L BALAJI SINGH Vs. KANDASWAMI

JUDGEMENT

(1.) THE above second appeal and civil revision petition are connected, as they both relate to an application under S. 9 of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as ?the Act?) filed by the defendant-tenant, the above referred to Kandaswami, in Ejectment Suit No. 229 of 1967. THE said suit was filed by the above referred to Balaji Singh, the landlord, on the file of the III Judge, Court of Small Causes at Madras, for ejectment of the said tenant, who is the petitioner in the abovesaid C.R.P. No. 2962 of 1989 and appellant in the above Second Appeal No. 1873 of 1987. THE civil revision petition no doubt arises out of M.P. No. 690 of 1987 filed by the said tenant for directing the said landlord to execute the sale deed in relation to the suit land in that Ejectment Suit No. 229 of 1967, which is of an extent of 38? ?40?, pursuant to the earlier order of the trial Court in M.P. 345 of 1968 in the said ejectment suit directing such a sale and fixing the sale price thereof and also pursuant to the deposit of the said sale price fixed by the tenant, into Court. THE said M.P. No. 690 of 1987 was allowed by the order dated 28-4-1989 and aggrieved by the said order, the plaintiff has preferred the said civil revision petition.

(2.) S.A. No. 1873 of 1987 arises out of O.S. No. 1483 of 1982 filed by the plaintiff in Ejectment Suit No. 229 of 1967 for a declaration that the particular order passed by the trial Court in Ejectment Suit No. 229 of 1967 in one of the miscellaneous petitions therein relating to the abovesaid S. 9 application is not correct. The said O.S. No. 1483 of 1982 has been concurrently dismissed by the trial Court as well as the first appellate Court on the ground inter alia that such a suit would not lie. Aggrieved by the said concurrent dismissal, the second appeal has been filed by the said plaintiff.

(3.) THEN, in so far as the original grounds raised in the civil revision petition, the learned Counsel for the petitioner very strongly urges one point, viz., while under S. 9 of the Act, a mandatory duty is cast on the Court to ?first decide in the abovesaid M.P. No. 345 of 1968, the minimum extent of the land which may be necessary for the convenient enjoyment of the tenant?, the Court below, has, without discharging that duty first, has straightaway fixed the price for the entire suit land, and thereby has committed a jurisdictional error. According to the learned Counsel, in the abovesaid suit land of 38' - 40', the abovesaid suit land of 38' - 40', the abovesaid tenant was having a superstructure of only 11-1/2' - 12-1/2'. Where he carried on firewood business. 7. -A. That apart, according to the learned Counsel, there was also a hut in a portion of the suit site belonging to the landlord and that the said portion also cannot be sold to the tenant under S. 9 of the Act. In this connection the learned Counsel relies on the decision in Arasan Chettiar v. Narasimhalu Naidu's Estate Trust ((1980) II M.L.J. 303 = 93 L.W. 392(D.B.)), wherein the different stages of enquiry in a S. 9 application are specifically stated. Further according to the learned Counsel, M.P. No. 690 of 1987 has been filed as a separate petition, but actually there was no necessity to file such an M.P. and necessary orders could be and should be passed in M.P. No. 345 of 1968 itself, since actually the final order that is spoken to in under S. 9(3) of the Act has not been passed yet in the abovesaid M.P. No. 345 of 1968. Therefore according to the said learned Counsel there can be no scope for the application of the principle of res judicata. The order that has been passed in M.P. No. 690 of 1987 should be construed only as an order passed in M.P. No. 345 of 1968 itself. Further, according to the said learned Counsel, the trial Court erred in dismissing the abovesaid contention of the landlord on the ground that it was not raised earlier in M.P. No. 345 of 1968. Further, according to the said learned Counsel, the doctrine of estoppel or waiver of right on the part of the landlord, cannot be put against the landlord and the landlord is free to raise the abovesaid contention that the abovesaid minimum extent must be first decided, before fixing the price for the land in the present M.P. No. 690 of 1987 itself, because it is only a continuation of M.P. No. 345 of 1968 and because no final order has been passed in M.P. No. 345 of 1968. To contend that there was no necessity for M.P. No. 690 of 1987, praying for execution of the sale deed, and the said prayer also would form part of the prayer in M.P. No. 345 of 1968 itself, the learned Counsel relies on the decision in Narayanan Chettiar v. Alagar Thevar (87 L.W. 96(S.N.) = (1974) II M.L.J. 386). He also relies on the decision in Ananthakrishnan Nair, P. v. Dr. G. Ramakrishnan (100 L.W. 1093 (S.C.)), where also, the Supreme Court has emphasized that the first duty of the Court in an application under S. 9 of the Act is to decide the abovesaid minimum extent.