RAMACHANDRA CHETTI Vs. C. MOTHALIYANDAN CHETTIAR

JUDGEMENT

(1.) This revision petition arises out of proceedings under the Madras Buildings (Lease and Rent Control) Act, 1960, though commenced under the old Act XXV of 1949. The landlord filed an application for eviction on the ground that the tenant was guilty of wilful default in the payment of rent and the Rent Controller passed an order for eviction on 3rd July 1956. The tenant preferred an appeal and the appellate Court gave time for payment of the rent till 22nd July 1959, but as the tenant did not pay arrears of rent within the time fixed by the appellate court, the appellate court, passed an order for eviction on 23rd July 1959. The landlord filed a revision petition in the High Court feeling aggrieved by the order of the appellate authority granting time and giving indulgence to the tenant to pay the rent by 22nd July 1959 as observed earlier. The tenant had in his turn preferred a revision petition to this Court in C.R.P. 1344 of 1959 against the order of eviction. During the pendency of C.R.P. 1344 of 1959 the tenant had obtained an order for stay of execution of the order of eviction. It appears that the tenant died somewhere about October 1960 and his legal representatives were not brought on record within 30 days time as required under rule 32 of the rules framed under the Act. On 31st August 1962, the revision petition of the tenant C.R.P. 1344 of 1959 was dismissed on the representation that the tenant petitioner was not anxious to prosecute the matter. The result was that on 31st August 1962 there was a dismissal of the revision petition on the merits. At this stage it may be mentioned that the Learned Counsel for the petitioner tenant was not aware of the fact that the tenant had died and the legal representatives were not brought on record. Evidently he must have been instructed to by some persons representing the tenant and Learned Counsel must have proceeded on the footing that the tenant was still alive. The present execution petition E.P. 1244 of 1963 was filed by the landlord on 13th November 1963, and is resisted by one Ramachandra Chetty who claims to be a sub -tenant alleging to have been inducted into the premises as early as 1943. Learned Counsel for the petitioner first contended that the application for execution was barred by limitation on the ground that the three years time to execute the decree would commence to run even from November 1960 after the expiry of one month from the date of death of the tenant in October 1960. He urges that as soon as the one month period had expired after the death of the tenant without his legal representatives having been brought on record, the revision proceedings must be deemed to have terminated and limitation would commence from that date. I see no force in this contention. It is enough to refer to the statement of the law in Rustomji on Limitation, 6th Edn. at page 1046, where the learned author deals with the scope of Art. 182 (2) which provides a fresh starting point of limitation for the execution of the decree calculated from the date of the final decree or order of the appellate court passed on the appeal. Learned author has referred to the decision of the privy Council in Hussain Ashgar v/s. Ramditta, 60 Cal. 662 from which it is clear that even though an appeal has abated limitation would commence to run not from the time when the appeal abates by mere lapse of time for failure to bring on record legal representatives, but only from the date the court passed the formal order dismissing the appeal after declaring the appeal as having been abated. In this case, the order which has been passed is one on the merits a dismissal of the revision petition. It may be that this order may not be binding on the legal representatives provided they take necessary proceedings to set aside that order on the ground that at that time the tenant was dead. But so long as that has not been done, the order has got to be regarded as a decision on the merits and limitation would commence to run only from 31st August, 1962.

