THERUVATH VITTIL MUHAMMADUNNY Vs. MELEPURAKKAL UNNIRI AND ANR.

JUDGEMENT

(1.) THIS appeal originally came on before Horwill, J., who considered it desirable that it should be heard by a Division Bench in view of the conflict between decisions of this Court.

(2.) THE appeal is against an order of the Subordinate Judge of Ottapalam remanding a suit to the District Munsiff of Chowghat for disposal on the merits. The suit was filed by the first respondent for eviction of the appellant (first defendant) from a building that had been leased to him by the first respondent's predecessor in 1936. There were also prayers for arrears of rent and for recovery of damages in respect of an annexe to the building constructed by the first respondent. The appellant deposited into Court the entire arrears of rent and interest claimed in the suit, and therefore that part of the plaintiff's claim was satisfied. Following the decision in Mahmood v. : AIR1945Mad181 the District Munsiff held that the suit, so far as it related to eviction, was not maintainable, because of the provisions of the Madras Non -Residential Buildings Rent Control Order, 1942, hereinafter referred to as the Rent Control Order. On appeal, the learned Subordinate Judge, following certain decisions of this Court subsequent to Mahmood v. : AIR1945Mad181 held that the suit was maintainable and passed an order of remand as mentioned above.

(3.) BEFORE dealing with the several decisions on the effect of this clause, let us examine its plain language. Sub -clause (1) lays down that a tenant shall not be evicted from a non -residential building of which he is in possession. "Evict" literally means "expel by legal process". Eviction consists in the physical act of throwing out the tenant from the building which he is occupying. This sub -clause therefore, prevents the tenant from being thrown out. One of the methods of such eviction is by the process of execution of a decree for possession. The sub -clause makes it clear that even this method is prohibited. The eviction can only be in accordance with the provisions of Clause 8. There is nothing in this clause, or in any of the other clauses of the Order expressly prohibiting the institution of a suit for possession, or prohibiting a Civil Court from passing a decree for possession. No doubt, even though a decree for possession is passed, it may be not be capable of execution by the Civil Court. But the passing of the decree itself is not in terms prohibited.