Ramiah Chettiar vs K. Sankaralingam Pillai

S. Maharajan, J.—This petition is filed by the tenant to revise the order of the learned District Judge of Madurai, dismissing the revision

petition filed by him u/s 25 of the Madras Buildings (Lease and Rent Control) Act, 1960, (hereinafter referred to as the Act), against the order

passed by the District Munsif, Tirumangalam in E.P. No. 57 of 1968 in R.C.O.P. No. 21 of 1963. The dispute between the parties arose under

the following circumstances. The respondent-landlord filed an application for eviction against the tenant-petitioner u/s 10 (2) (i) of the Act on 8th

August, 1963 before the Rent Controller. The ground alleged in the petition was that the tenant had committed wilful default in the payment of rent

for the period 14th January, 1963 upto 16th July. On 19th October, 1963, the tenant, who had been served, with notice, appeared'' in Court and

made an endorsement to the following effect:

The respondent hereby agrees that in future he will pay the petitioner regularly the monthly rent due for every Tamil month on or before the 10th of

the succeeding Tamil month. I hereby agree that in case I fail to pay in future the rent due for a month on or before the 10th of the succeeding

month, the petitioner shall in these very proceedings and without notice to me, take possession of the petition schedule premises. Judgment may be

rendered in accordance with these terms.

This endorsement was signed by the tenant on 19th October, 1963. Below his signature the landlord''s advocate made the following

endorsement:

Eviction order may be passed on the above terms.

On the same date the Rent Controller passed the following order:

Joint endorsement made. Petition is ordered in terms of the joint endorsement.

It is important to note that nothing is stated in the endorsement about the claim made by the landlord for arrears of rent due by the tenant for the

period from 14th January, 1963 upto 16th July, 1963. As the endorsement dated 19th October, 1963 contemplates only a default in the payment

of future rent, it must be assumed that all arrears of rent due by the tenant upto 19th October, 1963 had been paid to the landlord. There is no

admission in the endorsement that the tenant has committed any default, much less wilful default. Nor is there anything in the order of the Court to

show that any ground justifying the eviction of the tenant had been established or admitted. Subsequent to the date of the order passed in terms of

the joint endorsement the tenant continued to be in possession of the premises and was paying the monthly rent regularly for a period of more than

four years. However, on 6th January, 1968, the landlord filed an execution petition praying for eviction of the tenant on the ground that he had

committed wilful default in payment of rent, for October, November, 1967. The tenant contested the application on the ground that the order

passed by the Rent Controller on foot of the joint endorsement was not executable and that if any default had been committed by him in the

payment of rent for a period long subsequent to the date of the joint endorsement, the landlord was liable to file another petition for eviction u/s 10

(2) (i) of the Act and could not validly execute the order dated 19th October, 1963 thereby circumventing the provisions of the special enactment.

This contention was rejected by the learned District Munsif on the execution side and revision filed against this order before the learned District

Judge, Madurai, met with the same fate.

It is well-settled that where the tenancy is governed by the Madras Buildings (Lease and Rent Control) Act, 1960, it is not open to the landlord

or the tenant to contract themselves out of the obligations under the Act, or to agree to resort to a procedure not contemplated by the Act, A

scrutiny of the entire scheme of the Act shows that notwithstanding contracts to the contrary, the Legislature intended to regulate the letting of

residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom

in the State of Madras. It is not, therefore, open to the parties to enter into a contract, which would have the effect of by-passing the provisions of

the Act. The legal position would be the same even though such a contract is embodied in a compromise which has received the imprimatur of a

