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Judgment
T.S. Sivagnanam, J
Since the parties in both the revision petitions are one and the same and the matter arises out of the common proceedings, they were heard
together and disposed of by this common order. The petitioner is the defendant in Ejectment Suit No. 55 of 1997 filed by the
respondents/plaintiffs. The respondents filed a suit u/s 41 of the Small Causes Court Act, praying for a decree directing the petitioner/defendant to
vacate and deliver vacant possession of the land bearing Door Nos.1/1 and 1/2L, Ponnusamy Naicken Street, Royapettah, Madras - 14
measuring about l700 sq.ft.
The petitioner/defendant filed a written statement stating that she is the tenant in respect of the vacant land measuring 3960 sq.ft.; the
superstructure measuring about 1700 sq.ft belongs to her; she is in possession and enjoyment of the same and carrying on business in that property
and she is entitled to the protection u/s 9 of the City Tenants'' Protection Act (hereinafter referred to as ""The Act"").
During the pendency of the suit, the petitioner/defendant filed M.P. No. 1551 of 1997 u/s 9 of the Act to direct the plaintiffs to sell the schedule
mentioned land measuring 3960 sq.ft. for a reasonable price and permit the defendant to pay the same in sixty monthly instalments. This application
was resisted by the plaintiffs by filing a counter inter alia contending that the petitioner/defendant is not carrying on business for several years and
that she is not in physical possession of the property and had sublet the same to another dealer and therefore she is not entitled to any relief u/s 9 of
the Act. It was also stated that the petitioner/defendant is owning several immovable properties in the City of Madras and she is a co-ower of a big
theatre known as ""Bhuvaneswari Theatre"" and therefore, the claim of the petitioner to pay the land value of the property in sixty instalments is
unwarranted.
The Trial Court, after considering the contentions raised by both sides, passed an order on 7.10.2002, whereby, an Advocate Commissioner
was appointed. He was directed to inspect the suit property, determine the market value of the property for the past three years, find out the exact
state of affairs prevailing in the property and submit his report along with a sketch. The matter was directed to be posted on 31.10.2002 for
Advocate Commissioner''s report. The Advocate Commissioner, after inspection filed his report stating that the property is a vacant land with a
building, which is found to be old, there was no electricity or water connection, the roofs are found to be leaking, no one has occupied the
property and it cannot be used as it is. A sketch was also filed along with the Commissioner''s report. The petitioner/defendant filed her objection
disputing the correctness of the report submitted by the Advocate Commissioner.
Thereafter, the respondents/plaintiffs filed M.P. No. 480 of 2006 in M.P. No. 1551 of 1997 praying for dismissal of M.P. No. 1551 of 1997.
In the affidavit filed in support of the said petition, it was stated that in the suit filed for ejectment, the petitioner/defendant filed an application u/s 9
of the Act stating that she is entitled to purchase the property alleging that she is in possession of the same. However, the report of the Advocate
Commissioner specifically states that no one was in occupation or usage of the suit property, especially, the defendant and therefore, she not
entitled to claim any relief u/s 9 of the Act and prayed for dismissal of the said application.
The Trial Court first, took M.P. No. 480 of 2006 for consideration and taking note of the factual averments recorded by the Advocate
Commissioner as well as the decision of this Court in the case of S.R. Radhakrishnan and Others Vs. Neelamegam, allowed M.P. No. 480 of
2006 holding that mere payment of rent is not sufficient to have the benefit u/s 9 of the Act. Consequently, the application viz., M.P. No. 1551 of
1997 filed by the petitioner/defendant u/s 9 of the Act was dismissed. Aggrieved by the same, the petitioner/defendant has filed these two Civil
Revision Petitions.
I have elaborately heard Mr. K.P. Ashok, learned counsel appearing for the petitioner and Mr. P.K. Sivasubramanian, learned counsel
appearing for the respondents and carefully perused the materials available on record.
