AI Structured Summary
Not yet generated for this judgment
Judgment
Ramaprasada Rao, J.—The landlord is the 1st Appellant. The 2nd Appellant is the lessee of the entire block of land in T.S. No. 347, Block No. 94, Ward No. 1, Tiruchirappalli, owned by the 1st Appellant. The Respondent is admitted by a tenant in a portion of the land comprised in T.S. No. 347 and has put up a superstructure thereon. The Appellants filed a suit for recovery of possession of the land from the Respondent and also claimed arrears of rent by then payable by the Respondent. This appeal is not concerned with the claim for rent. The Respondent in his written statement filed within 30 days from the date of service of the summons, besides raising other defences, claimed therein the benefits of the Madras City Tenants Protection Act, hereinafter called the Act, and stated that he had a right to purchase the land in his occupation, in accordance with the provisions of the Act. No doubt, no independent application was filed for getting the relief contemplated in Section 9 of the Act. The Respondent, however, filed Interlocutory Application No. 553 of 1964, under which he prayed that the Court may be pleased to receive his memo. containing court-fee label of 75 paise and affix the game on the written statement on the ground that the request made by him in paragraph 4 of the written statement for the benefits under the Act should be deemed to be an application as is ordinarily understood. The learned District Munsif came to the conclusion that there was no necessity for an independent or separate application u/s 9 of the Act to enable a tenant to claim the benefits under it. He therefore upheld the right of the tenant to claim the benefits under the Act. The Appellant, aggrieved against the said order, filed an appeal in the Court of the Subordinate Judge of Tiruchirappalli, but they were unsuccessful. The lower appellate Court upheld the right of the Respondent to obtain the relief u/s 9 of the Act and directed that incidental proceedings for the quantification and ascertainment of the rights of either parties should proceed, and for that purpose remanded the matter to the lower Court. As against this the present appeal has been filed.
Mr. K. Parasaran, learned Counsel for the Respondent, after the opening of the appeal by the learned Counsel for the Appellants, raised a preliminary objection that a second appeal to this Court is not maintainable as u/s 9-A of the Act it is barred. It was urged that Section 9-A being express in content and scope, the finality attached to the orders by the first appellate Court is conclusive and the legality, regularity or propriety of such final orders cannot be canvassed in a superior forum. Mr. W.C. Thiruvengadam, learned Counsel for the Appellants would say that the subject having been entrusted to civil Court and an appeal having been provided by the Act, the finality can only be with reference to the procedure prescribed under the Act and not to the available remedies under the common law of the land. The contention is that once the matter is seized in a civil Court, all the rights and privileges annexed to such a litigation are available and no conceivable interdict can be envisaged in the normal course of such a lis and Section 9-A of the Act is no bar to the maintainability of this appeal in the High Court. Several decisions were cited at the Bar in support of the respective contentions of the parties. Besides answering the preliminary objection, one other aspect seriously urged by the learned Counsel for the Appellants is that in the absence of an independent application u/s 9 of the Act for the conferment of the statutory benefits under the Act, the Courts below ought not to have granted the same to the Appellant.
I shall take up first the preliminary objection by Sri K. Parasaran. The Act conferred a benefit on tenants who constructed buildings on other''s lands in the hope that they would not be evicted so long as they paid a fair rent for the land. Such an expectancy ripened into a statutory privilege by the combined operation of Sections 9 and 9-A of the Act. It should be mentioned that Madras Act III of 1922, underwent many changes according to changing circumstances and needs and in this appeal we are concerned with Section 9-A which was introduced by Amending Act III of 1960. Section 9-A reads:
An appeal shall lie from an order passed by a Court u/s 6, Section 7 Section 7-A or Section 9 to the Court to which an appeal would lie from any decree passed by the former Court and the decision in such appeal shall be final:
Provided that from an order passed
(i) by the Chief Judge of the Presidency Small Cause Court, an appeal shall lie to the High Court, and
(ii) by any other Judge of the Presidency Small Cause Court, an appeal shall lie to the Chief Judge.
