order and then if the interim order is not

complied with, proceeding for ascertainment of the value of the building is starts. But what is contemplated is that the landlord succeeds in the suit.

It can mean that the tenant''s right to purchase the property ceased. When time is granted to the tenants for payment of the instalments and if the

amounts are not paid within the time-limit, the time-limit expires, and the right of the landlord to initiate proceedings accrues. The failure on the part

of the tenant to deposit the amount within the prescribed time results in the success of the landlord. Here, in this case, payment of the amounts

were permitted in thirty instalments from 23.9.1975 to 25.10.1977. If the tenant has not made the payments, or completed payment on that date,

the landlord succeed and he could ask the court to intirnate proceedings for the value of the superstructure. ?

It is open the tenant to apply for extension of time. But that does not mean the accepted right of the land-lord ceased to operate as and when a

petition for extention of time is filed.

In Syed Vali Peeran v. Krishnan Naicker 1972 T.L.N.J. 482 a single Judge of this Court has held that the only penalty which will be incurred

by the defaulting tenant who has not paid the market value in time is that his application u/s 9 will stand dismissed. Section 9 does not provide for

delivery of possession in the event of such default by the tenant. In such an event, Sections 3 and 4 will come into operation. It will be duty of the

court to fix the value of the building.

The learned Counsel for the petitioner cited a decision reported in Mohanambal v. Selvanayaki (1961) 2 M.L.J. 261, wherein another single

Judge of this Court has held as follows:

It is quiet clear that the stage at which the court is called upon to determine the amount of Compensation is the date on which it comes to the con-

clusion that the landlord is entitled to vacant possession of the premises, and it is at this stage that the court is under a duty to pass what is called an

interim order declaring the amount so found due. and directing its payment within three months from the date. This obviously amounts to a

conditional order in the sense that, if the amount is deposited as directed the landlord would be entitled to va-cant possession, and if he fails to

make the deposit his application for ejectment would stand dismissed.

In Vasudeva Pillai Trust v. Thiru Gnana Sambandam 100 L.W. I 13 Justice Sathiadev, has held as follows;

Therefore, in a case of this nature, wherein the suit had not been dismissed, and the remedy available u/s 9(1) having been availed of, but not

compelled with as in Section 9(2); the tenant had lost his remedies invoked under the Act, and that was why the order in M.P. No. 1556 of 1984

was passed as against him. hence the suit has to be taken up for further disposal and the plaintiff is one who would come within the expression in

which the landlord succeeds'' and who could invoke the relief u/s 4 of the Act.

In a suit filed for ejectment, on an application filed u/s 9(1)(a) or (b) a suit cannot be dismissed, but will have to be kept pending on the file of the

court, till finality is reached in the proceedings u/s 9 of the Act.

This is what the trial court has done and there is no illegality committed this is the view taken in Mohanambal v. Selvanayaki (1961) 2 M.L.J. 261

by holding that the stage at which a court could upon to determine u/s 4(2) of the Act, is the date on which the court comes to the conclusion that

the land-lord is entitled to vacant possession and not at any time anterior to the final determination of the ejectment application itself.

In M. Arasan Chettiar and Others Vs. S.P. Narasimhalu Naidu''s Estate Trust, Coimbatore and Others, , a Division Bench of this Court has held

as follows;

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 ejectments that might have been passed therein but which has not been executed shall be vacated. If, on the

other hand, the tenant has committed de-fault 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.

From the aforesaid decisions, it is clear that the time for ascertainment of the value of the super structure starts when the tenant committed default

in payment of the compensation for the land. That is the time the landlord succeeds in the ejectment suit. Therefore, the contention that the

respondent landlord has not obtained a decree in his favour before filing a petition for valuation of the superstructure is incorrect.

The next contention urged by the learned Counsel for the petitioner is that there was no notice u/s 11 of the Tamil Nadu City Tenants

Protection Act, 1921. In this case, the petitioner filed the petition u/s 9(1) of the Act claiming benefits under the said section. After having chosen

to taken advantage of filing the petition, it is not open to him to raise this objection. In substance, he has waived the notice u/s 11 of the Act.

The learned Counsel for the petitioner cited the decisions reported in Rao Bahadur V. Ranganatham Chettiar and Others Vs. Mariappa Mudali

and Others, and Sundara Rajan and Another Vs. Sundaramoorthy, in support of his contention. Rao Bahadur V. Ranganatham Chettiar and

Others Vs. Mariappa Mudali and Others, is not helpful to the petitioner. It has been held in the said case that after filing of the petition under, 9(1)

the petitioner cannot contend that there was no notice and hence the petition itself is not maintainable. Similarly in Sundara Rajan and Another Vs.

Sundaramoorthy, , Justice Abdul Hadi, after considering a number of judgments has held that in a case where statement that the suit is not

maintainable for want of valid notice, there will be no waiver even if in the additional written statement, the defendant has stated that he was entitled

to the benefits u/s 9 of the City Tenants Protection Act.

As far as the question of waiver in the circumstances like the present cases is concerned, the settled position is that if a written statement is filed

raising the objection relating to the maintainability of the suit for want of notice and thereafter a petition claiming benefit u/s 9 of the City Tenants

Protection Act is filed, there will be no waiver, however, after choosing to file a petition u/s 9 of the Act and claiming the benefit of the Act, it is not

open to the tenants to subsequently contend that the suit itself is not maintainable for want of notice. In substance, if want of notice is specifically

pleaded in the written statement and thereafter Section 9 petition is filed, there will be no waiver, But if the petition itself is filed earlier in point of

time without a demur about the maintainability of the suit for want of notice, then the tenant would be deemed to have waived the notice.

Therefore, the second contention is also unsustainable.

The learned Counsel finally contended that the petitioner ought to have filed that petition u/s 4 of the Act within three years from 10.11.1978

when the tenant committed default in payment of the value of the superstructure and when the right accrued to him under Sections 3 and 4 of the

Act. This contention is also not acceptable.

According to the learned Counsel, the period of three years should be invoked in this case as there is no limitation specifically provided in the

Act for filing such a petition. He relies upon the Article 137 of the Limitation Act, which provides the period of three years when there is no period

of limitation prescribed in the Limitation Act. This argument itself is misconceived. As per Section 4 of the Act, there is no necessity for filing any

application. A reading of the said section also shows that the duty is upon the court to as-certain the amount of compensation. Since the words

used are ""In a suit for ejectment against a tenant in which the landlord succeeds, the court shall ascer-tain the amount of compensation, if any,

payable u/s 3... "" The Article 133 applies to a case where an application is The Article 133 applies to a case where an application is contemplated

and for which no period of limitation is mentioned. But there is no such application contemplated u/s 4. Therefore, the said contention also fails.

For the foregoing reasons, I am of the view, that there is no substance in the civil revision petitions and they deserve to be dismissed.

Accordingly, they are dismissed. However, there will be no order as to costs. Consequently, C.M.P. Nos. 11535 and 14068 of 1993 are

dismissed.