AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
1979 (10) TMI 225
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....iff, Haji Abdulla Sait was the owner of a building situated in the city of Madras. He leased it out in favour of the defendant, K. Seetharama Rao under a lease deed dated July 8, 1940 for the purpose of Running a restaurant known as 'Modern Cafe' in it for a period of three years with effect from July 15, 1940 on a monthly rent of Rs. 950/-. The agreed h period of lease expired in July, 1943 but the defendant continued to be in possession of the building as a tenant holding over. On the coming into force of the Madras Non-residential Buildings Rent Control order in 1946, the defendant became a statutory tenant of the said building and fair rent in respect of it was fixed under that order in the year 1946 at Rs. 1,680/- per month. The aforesaid order was replaced by the Madras Buildings (Lease and Rent Control) Act. 1949 which was also applicable to the said building. On the death of the landlord Haji Mohamed Hussain Sait in 1955, under a partition amongst his heirs the plaintiff became the owner of the building. The protection which the defendant was enjoying under the Act of 1949 came to an end on the passing of the principal Act by virtue of section 35 thereof which repea....
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....; Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section." The statement of objects and reasons appended to the Bill which ultimately became the Amending Act read as follows:- "The Madras Buildings (Lease and Rent Control) Act, 1960 (Madras Act 18 of 1960), relates to the regulation of the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Madras. Under section 30 of the said Act, certain buildings are exempted from the provisions of the said Act. Any non-residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees is one such building or part is exempted under the said section 30. It has been brought to the notice of the Government that the landlords of such non-residential buildings, taking advantage of the exemption, referred to above, demand exorbitant rents fr....
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....the Code of Civil Procedure. He also filed an appeal in A.S. No. 266 of 1965 on the file of the High Court of Madras against the order of the City Civil Court dated December 4, 1964. Both the above applications were allowed by the City Civil Court on August 3, 1965. On August 13, 1965, the defendant filed an additional written statement before the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act. He also filed two revision petitions against the order passed by the City Civil Court allowing the two applications on August 3, 1965. In the meanwhile, on an application made under section 24 of the Code of Civil Procedure by the plaintiff, the suit was withdrawn to the file of the High Court and it was renumbered as C.S. No. 218 of 1965. It should be mentioned here that owing to the alteration of the pecuniary jurisdiction of the City Civil Court, the suit stood transferred to the file of the High Court on May 1, 1964 itself. The defendant died on January 15, 1968. He had made will on January 7. 1968 appointing executors and administrators in respect of his assets and issuing directions regarding the manner in which his assets....
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....roper notice of termination of the suit premises ? 3. Does the suit abate by reason of Act XI of 1964 ? 4. Are not the defendants entitled to protection under the Madras Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973 ? 5. Whether the tenancy came. to an end upon the death of K. Seethararma Rao ? 6. Whether the defendants have no legal interest in the premises and consequently liable to be rejected ? 7. To what reliefs are the parties entitled ? At the conclusion of the trial, the learned Judge held on issue No. 1 that the suit was maintainable, on issue No. 2 that the notice to quit had validly terminated the tenancy, on issue No. 4 that the defendants were not entitled to protection under the Madras Buildings (Lease and Rent Control) Act, 1960; on issue No. S that the tenancy had come to an end even on March 1, 1964 and on issue No. 6 that the defendants had no legal interest in the premises. He, however, declined to record any finding on issue No. 3 which related to the question whether the suit had abated ar not on June 10, 1964 by virtue o....
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....me to deliver vacant possession of the premises. Aggrieved by the decree passed by the trial Court, the plaintiff filed O.S.A. No. 23 of 1977 and defendant No. 2 filed O.S.A 75 of 1977 on the file of the High Court of Madras. The plaintiff in his appeal questioned the decree of the trial court only to the extent it granted a period of three years to the defendants to deliver possession of the premises. Defendant No. 2 in his appeal questioned the entire decree. Both the appeals came up for hearing before a Division Bench of the High Court. In the course of its judgment, the Division Bench formulated the following points for its consideration:- "1. What was the status of late Seetharama Rao after the termination of the tenancy-whether he was a trespasser or a tenant holding over or a tenant at sufferance ? 2. Did the suit building come within the purview of the Act and did late Seetharama Rao become a tenant as defined in the Act, on the coming into force of the Tamil Nadu Act XI of 1964 ? 3. Whether the suit instituted by the plaintiff abated in view of section 3 of the Tamil Nadu Act XI of 1964 ? &nbs....
