R. Padmanabha Naidu vs V.K. Ponnusami Naicker

Rajamanner, C.J.—This is a petition filed under S. 115 C. P. C. to set aside an order passed by the learned Third Judge of the Court of

Small Causes on an application made under S. 9 of the Madras City Tenants Protection Act, as amended by Madras Act XIX of 1955 in the

following circumstances. The petitioner before me filed a suit in ejectment against the respondent in January 1953 alleging that he had taken an oral

lease of a vacant plot of land forming part of door Nos. 164 and 165, Wall-tax Road, G. T. Madras. The defence put up was that this vacant land

was a part of and appurtenant to premises which had already been let to him in 1941 and that the ejectment suit was not maintainable. By an order

dated 9th January 1954 the learned Judge of the Court of Small Causes upheld the objection of the respondent and directed the return of the

ejectment petition for presentation to the proper Court. The petitioner thereupon preferred civil revision petition to this Court against the said order

directing a return of his plaint, that revision was allowed by Basheer Ahmed Sayeed, J. The learned Judge held that the return of the plaint for

presentation to the proper Court was wrong and directed that the plaint be received back, when presented, by the Court of Small Causes and

dealt with according to law and in the light of the observations made by him on the evidence on record. This order was made on 3rd August 1956,

It is not clear to me whether there was any actual representation to the Court of Small Causes after the order of this Court. Learned Counsel for

the petitioner, Mr. N. C. Vijayaraghavachariar, says that though there was an order by the Small Cause Court for return of the plaint, the papers

were not taken back by the petitioner and that the plaint continued to remain there. Be that as it may, on 13th September, 1956, we find that the

learned Judge of the Court of Small Causes directed issue of notice to the parties for hearing on the 1st October 1956. Admittedly within 30 days

of the service of this notice the respondent filed a petition under S. 9 of the Madras City Tenants Protection Act, as amended by Act XIX of

1955, praying that the Court may fix the value of the suit land which he submitted he was prepared to pay to the petitioner. Two main pleas were

taken by the petitioner to this application under S. 9, namely, (1) that the respondent was not a tenant entitled to the benefit of the Act, and (2) that

the application was barred by time. The learned Judge held against the petitioner on both the points and ordered the appointment of a

Commissioner on the deposit of a fee of Rs. 50 into Court by the respondent. The petitioner seeks to revise this order.

The only point, pressed on me by Mr. Vijayaragavachari, learned Counsel for the petitioner, is the point of limitation. S. 9 of the Madras City

Tenants Protection Act, as amended by Madras Act XIX of 1955, in so far as it is material to this revision petition runs thus:

Any tenant who is entitled to compensation under S. 3 and against whom a suit in ejectment has been instituted or proceeding under S. 41 of the

Presidency Small Cause Courts Act, 1882, taken by the landlord, may Within one month of the Madras City Tenants Protection (Amendment)

Act, 1955, coming into force or of the date with effect from Which this Act as extended to the municipal town or village in which the land is situate,

or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell the land for a

price to be fixed by the Court.

There are thus two periods of limitation prescribed under this provision. One has relation to the coming into force of the Amendment Act of

1955. That date is 10th September 1955. The other has relation to the service of the summons on a tenant in a suit in ejectment or proceedings

under S. 41 of the Presidency Small Causes Courts Act. The petitioner''s learned Counsel contended that the application out of which this revision

arises made by the tenant was beyond either of the two periods of limitation prescribed. The application was made on 1st October, 1956, far

beyond the period of one month after the Amendment Act came into force. If the summons originally served on the tenant when the petitioner filed

his ejectment suit is taken into account, the application is hopelessly barred. On behalf of the respondent it was contended that the notice which

was served on him on 27th September, 1956 must be deemed to be a summons within the meaning of the term in S. 9 and the application was

filed within one month after the date of the service of that notice. It was pointed out that this present application could not have been filed within

one month of the date of the coming into force of the Amendment Act of 1955 because at the relevant time there was no suit in ejectment or

proceeding under S. 41 of the Presidency Small Causes Courts Act pending.

It is clear that the two periods prescribed in S. 9 (1) of the Act are alternative. If the applicant can bring himself within the limit, of either period,

he will be in time; in other words, an applicant can file the application either within one month after the coming into force of the Amendment Act or

he may file the application within one month after service on him of summons. One thing appears to be beyond any controversy, namely, that it

would have been impossible for the respondent to file the application under S. 9 within one month After the service of the summons in the

proceeding issued by the Court because it is common ground that the respondent was not then entitled to, make an application under that section.