In this case we are concerned with an order passed u/s 9 of the Act. An express provision by way of an appeal against the order u/s 9 of the Act is provided to a Court of appeal, as is ordinarily understood and a decision by the Court on appeal is made final. When there is thus snapping of the chain of the Court of litigation by legislative sanction, then it has an expressive signification, which cannot be circumscribed by wedging into it consideration of expediency, generality and other common law principles. Final means the last of the series in an action. In fact, prior to the introduction of Section 9-A, certain general principles of law were inducted into the procedural phase of a proceeding under the Act and it was felt that as the matters arising therein were referred for adjudication by a civil Court, then all the privileges including the right of appeal to the higher hierarchy however high it may be, were available to the aggrieved person, The classical passage of Viscount Haldane L.C. in National Telephone Company Limited v. Postmaster-General [1913] A.C. 546, 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 like wise attaches
was applied. Thus the principle is that unless there is an express restriction in a statute on the rights ordinarily available in the Code of Civil Procedure, the latter could be availed of, notwithstanding the absence of any provision to that effect in the concerned statute. Said Ramachandra Ayyar J., (as he then was) in Arunachala v. Ghulam Mahmood ILR [1959] Mad. 336, 340.
It is well-recognised that the right of appeal should be given by a statute. It is also well recognized that if a right is granted by a statute and jurisdiction is given to ordinary Courts to give effect to such a right, the procedure including a right of appeal that is applicable to the proceedings in such Courts would also apply for the enforcement of such rights. Appeals would, therefore, lie even if they are not specifically provided for by the statute creating the right; if in respect of those orders an appeal would lie if they were treated as part of the ordinary jurisdiction of that Court. The right of appeal becomes inherent by virtue of the adjudication of the rights of parties and not by implication.
The above ratio was approved by a Full Bench of this Court in Rajendar v. Govindier ILR [1961] Mad. 1194 (F.B) to which Bench also Ramachandra Ayyar J., (as he then was) was a party.
But when considering the scope and content of Section 9-A of the Act, which is now, the prior law and general common law principles have to give way to the express language of Section 9-A of the Act. The words employed are the decision in such appeal shall be final. The effect of the previous citations has considerably been sloped down by legislative interference. When a statute is amended, it is not proper to assume that the existing law is being maintained unless clear words or language warrant such an inference. Second appellate jurisdiction cannot, in the light of the language of Section 9-A, be implied or imported into it. The word final has to be understood in its normal sense and given effect to. The restriction imposed on a second appeal over the decision of the Court deciding an application u/s 9 is absolute and total. The common law enabling the enlargement of the course of litigation by recourse to successive appeals as are available therein, has been interdicted by a special section of the Act introduced by Madras Act XIII of 1960. It is elementary that no appeal, over a decision made final by statute, can be provided or thought of by necessary implication. The special excludes the general is an accepted norm of practice. The Supreme Court had to consider in two decisions in Union of India (UOI) Vs. Mohindra Supply Company, and South Asia Industries Private Ltd. Vs. S.B. Sarup Singh and Others, the effect and scope of a similar provision.
In the first of the cases referred, Union of India (UOI) Vs. Mohindra Supply Company, the Supreme Court was considering the effect of Section 39(2) of the Arbitration Act (1940) which expressly prohibited a second appeal from an order passed in appeal u/s 39(1) except an appeal to the Supreme Court. The question was whether the Letters Patent of the High Court would make any difference as it automatically provided an appeal to a Division Bench against the judgment of a Single Judge. The Court held (at page 259):
Under Section 39(1) (Arbitration Act) an appeal lies from the orders specified in that Sub-section and from no others. The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away. If by the express provision contained in Section 39(1), a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that Clause (2) does not similarly restrict the exercise of appellate power granted by the Letters Patent. If for the reasons aforementioned the expression "Second appeal" includes an appeal under the Letters Patent, it would be impossible to hold that notwithstanding the express prohibition, an appeal under the Letters Patent from an order passed in appeal under Sub-section (1), is competent.
Again considering the scope of Section 43 of the Delhi Rent Control Act, 1958, the Supreme Court in South Asia Industries Private Ltd. Vs. S.B. Sarup Singh and Others, reiterated its view. The relevant sections were:
Section 39(1) Subject to the provisions of Sub-section (2), an appeal shall lie to the High Court from an order made by the Tribunal within sixty days from the date of such order.
(2) No appeal shall lie under Sub-section (1) unless the appeal involves some substantial question of law.
Section 43, Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.
Interpreting the above, Subba Rao, then acting C.J. paid at page 1447:
The expression final prima facie connoted that an order passed on appeal under the Act is conclusive and no further appeal lies against it. The last sentence in Section 43 of the Act in our view does not restrict the scope on the said expression; indeed, the said sentence imposes a further bar. The expression final in the first part of Section 43 of the Act puts an end to a further appeal an the words shall not be called in question in any original suit, application or execution proceedings bar collateral proceedings. The section imposes a total bar. The correctness of the judgment in appeal cannot be questioned by way of appeal or by way of collateral proceedings.
