CHANDU Vs. ABDUL KADER BADSHA

JUDGEMENT

(1.) The tenant in occupation of a building on rent, has filed this petition to revise the order passed by the learned District Judge of Tellicherry, dismissing the application for cancellation of the order for eviction passed against him on 21-7-1958. When the order of eviction was passed, the rights and liabilities as between a landlord and his tenant were governed by the provisions of the Madras Buildings (Lease and Rent Control) Act, 1949 (Act XXV of 1949). Under that Act, the tenant in occupation of a building could be evicted only under any of the special circumstances enumerated in S.7. That section permitted the landlord to get recovery of possession of the building from the tenant when the landlord in good faith requires the building for his own use. The landlord invoked this provision and filed a petition, R.C.P. 337/1955 before the Rent Controller at Tellicherry, for an order for evicting the tenant from the building. The Rent Controller did not accept the landlords claim to be one supported by good faith and accordingly his petition was dismissed. Against that order the landlord filed C.M. Appeal 1324/1956 in the Sub-Court at Tellicherry. The decision in the appeal was also against him. He took up the matter in revision by filing C.R.P. 1/1958 before the District Judge of Tellicherry. The District Judge allowed that C.R.P. and, accepting the contentions of the landlord, passed an order in his favour to get the tenant evicted from the building. The tenant sought for a revision of that order by filing C.R.P. 731/1958 before the High Court and this Court refused to interfere and dismissed the C.R.P. Before the landlord could enforce the eviction order, the Kerala Buildings (Lease and Rent Control) Act, 1959 (Act XVI of 1959) came into force on 3rd April, 1959. By S.36 of that Act, the Madras Buildings (Lease and Rent Control) Act, 1949 as the law in force in the Malabar area, was repealed. S.34 of the new Act gave an option to the tenants to avoid orders of eviction passed between the 12th of February 1958 and the 3rd of April 1953. The tenant in the present case was exercising this option when he filed I. A. No. 406/1959 before the District Judge, praying that the eviction order passed on 21-7-1958 may be set aside. The District Judge dismissed that application. Against that order, the tenant has filed the present C.R.P. No. 681/1959, praying for a reversal of that order.

(2.) The learned Single Judge who heard the revision petition in the first instance, felt that the points involved in the revision petition are of great importance and accordingly he referred the C.R.P. for decision by a Division Bench.

(3.) One of the objections raised by the respondent landlord is that I.A. 406/1959 filed by the tenant could not be entertained in the District Court. According to the landlord, the proper forum for the tenant to agitate his alleged right under S.34 of the new Act, is either the Rent Court or the High Court where the tenant had filed C.R.P. 731/1958 against the eviction order. Sub-s.(1) of S.34 of the Act merely states that an order falling under that sub-section shall be voidable at the option of the tenant. But the sub-section is silent as to how, when and where the tenant is to exercise that option. When the right is conferred in such general terms without any specification as to the manner of exercising it, it would be open to the tenant to exercise his option by filing a separate application for avoiding the order in question or by objecting to the landlords application for enforcement of the eviction order. If the option is exercised at a time when the tenant is attempted to be actually evicted from the building, he has necessarily to file his objections before the court where the eviction proceedings are pending and thus to indicate that he is exercising the option conferred on him by S.34. This view gains support from the provision contained in sub-s.(2) of S.34 which enables the tenant to get re-delivery of possession of the building even after his eviction from it. This sub-section states that: