M.R. NATARAJA NAICKER Vs. M. KAMALAMMA

JUDGEMENT

(1.) THIS revision petition raises the question as to the correctness of the decision on a preliminary issue by the Judge of the Court of Small Causes, Madras, under Section 41 of the Presidency Small Cause Courts Act (XV of 1882). The tenant is the petitioner. By a registered document Exhibit P -1, dated 12th August, 194.9, the respondent, landlord granted a lease of immovable property to the petitioner with a condition annexed that if the tenant (petitioner) defaulted in payment of rent for two consecutive months or sub -let or assigned the premises to any person the lessor would be entitled to terminate the tenancy. On 27th April, 1951, by Exhibit D -1 the tenant granted a lease for ten years to one Rudra Pillai. There is a dispute as to whether this lease comprised the superstructure only or the land as well. But for the purpose of the present controversy it is assumed that the lease covered the land as well. Founding on the ground that Exhibit D -1 amounted to a breach of the conditions of the lease and also on the ground that the tenant had defaulted in payment of rent for two consecutive months the respondent purported to terminate the lease by a notice, dated 5th February, 1955 and filed an application for ejectment against the present petitioner under Section 41 of the Presidency Small Cause Courts Act. The tenant contested the application but at the request of both the parties and learned Judge took up for consideration as a preliminary issue the question of jurisdiction of the Court to entertain the application of the respondent. The contention on behalf of the tenant was that as ex facie the lease in his favour had not expired and that as the case of the landlord was based upon an alleged forfeiture, the question for determination by the Court involved a question of title to immovable property and therefore such an adjudication is barred by the provisions of Section 19(g) of the Act. The learned Judge held that the application was maintainable. This revision petition is filed against the finding of the learned Judge on the preliminary issue holding that he had jurisdiction to try the application. It is contended on behalf of the petitioner that the determination of the question as to whether there has been a forfeiture and on that account the lease had been put an end to involves the question of title to immovable property as according to him the lease is still current and if the landlord says that it has been put an end to there arises a dispute in regard to title to the property. He relies in this connection upon Section 19(g) of the Act, and argues that the Court has no jurisdiction to decide the dispute under Section 41.

(2.) SECTION 41 of the Act is the first of a series of sections relating to recovery of possession of immovable property. Both under Section 41 of the Act and the Rules framed under the Act though the application is to be in the form of plaint it has been held that it does not become a suit but is only an application (Vide Doraiswami Iyengar v. Narayana Iyengar : (1922)43MLJ288 . Section 19(g) which applies only to suits will not apply to a case of this kind. Section 19(g) excludes from the cognizance of the Small Cause Court suits for recovery of immovable property whereas Chapter VII of the Act expressly deals with recovery of possession of immovable property. Apart from the distinction that Section 19(g) will apply only to suits and not to applications there is the further distinction that Sections 19 and 41 apply to different subject' matters. As Chapter VII of the Act provides for recovery of possession of immovable property Section 19 cannot apply. Chapter VII of the Act is a complete Code in regard to application filed under Section 41. Section 48 states that in all proceedings under this Chapter (Chapter VII) the Small Cause Court shall as far as may be and except as therein otherwise provided follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure. This is different from the procedure which regulates the trial and disposal of suits by the Court. Sections 46 and 49 enact that recovery of possession of immovable property under this Chapter will not debar the institution of suit in the appropriate Court for trying the question of title in regard to the property. These two sections impliedly recognise the necessity of summary adjudication of title subject no doubt to a final adjudication in a properly constituted suit. Section 41 enables the owner of a property to recover possession by a summary process as against the tenant or licensee or their representatives where such tenancy or license had been determined or withdrawn. Under this section it is open to the owner of the property to apply to the Court for a summons against the occupant calling upon him to show cause why he should not be compelled to deliver up the property. Section 43 enables the Court to direct delivery of possession in case the occupant does not appear at the time appointed and show cause to the contrary. There is, however, no provision as to what is to happen if the occupant appears and fails to show cause but from the explanation to Section 43 it is clear that in such a case the Court is entitled to order delivery of possession of the property. It is obvious from a reading of Sections 41, 43 and 49 of the Act that the Court performs a judicial function and is entitled to investigate, though summarily, any defence that may be put forward by the defendant. The Court has undoubtedly jurisdiction to decide whether the tenancy or license has been terminated and whether the owner of the property has a right to apply for the summary process under Section 41 of the Act. It is, therefore, clear that any question of title that may be necessary to be decided for the purpose of exercising jurisdiction under Section 41 could be decided in a summary manner. I do not, therefore, accept the argument advanced on behalf of the petitioner that whenever a tenant or a licensee raises a dispute in regard to the title of the applicant the Court would cease to have any jurisdiction to decide the dispute. The jurisdiction of the Court depends upon the averments in the application and upon proof of the things necessary under Section 41 of the Act and it cannot, therefore, depend upon an accident of the defendant raising a dispute as to the title of the applicant. In this connection reference may be made to a decision of the Bombay High Court in Institute of Radio Technology v. Pandurang, I.L.R. (1945) Bom. 1038 :, A.I.R. 1946 Bom. 212. In that case there was a lease of four blocks on the second floor of a building and after notice to quit the landlord filed an application under Section 41 of the Presidency Small Cause Courts Act. The tenant resisted the application pleading protection under the Bombay Rent Restriction Act and contended that when such a defence is raised the question was outside the scope of the Small Cause Court. The learned Judges overruled the contentions on behalf of the tenant. Divatia J., observed at page 1041