Vedachala Naicker vs P.K. Duraiswami Mudaliar

Chandra Reddi, J.—This civil revision petition is brought against the order of the Court of the District Munsif, Poonamallee in I. A. No.

1066 of 1946. The petitioner was the defendant in O. Section No. 331 of 1946 instituted by the landlord in ejectment on the ground that the

tenancy was determined. He pleaded that he was entitled to protection under the Madras City Tenants'' Protection Act, by reason of the fact that

the suit site was included in the City of Madras with effect from 1-4-1946. He also filed an application u/s 9 of the Act within the time prescribed

by the section praying that the Court might be pleased to direct the plaintiff-landlord to sell him the land for a price to be fixed by the Court

according to the provisions of that section.

Some time thereafter the plaintiff filed an application under Order 23, Rule 1, to withdraw the suit with liberty to file a fresh suit on the ground

that there was a formal deject in the suit inasmuch as the plaintiff failed to issue the notice required u/s 11 of the Act. At that time the petition filed

by the tenant u/s 9 of the Act was pending.

The application for withdrawing the suit was opposed by the defendant on the ground that by virtue of the filing of the suit a right to claim relief

u/s 9 has accrued to him and that it was not open to the plaintiff to withdraw the suit. It was also contended on his behalf that in any event his

application should be proceeded with in spite of the withdrawal of the suit. Overruling the objection raised by the defendant, the lower Court

allowed the plaintiff to withdraw the suit with liberty to file a fresh suit and dismissed the defendant''s petition (I. a. No. 1066 of 1946) leaving open

the question of defendant''s right to purchase the suit site to be determined in a fresh suit that might be filed by the plaintiff.

The defendant has preferred this civil revision petition against the order of the District Munsif in I. A. No. 1066 of 1946. The contention raised

by Mr. Ramaswami Aiyangar who appeared for the petitioner is that the trial Court had no jurisdiction to dismiss the application u/s 9 of the Act

without inquiring into it as the defendant had acquired an indefeasible right u/s 9 of the Act to purchase the suit site from the plaintiff, the moment

the suit for eviction was filed into Court. According to him the fact that the plaintiff was not prepared to proceed with the suit on a ground of formal

defect in the plaint would not make any difference for the defendant''s application u/s 9 of the Act.

In support of this contention he relied on an unreported decision of Mack J. in M.K. Rajagopal Chettiar Vs. Razak Sahib alias Abdur Razack, ,

which will be referred to presently.

Before dealing with the case it is useful to set out the relevant provisions of the Act. The material portions of Section 9, Madras City Tenants''

Protection Act runs as follows :

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, Presidency Small

Cause Courts Act, 1882, taken by the landlord, may within one month after the date of this Act coming into force or within fifteen days after the

service on him of summons, apply to the Court for an order that the landlord shall be directed to sell the land for a price to be fixed by the Court.

The Court shall fix the price according to the lowest market value prevalent within seven years preceding the date of order and shall order that

within a period to bo determined by the Court not being less than three months and not more than three years from the date of the order, the tenant

shall pay into Court or otherwise as directed the price so fixed in one or more instalments with or without interest.

Section 11 provides that no suits in ejectment or applications u/s 41, Presidency Small Cause Courts Act, 1882, shall be instituted or presented

against tenant until the expiration of three months nest after notice in writing has been given to him to surrender possession of land and building, and

offering to pay compensation for the building and trees, if any, and stating the amount thereof.

Under the provisions of Section 9, a tenant is entitled to app''y for an order to direct the landlord to sell the land for a price to be fixed by Court.

It is not disputed that the defendant who is a tenant, within the meaning of the Act, would be entitled to the right specified in Section 9, when a suit

is instituted against him for ejectment. The only question that has been raised in this case is whether a suit has been instituted within the meaning of

Section 9 of the Act.

In C. R. P. No. 378 of 1948, Mack J. has held that Section 9 (1), Madras City Tenants'' Protection Act gives the tenant a specific right and

that it is incumbent on the Court to deal with the petition presented by him under that section irrespective of the result of the suit for eviction of the

tenants. In that case the suit was dismissed on the ground that 8 months'' notice required u/s 11 of the Act was not issued to the tenant. But the trial

Court pro ceeded to enquire into the petitions filed by the tenants u/s 9 (1) of the Act which were pending at the time of the dismissal of the suit

negativing the contention of the landlord that the petition u/s 9 should be dismissed as no order for ejectment had in fact been passed. In revision

Mack J. confirmed the order of the trial Court observing that

the statute gives the tenant a specific right u/s 9 (1) and it is incumbent on the Court to dispose of his petition u/s 9, quite apart from the manner in

which the ejectment suits have been terminated.

