M ANNAMALAI Vs. NATTUKOTTAI NAGARATIAR OYAMADAN THIRUVANNAMALAI

JUDGEMENT

(1.) THE plaintiffs in O.S. No. 2957/79 on the file of the Principal District Munsif, Tiruvannamalai, appellants 1 to 3 in the Second Appeal, filed the said suit for setting aside an earlier decree and judgment passed in O.S. No. 2/77 dated 20.9.1997 filed by the respondent herein against them on the following averments: THE respondent herein originally leased out the schedule mentioned property in favour of the plaintiff under a registered lease deed dated 30.11.1972. THEy put up a superstructure with their own expense. THEy had been in possession and enjoyment of the suit property on a monthly rent of Rs. 40.00 as tenants for their residential purposes. THE superstructure had been assessed separately in their names by the Municipality. THEy had been paying the property tax regularly as well as the electricity bills and municipal water tax. Though the period fixed under the lease agreement was two years, they continued even after the expiry of the lease period by holding over. While the respondent filed suit O.S. No. 2/77 before the District Munsifs Court, Tiruvannamalai, for recovery of possession against them. THE counsel, who appeared for them in the said suit, omitted to invoke the benefits of the Tamil Nadu City Tenants Protection Act, 1921 (hereinafter referred to as the Act). If only he had filed the necessary application under Section 9(1) (a) (i) of the Act, there would have been a direction to the respondent to sell the site to them for the price fixed by the Court. As the counsel was not aware of the extension of the provisions of the Act to Tiruvannamalai Municipal Town, the point was not raised in the written statement filed in that suit. THE suit was decreed on 20.9.1977 as a result of a compromise between the parties. On the strength of the decree, the respondent filed R.E.P. No. 334/79 in that suit for delivery. At this stage, the plaintiffs filed an application under Section 9 (1) (a) and Section 10(2) of the Act for a direction to the respondent to sell the property to them at a price fixed by the Court. An application under Section 5 of the Limitation Act also was filed along with the application under Section 9(1) (a) (i). Yet another application under Section 151 of the Code of Civil Procedure was filed to restore the suit, so that the plaintiffs could invoke the benefits of the Act. All the three applications were dismissed by the Executing Court. THEy filed C.R.P. No. 2647/79, which was dismissed on 15.11.1979 by this Court with an observation that if they were aggrieved by the decree on the ground that the compromise memo was entered into without their being aware of the extension of the Act to the area where the suit property was situate, then the proper course for them was to file a suit to have the compromise decree set aside and not by means of an application to restore the suit. THE earlier decree would not have been passed if only the Court had been apprised of the legal position and the extension of the provisions of the Act to Tiruvannamalai Municipal Town. Failure to bring this legal position to the notice of the Court resulted in miscarriage of justice and the same had to be remedied. THE compromise was hit by Section 12 of the Act. THEre could not be a contract contrary to the provisions of the Act and there was no estoppel against a statute. THE plaintiffs were entitled to the benefits of the Act in spite of the decree passed in O.S. No. 2/77. Again, the plaintiffs had paid the rent upto 13.12.1979 and obtained a receipt from the respondent from the suit premises. In that view of the matter, the respondent had waived its rights accrued under the earlier decree. In fact, an advance amount of Rs. 400.00 was with the respondent. It was therefore estopped by its conduct from contending that the plaintiffs were not entitled to the benefits of the Act. THE present suit to set aside the earlier decree was filed in time.

(2.) THE respondent resisted the suit contending inter alia as follows; THE plaintiffs had waived their rights to claim the benefits of the Act by entering into a compromise with the respondent and under the compromise, they were given 27 months time to remove the superstructure and surrender possession of the suit property. Under the provisions of the Act, a tenant claiming benefits under the act had to file an application under Section 9 within one month of the date with effect from which the act was introduced to the property or within one month after the service of summons in the suit for an order that the landlord might be directed to sell the property. THE plaintiffs had not claimed the benefits of the act within the time prescribed. THEy were, therefore, precluded from claiming the benefits. THEy had accepted the compromise and after the expiry of 27 months granted in the compromise, the respondent filed the execution petition and after receiving notice in the said execution petition, the plaintiffs made an attempt to have the decree set aside on the ground that they were not aware of their rights under the Act. THE objection was rightly rejected by the Court as they had not applied within the statutory period prescribed in the Act. THE High Court also did not grant any liberty to file a fresh suit. A compromise decree could not be set aside on the ground of fraud or collusion. In the absence of any such averments in the plaint, the plaintiffs were not entitled to have the decree set aside. THEir only plea was that their Counsel was not aware of the provisions of the Act. THE decree could not be set aside on the ground of negligence. THE decree in the earlier suit had been passed with the full and free consent of the parties and ignorance of law or ignorance of a right to claim the benefits of a statute could not be made a ground for setting aside a decree in the Civil Court. THE tenants also under the Act were entitled to waive the benefits. THE plaintiffs had waived their rights and they could not be allowed to raise the questions all over again at a latter point of time. THE requirements for setting aside a valid decree were not satisfied by the plaintiffs. Having failed to obtain an order under Section 9 of the Act, the plaintiffs could not circumvent the provisions of the Act and seek the reliefs by way of separate suit. THE suit was not maintainable. Again, there was no estoppel operating against the respondent. THE acceptance of rent would not amount to estoppel. THE suit in O.S. No. 2/77 itself was for recovery of arrears of rent as well as for possession.

(3.) PER contra, the learned Counsel for the respondent submitted that the appellants had waived their rights and entered into the compromise in the earlier suit, had accepted the compromise and after enjoying the benefits under the compromise, it was not open to them now to turn round and say that the earlier compromise had been entered into overlooking the applicability of the Act to the suit property. According to the learned Counsel, there had been intentional relinquishment, the appellants had waived their claims as tenants and therefore, the present suit to set aside the earlier decree was not maintainable. In the contention of the learned Counsel, the decree in the earlier suit could not be termed to be a nullity, but a valid one and there could be no going back on the earlier decision. As to whether the earlier decree was a nullity, the learned Counsel relied on a number of decisions. (1) Ittyavira Mathai v. Varkey Varkey and Another (AIR 1964 SC 907) (2) Dhirendra Nath v. Sidhir Chandra (AIR 1964 SC (1300) (3) Gupta Steel Industries v. Jolly Steel Industries Pvt. Ltd. & Another (1996 8) Supreme 222) and (4) Som Dutt (Dead) By Lrs. v. Govind Ram (2000 II CTC 432)