P KANNIAPPA CHETTIAR Vs. KRAMACHANDRAIYAR

JUDGEMENT

(1.) These are appeals from the decrees of the city Civil Court for ejectment and mesne profits. The plaintiff is a lessee from the trustees of a temple of the lands in question which have been sub-let to the defendants in smaller portions. Several grounds of appeal were raised in the notice of appeal, but they have all been abandoned before us except one ground, namely, that the amount awarded for mesne profits was awarded without any evidence before the Court to justify the amount. The plaintiff had alleged in his plaint that the proper rent of the land is so much. The defendants in their written statements had not admitted that that figure was correct. Without hearing any evidence, the learned Judge accepted the figure as given in the plaint. In my judgment there was no justification for that, and, in the absence of evidence to the contrary, he ought to have taken not that figure but the figure of the rent actually being paid by the various defendants. We are told that nothing was said about the matter in the Court below, and that the plaintiff does not accept the view that the rents actually payable are the proper rents. In the circumstances of the cases, I think it is right that these cases should be sent back to the Judge, City Civil Court, for an enquiry into, and on proper evidence to decide the proper amount payable for mesne profits.

(2.) But the important question before us is rather raised by petitions presented to this Court by the various defendants under the Madras Act, III of 1922. That Act came into operation after the decrees in these suits but before the execution of those decrees, which, in fact have never been executed, this Court having granted a stay pending the hearing of these appeals. The applications are under Section 9 of that Act, which section provides in certain oases for the purchase by a tenant of his landlord's interest in the land. It is contended on behalf of the plaintiff that that section has no application to a case where a decree for ejectment has been made, as I understand the argument, whether an appeal is pending from that decree or not or whether a decree has or has not been executed. The argument is mainly based on the decision in Latifa Bi V/s. Mottai Ammal 72 Ind. Cas. 141 : 46 m. 886 : 44 M.L.J. 271 : 17 L. 341 : (1928) M.W.N. 288 : 32 M.L.T. 290 (1923) A.I.R. (M) 320 In that case, the decree for ejectment had been passed, had come up to this Court on appeal and had, on appeal, been confirmed : but the decree had lot been executed when the petition for leaves to purchase under Section 9 was made. It was held that the decree having been passed and confirmed, the Court had no jurisdiction to grant the petition. That these suits are pending in this Court, I think, is clear from a series of decisions, which decide that in this country an appeal is really a continuation of the proceedings or, as it has been put, is a stage in and part of the proceedings in a suit. Vide Krishnamaohariar V/s. Mangainmal 26 M. 91 F.B., Settappa Goundan V/s. Muthiah Goundan 31 M. 268 : 4 M.L.T. 77. Kamayya V/s. Papayya 37 Ind. Cas. 414 : 40 M. 259 : 21 M.L.T. 82 : (1917) M.W.N. 217 , 246 : 5 L.W. 558 : 32 M.L.T. 477 and particularly the very learned Judgment of MOOKERJI, J., in Bai Gharan V/s. Biswanath 26 Ind. Cas. 410 : 20 C.L.J. 107 See also the decision of the Privy Council in an appeal from Ceylon, Ponnamma V/s. Arumugam (1905) A.C. 388 : 74 L.J.P.C. 102 : 92 L.T. 740 : 21 T.L.R. 524 In Latifa Bi V/s. Mottai Ammal 72 Ind. Cas. 141 : 46 m. 886 : 44 M.L.J. 271 : 17 L. 341 : (1928) M.W.N. 288 : 32 M.L.T. 290 (1923) A.I.R. (M) 320 the Court based its judgment mainly on the view that, because Section 10 in terms applied the provisions of this Act for compensation for tenants to oases where there had been decrees for ejectment which had not been executed, it followed that Section 9 was not applicable in such oases. But it is to be observed that Section 10 also applies the compensation sections to cases in which suits are pending, and on the same argument, it would follow that Section 9 need not apply to oases where suits for ejectment are pending, whereas in fact Section 9 applies principally to such oases. The answer, in my judgment, is that Section 10 is dealing with compensation oases, and Section 9 is dealing with cases of purchase and is in itself a complete Code for those cases; and on an examination of Section 9 it is clear that it is intended to apply to cases in which suits are pending and cases in which suits have resulted in decrees but such decrees have not been executed, because in sub- section (3), it says that on an order for conveyance of the land after payment of the price fixed by the Court being made, "any decree or order in ejectment that may have been passed but which has not been executed shall be vacated." and there would be no meaning to be attributed to those words at all if it was not contemplated by that section that application could be made in cases where a decree had been passed, but had not been executed.

(3.) In my judgment all these cases come directly under Section 9. The tenants are persons who would be entitled to compensation under Section 3. They have made their applications within 15 days after the date of the coming into force of the Act, and they have made their application to the proper Court, namely, this Court, in which the suits were then pending. In my judgment, if there had been no appeal pending, they could properly have made their application to the City Civil Court, because, in my view, it was the intention, and must have been the intention, of this Act that, after the decree but before the execution at any time, application could be made to the Court having had control of the suit.