Rent control protection extended automatically when the property's locality joined the municipal corporation, but did not prevent a decree in the pending ejectment suit. The court held the decree executable following repeal of the 1960 Act, rejected the need for an injunction against forcible eviction, and dismissed both second appeals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on 31.10.2019 25.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.Nos. 100 & 101 of 2014
Mandhirikodi
...Appellant in both the appeals
Vs. 1.E.Balaraman 2.E.Ravi ...Respondents in both the appeals
Prayer in S.A.No. 100 of 2014: Memorandum of Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree made in A.S.No. 43 of 2012 dated 23.09.2013 on the file of the Sub-Court, Poonamalleee confirming the decree and judgment in O.S.No.319 of 2011 dated 24.02.2012 on the file of the Principal District Munsif Court, Poonamallee.
Prayer in S.A.No. 101 of 2014: Memorandum of Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 23.09.2013 in A.S.No. 47 of 2012 of the file of the Sub-Ordinate Court, Poonamallee, confirming the decree and judgment in O.S.No. 1061 of 2004 dated 24.02.2012 on the file of the Principal District Munsif Court, Poonamallee.
For Appellants in both appeals : Mr.M.V.Seshachari
For Respondents inboth appeals : Mr.M.R.Murali for R1 & R2
Mr.P.B.Balaji, Amucus Curiae
J U D G M E N T
These two appeals arose out of two cross suits namely, O.S.No.1061 of 2004 and 319 of 2011. While O.S.No.1061 of 2004 was filed by Elumalai, father of the respondents 1 and 2 herein seeking ejectment of the appellant from the suit property, for damages, for use and occupation at the rate of Rs.2000/- per month. The suit in O.S.No. 319 of 2011 was filed by the appellant against the respondents herein seeking an injunction
restraining the defendant from evicting him except under due process of law.
The appellant herein became a tenant in respect of a shop bearing Door No.32/2/164, Kundrathur main Road, Porur, Chennai – 116 under a lease agreement dated 05.09.2001. The lease was for a period of 11 months ending by 04.07.2002. The monthly rent was fixed at Rs.1,000/-. On a request by the defendant, the rent fixed was reduced to Rs.900/-. An advance of Rs.20,000/was paid by the defendant. On the expiry of the period of lease, the plaintiff required the defendant to vacate and handover possession. The defendant requested two months time to vacate. It is also stated that the property is required by the plaintiff for his sons business. Hence, the plaintiff issued a notice on 16.12.2002 thereby terminating the tenancy and requiring the defendant to quit and deliver the vacant possession of the property by the end of January 2003. The defendant sent a reply dated 05.01.2003 making various false and frivolous allegations. Since the defendant failed to comply with the demand made in the notice dated 16.12.2002, the plaintiff filed the suit seeking ejectment.
death of Elumalai, the defendants namely, plaintiffs 2 and 3 in O.S.No.1061 of 2004 are attempting to evict him by using force and there was an attempted eviction on 13.09.2011. The said suit was resisted by the defendants therein contending that the suit for eviction has already been filed by the father and that has been continued by them and as such they never attempted to evict the plaintiff by force. Both the suits were tried together.
“a) Whether the Courts below after having found the Appellant is in possession and enjoyment of the suit property are justified in dismissing the suit for permanent injunction not to evict the appellant except by due process of law ?
b) Whether the applicability of Tamilnadu Buildings (Lease and Rent Control Act, 1960) to the suit property during the pendency of the suit ousts the jurisdiction of the Civil Court to pass a decree for ejectment?”
“(1) (2) (a)(i) This Act [except sub-section (2) of section 3], shall apply to the City of Madras [and to the City of Madurai] and to all municipalities constituted or deemed to have been constituted under the [Tamil Nadu] District Municipalities Act, 1920 (Tamil Nadu Act V of 1920) in the State:
Provided that the Government may, by notification, direct that this Act shall cease to apply to any municipality specified therein or to the City of Madras [ or to the City of Madurai] from such date as may be mentioned in the notification.
(ii) Where this Act had, under the proviso to sub-clause(i), ceased to apply to any such municipality or City as is mentioned in that proviso,
the Government may, by notification, apply this Act, except sub-section(2) of section 3, to any such municipality of City with effect from such date as may be specified in the notification.
(b) Sub-section (2) of section shall apply to the City of Madras [or to the City of Madurai] or any municipality constituted or deemed to have been constituted under the [Tamil Nadu] District Municipalities Act, 1920 ([Tamil Nadu] Act V of 1920) in the State only from such date as the Government may, by notification, appoint [and the Government may cancel or modify any such notification].
