GOMATHI AMMAL Vs. P CHINNAKANNU PILLAI

JUDGEMENT

(1.) Clause.2(3) -- The rights acquired under the release deed executed by the mortgagee are sufficient in themselves to clothe the transferee with the authority of a landlord entitled to sustain an application for eviction of the tenant

(2.) This is an appeal against the order in O.P. No. 69 of 1951 on the file of this Court. That O.P. was filed under Art.226 of the Constitution and the relief claimed was that the records in the Rent Control proceedings in B.R.C. No. 190/1950 before the Rent Controller may be called up and that a writ of certiorari may be issued cancelling the order of eviction passed against the tenant in possession of the building in respect of which the proceedings had been started. The present is the second occasion on which the order on the O.P. has been challenged in appeal. The O.P. was dealt with by a Single Bench of this Court and the learned Judge who dealt with the matter passed his first order on 1.10.1951 (KLT 639) allowing the petition and quashing the order of eviction which the Rent Controller had passed against the tenant and which was confirmed by the appellate authority and also in revision by Government. The landlord had preferred A.S. No. 937/1951 against the order allowing the O.P. In the course of the hearing of that appeal it was disclosed that the facts which the learned Judge assumed to be admitted and uncontroverted and which were made the basis of his conclusion that the Rent Controller was acting without jurisdiction in ordering eviction of the tenant from the holding, were really non existent. It had been assumed by him that the release deed taken by the landlord from the mortgagee who had let the tenant in possession of the building under a rental arrangement, had provided for payment of a sum of Rs. 800 to the tenant towards the value of his improvements to the building before his eviction. Copies of the rent deed and the deed of release in respect of the mortgage already referred to were admitted as fresh evidence in appeal and were marked as Exts. 1 and 2 and these documents unmistakably showed that the tenant was not authorised to make any improvements in the building rented out to him and that no provision was made in the release deed to pay anything to him on account of the value of improvements. In view of such a disclosure, the Division Bench which heard A.S. 937 of 1951 felt that it would be proper and desirable to send back the O.P. to the same Judge who dealt with it, so that he may reconsider the matter in the light of the relevant facts as they really existed. Accordingly the order dated 1.10.1951 was set aside and the O.P. was sent back to the Single Bench for fresh hearing and disposal. Certain aspects having an important bearing on the questions raised in the O.P. had also been indicated in the order of remand. After a reconsideration of the O.P. the learned Judge came to the same conclusion as before and reiterated substantially the same grounds in support of his second order also. He has taken the view that the fact that the release deed Ext. 2 makes provision for repayment to the tenant of the sum of Rs. 200 which he had advanced to the landlord at the time of the rent arrangement by way of security for the due payment of the stipulated rent, is itself sufficient to deprive the Rent Controller of his jurisdiction to pass an order of eviction. The claim put forward by the tenant that he has effected valuable improvements to the building and that he is entitled to get the value of such improvements also before eviction, is relied on as another ground in support of the view that the Rent Controller was incompetent to entertain the landlord's application for an order to put him in possession of the building. After the O.P. was received back from the Division Bench, the learned Judge allowed the petitioner to have the O.P. amended by adding a fresh ground that the Rent Controller acted without jurisdiction in proceeding to consider the grounds on which eviction was sought for without duly considering and deciding whether the denial by the tenant of the landlord's title was bona fide or not. The new ground thus allowed to be added was also relied on by the learned Judge as the third ground in support of his conclusion that the Rent Controller had acted without jurisdiction in ordering the eviction of the tenant from the building. Thus the learned Judge once again passed an order issuing a writ of certiorari quashing the proceedings passed by the Rent Controller. It is against such an order passed by the learned Judge on 10.1.1953 that the landlord has preferred the present appeal.

(3.) For a proper appreciation of the points arising in this appeal, it is necessary to know the facts having a bearing on those questions. When the appellant purchased the equity of redemption of the building and its site in the year 1121, these were outstanding on mortgage. It was from the mortgagee that the 1st respondent tenant had taken the building on rent by executing the registered rent deed Ext. 1 of the year 1117. It is seen from the description in Ext. 1 that what was rented out to this tenant was only the building consisting of a few shop rooms and the attached bath room, latrine and cart shed. The letting out of the building was on a monthly rental basis, the monthly rent of Rs. 40/- being payable before the 10th of the succeeding month. Towards security for the prompt payment of such rent, an amount of Rs. 200/- was paid in advance by the tenant. It was stipulated in Ext. 1 that even during the currency of the rental arrangement the landlord will have the right to construct additional buildings at the back premises of the building in the possession of the tenant and that the landlord could undertake such new constructions after giving 10 days' notice to the tenant and without causing any inconvenience to the tenant in the lawful use of the building in his possession. There has also been an express undertaking by the tenant that he will take care to see that no damage is caused to the building and to the electric installations in it and that he will maintain them in proper condition. The rental arrangement was to be in force for a period of 5 years and the stipulation was that at the end of the period tenant should unconditionally surrender possession of the building without putting forward any claims or objections. Ext. 1 provided for a right of reentry in favour of the landlord in case the tenant caused any damage to the building or to the installations and also in case the rent was left in arrears for three consecutive instalments.