Tribunal contemplated by the special enactment. The essential pre-condition to the eviction of a tenant under the Act is that the one or the other of

the grounds mentioned in Section 10 or Sections 14 to 16 of the Act should have been established. In this case the Rent Controller had the

jurisdiction to direct eviction, only if he found, as a fact, that the tenant had committed wilful default in the payment of rent for the period preceding

the date of the application. u/s 11 of the Act, if the tenant defaults to pay rent accruing due in respect of the building until the termination of the

proceedings before the Controller or the appellate authority, the Controller or the appellate authority, as the case may be, would have the power to

make an order directing the tenant to put the landlord in possession of the building, regardless of the fact whether the original ground alleged in the

petition had been established or not. It is important to note that there is nothing in the Act which empowers the prescribed Tribunal to order

eviction if default be committed in future. What has happened in this case is that the tenant, after continuing in possession of the premises for over

four years after the termination of the proceedings before the Rent Controller and paying rent regularly every month, was alleged to have

committed default in the payment of rent for October-November, 1967. The Rent Controller, who is a creature of the statute and whose

jurisdiction is circumscribed and limited by the provisions thereof, has no power to direct eviction on the basis of an anticipatory default. What the

parties have done, in effect, is to enter into a contract, whereby they renounced the rights and obligations under the Act and prescribed, resort to a

process of direct execution in violation of the provisions of the Act, without its being preceded by an enquiry u/s 10 (2) of the Act. As has been

held by Ramamurti, J.; in Isherdas Sahni and Brothers by Partner V.N. Sahni Vs. Rajah V. Rajeswara Rao and Others, , these Acts are remedial

measures conceived for the protection and welfare of tenants, and the object of the legislation will be frustrated, if tenants are permitted to enter

into contracts giving up the protection afforded to them by the Act.

Learned Counsel for the landlord relies upon the ruling of the Supreme Court in Konchada Ramamurthy Subudhi and Another Vs. Gopinath

Naik, . That was a case where two persons litigating before the ordinary civil Court, entered into a compromise under Order 23, Rule 3 CPC in

the Court of the Subordinate Judge, Berhampur, who granted a decree in terms of the compromise. The decree-holder filed an application for

execution of the decree and the judgment-debtor objected to the execution. The point that arose for consideration before their Lordships of the

Supreme Court was whether the compromise decree created a lease or licence. Upon the terms of the compromise it was held that only a licence

had been created and not a lease and consequently the Orissa House Rent Control Act did not apply to the relationship between the parties to that

compromise and that execution could proceed. On the contrary, the joint endorsement made on the petition filed by the landlord in this case shows

that the relationship of landlord and tenant continued unimpaired by the compromise and the tenant agreed to pay the future monthly rent regularly

on or before the 10th of the succeeding month. It is clear from the terms of the compromise that the petitioner-tenant continued to be in possession

of the premises in his capacity as tenant and that his juridical status was not in any manner transformed by virtue of the compromise into that of a

licencee. Section 2 Sub-clause (8) of the Act defines a ''tenant'' in very broad terms, to include any person by whom or on whose account rent is

payable for a building and even to include the surviving spouse, or any son, or daughter and any person continuing in possession after the

termination of the tenancy in his favour. The petitioner would clearly be a ''tenant'' within the meaning of this definition. I therefore repel the

contention of the learned Counsel for the respondent that, by virtue of the compromise, the petitioner ceased to be a tenant and became a mere

licencee and therefore, escaped the mischief of the Act.

It is next contended that the objection of the tenant could not be properly raised in execution. I am unable to agree. If the order sought to be

executed had been passed by an authority which had no jurisdiction to do so, it was certainly open to the judgment-debtor to raise in execution

proceedings any objection regarding the competency of the order or the jurisdiction of the Tribunal that had passed it. I am therefore of the view

that the compromise entered into between the parties in R.C.O. P. No. 21 of 1963, embodied what in fact was a contract by-passing the

provisions of the Act, which is intended to save the tenants even from their own contracts.

If, in this case, the joint endorsement had admitted that the tenant had committed default in the payment of rent and was therefore liable to

eviction, and if further an eviction order had been passed by the Rent Controller with a condition that it would remain suspended so long as the

tenant continued to pay the rent regularly in future, and would come into force the moment he committed default it would perfectly be an

enforceable order. But, unfortunately, that is not the case here. I, therefore, set aside the order of the Courts below and allow this revision petition.

In the circumstances, I make no order as to costs.