On the other hand it was urged by Mr. Venkatarama Aiyar for the respondent, that the plaintiff had not acquired any right u/s 9 of the Act as the

suit filed by the plaintiff was not a suit in the eye of the law because the mandatory provisions of Section 11 as regards notice were not complied

with by the plaintiff before the institution of the suit.

He cited to me some decisions of this Court and of the Judicial Committee of the Privy Council as supporting his proposition.

In AIR 1927 176 (Privy Council) their Lordships of the Judicial Committee laid down that Section 80 is express, explicit and mandatory and

does not admit of any exceptions, that a suit in which inter alia an injunction is asked for is still a suit within the words of that section and that no

qualification can be read into it. The question that arose for consideration in that case was whether Section 80, Civil P. C., was applicable to a suit

in which the reliefs claimed were a declaration that a notification published by the Government was invalid and a perpetual injunction restraining the

defendants from recovering a tax levied by them under a notification. In the course of their judgment their Lordships observed that the

consequence of the non-compliance with the requirements of Section 80, Civil P. C., was that the appellants'' present position in regard to the

taxes impos d on them was as if their action had never been brought and that the suit was unsustainable in imine and therefore they could got no

relief in it.

Mr. Venkatarama Aiyar relies upon this observation as supporting his contention. I do not think that these observations in any way support his

argument. On the other hand the observations of their Lordships at p. 749 that, ""the suit was began and prosecuted us a joint suit to challenge the

official action as soon and as completely as possible"" show that his argument that no suit is deemed to have been instituted is not sound.

In Vellayan Chettiar v. Government of Madras, I. L. R. 1948 Mad 214 : A. I. R. 1947 P. C. 197 it was laid down inter alia by the Privy

Council that while the provisions of Section 80, Civil P. C., are mandatory and explicit it was competent for the defendant for whose benefit

Section 80, Civil P. C, was enacted to waive that benefit. In that case one of the questions that fell to be determined was whether the defendants, i.

e., the Government of Madras, had waived their right to a proper notice of suit u/s 80, Civil P. C., and whether the defect of non-compliance with

the requirements of that section was eschewed by reason of such waiver. Dealing with this point their Lord-ships point out that there is no

inconsistency between the propositions that the provisions of this section are mandatory and must be enforced by the Court and that they may be

waived by the authority for whose benefit they are provided. No doubt on the facts of that case their Lordships came to the conclusion that the

defendants have not waived the right conferred on them by Section 80 of the Act. It appears to me that the observations of their Lordships in that

case lend support to the contention that the lack of a valid notice as required either u/s 80, Civil P. C., or Section 11, Madras City Tenants''

Protection Act would not render the institution of the suit ineffective for all purposes and that the non-compliance with the provision affects only the

result of the suit. If the contention of the respondent were to be accepted there is no question of waiving the right conferred by the statute and

proceeding with the trial of the suit because the suit itself should be treated as non-existent.

Much reliance was placed by the counsel for the respondent on two of the decisions of this Court in Subramania Mudaliar v. East Asiatic Co.

Ltd., 71 M. L. J. 663 : A. I. R. 1936 Mad. 991 and Ponnuchami v. Muthuswami, I. L. R. 1942 Mad. 355 : A. I. R. 1942 Mad. 252. In

Subramania Mudaliar v. East Asiatic Co. Ltd., 71 M. L. J. 663 : A. I. R. 1936 Mad. 991 it was laid down that a suit filed by a firm which was

unregistered was incompetent because of the provisions of Section 69, Partnership Act, and that the subsequent registration of the firm could not

enable the plaintiff to apply for an amendment of the plaint as the suit originally filed was no suit at all in the eye of the law.

In Ponnuchami v. Muthuswami I. L. R. (1942) Mad. 355: AIR 1942 Mad 252 it was held that the Court had no jurisdiction to proceed with

the trial of a suit filed by an unregistered firm since its registration is a condition precedent to its right to file the suit and that subsequent registration

would not put the suit on a proper basis.

