S.R. Rajender and Others vs N.S. Govindier and Others

Ramachandra Ayyar, J.—This Civil Revision Petition has been posted before us under the directions of the Hon''ble the Chief Justice, as the determination of the question arising therein, namely, whether an appeal lies from an order passed by a civil Court fixing a reasonable rent under the provisions of Section 7A of the Madras City Tenants'' Protection Act, involves a consideration as to the correctness of the decision reported in Perumal v. Kondal ILR [1939] Mad. 213.

The Respondents, the owner of a piece of vacant land measuring two hundred and fifty feet by one hundred and live feet in Madurai Town, granted a lease of it, in the year 1942. to the Petitioners at an yearly rent of one hundred rupees. By a subsequent agreement between the parties, the rent was increased to rupees nine hundred per annum. The Madras City Tenants'' Protection Act, 1922 (as amended by Act XIX of 1955), to be referred to as the Act, which conferred certain rights on the tenants of land let out for construction of buildings thereon, was extended to Madurai town, on and from 29th June 1955. Taking advantage of the provisions therein and alleging that the subsequently agreed rent could not be treated as a fair rent as the agreement relating to it was not a voluntary one, the tenants applied to the District Munsif of Madurai town for fixation of a reasonable rent for the land taken on lease by them. The learned District Munsif, after considering the relevant evidence in the case, fixed rent at the rate subsequently agreed to between the parties, namely, at rupees seventy-five per month. Aggrieved by the decision, the tenants filed an appeal in the District Court. The learned District Judge, however, dismissed the appeal in limine on the ground that it was incompetent. In so doing, he followed the decision of this Court in Perumal v. Kondal ILR [1939] Mad. 213.

In that case, Burn and Stodart, JJ., held, that having regard to the terms of Sections 7 and 8 of the Act, no appeal would lie from an order made by a Court under the former provision, such order not being a decree in a suit. The correctness of that view, which has been challenged in this civil revision petition has to be decided on a construction of the provisions of the Act.

The Madras City Tenants'' Protection Act, 1922, was enacted to give protection to tenants of land who had constructed buildings on the lands in the hope that they would not be evicted so long as they paid the fair rent for the land. As originally enacted, it applied only to the tenancies in the Madras city created before its commencement. The Act was amended by Madras Act XIX of 1955, which extended the benefits of the Act to tenancies created prior to the coming into force of the amending Act, namely, 10th September 1955. Act XIX of 1955, empowered the Government by means of a notification to extend the provisions of the Act to such municipal towns as they may consider necessary. The Act creates a right in the tenant to obtain compensation for the buildings put up by him on the demised property, on eviction. It also confers on him an option to purchase the land subject to certain conditions prescribed in Section 9. It entitled the tenant to a proper notice before eviction. Sections 6, 7 and 7A of the Act invests a jurisdiction in the Court to determine the fair rent payable for the land during the period of tenancy in the cases specified in the respective Sections. Section 6 relates to the case of fixation of fair rent where in a suit for eviction after an order for payment of compensation to the tenant, the landlord is unable or unwilling to pay the same. Sections 7 and 7A respectively, provide for a case where no suit for eviction is pending. The landlord or the tenant can apply to the Court having jurisdiction to fix such rent as it deems reasonable. Section 7A which is relevant for present purpose runs thus:

A tenant may apply to the Court having jurisdiction to entertain a suit for ejectment or, in the city of madras, either to such Court of to the presidency small cause Court . . . Where on application u/s 7, the rent previously payable for the land has been enhanced, for a reduction of the rent fixed; and thereupon the Court shall, by its order fix such rent as it deems reasonable.

[proviso to Section 7:] provided that the rent previously payable for the land shall not be reduced by more than two annas in the rupee.

Section 8 runs:

An order passed by a Court under Sections 6, 7 or 7A, Shall have effect as a decree in a suit and the rent so fixed shall not be revised nor shall the tenant be liable to be evicted for a period of five years.

