(1.) THE 1st defendant in O. S. No. 82 of 1963 on the file of the Court of the subordinate Judge of Madurai is the petitioner in C. K. P. No. 816 of 1966 and the 2nd defendant is the Petitioner in C. B, P. No. 1944 of 1965. The plaintiff filed the suit in the Court of the Subordinate Judge of Madurai under Section 9 of the Specific Relief Act, 1877. The plaintiff's case is that he was a lessee under the 1st defendant and from the year 1953-54 the plaintiff as such lessee was in occupation of the vegetarian and the non-vegetarian stalls belonging to the 1st defendant and situate in the Central Bus Stand, Madurai. The plaintiff also avers that during 1954-55 he carried out extensive improvements to both the stalls at a cost of about Rs. 30,000/- and the stalls as they exist to-day were not constructed by the municipality. The lease deeds Exs, B-13 and B-14 were executed both between the plaintiff and the 1st defendant and they cover the period commencing from 1-4-1960 and expiring with 31-3-1963. The plaintiff is said to have applied for a renewal of the Lease on 14-2-1963 after having paid the licence fee for running the respective hotels for the year 1963-64 under Exs. A. 61 and A. 62. On 14-3-1963 the 1st defendant passed a resolution stating that the leasehold interest in the two stalls in question would be auctioned on 22-3-63. The plaintiff petitioned on 21-3-1963 asking for a renewal of the lease and indicating therein that he has practically reconstructed the stalls at a heavy cost and that the lease should therefore be renewed in Ms favour. On 23-3-1963, the plaintiff was directed to produce the records in his possession to show that he constructed the buildings and effected the improvements. It is therefore not denied that the constructions were so put up as claimed by the plaintiff. It is the plaintiff's case that he went to the office of the Commissioner of the municipality, but as he was not available, the accounts were not scrutinised. As resolved, the auction was held on 22-3-1963 and the leasehold interest of the vegetarian stall was auctioned and purchased by the 2nd defendant in the suit. This was also confirmed later. The plaintiff again requested for a renewal of the lease in spite of the auction and on 25-1963 the plaintiff sent three separate cheques, one for Rs. 2,100/-, the second for Rs. 700/- and the third for Rs. 400/-, representing respectively the advance, the rent for April, 1963 and the caution deposit for the occupation of the stalls. It is in evidence that these cheques were cashed but the 1st defendant would have it that the amounts were kept in deposit register and were not adjusted towards the rent for April, 1963, D. W. 2 who was examined on behalf of the 1st defendant, however, admits that as per the entry in Ex. B-18 the amount of Rs. 700/-was received as rent. The Lower Court also finds that this was adjusted as and by way of rent. I shall revert to this aspect at a later stage.
(2.) FINALLY, the plaintiff received a communication on 5-6-1963 rejecting his request for renewal of the lease in his favour. On 6-6-1963 at. about 5-30 p. m. , when the plaintiff was carrying on his normal business in the stalls the 1st defendant with the help of its officers and the police entered the suit premises, threw away the articles from the hotel to the outside platform and practically forced out the persons who were taking tiffin in both the hotels and drove out the plaintiff's servants therefrom. The 1st defendant having thus taken possession of the two premises, out the 2nd defendant, the new lessee, in possession of the vegetarian stall on 9-6-1963. The non- vegetarian stall was re-auctioned on 12- 6-1963 in spite of the protests by the plaintiff, and even so the 2nd defendant was the successful bidder and it appears that the non-vegetarian stall is also now in the possession of the 2nd defendant. The 1st defendant's contentions are that the plaintiff is not a lessee, but only a licensee; that even if he were to be regarded as a lessee, the lease deeds Exs. B-13 and B-14 being leases entered into between the 1st defendant and the plain tiff strictly in accordance with the provisions of the madras District Municipali ties Act, they should be characterised as statutory leases and any re-entry made by the 1st defendant pursuant to one or the other of the express covenants in such lease deeds tantamounts to taking possession of the stalls from the plaintiff under due process of law within the meaning of Section 9 of the Specific Relief Act. They would also contend that such dispossession was with the consent of the plaintiff and the plaintiff cannot be deemed to be a person in lawful or juridical possession of the stalls at or about the time when he was forcibly evicted therefrom, that the amount of Rs. 700/-sent by the plaintiff was not received and accepted by them as rent and there has not been therefore, any waiver of the forfeiture of the lease and that they had the right in law and under the terms of the lease deeds to secure forcible possession of the stalls from the plaintiff. The 2nd defendant would state that he is a bona fide purchaser without notice of the disputes between the 1st defendant and the plain tiff and as such his possession cannot be disturbed.
(3.) MR. M. K. Nambyar appearing for the 1st defendant contends that the plaintiff had no possession in the eye of law on the date when the 1st defendant sought entry into the stalls with the aid of its officers and police and that the plaintiff was merely a licensee on whom the 1st defendant had sufficient control and who could forcibly be evicted after the expiry of the licence granted by the 1st defendant to the plaintiff to occupy the stalls. In any event, even if the plaintiff were to be considered as a lessee, he having no juridical possession of the property on the date when he was evicted therefrom and such eviction being with his consent and under due process of law and there is no cause of action for the plaintiff to institute this summary suit under Section 9 of the Specific Relief Act for restitution and re-delivery of the stalls thus taken possession of from him. Mr. Gopalaswami iyengar appearing for the 2nd defendant, petitioner in C. R. P. No. 1944 of 1965 contends that the 2nd defendant was not aware of any dispute regarding the possession of the stalls in question and that he took such leasehold interest by bidding at a public auction and therefore his possession ought not to be disturbed.