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....e with section 106 of the Transfer of Property Act; (3) that a suit for eviction of Seetharama Rao was filed on March 2, 1964 before the City Civil Court, Madras which was competent to try it on the date of its institution; (I) that by virtue of alteration of the pecuniary jurisdiction of the City Civil Court and consequential provisions made in that connection, the suit stood transferred to the file of the original side of the High Court with effect from May 1, 1964 and that the suit was, therefore, deemed to be pending in law on the file of the High Court on June 10, 1964 on which date the Amending Act was published in the official Gazette even though in fact the file was Lying on that date with the City Civil Court. The other proceedings which have been referred to above in some detail are not relevant for the purpose of deciding the question whether the suit abated on the publication of the Amending Act in the official Gazette. Section 2 (ii) of the Amending Act repealed clause(iii) of section 30 of the principal Act. Consequently any non-residential building, the rental value of which on the date of the commencement of the principal Act as entered in the property tax assess....
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.... a tenant was not liable to be evicted whether in execution of a decree or otherwise except in accordance with the provisions of that section or sections 14 to 16 and the decision of the Madras High Court in Theruvath Vittil Muhammadunny v. Melepurakkal Unniri & Anr. and the decision of this Court in B.V. Patankar & ors v. C.G. Sastry, the Division Bench held that it was settled law that the principal Act itself did not prohibit the filing of a suit by a landlord for recovery of possession of the property from a tenant but only a decree passed in the said suit could not be executed except in accordance with the provisions of the principal Act and if that was the true legal position in respect of the buildings to which the principal Act applied from its commencement' there was no justification whatever for the Legislature making a contrary provision in respect of non-residential buildings to which the principal Act became applicable by virtue of the Amending Act. The Division Bench, therefore, held that section 3 of the Amending Act was not applicable to the case on hand. We are of the view that the above conclusion of the Division Bench is erroneous. It is not for the Court to ....
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....was follows: "It has to be immediately conceded that the wording of this section can by no means be described as happy, or free from any cloud of ambiguity. It is not very clear how a proceeding could have been instituted 'on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of s. 30', or what is the precise scope of the rights and privileges which may accrue to the landlord, and which are to cease and determine." We do not think that in the context in which section 3 of the Amending Act was enacted, it could be said that it was not possible to identify the proceedings to which that provision referred. In the case of P. J. Gupta & Co. (supra), the effect of section 3 of the Amending Act is set out as follows:- "The obvious result of section 30(iii) of the Act, as it stood before the amendment, was that, if the rental value of a non-residential building,, as entered in the property tax book of the Municipality exceeded Rs. 400/-per mensem, a description which applies to the premises under consideration before us the landlord would have no right to proceed against ....
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....termination of tenancy for sub-letting in addition to a condition against subletting, the tenancy right itself could not be forfeited or determined by such a breach of the contract of tenancy. In exercise of its revisional jurisdiction, under section 25 of The principal Act, the High Court of Madras reversed the judgment and order of the Small Cause Court holding that the rights of the landlord and tenant were governed on the date of the application for eviction by section 10(2) (ii) (a) of the principal Act which contained a prohibition against sub- letting which involved parting with possession. On appeal to this Court, the decision of the Madras High Court was affirmed holding that the effect of the amendment was that the landlord acquired a new right to evict a tenant under section 10(2) (ii) a). This Court held that by virtue of section 3 of the Amending Act, all rights and privileges which might have accrued before the date of publication of the Amending Act in the official Gazette to any landlord in respect of any non-residential building or part thereof by reason of clause (iii) of section 30 of the principal Act alone became enforceable. But the right to seek eviction of t....
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....(iii) of section 30 of the principal Act" should be construed in the context in which they appear as referring to a proceeding which had been instituted in the light of section 30(iii) of the principal Act which granted exemption in respect of the buildings referred to therein from the operation of the principal Act and any other construction would defeat the object of the Amending Act. lt is seen that in the instant case, the original plaint was filed on the basis that the tenancy had been terminated with effect from the expiry of February 29, 1964. The plaintiff prayed for eviction of the original defendant and also for a decree for damages for use and occupation at the rate of Rs. 6000/- per month from the date of the plaint till delivery of the vacant possession on the assumption that after the termination of the lease the original defendant No. 1 was not a tenant and was liable to pay damages and not the rent of Rs. 1,680/- per month which was the fair rent fixed in respect of the building in a former proceeding under the rent control law in force then. The suit in the above form could be filed for the relief referred to above only because of the exemption granted by clause (i....