(c) The Government may, by notification apply all of any of the provisions of this Act except subsection(2) of section 3, to any other area in the State with effect from such date as may be specified in the notification, and may cancel or modify any such notification.
(d) Upon the issue of a notification under the proviso to sub-clause (i) of clause (a) or of a notification of cancellation under clause(b) or clause (c), this Act, or as the case may be, the provision thereof, shall cease to apply, except as respects things done or omitted to be done before such cesser; and section 8 of the Tamil Nadu General Clauses Act, 1891 (Tamil Nadu Act I of 1891), shall apply upon such cessers if this Act or such provision had then been repealed by a Tamil Nadu Act; but such cesser shall not be deemed to affect the power of the Government under sub-clause (ii) of clause (a) or under clause (b) or clause (c) again to apply this Act or any such provision to any area mentioned in that sub-clause or clause.”
Relying upon the said provision, Mr.M.V.Seshachari would contend that once an area is notified as Municipality or a Corporation or once an area is annexed with an existing Corporation or a Municipality, the provisions of Act would automatically apply. He would also specifically point out that the proviso to Clause (a)(i) of Subsection 2 of Section 1 empowers the government to withdraw the applicability of the provisions of the act to any such area. This, according to Mr.M.V.Seshachari would demonstrate that the extension of the act is automatic and it does not require a seperate notification.
Corporation or a Municipality or once an area is declared to be a municipality or a Corporation, the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 would automatically apply to such areas and the tenants of buildings situate within those areas would be entitled to protection of the enactment. No separate notification is necessary extending the provisions of the Act to a newly formed Municipality or Corporation. This is clear from the very language of the section which in fact enables the government to withdraw the applicability of the enactment from certain areas which form part of a Corporation or a Municipality. The language of Clause C of Sub-section 2 would also show that the applicability of the act is almost instantaneous on the area being declared as a Municipality or a Corporation. The very fact that Clause 'C' of Subsection 2 enables the state government to issue notifications to apply all or any of the provisions of the Act to any other area would mean that no notification extending under provisions of the Act is required, in so far as the areas declared as part of Municipality or Corporation. I therefore, conclude that the Courts below were not right in holding that the applicability of the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act would depend on a seperate notification to be issued by the government extending the provisions of the Act to any area in question. The above conclusion does not however fully answer the question of law raised.
“The tenant shall not be evicted whether in execution of the decree or otherwise.”
Therefore, a cursory reading of this provision would show that while a suit for ejectment is not barred, the jurisdiction of a Civil Court to pass a decree for eviction is also not taken away but the interdict is on execution of the decree. The expression “tenant shall not be evicted whether in execution of the decree or otherwise” would necessarily imply that the interdict is on execution of the decree and not institution of the suit or passing of the decree. This very question has been subject matter of several decisions of this Court as well as the Hon'ble Supreme Court. In A.Krishnaswami Vs. S.Rasheeda reported in 1980(2) MLJ Page 463, a similar situation was considered and this Court had upon a consideration of the Section 2(1) of the Act as well as a definition of the tenant under section 2(8) of the Act concluded that even though the suit was filed at a time when the area where the building is situate was not covered by
the Act, subsequently, upon the town where the building was situate having been declared a Municipality the provisions of the Act stood automatically extended to the area. On the question as to whether the suit could be continued, this Court held that from the clear language of the Section 10(1) of the Act, what is barred is the execution of the decree and not a suit for ejectment. In doing so, this Court had observed as follows:
“10. For the aforesaid reasons, the contentions of the petitioner have to be sustained. However, it is made clear that the decree passed against the petitioner is not a null and void one. Only its executability has been impugned by Section 10(1) of the Act. Therefore, there can only be a declaration that so long as the petitioner merits the status of tenant under the Act and so long as Section 10(1) remains on the statute book, the decree obtained by the respondent will be inexecutable. There will be a declaration to that effect in the petitioner's application. The revision will stand allowed accordingly, but there will be no order as to costs. It is also made clear that notwithstanding the decree for possession already obtained by the respondent, it is open to him to seek eviction of the petitioner by instituting appropriate proceedings under Section 10 (1) of the Act, if there are grounds for the same.”
circumstances. Section 1 (3) of the Haryana Act exempted buildings, which are less than 10 years old from the applicability of the said Act.
i) Section 1(3) of the said Act reads as follows:-
1(3) “Nothing in this Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion.”
ii) In section 13(1) of the said Act reads as follows:13(1). “A tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of the Sections.”
