MADRAS WINES Vs. B ABRAHAM

JUDGEMENT

(1.) THE defendant in O.S.No.454 of 1975 on the file of the City Civil Judge, Madras, is the petitioner in this revision. THE respondent is the plaintiff decree-holder. THE defendant admittedly was let into possession of the premises in question as a tenant. THE tenancy was terminated and the plaintiff laid the suit for ejectment of the defendant. Apart from other contentions, the defendant raised a plea that the suit for ejectment is not maintainable in view of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 hereinafter referred to as the Act. THE plaintiff counteracted this defence of the defendant by stating that the building was completed only in March, 1970 and as per section 30(i) of the Act, nothing in the Act shall apply to any building for a period of- five years from the date on which the construction is completed and notified to the local authority concerned. THE first Court countenanced this case of the plaintiff. THE suit came to be heard in January, 1976 and was, in fact, disposed of on 19th January, 1976, and by that time, the five year period of exemption under section 30(i) of the Act had lapsed. Hence, the defendant put forth a contention that a decree as such could not be passed. This contention of the defendant was also rejected by the first Court. THE defendant appealed in A.S.No.247 of 1976, which was heard and disposed of by a Bench of this Court, consisting of Ramanujam and Sethuraman, JJ. THE defendant repeated the very same contention that the period of exemption had lapsed and the inhibition with regard to eviction of tenants will come into play. THE learned Judges considered it unnecessary at that stage to go into the question as to whether any decree that may be passed in the suit is executable or not in view of the provisions of section 10 of the Act, as that question will arise only at the stage of the execution after the decree is passed. THE learned Judges expressing an opinion that the first court was in error in going into that question at that stage, set aside that finding of the court below, and without going into the question of the executability of the decree, the decree for ejectment was confirmed, leaving it open to the defendant to agitate the same at the stage of execution. THE appeal was ultimately dismissed. THE plaintiff has levied execution in E.P.No.2166 of 1981 of the decree for ejectment. THE defendant, apart from contesting the execution for delivery of possession, took out E.A.No.924 of 1982 under section 47 of the Code of Civil Procedure to declare that the decree passed in the suit is not executable in view of the provisions of the Act. THE court below has dismissed E.A.No.924 of 1982 and consequently directed delivery of possession in E.P.No. 2166 of 1981. This revision is preferred against the order passed by the Court below in E.A.No.924 of 1982. THE Court below relied on a pronouncement of Ratnam, J. in Arunachalam v. Kesavan Chettiar, (1983)2 M.L.J.166: 96 L.W.277.

(2.) MR.C.Raghunatha Reddy, learned Counsel for the defendant, would submit that even prior to the date of the decree in the suit and pending the suit the exemption under section 30(1) of the Act had lapsed and even though the jurisdiction of the Civil Court to pass a decree is not ousted, on the lapse of the exemption, the Act became applicable to the premises in question and when the execution came to be levied, the provisions of the Act squarely applied and there could not be an eviction of the defendant, who has become a tenant within the meaning of the Act, except under the provisions of the Act. Learned Counsel further submits that with or without the exemption, the jurisdiction of the Civil Court to pass a decree in ejectment even against a tenant within the meaning of the Act is not ousted and this proposition has emerged from the judicial precedents rendered under the Rent Control Statute, which prevailed and which is prevailing in this State and the only inhibition is with reference to evicting the tenant in execution of such a decree or otherwise except through the processes under the Act, and on the conditions set out therein getting satisfied therefor, and when the execution came to be levied in respect of the decree, the Act had come to be applied to the premises in question and the decree could not be availed of to evict the defendant, who is a tenant within the meaning of the act. As against this, MR.K.N.Balasub-ramaniam, learned Counsel appearing for the plaintiff, would heavily rely on the pronouncement of Ratnam, J. referred to above to state that the decree obtained by the plaintiff can be executed though the period of five years under section 30(1) of the Act had expired by the time the decree was granted and the execution proceedings initiated.

(3.) IN Mahmood v. Kerala Corporation Ltd., (1954)1 M.L.J.44: A.I.R.1945 Mad.181 Chandrasekhara Aiyar, J. held that there was an ouster of jurisdiction of Civil Courts and the remedy of the plaintiff was to go before the Controller.