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....n-residential building which did not fall within the purview of the Act because of section 30(iii) of the Act. The tenancy was terminated on 31st October, 1960 and the suit in ejectment was instituted on 19-12-1960 which ended in a compromise decree dated 31st January, 1963. The decree provided for a direction for eviction against the quondam tenant, subject to certain terms thereafter mentioned, to wit, the landlord being entitled to take possession of the portion of the premises in occupation of one Panchand and the Bullion Market Post Office immediately by executing the decree in so far as The said portion was concerned and the quondam tenant delivering possession of the rest of the portion in his occupation on or before 31st January, 1964 and the quondam tenant paying mesne profits at Rs. 1340/- per month for the period from 1st November 1960 to 31st January, 1963 and further mesne profits at Rs. 800/- per month for the period commencing from 1st February, 1963 till delivery of possession. The decree also provided that if there was default in payment of the sum of Rs. 800/- or the other sum per month, the landlord would be entitled to execute the decree immediately. Time for va....
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....ld have followed in this case was to refer it to a full Bench instead of bypassing the said decision in the manner in which it has been done in this case. The well-settled practice to be followed in such cases is succinctly put by Das Gupta, J. in Mahadeolal Kanodia v. The Administrator-General of West Bengal as follows:- "Before we part with this appeal, however, it is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajan's case (1953) 58 C.W.N. 64 was cited before the learned Judges' who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the! basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another's decision. If one Division Ben....
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....g that the building in question was not a 'building' within the meaning of section 2(2) of the principal Act was that it was not a building which was either 'let' or 'to be let' separately for residential or non-residential purposes. It is necessary to extract that part of the judgment of the Division Bench where the above question is dealt with:- "The definition of the word 'building' in section 2(2) states: "building' means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes ........ Consequently it is not every building that comes within the scope of the Act, but only a building let or to be let separately for either of the two purposes. Admittedly on 10-6-1964 the suit building was not let because the tenancy came to an end by 29-2-1964 and late Seetharama Rao was not occupying the building from 1-3-1964 as a tenant, as found by us. Therefore, the only other question is, whether the suit building can be said to be a building to be let separately for non- residential purposes on 10-6-1964. We have already refe....
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.... in which the word which is defined may be found therein. The opening clause of section 2 of the principal Act itself suggests that any expression defined in that section should be given the meaning assigned to it therein unless' the content otherwise requires. The two-fold reasoning of the Division Bench for holding that the building in question was not a 'building' is that on June 10, 1964 (i) there was no lease in force and hence it was not let and (ii) that on that date the plaintiff had no intention to lease it and therefore it was not to be let. We are of the view that the words "any building..... let.. " also refer to a building which was the subject matter of a lease which has been terminated by the issue of a notice under section 106 of the Transfer of Property Act and which has continued to remain in occupation of the tenant. This view receives support from the definition of the expression 'tenant' in section 2(8) of the principal Act which includes a person continuing in possession after the termination of the tenancy in his favour. If the view adopted by the Division Bench is accepted then it would not be necessary for a landlord to issue a notice of....
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.... 2, 1964. The original defendant died on January 15, 1968. Even if the proceeding was treated as a fresh suit against defendants Nos. 2 to 10, it could be treated as such only from a date subsequent to January 15, '968 on which date the original defendant did since the contention of the plaintiff which found favour with the learned single judge and the Division Bench of the High Court was that defendants Nos. 2 to 10 who were legal representatives of the original defendant could not succeed to the tenancy right of the original defendant. In the instant case, since the plaintiff based his claim on the above contention in the year 1973 when he made the application for 1 amendment of the plaint, the date of the institution of the fresh suit could not be earlier than the date on which the application for amendment was made even if it was permissible to do so. By his judgment the learned single Judge passed a decree for possession against defendants Nos. 2 to 10 and for damages to be determined under order 20 Rule 12 of the Code of Civil Procedure without specifying the date from which damages would be payable. In the absence of such - specification, the plaintiff became entitled to....