SYED IBRAHIM AND ORS. Vs. JALMA AND ORS.

JUDGEMENT

(1.) The appellants in the above Second Appeal and the Civil Miscellaneous Appeal and the petitioners in the Civil Revision Petitions are the same. Appellants 1 to 3 are the assignees of the fourth appellant (fourth petitioner in the Civil Revision Petitions), who instituted O.S. No. 8l of 1961 on the file of the Court of the Principal District Munsiff, Madurai Town for directing Kader Mohideen Rowther (first defendant) to vacate and put the plaintiff in possession of the suit site after removing the superstructure thereon put up by the first defendant and for directing the first defendant to pay the plaintiff a sum of Rs. 276, the rent arrears for four months and twelve days. The plaint was presented on 18th February, 1961. Summons in the suit were served on the first defendant on 14th March, 1961. On 20th April, 1961, the first defendant filed his written statement. Subsequent to the filing of the written statement, the first defendant died on 17th September, 1961. Thereafter, defendants 2 to 7 were brought on record as the legal representatives of the deceased first defendant, as per order of Court dated 13th October, 1961, in I.A. No. 1669 of 1961. On 3rd November, 1961, defendants 2, 4, 5 and 7 filed O.P. No. 87 of 1961, under Section 9 of the Madras City Tenants' Protection Act, 1921. On the same day, the third defendant filed O.P. No. 88 of 1961 for the same relief. The learned District Munsif considered all the three proceedings together and, by his judgment and decree dated 14th February, 1963, allowed O.P. Nos. 87 and 88 of 1961, dismissed the suit for possession filed by the plaintiff, and directed the sale of the suit site in favour of the petitioners in O.P. Nos. 87 and 88 of 1961 fixing the value of the suit site at Rs. 23,700 and granting one year's time for payment of the said amount. In the meanwhile, it appears that the original plaintiff assigned his interest in the suit site in favour of three persons, and therefore he along with the said three persons preferred A.S. Nos. 157, 158 and 159 of 1963 on the file of the Court of the Subordinate Judge of Madurai, against the decree and orders passed in O.S. No. 81 of 1961 and O.P. Nos. 87 and 88 of 1961. The learned Subordinate Judge, by his judgment and order dated 31st January, 1964, remanded the suit to the lower Court. He agreed with the conclusion of the trial Court that defendants 2, 3, 4, 5 and 7 were entitled to apply under Section 9 of the Act but held that the minimum extent of the land which may be necessary for the convenient enjoyment by them has not been properly determined. He also observed that the suit of the plaintiff for possession should not have been dismissed in the first instance itself, before the petitioners in the original petitions were given an opportunity to pay the price and purchase the property. In this view, he remanded the proceedings to the lower Court, for the purpose of deciding the question in relation to the minimum extent that would be necessary for the convenient enjoyment by the petitioners in the Original Petitions. It is against the judgment of the learned Subordinate Judge in A.S. No. 157 of 1963 in O.S. No. 81 of 1961 that S.A. No. 1875 of 1964 and C.M.A. No. 302 of 1964 have been preferred. C.R.Ps. Nos. 876 and 877 of 1965 have been preferred against the orders of the learned Subordinate Judge in A.S. No. 158 of 1963 in O.P. No. 87 of 1961 be and A.S. No. 159 of 1963 in O.P. No. 88 of 1961 respectively.

(2.) The principal question that has to be considered is whether the applications filed by the legal representatives of the original first defendant under Section 9 of the Act were competent. If they were competent, no interference would be called for in the Second Appeal and the Civil Miscellaneous Appeal. On the other hand, if the applications were not competent the Civil Revision Petitions will have to be allowed, and the Civil Miscellaneous Appeal and the Second Appeal also will have to be allowed.

(3.) Mr. K. S. Desikan, the learned Counsel for the appellants, contended that on the facts set out above, the original tenant of the property, namely, the first defendant did not exercise his right under Section 9 of the Madras City Tenants' Protection Act within the time prescribed by law and therefore he lost his right : Once the first defendant had lost his right, defendants. 2 to 7, who only stand in the shoes of the first defendant and who have inherited the rights which the first defendant had on the date of his death, could not have filed the applications under Section 9 of the Act within 30 days from the date on which they were brought on record as parties to the suit. For this purpose, Mr. Desikan drew my attention to the language employed in Section 9 of the Act and also the provisions contained in Order 22 of the Code of Civil Procedure and Section 21 of the Limitation Act, 1963. Oh the other hand Mr. T. R. Mani, the learned Counsel for the respondents, contends that defendants 2 to 7 have been recognised as tenants by the Act in their own right and they are entitled to all the benefits, rights and protection conferred by the Act, and one of the rights being the right to apply for the sale of the property under Section 9 of the Act, they were entitled to apply under Section 9 within thirty days from the date when they were made parties to the suit. ,