(2.) Learned Counsel next contended that the proceedings though initiated under the old Act of 1949, must be regarded and dealt with as proceedings under the Act of 1960 by reason of the special provision contained in S. 35 of the Act of 1960, hereinafter referred to as the Act. He urged that all orders passed under the old Act must be deemed to be orders passed under the corresponding provision of this Act (XVIII of 1960) and in the instant case the order for eviction was passed under S. 7 -A (4) of the old Act, which provided that if during the pendency of an application for eviction the tenant does not deposit the arrears of rent due by him upto that time, the Rent Controller or the appellate authority as the case may be shall stop all further proceedings and made an order directing the tenant to put the landlord in possession of the building. In this case, from the record it is clear that such an order was passed by the appellate authority as the tenant did not deposit the rent as required by S. 7 -A (4) of the old Act, with the result that under S. 9 of the old Act, the landlord would be entitled to execute the decree for eviction. Learned Counsel urges that the order which was passed under S. 7 -A (4) of the old Act by reason of S. 35 of the present Act, must be deemed to be an order passed under S. 11(4) of the present Act. According to Learned Counsel S. 18 of the new Act which provides for execution of orders includes within its scope only orders made under Ss. 10, 12, 13, 14, 15, 16 and 17, and every order passed on appeal under S. 23 or on revision under S. 25. S. 18 does not take in an order passed under S. 11(4). I am not prepared to accept this interpretation of S. 35 of the new Act which would result in absurd and anomalous results. If before Act XVIII of 1960 an order has become an enforceable and executable order, by reason of the particular provision in S. 9, read with S. 7 -A(4) of the old Act, it cannot cease to be an executable or enforceable order by reason of S. 35 of the Act, such an interpretation would result in this absurd consequence that an order for eviction obtained by the landlord under the old Act of 1949 will become absolutely useless and the landlord will be obliged to commence fresh proceedings. I have no doubt whatsoever that the Legislature never intended that S. 35 should have such an effect. In my opinion (S. 18 Madras with S. 35 of the new Act) would apply only in so far as may be applicable to the old proceedings. Learned Counsel lastly contended that the present petitioner who is a sub -tenant cannot be evicted from the premises as under S. 56 of the present Act, a sub -tenant should be impleaded in the proceedings for eviction. Here again Learned Counsel relied upon S. 35(2)(a) and contended that all proceedings taken and commenced under the old Act must be deemed to be proceedings taken and conducted under the new Act with the result that the moment in a pending proceedings it is brought to the notice of the court that a sub tenant is in possession, the sub -tenant cannot be evicted unless he is made a party to the proceedings in question and an opportunity is given to him to resist the application for execution. The point raised is not free from difficulty. But on a careful consideration of all the aspects of the matter, I am inclined to take the view that having regard to the scheme of the Act, S. 26 read with S. 35 (2)(a) cannot apply to a situation in which an order for eviction had been passed by the Rent Controller and confirmed by the appellate authority and a revision petition is filed from that order. The acceptance of the contention of the Learned Counsel for the petitioner would mean that in the revision petition this Court will have to set aside the order of the Rent Controller and the appellate authority and send the matter again to the Rent Controller for fresh trial and investigation after giving an opportunity to the sub -tenant to resist the application even though the landlord has already made out his case and obtained an order for eviction binding not only on the tenant, but also on the subtenants under the then (sic) law. In my opinion, S. 26 must receive (sic) application read with S. 35 (sic) only where the scheme of the (sic) can be carried out. In other (sic) read with S. 38 would apply (sic) as they are applicable to (sic). But if it would (sic) reopening the entire to (sic) possibly have application. Even otherwise I am not inclined to agree with the Learned Counsel for the petitioner that if the sub -tenant is not impleaded under S. 26, the order for eviction cannot be executed against the sub -tenant. It is settled law that if a decree for eviction is passed against the main tenant, the order of eviction can be straightaway enforced and executed as against the sub -tenant. I do not think that by enacting S. 26 it was the intention of the Legislature to make deliberate departure from this settled and accepted position in law. In my opinion S. 26 is merely intended to provide that if the sub -tenant is made a party the order passed in the proceedings will be binding upon him. It does not follow from this that if a sub -tenant is not made a party, the order of eviction obtained against the main tenant would not be binding upon the subtenant. In a recent judgment in C.R.P. No. 494 of 1964, I had occasion to consider how far an order for eviction obtained against a tenant can be straightaway enforced and executed against the sub -tenant. The principle of that decision clearly applied to the instant case. It is sufficient to refer to the recent decision of the Supreme Court in Rupchand v/s. Raghavangri (P.) Ltd., A.I.R. 1964 S.C. (sic), in which the Supreme Court stated the law thus:

(3.) I may also refer to the Bench decision of the Calcutta High Court in Sailendranath v/s. Bijanlal : A.I.R. 1945 Cal. 283 (sic) Yusuf v/s. Jyotichandra Banerje 59 Cal. 739 (sic) a discussion of the legal (sic) regarding the array of parties in (sic) for ejectment instituted by the (sic) against his tenant, when the tenant has created a sub lease. I am therefore of opinion that S. 26 of the present Act of 1960 does not help the contention of the petitioner. For all these reasons, I dismiss the revision petition with costs. The petitioner is given 3 months time to vacate.