Apart from the principles so well laid by the Supreme Court, the language of the proviso to Section 9-A of the Act is expressive, indicative and restrictive. The proviso provides two kinds of appeals under two different circumstances. If the order is by the Chief Judge of the Presidency Small Cause Court, an appeal shall lie to the High Court; if it is by any other Judge of the Presidency Small Cause Court, an appeal shall be to the Chief Judge. These are express mandates and such prescriptions by the Legislature which made the orders passed on appeal final, cannot be lightly brushed aside on a priori considerations.
Thus, Sri K. Parasaran''s preliminary objection has to be upheld. This leads on to the question whether there was an application u/s 9 at all in the instant case which prompted the Courts below to make a decision on it. It is no doubt true that there was no separate application for the purpose; but this request is unambiguously made in paragraph 4 of the written statement, The additional written statement which was accepted and which forms part and parcel of the written statement makes the position more explicit. The Courts below allowed the application by the Respondent to treat the text of the request for the statutory benefits u/s 9 contained in the written statement as such and permitted the affixture of the required court-fee label on the written statement. What in effect was an informal application u/s 9 was treated and accepted as a formal one in the eye of law. It is not disputed that the written statement was filed within the time prescribed for making application u/s 9. In such a conspectus, could it be said that there is no application u/s 9 of the Act at all? The section says:
Any tenant who is entitled to compensation u/s 3 and against whom a suit in ejectment has been instituted or proceeding u/s 41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord, may, within one month of the date of the Madras City Tenants'' Protection (Amendment) Act, 1955, coming into force or of the date with effect from which this Act is 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 for a price to be fixed by the Court, the whole or part of, the extent of land specified in the application
Apply means to make or lodge a request. It need not be in writing. There is no form prescribed for it. It, therefore, follows that if the tenant brings to the notice of the Court, within the prescribed time, that he intends making a request to gain the statutory benefit, it is sufficient compliance of the content of Section 9. An unreserved lodging of the request for the grant of the benefits and protection under the Act through the written statement in a suit in ejectment, filed by the landlord, is enough to satisfy the requirements of law. No doubt, Panchapakesa Ayyar J. in Hazarath Sayed Shamiah Sakkab Kadiri Thaikkal Vs. T.B. Ibrahim Sahib, is of the view that the proper way of deciding questions arising under the Act, to wit a direction to the landlord to sell the land, is to initiate proceedings by an Original Petition. With respect to the learned Judge, I do not think he has excluded the method of petitioning for the relief, in a written statement duly stamped for the purpose. Original has been used in the sense that it is not derived, copied or imitated. It should be by a petition to Court to bring into existence the right of the tenant. Such petitioning or applying can be through the written statement, which is one of the accepted limbs of pleading. Pandrang Row J. in Raghava Naicker v. Abdul Hussain Nazarally and Company 1936 M.W.N. 1096 was of the view that a tenant would be entitled to claim the benefits u/s 9 of the Act even though he bad not made a separate application u/s 9. Chandra Raddi J. (as he then was) considering the scope of Section 17 of the Arbitration Act, 1940, observed in Ramaswami Servai v. Muthirulayee (1954) 1 M.L.J. 7.
A counter-affidavit filed by a Respondent in a petition for passing of a decree in terms of an award objecting to the passing of such a decree and praying that the petition should be dismissed, can tantamount to an application for setting aside the award within the meaning of Section 17 of the Arbitration Act and is sufficient compliance with the terms of the section. It is not necessary to make it in any particular form and to affix court-fee stamp of any value.
It is sufficient compliance with the requirements of Section 17 of the Arbitration Act if some notice is given to the proper officer that a party objects to the award.
In Dorvvelu Mudaliar v. Natesa Gramani ILR (1924) Mad. 761 (F.B.) Phillips J. in the Order of Reference to the Full Bench in passing observed that there is no force in the contention that a written application should have been presented u/s 9 . No doubt, the Full Bench had no occasion to deal with this aspect. Sundareswarar Devasthanam v. Marimuthu ILR [1963] Mad. 1054 and Syed Ibrahim and Others Vs. Jalma and Others, cited by the learned Counsel for the Appellants do not touch the issue before me.
In conclusion I am of the view that it would be too technical a view to take, as to insist upon a written formal application to project a statutory right, when no such mandate is there under the Act and when otherwise, the intendment of the law can be satisfied by making a request in an acceptable manner and bringing the matter to the notice of the Court. The Civil Miscellaneous Appeal is dismissed. There will be no order as to costs.