But the cases dealing with Section 69, Partnership Act do not afford any analogy to the present case for the reason that the defect of failure to

issue the statutory notice u/s 11, Madras City Tenants'' Protection Act can be cured by the tenant waiving the benefit conferred upon him under

that section.

Another decision referred to is that of Pandurang Row J. in Ganesa Naidu and Others Vs. C. Mallaram Singh, . The learned Judge had laid

down that the provisions of Section 11, Madras City Tenants'' Protection Act were mandatory and that failure to observe them would entail the

consequence of the dismissal of the suit. In the course of the judgment it is stated by the learned Judge that the provisions of Section 11 are

certainly provisions in favour of the tenant and not in favour of the landlord, that to that extent it is one of the benefits conferred on the tenant by the

Act and that he cannot be deprived of the benefit of the protection given by Section 11 simply because ho is entitled to other benefits given under

the Act. As the appeal was being dismissed on the ground of want of statutory notice, the learned Judge observed that it was unnecessary to

consider the question whether if the suit were maintainable, the defendant would be entitled to proceed u/s 9 of the Act. Mr. Venkatarama Ayyar

wants to construe this observation as amounting to an expression of opinion that as the suit was not maintainable for want of statutory notice, the

defendant would not be entitled to any relief u/s 9 of the Act. I do not think I can accept this argument.

In V. Ramaswami Aiyar and Another Vs. Veerarayan Raja alias Kuttunni, the present Eralpad Raja and Another, another case cited by the

counsel for the respondent, it was held that the institution of the suit or the presentation of a plaint to a Court not having jurisdiction to entertain it

does not amount to an institution of the suit even if the firm was registered. I do not think this decision really helps the respondent. While it

recognises the principle that the presentation of a plaint in the Court which has no jurisdiction to entertain it cannot be said to be the institution of

the suit, it lays down the principle that if a suit is filed in a Court of competent jurisdiction it could not be said that the suit had not been instituted at

all merely because it turned out subsequently as the result of the finding on the value of the subject-matter that the suit ought to have been filed in

another Court and the plaint was presented to the proper Court. So this ruling does not in any way advance the respondent''s case. On the other

hand it lends colour to the contention put forward on behalf of the petitioner.

In Rao Bahadur V. Ranganatham Chettiar and Others Vs. Mariappa Mudali and Others, it has been laid down by Patanjali Sastri J., that an

omission by the landlord to offer compensation to the tenant u/s 11 of the Act would impose an obligation upon the Court not to entertain a suit in

ejectment. This case has no bearing on the question for decision in the present case.

I am inclined to agree with the argument advanced on behalf of the petitioner that the only consequence of the failure to observe the provisions

of Section 11, City Tenants'' Protection Act is the dismissal of the suit and that it does not affect the institution of the suit.

Further it must be borne in mind that the provisions of Section 11 of the Act were enacted for the benefit of the tenant as pointed out in the

rulings referred to above and not for his detriment and the landlord therefore cannot take advantage of this provision to the prejudice of the tenant.

It is open to the tenant to waive the protection afforded to him under that section and request the Court to grant him the relief provided for in

Section 9 of the Act.

In Bodi Venkataswami and Others Vs. Adada Mahalakshmi and Another, it was laid down by Viswanatha Sastri J. that waiver might be

express or implied from conduct and that a person who had taken a plea based on lack of notice u/s 80 could waive it and allow the suit to

proceed as if the requirements of Section 80 have been complied with. It is also stated there by the learned Judge that this can be done so long as

a suit is not finally disposed of, rejecting the contention that there could be no waiver after objection as to want of notice had been raised in the

written statement. I am therefore of opinion that in this case the filing of an application u/s 9 of the Act amounts to a waiver by the tenant of the

benefit conferred on him u/s 11 of the Act.

For these reasons I am inclined to think that the tenant had acquired an indefeasible right consequent upon the landlord filing a suit to apply to

the Court for a direction to the landlord to sell him the suit site for a price to be fixed by Court. The Court was therefore bound to inquire into the

application u/s 9 of the Act irrespective of the result of the suit.

In these circumstances, I accept the civil revision petition filed on behalf of the tenant, set aside the order of the trial Court and send the petition

back for disposal accord- ing to law in the light of the observations made by me. The respondent will pay the costs of this civil revision petition.

The costs in the lower Court will abide the result of the petition u/s 9 of the Act.