Sections 6, 7 and 7A create a new right and provide also a remedy for enforcing the same. Under the ordinary law, the rent payable in respect of property taken on lease would be governed by the contract between the parties. It would not be competent for a Court to fix the rent for the obvious reason that apart from agreement, there would be no right to pay any particular sum as rent. The Act creates a certain right in the tenant unknown to the ordinal 7 law; it obliges the landlord, if he wants to evict the tenant from his land, to either compensate for the buildings put up on the land or at the option of the tenant, (exercised in the manner specified in Section 9), part with the land for a price to be fixed by Court. The result of the provisions is that a landlord cannot evict the tenant on the termination of the lease unless he is agreeable to take the risk of being bought out or in other cases has the capacity and willingness to pay compensation for the superstructure. If he does not want to evict the tenant, justice requires that the original rent agreed upon should be revised commensurate with the appreciation or otherwise of the value of the property. Parties might not however agree for such revision. The statute has, therefore, empowered the Court to fix a reasonable rent for the land on the application of either the landlord or tenant. A right to have a rent fixed superseding the contractual rent is thus a new right unknown to the ordinary law which owes its existence to the statute.

Where a statute creates a new right or liability not existing at common law, and also provides for a particular remedy for enforcing that right, the rule as the remedy so provided would be the exclusive or only remedy. Where, therefore, in such a ease, the statute itself prescribes the procedure, it is that procedure that has to be adopted by a party for enforcing the right. But there are cases where the enforcement of the right created by a statute is given to an established Court of the land without anything more. Sections 6, 7 and 7A of the Act, belong to the latter class; they confer a power in the appropriate Court having jurisdiction to entertain a suit for eviction, to fix the reasonable rent for the property. The Act does not provide for any special procedure to be adopted by the Court while fixing the reasonable rent for the land. Nor does it provide expressly for an appeal from an order fixing the rent. The question would then arise whether in respect of those orders there would be a right of appeal to a superior Court.

Before considering that aspect of the matter it will be useful or even necessary to refer to certain well-known principles. A right of appeal against an order of a judicial Tribunal is not an inherent right of a party. It requires legislative authority. Such authority should be given expressly and cannot be implied; nor can it be inferred to exist by way of analogy. A statute can grant an express right of appeal in one of two ways: (i) by an express provision in the statute itself or (ii) by conferring the jurisdiction to adjudicate rights created by it to an existing Court or Tribunal simpliciter, whose orders are subject to appeal under the law regulating its procedure. In such a case, the express authority for appeal is found not in the statute creating the right but in that which regulates the procedure of the existing Tribunal which procedure is attracted in the adjudication of the new right. This rule is stated in National Telephone Company, Limited v. Postmaster-General [1913] A.C. 546, where Viscount Haldane, Lord Chancellor, observed at page 552:

When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.

To the same effect are the observations of Lord Parker Of Waddington at page 562, who stated:

Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think...that the Court will determine the matters.

As a Court its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.

On the principle recognised in the decision referred to above, the Court in adjudging the dispute under the Madras City Tenants'' Protection Act, would be bound to follow its own authorised procedure, namely, the Code of Civil Procedure. The Code contains provisions for appeals, against decrees and order''s. If an adjudication of a claim under the Act amounts to a decree or an appealable order, that too would be appealable by virtue of the express provision in the CPC which governs such adjudication.

Taking the case of a reasonable rent fixed under Sections 6, 7 or 7A of the Act, an order of a Court fixing such rent would be appealable if the provisions in the Code regarding appeals, namely, Sections 96, 104, etc., would apply to it. The appeal in such a case is by reason of the express authority contained in the statute and not because of any implication of law. In other words, the jurisdiction conferred under the Act on the civil Court is regarded as an extension or addition to its existing jurisdiction and the rules of procedure, including the right of appeal, which apply to matters covered by the existing jurisdiction of the civil Court, would equally apply to the extended jurisdiction; vide: Hem Singh v. Mahant Basant Das ILR (1936) Lah. 146 (P.C.)

It has then to be considered whether the orders passed in respect of claims made under the Act could be held to come within the scope of Section 96 or 104 of the Code of Civil Procedure. Such orders can be broadly divided into two categories: (i) those made in the course of a suit for eviction; (ii) those made on an original application. For example, orders made under Sections 4 and 9 belong to the former category. Such orders governing as they do the decree in the suit or orders in execution thereof would in essence partake the character of the adjudication which they govern. Orders in an application u/s 6 which is unrelated to the decree or those. u/s 7 or 7A or one made on a tenant''s original. application to buy the land within the time permitted by Section 9 would stand on a different footing.

