Thangammal (died) and Another vs Narayanaswami Iyer and Another

Govinda Menon, J.—Both the Lower Courts have held that the bona fide requirement contemplated u/s 20, Sub-section (5) of the Malabar

Tenancy Act, XIV of 1930, did exist and decreed the suit out of which the above second appeal arose. After the passing of the Amended Act, on

a combined reading of proviso (iii) to Sub-section (6) of Section 25 with Section 25, Sub-section (2) of Act VII of 1954, it has to be held that a

person who is an assignee of the landholder''s rights, if he wants to avail himself of the provisions of Clauses (4) and (5) of Section 25 can have a

right to do so only after the expiry of two years from the assignment and this has been given retrospective effect by Section 25, Sub-section (2) of

Act VII of 1954. Therefore, at the time when this Second Appeal comes up for hearing, the law to be administered is in accordance with Clauses

(4) and (5) of Section 25, with the result that if the suit had been instituted before the expiry of two years from the date of the assignment, then it

has to be dismissed. Now, in the present case though the suit was instituted much earlier, by the operation of Sub-clause (2) to Section 25, we

have to hold that the period of two years should be computed from the date of the assignment even though it took place much earlier than the

coming into force of this Act. This is the view taken by one of us, Krishnaswami Nayudu, J., in Sankaran v. Andy (1954) 2 M.L.J. 581, which

view has found acceptance by a Bench in L.P.A.. No. 187 of 1952. It is unnecessary therefore to discuss the points that have been considered in

those cases but one aspect of the case has been newly put forward before us which has not been considered either by Krishnaswami Nayudu, J.,

or by the Letters Patent Appeal Bench. It is this: It is argued on behalf of the landlord-respondent that if at the time the trial Court disposed of the

suit, two years had elapsed after the assignment, though the suit was a suit filed within two years of the assignment, this Court ought to take into

consideration the fact of the expiry of two years and should deem the suit as if it has been instituted on the date when the trial Court passed its

decree. If that is done then the prohibition contemplated in the third proviso to Clause (6) of Section 25 will not have any effect. Mr. C.K.

Viswanatha Aiyar, relies upon three decisions namely Ramakrishna Nadar and Another Vs. Ponnayya Thirumalai Vandaya Thevar and Others, ,

which related to the filing of a suit where a pauper whose application for leave to sue in forma pauperis had been dismissed without paying the

costs decreed against him, attempted to file a fresh suit. It was held by the Bench that if he paid the Court-fee at the time of the hearing of the suit,

the suit can be deemed to have been instituted on the date when the costs were paid. This view has not found acceptance with another Bench in

K.K.A. Ponnuchami Goundar Vs. Muthusami Goundar and Another, , where it has been distinguished. The other case on which learned Counsel

relies is P.V. Janaki Vs. Kalliani Amma and Another, . What happened in that case was that within the period of six years fixed under the lease

there was a suit for ejectment but pending the suit the six years period elapsed. Both the Lower Courts took into consideration the fact that

subsequent events should be called in aid to decree the plaintiff''s suit. That principle has been upheld by Butler, J. Another case in the same

volume, Lakshmana v. Jayaram (1933) 66 M.L.J. 380, related to the absence of cause of action on the date of suit but the coming into existence

of the cause of action pending suit by an assignment of the mortgage. In our view none of these cases can have any application to the present case.

What is stated in the third proviso to Sub-clause (6) of Section 25 is ""No person whose right to evict arises under an instrument of transfer etc.,

shall be entitled to sue"". It is analogous to Section 195 of the Code of Criminal Procedure where no Court is permitted to take cognizance of an

offence with regard to something which took place in a Court of Law or other matters without the filing of a complaint by the Court. What is

contemplated is that the Court would have no jurisdiction or right to take cognizance of a matter like this. Applying that principle to the present

case, it is clear that at the time the suit was instituted the Court was incompetent to take cognizance of the suit. A similar aspect of the case has

been considered in the case in Addala Chinna Venkatraju and Others Vs. Sri Kanchumarti Venkataseetha Ramachandra Rao Garu (deceased)

and Others, , where the question as regards the applicability of Section 37(1) of the Estates Land Act was considered. According to Section 37(1)

of the Estates Land Act, a suit for enhancement on the ground of a rise in prices shall not be entertained if within 20 years next preceding its

institution, the rent has, whether before or after the passing of the Act, been commuted or enhanced or the suit for enhancement has been

dismissed on the merits. The facts show that in some of the suits under consideration there had been a refusal to enhance within 20 years of the

filing of the suits, but at the time the suits came on for hearing, the 20 years had elapsed. The Lower Courts took that into consideration and held

that the suits were maintainable. Pandrang Rao, J., laid down that an indulgence which could be given to the landholder in a matter like this would

be going directly against the teeth of the statute; and such an act is not countenanced by the application of the principle that subsequent events can

be taken into consideration in exceptional cases. We are of opinion that the observations of Pandrang Rao, J., at page 222 are applicable:

In my opinion there can be no justification for showing this indulgence to the land-holder in view of the policy of the Act in this matter namely, that

no claim to enhancement of rent shall be entertained by the Court within 20 years after the rent has been enhanced. If indulgence is given to the

land-holder in this manner the effect will be to cut down the duration of the statutory bar to some thing less than 20 years and to abrogate in part

the express provisions of the statute.

We think that if we consider the suit as having been instituted on the date when the trial Court pronounced its judgment, we would be also

abrogating the provisions of the statute which prohibited the assignee from filing a suit within two years of the assignment. The other cases on which

the learned Counsel for the appellant, Mr. C.S. Swaminathan, relied are K.K.A. Ponnuchami Goundar Vs. Muthusami Goundar and Another, ,

which related to Section 69(2) of the Partnership Act, and Cuddappa Ghouse Khan Vs. Bala Subba Rowther, , relating to Section 28 of the

Insolvency Act. We do not think that the principle enunciated therein are very apposite because those were cases where there was no question of

the premature institution of the suits. Following Addala Chinna Venkatraju and Others Vs. Sri Kanchumarti Venkataseetha Ramachandra Rao

Garu (deceased) and Others, , we are of the opinion that the suit out of which this Second Appeal arises cannot be deemed to have been instituted

on the date of the decision of the trial Court.

There is another matter which has to be considered and that is that if the case is deemed to be instituted on that date it is not known what would

be the position of the plaintiff and what his primary needs would be on that date, because evidence would have been let in as regards his primary

needs on the date of the suit. Ordinarily a year or two may elapse after the institution of the suit before hearing and the primary needs and the

affluence of the person might also change. It may be that the present day capacity of the primary needs will be very much different from what it was

some years ago. In those circumstances we feel that the suit having been filed within two years is not maintainable. It is open to the plaintiff, if he is

so advised, and, if he comes within the provisions of sub-sections (4) and (5) of Section 25 of the Act, to institute another suit hereafter and satisfy

the Court that for the primary needs of himself or the members of his family the eviction of the tenant is necessary.

The Second Appeal is allowed and the suit is dismissed, but in the circumstances we allow costs to the respondents throughout.