B A WOODMAN Vs. REGINA RAJAN

JUDGEMENT

(1.) This civil revision petition is against the order of the learned City Civil Judge passed in E. A. No. 1772 of 1951 in E. P. No. 862 of 1951 in L. Dis. No. 4315 H. B. C. 1950.

(2.) The petitioner is the tenant against whom an order for eviction was passed by the Rent Controller on 7-9-1950. The order is in the following terms:

(3.) The contention that is now raised before me by the learned counsel for the petitioner is that the order of the learned City Civil Judge is not sustainable by reason of the very provisions which he has failed to consider and whose effect he has simply brushed aside by stating that no reliance can be placed on Section 7(1) of the Act. That section does not merely contemplate eviction in execution of a decree but also contemplate eviction by other means and the word "otherwise" would certainly include orders by the Rent Controller as well. Even under orders passed by the Rent Controller, if eviction is to take place it must be in accordance only with the provisions laid down in Section 7(1) and one of the provisions laid down in the amended Section 7(3A) states that an employee who is notified to be of an 'essential service' cannot be evicted. The question is whether the City Civil Court, which is only executing an order of the Rent Controller passed long prior to the coming into force of the Act, can take notice of this statutory prohibition against eviction of an employee notified to belong to an essential service and pronounce that the order is not executable against such an employee. It is the contention of the learned counsel for the respondent that the City Civil Court, being simply an executing court, under Section 9 of the Act and being called upon to execute every order made under B.A. Woodman vs. Mrs. Regina Rajan (23.01.1952 -MADHC) Page 4 of 6 Section 7, or Section 8 and every order passed on appeal under Section 12, or in revision under Section 12B, as if it was a decree passed by the execution Court itself, will not be entitled to go behind the order of the Rent Controller wherein eviction of the tenant has already been ordered. It is the application of this section that is now in dispute. It has no doubt to be observed in the first instance that this civil revision petition is only against the order of the City Civil Judge passed on the application of the tenant in which the applicant claimed that he was entitled to the benefit of the statutory prohibition that has been enacted under Section 7 (3A) and that the execution Court should take notice of it. But actually the learned City Civil Judge has not proceeded on this simple point that as an executing Court it is not possible for him to hear an objection raised by the tenant which according to the learned counsel for the respondent should have been raised before the Rent Controller. The reasoning given by the learned Judge is different from the point that has now been raised by the learned counsel for the respondent before me. The point stressed by the learned counsel for the petitioner on the other hand is that though the order of the Rent Controller which was passed prior to the coming into force of Act 8 of 1951 might have been valid, still no proceeding could be taken under that order in view of the new Section 7(3A) that has been enacted and that by virtue of that section the order pronounced by the Rent Controller has become unexecutable, and therefore the learned City Civil Judge was not entitled to execute an order which had by law become void or illegal and by reason of that new law which has given the benefit to the tenant, the tenant cannot be asked to deliver vacant possession of the property in question. He further contends that he has acquired a statutory protection by virtue of the new section and therefore the executing Court was bound to consider the validity of the order originally passed and then give the tenant the protection under the new section. I think there is force in the contention of the petitioner's advocate when he says that the order which had been sought to be executed by the respondent was no more capable of being executed by virtue of the new law which has therefore become a nullity. His further contention is that under Section 24 of the Act any application made, appeal preferred or other proceeding instituted under the Act and pending at the commencement of Act 8 of 1951 shall be disposed of as if Act 8 of 1951 had been in force at the time when such application, appeal or proceeding was made, preferred or instituted. The effect of this section is that the application made by the petitioner should be deemed to have been made under this Act and the proceeding instituted by the respondent for evicting the tenant should also be deemed to have been pending at the time Act 8 of 1951 came into force and the application of the tenant and the landlady will have to be disposed of as if they were made under the Act as was amended by Act 8 of 1951 under which the tenant was given the protection that in so far as he is an employee in an essential service notified by the State Government, the eviction order shall not be executed against him.