Before adverting to the question whether the latter category of orders are appealable, we shall refer to two cases, coming under the former category to elucidate the principle. In Adaikappa Chettiar v. Chandrasekhara Thevar ILR [1948] Mad. 505 (P.C.) , an application was filed for amendment of the decree u/s 19 of the Madras Agriculturists Relief Act. That application was dismissed on the ground that the judgment-debtor was not an agriculturist entitled to the benefits of the sealing down provisions of the Act. The Privy Council held that the order rejecting the application would be appealable as a decree, notwithstanding the fact that the Madras Agriculturists Relief Act, did not in terms provide for an appeal against an order amending or refusing to amend the decree. Lord Simonds in the course of his judgment observed:

The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.

Recently, one of us had to consider, in Arunachala v. Ghulam Mahmood ILR [1959] Mad. 336 , the question whether an order passed regarding the application of a tenant in a suit for eviction claiming benefits u/s 9 of the Act is appealable. It was held that an appeal would lie in cases where the adjudication amounted to a decree and also in cases where it had the effect of deciding a question in execution within the scope of Section 47 of the Code of Civil Procedure.

Coming to the case now before us, namely, an order fixing reasonable rent for land, it cannot be said that it is either an order in execution of a decree or one coming within Section 104, Code of Civil Procedure. What remains to be considered is whether it can be said to amount to a decree so as to attract Section 96, Code of Civil Procedure. In Arunachala v. Ghulam Mahmood ILR [1959] Mad. 336, there is an observation that orders under Sections 6, 7 and 7-A of the Act would be appealable as decrees.

The question however did not directly arise in that case. A decree as defined in Section 2(2) of the CPC means a formal expression of an adjudication which conclusively determines the rights of parties in regard to a matter in controversy in a suit. When a new right is created by a statute and the ordinary Court determines the right, the determination would undoubtedly resemble the adjudication of civil rights, the jurisdiction in respect of which is conferred by Section 9 of the Code of Civil Procedure. What has to be considered then is whether the rules of procedure particularly those relating to appeal which govern the adjudication of existing civil rights would apply to those which resemble it. The observations of Lord Atkinson in the case to which we have made reference earlier, namely, National Telephone Company, Limited v. Postmaster-General [1913] A.C. 546, 555, is useful in this connection. That noble Lord stated:

My lords, if the matter stood there. I think it would be clear that this Section only added another item to the several matters which the commissioners have already power as a Court of law to determine just as they determine as a Court of law matters arising u/s 9 of the act of 1873. It is not, in substance, in my view, at all a question of giving a right of appeal by implication. It is simply the question of extending the jurisdiction of an existing Court of law, with all its incidents including a right of appeal to a new matter closely resembling in character those matters over which it has already jurisdiction as a Court of law.