The learned counsel for the petitioner vehemently contended that the Advocate Commissioner exceeded the scope of his warrant as he had no
jurisdiction to make any observation as regards the possession of the suit property by the petitioner/defendant. It is further submitted that the order
dated 7.10.2002 passed in M.P.No. 1551 of 1997 having become final and the respondents/plaintiffs having not filed any appeal against the said
order, the Trial Court is not justified in dismissing M.P. No. 1551 of 1997.
Per contra, learned counsel appearing for the respondents/plaintiffs contended that the order dated 7.10.2002 in M.P. No. 1551 of 1991 is not
a final order but it is only an interim order which is required to be passed while deciding an application filed u/s 9 of the Act Therefore, the trial
Court rightly took into consideration the report of the Advocate Commissioner, who had stated that the petitioner is not in physical possession of
the property and in fact, she cannot be in possession. Therefore, the order dated 7.10.2002 being an interim order, the Trial Court was fully
justified in rejecting the petition. The learned counsel further submits that the Civil Revision Petitions are not maintainable. According to the learned
counsel as against the order passed u/s 9 of the Act, an appeal lies to the Lower Appellate Court in terms of Section 9A of the Act and without
availing such remedy, the petitioner has filed these revision petitions and therefore, liable to be dismissed as not maintainable. The learned counsel
also placed reliance on the decision of this Court in Natesa Mudaliar v. S.B.K.P.K. Bhajana Matam (1966 (1) MLJ 130) and the decision of the
Honourable Supreme Court in P. Ananthakrishnan Nair v. G. Ramakrishnan, AIR 1987 SC 1272 = (1987) 2 SCC 429, in support of his
contentions.
On going through the pleadings and the findings recorded by the Court below, the issues that arise for consideration are
(i) Whether as per order dated 7.10.2002, M.P. No. 1551 of 1997 filed u/s 9 of the Act is finally disposed of, or
(ii) Whether it is only an interim order.
To answer these questions, it would be relevant to refer to Section 9 of the Act. Section 9(1)(a)(i) provides that any tenant who is entitled to
compensation u/s 3 against whom a suit in ejectment has been instituted or proceeding u/s 41 of the Small Cause Courts Act has been initiated,
may within one month after service of summons apply to the Court, to direct the landlord to sell for a price to be fixed by the Court below whole
or part of the extent of land specified in the application. If such an application is filed, the Court, in terms of Section 9(1)(b), shall first decide the
minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. Thereafter, the Court shall fix the price of the
minimum extent of the land.
A reading of the above provision would make it clear that the fist step that has to be taken by the Court is to decide the minimum extent of
land. In the instant case, the respondents/plaintiffs had raised a specific plea that the petitioner/defendant is not in possession of the suit property.
The Trial Court being conscious of the said fact, passed an order on 7.10.2002, directing the Advocate Commissioner to ascertain, not only the
market value of the property for the past three years but also the nature of the property ( ) and directed the matter to be posted on 31.10.2002.
Thus, it is clear that the order dated 7.10.2002 is only an interim order and it is the fist step taken by the Court, as required to be done u/s 9(i)(b)
of the Act. Therefore the contention of the learned counsel for the petitioner that it is a final order, cannot be accepted.
The Honourable Supreme Court in P. Ananthakrishnan Nair (1987) 2 SCC 429, = (1987) 100 LW 1093, cited supra considered the scope
of an application filed u/s 9 of the Act and duty cast upon the Court while dealing with such application. At this stage, it would be relevant to quote
the following paragraphs:
Whenever an application is made by a tenant before the court for issuance of direction to the landlord for the sale of the whole or part of the
land to him, the court is under a mandatory duty to determine the minimum extent of the land which may be necessary for the convenient enjoyment
by the tenant. This determination can obviously be made only after an enquiry is held by the court having regard to the area of the demised land
and the extent of superstructure standing thereon, and the tenant''s need for the land for the beneficial enjoyment of the superstructure which he
may have constructed thereon. The enquiry presupposes that the tenant making the application has been in the occupation of the land and the
superstructure wherein he may be either residing or carrying on business, and on his eviction he would be adversely affected. The policy underlying
Section 9 of the Act, is directed to safeguard the eviction of those tenants who may have constructed superstructure on the demised land, so that
they may continue to occupy the same for the purposes of their residence or business. Section 9(1)(b) ordains the court to first decide the minimum
extent of the land which may be necessary for the convenient enjoyment by the tenant, it therefore contemplates that the tenant requires the land for
the convenient enjoyment of the property. If the tenant does not occupy the land or the superstructure or if he is not residing therein or carrying on
any business, the question of convenient enjoyment of the land by him could not arise. The court has to consider the need of the tenant and if it
finds that the tenant does not require any part of the land, it may reject the application and direct eviction of the tenant, in that event the landlord
has to pay compensation to the tenant for the superstructure.