Considering the effect of the two provisions, the Hon'ble Supreme Court held that the Civil Suit instituted when building was less than 10 years old was exempt from the provisions of the Act can continue despite the fact that the building in question became more than above 10 years old during the pendency. Referring to the language of Section 13(1) of the Act which has already been extracted, the Hon'ble Supreme Court concluded that a decree passed in such a case even after the expiry of the 10 years is executable.
i) Section 10(1) of the Tamilnadu Act reads as follows:-
“A tenant shall not be effected whether in “execution of a decree” or otherwise except in accordance with the provisions of this section or Sections 14 to 16.” [emphasis supplied].
ii) Section 13(1) of the Haryana Act, which was the subject matter of the decision of the Hon'ble Supreme Court in Krishan's case reads as follows:-
13(1) “ A tenant in possession of a building or
a rented land shall not be evicted therefrom except in
accordance with the provisions of this Court Act.”
A comparison of the above two provisions would show the words “whether in execution of the decree otherwise” are not found in the Haryana Act. The Hon'ble Supreme Court had an occasion to consider the scope of the bar on jurisdiction of the Civil Court under the Tamilnadu Act, which is in M/s.East India Company Limited Vs. Meenakshi Mills Ltd., reported in AIR 1991 SC Page 1094. Section 30(ii) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 as it stood originally exempted certain buildings from applicability of the Act on the basis of the quantum of rent. The said provision was struck down as being unconstitutional by issuance of a writ of declaration by the Hon'ble Supreme Court in Rattan Arya Etc. Vs. State of Tamilnadu and another reported in AIR 1986 SC 1444. The resultant position was that the Act applied to all buildings irrespective of the quantum of rent. The Civil Appeal, which was subject matter of
the decision in AIR 1991 SC 1094 namely, East India Company Limited's case was pending when the constitutional validity of Section 30(ii) was decided by the Hon'ble Supreme Court. The suit for ejectment in the said case was filed as early as in the year 1980 and the decree for ejectment also came to be passed. On the confirmation of the decree for ejectment by the High Court, the tenant had filed Civil Appeal No.4032 of 1984 before the Hon'ble Supreme Court, it was during the pendency of the Civil Appeal, the judgment in Ratan Arya's case came to be delivered declaring that Section 30(ii) of the Tamilnadu Buildings Lease and Rent Control Act as unconstitutional. When the appeal filed by the tenant in Civil Appeal No.4032 of 1984 was taken up before the Hon'ble Supreme Court, it was contended that in view of the judgment in Ratan Arya's case, the Civil Court will lose jurisdiction and the decree passed by the Civil Court would become a nullity. While answering the said contention, the Hon'ble Supreme Court in Meenakshi Mill's case had concluded as follows:-
“6. Clause 9 of the Mysore House Rent and Accommodation Control Order, 1948 reads:
“9. (1) A tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of the clause. Clause 16 of that Order reads:
“16. Nothing in this Order shall prevent a landlord from filing a suit for eviction of a tenant, although a decree passed by such a Court for eviction cannot be executed without a certificate to that effect from the Controller. Jurisdiction of the civil court is thus not only not barred but specifically preserved, except for the restriction imposed on the execution of decrees in matters of eviction. On the other hand, such a provision is significantly absent in the enactment in question. The provisions of the Mysore Order considered by this Court in B.V.Patankar Vs. C.G.Sastry and those of the Act in question here are not in pari materia. The observations of this Court relied on by Dr. Chitale are not, therefore, helpful in understanding the provisions in question in the instant case.
claimed right of permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide. Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a civil court. Where these conditions are satisfied, the civil court will have jurisdiction to pass adecree for eviction on any of the grounds mentioned in section 10 or sections 14 to 16, notwithstanding that the court has found that the tenant's denial of the landlord's title does not involve forfeiture of the lease, or, his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the civil court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute. 10. Significantly, the jurisdiction of the civil court can be invoked only where the Controller comes to a decision, and records a finding, that the denial or claim by the tenant, as aforesaid, is bona fide. If the controller were to come to the opposite conclusion, no question of invoking the jurisdiction of the civil court would arise. But the decision of the Controller is concerned solely with the bona fides, and not the correctness or validity, of the denial or claim, for these difficult questions of title are by the statute reserved for decision by the appropriate civil court which is the more competent forum in such matters. (See the principle discussed in Magiti Sasamal Vs. Pandab Bissoi 1962 3 SCR 673.) In such an event, the civil court will become competent to pass a decree for eviction on any of the grounds mentioned in section 10 or sections 14 to 16. On the other hand, if the decision of the Controller is that the tenant's denial or claim is bona fide, the jurisdiction of the civil court cannot be invoked by the landlord and the controller will then be the competent authority to order eviction, after affording the parties a reasonable opportunity of being heard, on any one of the grounds specified under the statute, including the ground that the tenant has, without bona fide, denied the landlord's title or claimed right of permanent tenancy. What is significant is that the decision of the Controller, duly recorded by him, as regards the bona fide denial or claim by the tenant is the condition precedent to the invocation of power of the civil court. Any suit instituted by the landlord for eviction of a tenant from a building falling
within the ambit of the Act, otherwise than as stipulated by the section, is, therefore, incompetent for lack of jurisdiction of the court and any decree of the court in such a suit is null and void and of no effect.”
