K MUHAMMAD SUKRI SAHIB Vs. THELAPURATH MADHAVA KURUP

JUDGEMENT

(1.) The respondent is the owner of a shop in Calicut town and the appellant is his tenant, holding the shop on a month-to-month tenancy. The respondent filed O.S. No. 405 of 1943 for the eviction of the appellant; but before he could obtain a decree, the Non-Residential Building Rent Control Order, 1942, had been amended on nth July, 1944. Apparently unaware of the amendment, a, decree was passed in the respondent's favour on the 8 September, 1944. Almost immediately, the respondent applied for possession, obtained an ex parte order in his favour, and was actually put in possession on the 15 September, 1944. On the 28ih October, 1944, the appellant drew the attention of the executing Court to the amendment on the nth July, 1944, and pointed out that the Court had acted ultra vires, in that its order delivering possession to the respondent was void. The Court then took action under Section 151 of the Civil P. C. and set aside its previous order on the ground that it would not have passed that order if its attention had been drawn to the amendment. The matter was taken in appeal to the Subordinate Judge, who affirmed the decision of the trial Court. The matter came before Panchapagesa Sastri, J., in A.A.A.O. No. 43 of 1946. The learned Judge held that despite the passing of the amendment on the 11 July, 1944, the law to be applied, to the case was the law as it existed at the date of filing the suit. He therefore allowed the appeal with costs throughout. At the same time, he granted leave to appeal under the Letters Patent.

(2.) There can be no doubt, on the plain words of the amended Clause 8 of the Non- Residential Building Rent Control Order, 1942, that the tenant was entitled to remain in possession.

(3.) Clause 8(1) says: A tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree or otherwise...except in accordance with the provisions of this clause. As there are no provisions in this clause for the eviction of the tenant on the grounds raised in the suit, it is clear that if this sub-clause be taken at its face value, the tenant could not be evicted even though a decree had been obtained. Sub-clause (2) makes the matter even clearer; because the procedure to be adopted by a landlord who desires to evict his tenant is not to apply to the Civil Court in execution of his decree, but to the Rent Controller for a direction that the tenant be evicted. The Con (roller has then, after giving the tenant a reasonable opportunity of showing cause against the application, to consider whether the tenant has been guilty of any of the laches or defaults referred to in the various paragraphs of Sub-clause (2). If he is satisfied that he has, then he shall order the eviction; if he is not so satisfied, then he is bound to reject the application.