In the instant case, admittedly the land in dispute was leased out to N.V. Abdullah Sahib for carrying on business, the trial court as well as the
first appellate court both have recorded concurrent findings of fact that the business which was being carried on by N.V. Abdullah Sahib and his
heirs was discontinued in 1964, and except for Defendants 4 and 7, all other defendants have settled down outside Madras and they were not
occupying the land or the building thereon nor were they carrying on any business in any portion of the building on the date of filing of the ejectment
suit. Only in a small portion of the entire land account books of the business was kept and the rest of the land and the superstructure standing
thereon has been in the occupation of sub tenants since 1964. The courts have further recorded findings that except Defendant 4 (Appellant 1)
other defendants are not interested as they did not contest the landlords'' suit for eviction. This findings clearly show that none of the defendants
have been in occupation of the land or the superstructure standing thereon and they have not been carrying on any business therein. Even in the
ejectment suits, barring Defendant 4 none appeared to contest the suit and exparte proceedings were taken against them. The trial court as well as
the appeal court both have recorded findings that the land in dispute and the superstructure has been in occupation of subtenants since 1964. In
view of these findings the High Court refused to interfere with the orders of the trial court as confirmed by the appeal court. Having regard to these
findings and the nature of the tenants'' right to purchase land u/s 9 being equitable in nature, it would be unreasonable to direct the landlord to sell
the land to the tenants. The facts and circumstances available on record show that the tenants do not require the land for their convenient
enjoyment, therefore, it would be inequitable to direct the landlords to sell the property to the tenants. It is a matter of common knowledge that
price of land, specially in the urban areas has escalated to a great extent and it would not be fair to deprive the landlords of their property and to
allow the tenants to enrich themselves at the landlords'' expense. The law does not intend that the tenant should enrich at the instance of the
landlord even though the tenants do not require the land for their convenient enjoyment
Thus, in terms of the law laid down by the Honourable Supreme Court Section 9(1)(b) of the Act ordains the Court to first decide the
minimum extent of land which may be necessary for the convenient enjoyment by the tenant. It therefore contemplates that the tenant requires the
land for the convenient enjoyment and if the tenant does not occupy the land or the superstructure or if he is not residing therein or carrying on any
business, the question of convenient enjoyment of the land does not arise.
In the instant case, the learned Advocate Commissioner in his report, has specifically stated that no one is in occupation or usage of the suit
property and it cannot be used as it is. The petitioner/defendant has neither specifically denied the report of the Advocate Commissioner nor
produced any evidence to establish that he is in possession of the property, after the visit of the Advocate Commissioner. Therefore it is clear that
the petitioner is not entitled to the protection u/s 9 of the Act.
Further, in terms of Section 9A, an appeal shall lie from an order passed by a Court under Sections 6,7,7A or 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. Therefore, if the petitioner is
aggrieved by the order refusing to grant relief u/s 9 of the Act, her remedy is to file an appeal u/s 9A of the Act. For the foregoing reasons, I am of
the view that the order of the Court below declining to grant relief to the petitioner/defendant is perfectly legal and valid and requires no
interference. In the result, the Civil Revision Petitions are devoid of merit and the same are dismissed. Consequently, the connected MP is closed.
No costs.