One of the points raised in argument was whether there was a suit in ejectment or proceeding under S. 41 of the Presidency Small Cause

Courts Act, pending when the Amendment Act came into force. Learned Counsel for the petitioner contended that as the civil revision petition

against the order of the Small Cause Court returning the plaint was pending in this Court, it must be deemed that there was such a suit or

proceeding. I must confess that there is room for argument either way. It may be said that a proceeding under S. 41 of the Presidency Small Cause

Courts Act had been instituted and though there was an order by that Court directing return of the petition, that order was subject to a revision

petition pending in this Court. The matter was therefore at large and it must be deemed that the proceeding which had been taken by the landlord

continued to be subsisting till there was a final order by this Court. Eventually it was decided that the proceeding had been properly filed in the

Small Cause Court, that is to say, that the original presentation was proper. On the other hand, it might be said that when once the Small Cause

Court rightly or wrongly directed a return of the petition to be presented to the proper Court, the proceeding was no longer on the file of this Small

Cause Court. What was pending in this Court was only a revision against the order of the Small Cause Court directing the return. The proceeding

itself cannot be deemed to have come up to this Court and that it was pending here. I do not think for the purpose of this petition it is necessary to

decide this point because I am of opinion that the petition is within time according to the other alternative period prescribed. I may further mention

in passing one practical difficulty, if the first of the alternatives is to be applied. The civil revision petition was not disposed of till one month after the

Amendment Act came into force. Now could the tenant have filed a petition under S. 9 and if so, where ? I am not certain if he could have filed a

petition under S. 9 in this Court in the pending civil revision petition tentatively, that is to say, in case this Court were to allow the civil revision

petition and restore the proceeding to the file of the Small Cause Court. It is obvious that the petition could not have been filed in the Small Cause

Court till this Court made its order on the revision.

The learned Judge of the Court of Small Causes held that the notice which was served on him on 27th September 1956 must be taken as the

summons. The actual notice is in these terms:

Take notice that you are hereby required personally or by a pleader duly instructed to attend before the III Court on the 1st day of October 1956

at 10-30 o''clock in the forenoon as the above case is posted for fresh trial as per High Court order in C.R.P. No. 1176 of 1954 dated 3rd

August 1956.

It is true that the word summons does not actually occur in this notice. But there can be no doubt that the purpose for which this notice was issued,

is exactly the same as that for which a summons is issued especially for final disposal. The order of the High Court directed that the plaint should be

received back, when presented, by the Small Cause Court and dealt with according to law. It proceeds on the footing that in law there is no plaint

on the file of the Small Cause Court on the date of the order of the High Court. It is not clear whether the plaint was actually represented by the

petitioner. Probably because the papers continued to be in the Small Cause Court, there was no formal physical presentation of the petition. But

the Court certainly proceeded on the footing that the suit was once more on the file of the Court. It is on that footing the learned Judge issued

notice to the parties. The notice intimated to the respondent that the suit would be taken up for trial on a particular day. Impliedly it meant that the

plaint had been duly presented, or to use different language, that the suit had been duly instituted or reinstituted. The notice requires the respondent

to appear in person or by Advocate. The notice specifies the day as required in O. 5, R. 1, of the Presidency Towns Small Cause Courts Rules

and the notice is for the final disposal of the suit. The notice was certainly necessary because it might be that in some cases the party might not wish

to proceed with the case after the order directing a restoration of the proceeding. It is only when such a notice goes to the respondent that he

becomes aware of the re-institution of the suit. I am therefore prepared to hold that though in form it might not be the summons as contemplated in

O. 5, R. 1, of the Presidency Towns Small Cause Courts Rules, nevertheless in substance it is equivalent to such a summons for the purpose of S.

9 (1) of the Act. The underlying reason for prescribing this period is that within a reasonably short time after the tenant comes to know of the

institution of a proceeding in ejectment against him, he should apply to the Court for an order directing the landlord to sell him the land. Now in this

case till the service of the notice on the respondent he could not have known that the landlord had re-presented the petition which had been

directed to be returned by the Small Cause Court originally and that he was proceeding with the petition. Within the time prescribed, namely, one

month after service of this notice. On him, the tenant did apply to the Court. I agree with the learned Judge of the Court of Small Causes that the

application was made within time. The civil revision petition fails and is dismissed with costs.