PALACE DE WALES Vs. STATE OF TAMILNADU

JUDGEMENT

(1.) THE case of the petitioner is that the petitioner firm is the owner of the theatre'palace-de-Wales'at Tirunelveli junction. THE petitioner got the lease of vacant site belonging to the second respondent in the year 1985 and constructed a permanent cinema theatre. THE theatre has been functioning all these years. THE lease period lastly expired on 30. 6. 1967. THEreafter the second respondent refused to renew the lease and filed the suit O. S. 753/68 on the file of District Munsif, Tirunelveli for recovery of possession. THE petitioner resisted the same mainly on the ground that the suit was not maintainable for want of notice under Section 11 of tamilnadu City Tenants Protection Act. Ultimately the suit was dismissed on 19. 7. 73. THE second respondent preferred an appeal in A. S. 195/74 on the file of Sub-Court, Tirunelveli and the same was dismissed on 5. 7. 76. THE second appeal No. 1976/76 preferred by the second respondent before this court was also dismissed on 13. 1. 81.

(2.) THEREAFTER the second respondent issued notice under section 11 of the City Tenants Protection Act and filed a fresh suit in O. S. No. 728/82. The petitioner filed I. A. 1363/82 under Section 9 of the said Act. Neither the counsel for the petitioner nor the Government Pleader is in a position to say anything with regard to the result of the suit.

(3.) IN the recent judgment reported in Sri Hanuman Vahana panchaparva Kattalai Attached To Sri Venkatachalpathi Perumal Temple v. Subramanian (1994 II MLJ 239) this court has held that unless and until the landlord evict the tenant by due process of law, the tenant's possession cannot be considered to be unlawful. The learned Judge had distinguished the judgment reported in Chockalingam v. Manikkavasagam (AIR 1974 SC 104) and relied upon a judgement reported in Manickavasagam v. The Board of Revenue (86 l. W. 661) and held as follows: 'we may also note that in Manickavasagam v. The board Of Revenue (86 L. W. 661), A Division Bench of this Court has stated that it cannot be laid down as a general proposition that once there was a demand by the landlord for possession from the tenant whose lease had expired by efflux of time, the continued possession in the hands of the erstwhile tenant would be unlawful or that he would be considered as a trespasser. The continued possession in the hands of such a tenant is protected by law. Such possession is quite good against the entire world except the landlord himself. The landlord will be entitled to evict him by the appropriate proceedings. Until then, the erstwhile tenant cannot be regarded as being in unlawful possession. His possession is wrongful, but not unlawful. It is wrongful, because the erstwhile tenant continues in possession beyond expiry of the period fixed in the lease. It is not unlawful, because the land lord cannot take the law into his own hands and evict him. He can evict him only by proper procedure and that being the case, it cannot be said that the erstwhile tenant is in unlawful possession. Therefore, for the purpose of the Madras cinemas (Regulation) Act, 1955 particularly Rule 13 of the Rules, merely because the lease period had expired, the tenant who overstays cannot be considered to be in unlawful possession. IN other words, even in such a situation. Rule 13 is satisfied and such a tenant will be entitled to a renewal.' A division Bench of this Court in the judgment reported in Dhanalakshmi Ammal v. Government of Tamil Nadu (1993 (2) L. W. 569) has discussed about the difference between the litigious possession and the lawful possession. Of course the Division Bench arrives at the conclusion that the appellants possession therein is lawful on the basis of the terms of the lease deed.