A reasonable rent fixed under the provisions of Sections 6, 7 and 7A would closely resemble a decree made by the Court. For, the order under those Sections is the result of an adjudication made by a Court in respect of right created by the statute. Section 8 no doubt says that the rent so fixed can be revised after five years; but that provision does not affect the character of the adjudication; it is only an enabling provision rendered necessary by the nature of the subject-matter. The provisions of the Section do not militate against the order being conclusive so far as the Court is concerned till it is revised in the manner allowed. Section 8 itself would appear to show that the Legislature intended that the determination of a reasonable rent should operate as a decree. But it is contended and the contention is supported by the observations of the learned Judges in Perumal v. Kondal ILR [1939] Mad. 213, that what Section 8 creates is a fiction and as a fiction is opposed to reality, the order cannot amount to a decree for the purposes of appeal. That, however, is not a correct way of approaching the question. Where a fiction is created by a statute for a particular purpose, that fiction deemed to be the reality for that purpose. No doubt, a fiction. cannot be extended beyond the purpose for which it is created. What is necessary to consider, therefore, is the precise field of operation of the fiction. If, for example, the fiction is created for the purpose of giving all these rights which a party has in respect of a decree passed against him, it would be effective to enable the party to file an appeal as well. Learned Counsel for the Respondent contended that an order u/s 7-A is to be a decree only for the limited purpose mentioned in the Section, namely, that the rent fixed shall be final and shall not be revised for a period of five years, and the fiction cannot be extended for any other purpose than that specified in the Section itself. The construction contended for cannot be accepted. Section 8 consists of two parts: (i) that the order fixing the rent shall have the effect of a decree; this creates the fiction; (ii) that the rent fixed shall not be revised nor shall the tenant be liable to be evicted for a period of five years. The latter part of the Section does not limit or govern the former part. The two clauses are as it were disjunctive. Suppose, no application for revision of a reasonable rent is at all filed after a period of five years. The original order fixing the reasonable rent would undoubtedly continue to have effect as a decree. Again the purpose of the latter clause is clear. For, if it were not there, any adjudication of reasonable rent would be binding for all time between the parties and if such a rule were to exist, the rent to be paid might become unrelated to the value of the property. A provision, therefore, had to be inserted to enable a revision. Further, if the argument of learned Counsel were to be accepted, there would be no necessity for the fiction at all, for if the object of the Legislature were merely to make the rent fixed unalterable for a period of five years, the second clause in the Section alone would have sufficed. It is a settled rule of construction of statutes, that one should not ascribe, without necessity or sound reason, to the language of the statute tautology or superfluity, but should, on the contrary, assume that every word was intended to have some effect or to have some use. It must, therefore, be presumed that the words

shall have effect, as a decree in a suit,

were intended to have some meaning; they are not merely otiose or unnecessary. The intention of the Legislature must presumably be something other than that expressed in the latter part of Section 8. In the context it can only be to attract all the consequences which attach to a decree in a suit, namely, finality, executability, appealability, etc.

In Achinta Nath Sasmal v. Gobinda Prosad Das ILR [1939] 2 Cal. 366, a question arose whether an appeal lay from an order restoring possession of mortgaged property u/s 26G, Sub-Section 5 of the Bengal Tenancy Act. The learned Judges held that the words

shall have the effect of a decree,

cannot by implication authorise an appeal. But the decision in that case was rendered in the context of the provisions contained in the Bengal Tenancy Act, which expressly provided for a right of appeal whenever the Legislature thought fit to confer. For example, in Section 158(3) of the Act it stated.

The order on any application under this Section shall have the effect of, and be subject to the like appeal as a decree.

The fact that the Legislature itself thought it necessary to add the latter part of the Section, unmistakably showed that the former part, namely,

shall have the effect,

was not intended to confer a right of appeal. But so far as the Madras City Tenants'' Protection Act is concerned, there is no such indication. On the other hand if the incidents of a decree in a suit are not to be attracted to the order contemplated by the Section, the first part of it would be meaningless. Secondly, the nature of the order, i.e., imposing a recurring liability or reducing such liability, does demand that there should be an appeal. In Perumal v. Kondal ILR [1939] Mad. 213, the learned Judges held that the words

shall have effect as a decree in a suit

themselves showed that the order u/s 7 was not a decree. True. It is because that the order does not amount to a decree that the statute enacted Section 8 to create a fiction that it is a decree. If the field of operation of that fiction is held to extend to filing of appeals as if the order amounted to a decree, an appeal cannot be negatived by saying that actually it is not a decree. To do so would be to ignore the express provision of the statute.

Learned Counsel for the Respondents then contended that according to the definition contained in the Code of Civil Procedure, the adjudication of rights of parties would amount to a decree only if it were made in a suit; and as the initiation, of proceedings under Sections 6, 7 and 7-A have to be made only by means of an application, any order passed thereon would not amount to a decree. Reliance was placed in this connection on certain observations of Madhavan Nair, J., (as he then was) in Rajagopala Chettiar v. H.R.E. Board, Madras ILR (1933) Mad. 271 (F.B.), wherein it was stated that there could be no decree except on a suit initiated by a plaint. The view taken by the learned Judge has not been accepted in a later decision of this Court, a reference to which will be made presently. But that consideration apart, the learned Judge''s observations cannot apply to a case like the present where the statute itself states that the order should be deemed to be a decree in a suit. The point to be decided in that case was whether an appeal lay to the High Court against an order passed by the District Judge in an application u/s 84(2) of the Madras Hindu Religious Endowments Act, 1927. There was no provision in that enactment which stated that the order on the application would amount to a decree. The learned Judge in the course of his judgment made the following significant observation at page 280:

The term suit in the CPC can mean only a proceeding instituted by the presentation of a plaint. Of course a proceeding commenced by an application would also fall within the term suit if such a proceeding has been specially declared to be a suit under the Code by the specific provision of any special enactment, for instance, a contentious probate proceedings.

And again at page 281:

The above conclusion is not in any way affected by the (Incisions relied on by the Appellant''s learned Counsel to show that a proceeding in which the rights of parties are determined may be termed a suit and that an order in such a proceeding even though it is commenced by an application should be treated as a decree within the meaning of Section 2(2), Code of Civil Procedure.

The decision in Rajagopala Chettiar v. H.R.E. Board, Madras ILR (1933) Mad. 271 (F.B.), cannot, therefore, be read as laying down an absolute proposition of law that in no case can an order in an application operate as a decree. Where, as in the present case, there ">the present case, there is provision in the statute which treats the order on an application as a decree in a suit, it is not necessary that such order should be made only in a suit, properly so called. As we indicated earlier, the view taken by the learned Judges in that case has not been subsequently accepted as correct; it is contrary to three decisions of the Privy Council, one of which was rendered subsequent to that decision. Reference to those decisions has been made in Chikkanna v. Perumal ILR [1940] Mad. 791 (F.B.). In that case the question arose as to the appealability of a decision of the Subordinate Judge u/s 30 of the Land Acquisition Act. The Full Bench held that the observations contained in Rajagopala Chettiar v. H.R.E. Board, Madras ILR (1933) Mad. 271 (F.B.), were no longer authoritative in view of the judgment of the Privy Council in Bhagwati v. Ram Kali ILR [1939] All. 460 (P.C.).

There have been a number of cases where orders in proceedings initiated by means of applications under special enactments have been treated as decrees and appeals entertained. In Kamaraju v. The Secretary of State for India ILR (1988) Mad. 309 (F.B.), a question arose as to whether an appeal lay to the High Court against the decision of the District Court passed u/s 10 of the Madras Forest Act, on appeal from the decision of the Forest Settlement Officer. The Full Bench answered the question in the affirmative. The view was accepted in the case of Secretary of State for India v. Chellikani Rama Rao ILR (1916) Mad. 617 (P.C.).

In the context of the Code of Civil Procedure, e.g., in regard to those matters coming to a Court u/s 9, there would be a distinction between an order in an application and a decree in a suit as the Code itself defines them. But in cases where rights are created under other Acts and the jurisdiction there under are given to the ordinary Court, the definition cannot obviously apply strictly. Whether a proceeding under that Act would be a suit or not would have to be seen from the nature of the proceeding and not by the mere fact that it is initiated by a plaint or not. Mahalinga Kudumban v. Theetharappa Mudaliar (1928) 56 M.L.J. 387, recognised the principle that in order that an adjudication of a Court might amount to a decree, it was not always necessary that it should originate in a plaint in a suit. The learned Judges observed that the word suit not being defined in the Code, could be applied to any contentious proceeding in a civil Court in which rights of parties were in question and in which the Court was asked to determine them. Thus, there can be a decree notwithstanding the fact that the proceedings originate in an application.