Relying upon the above decisions of the Hon'ble Supreme Court Mr.M.V.Seshachari, learned counsel appearing for the appellant would contend that once the provisions of the act are extended to a particular area, thereafter, the Civil Courts will become quorum in non-judice and will lose jurisdiction to pass orders of eviction against tenants.
squarely apply and the law that was in existence on the date of the filing of the suit or the eviction proceedings would continue to govern such proceedings. But in the case on hand, the facts are slightly different. The building, admittedly, is not an exempted building. The suit as filed in 2004 for ejectment was perfectly maintainable, since the area in question was neither a Municipality nor a Corporation. Therefore, the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act did not apply. However, in 2009, the area was annexed to the Chennai Corporation. Therefore, on and from 26.12.2009, the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 stood automatically extended to the area in question. It is here, the moot question as to whether the suit could be continued or not arises. As already pointed out, this Court in A.Krishnaswamy Vs. Radha under similar circumstances had held that the Civil Court's power to pass a decree is not taken away and it is the only the execution that is barred. I am of the considered opinion, neither the three judge bench of the Supreme Court in Krishan's case or the two judge bench which decided East India Company Limited Vs. Meenakshi Mills had contemplated a situation like the one on hand.
Tamilnadu Buildings (Lease and Rent Control) Act, 1960 to the area in question will result in cessation of proceedings half way through and the parties would be left high and dry without any remedy. This litigation itself is 15 years old today and the Tamilnadu Buildings (Lease and Rent Control) Act has also been repealed and a new act namely, the Tamilnadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017 has been put in place. The definition of a tenant under new Act is substantially different from that of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960. Under the new Act, as per Section 2(n), a tenant is defined as follows:
“tenant” means a person by whom or on whose account or behalf the rent of any premises is, or, but for a contract express or implied, would be payable for any premises and includes any person occupying the premises as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made;”
“The tenants shall not be evicted during the continuance of the tenancy agreement except in accordance with the provisions of Subsection 2.”
with the eviction proceedings that have been initiated prior to the date on which the act is made applicable of area in question should be preserved.
Sd/-
Assistant Registrar //True Copy//
Sub Assistant Registrar
kkn
To:-
Copy To
The Section Officer, V.R. Section, High Court, Madras.
+2cc to Mr.M.R.Murali, Advocate, S.R.No. 97904, 97903 +1cc to Mr.P.B.Balaji, Advocate, S.R.No. 92979
S.A.Nos.100 & 101 of 2014
VSN II(CO) GN(30/09/2020)
3 issues framed by the court
Did extension of the 1960 rent control Act during the ejectment suit oust the civil court's jurisdiction to decree eviction?
Was the eviction decree executable after repeal of the 1960 Act and enactment of the 2017 Act?
Was an injunction against eviction otherwise than by due process necessary when the landlords had already sought eviction through court?
Colour shows how this judgement treated each authority
A.Krishnaswami Vs. S.RasheedaFollowed¶45
A.Krishnaswami Vs. S.Rasheeda reported in 1980(2) MLJ Page 463
Life Insurance Corporation of India Vs. India Automobiles Company LimitedRelied on¶49
Life Insurance Corporation of India Vs. India Automobiles Company Limited reported in 1991 1 MLJ Page 1.
Krishan @ Krishan Kumar and others Vs. Manoj Kumar and othersDistinguished¶49
Krishan @ Krishan Kumar and others Vs. Manoj Kumar and others reported in 1998 (II) CTC Page 37
Bharath Kumar Jain Vs. Kanta BenDistinguished¶49
Bharath Kumar Jain Vs. Kanta Ben reported in 1998 (II) CTC 111
M/s.East India Company Limited Vs. Meenakshi Mills Ltd.Distinguished¶63
M/s.East India Company Limited Vs. Meenakshi Mills Ltd., reported in AIR 1991 SC Page 1094. · Who else cites this
Rattan Arya Etc. Vs. State of Tamilnadu and anotherReferred¶63
Rattan Arya Etc. Vs. State of Tamilnadu and another reported in AIR 1986 SC 1444. · Who else cites this
6 provisions across 3 enactments
Mandhirikodi
E.Balaraman
E.Ravi
R.SUBRAMANIAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