Mr. Visvanathan, however, contended, that the view taken in Chikkanna v. Perumal ILR [1940] Mad. 791 (F.B.), should not be accepted, having regard to the decision of the later Pull Bench decision in Sayyed Usman Saheb v. Sivaramaraju 1. M.L.J. 363 (F.B.). In that case the point that arose for decision was whether an order for restitution passed u/s 151, Code of Civil Procedure, was appealable. It was held that as the order was not a decree coming within the definition of Section 2(2), Code of Civil Procedure, no appeal would lie from it. Satyanarayana Rao, J., observed that a suit could be initiated only by a plaint and not by an application and that an order on an application not being an order in a suit, would not amount to a decree. The learned Judge did not however consider the decision in Chikkanna v. Perumal ILR [1940] Mad. 791 (F.B.). That was perhaps unnecessary for the purpose of that case, as the Court there was concerned with a proceeding under the CPC itself; no question arose in that case in regard to a matter in respect of which a new jurisdiction was given to the civil Court by virtue of a statute. There can be no doubt that the character or nature of an order passed on an application under the CPC will have to be determined by the provisions of the Code itself. That the principle of the decision in Sayyed Usman Saheb v. Sivarama Raju (1950) 1 M.L.J. 363 (F.B.), cannot be applied to jurisdictions conferred on a civil Court under a special Act, is clear from a later decision in Easivara v. Sankunni ILR [1951] Mad. 859 by Viswanatha Sastri, J., who was a party to the former decision. The matter which came up for consideration was whether an appeal lay in respect of an order in an interlocutory application appointing a receiver u/s 13 of the Malabar Tenancy Act. It was contended that no appeal lay against the order appointing receiver, as the statute did not specifically provide for an appeal against such orders. Section 50(1) of that statute enacted that the procedure provided by the Code of Civil Procedure, including Order XL of the first schedule, would apply to all proceedings relating to applications. Section 50(2) provided for appeals against certain orders. Section 13 was not specifically mentioned therein. The learned Judge held that as Section 50(1) expressly made Order XL, Code of Civil Procedure, applicable to proceedings under the Act, the provisions of Order XLIII, Rule 1(s) would also be attracted and an appeal would lie, as the incorporation of Order XL in the Malabar Tenancy Act as part of the procedure applicable to proceedings under it, carried with it the right of appeal given by the Code. In Satish Chandra Nag v. Riyasat Ilossain ILR [1949] 1 Cal. 487, it was held that the criterion for determining the maintainability of an appeal would be the character of the decision under appeal and not whether the proceedings in which the decision was given originated on a plaint or on an application. That was a case where a special jurisdiction was conferred on an ordinary Court of the country in regard to a right created by a statute. It was held that the Court would be governed by the ordinary rules of procedure and an appeal would lie from orders if authorised by the existing rules.

With great respect to the learned Judges who decided Perumal v. Kondal ILR [1939] Mad. 213, we are unable to hold that merely because an order u/s 7 or 7-A of the Act, does not actually amount to a decree, an appeal would not lie from it Another reason which commended itself to the learned Judges was that the scheme of the Act was not consistent with there being a right of appeal, as the Court was to fix such rent as it considered reasonable. We are unable to share that view either; the mere fact that the Act does not expressly provide fur on appeal, cannot mean that there would be no appeal from orders as an incident of the extended jurisdiction conferred on the Court by the Act. Nor does the fact that the Court has to fix what it considers as a reasonable rent militate against the adjudication being subject to an appeal. In our opinion, an appeal would lie from orders passed under Sections 7 and 7-A of the Act, because the new matter entrusted for adjudication to the Court is one closely resembling the character of matters over which the Court had already jurisdiction and the adjudication in respect of it amounted to a determination of legal rights of parties, thus becoming a decree. This is recognised in Section 8 of the Act. The decision in Perumal v. Kondal ILR [1939] Mad. 213, cannot, therefore, be accepted as correct. The Act has further been amended by Madras Act XIII of 1960, which expressly confers a right of appeal to an aggrieved party against an order fixing a reasonable rent. As the question involved in this case arose before the coming into force of that amendment, we have lurato not referred to the new Section 9-A introduced by the amending Act.

It follows that the order refusing to entertain the appeal by the learned District Judge cannot be sustained. The civil revision petition is allowed and the appeal is remanded for disposal on its merits by the lower appellate Court. There will be no order as to costs.

Ramachandra Ayyar, J.

As we have held in Appeal Against Appellate Order No. 51 of 1961 (Civil Revision Petition No. 367 of 1958) that an appeal lies against an order fixing reasonable rent u/s 7-A of the Madras City Tenants'' Protection Act, no revision can be entertained. The revision petition is dismissed.