Important Point
Requirement u/s 11 of the Tamil Nadu City Tenants Protection Act are in the nature of conditions precedent which had to be complied with before instituting a suit, the non compliance would be fatal and such suit would be liable to be dismissed at the threshold.

Judgment

S. Saghir Ahmad, J.-The appellant who is the tenant of a vacant plot of land owned by the respondent has approached this Court against the judgment dated 5.4.1994 passed by the Madras High Court by which the respondent s second appeal was allowed and the appellant was directed to be evicted from that plot.

2. The suit (O.S. No 110 of 1981) which was filed by the respondent in the court of the District Munsif, Poonamalle for the eviction of the appellant was dismissed by that court on 5.5.1988 on the ground that the suit was instituted without first issuing notice to the appellant under Section 11 of the Tamil Nadu City Tenants Protection Act, 1921 (for short, the Act). The Sub-ordinate Judge, Poonamalle before whom first appeal A.S.No. 26 of 1989) was filed by the respondent, dismissed the appeal on 20.9.1989 and upheld the judgment of the trial court. The respondent, thereafter, filed second appeal (25 of 1990) in the High Court which, as pointed out above, was allowed by the High Court by a judgment dated 5.4.1994 on the ground that the appellant had invoked the provisions of Section 9 of the Act by making an application that the property in dispute may be directed to be sold in his favour and has thus waived his right to object to the institution of the suit without issuing a notice under Section 11 of the Act.

3. It may be pointed out that the appellant had filed an application under Section 9 of the Act for a direction to the respondent to sell the property in question on a price to be fixed by the court. The application was filed beyond time prescribed under the Act and consequently, he had filed a separate application for condonation of 20 days delay in filing that application. The application for condonation of delay was rejected by the District Munsif by his order dated 12.7.1982 against which the appellant filed a Civil Revision (C.R.P.No. 1349 of 1983) in the High Court of Madras which by its order dated 9.9.83 dismissed the Revision with the result that the appellant could not invoke the provisions of Section 9 of the Act. Thereafter, the appellant, who had already filed a written statement in the suit, sought permission of the District Munsif of file an additional written statement in O.S.No. 110 of 1981 which was allowed and the appellant filed the additional written statement in which he raised the plea that the suit instituted by the respondent was not maintainable for want of notice under Section 11 of the Act. This plea, as pointed out earlier, was accepted by the trial court as well as by the first appellate court. But the High Court in second appeal reversed the judgment and held that the appellant having waived his right to object to the maintainability of the suit for want of notice under Section 11 of the Act was liable to be evicted from the plot in question over which he had, admittedly, raised super-structures.

4. The learned counsel for the appellant has contended that the judgment passed by the High Court is erroneous as the appellant was no permitted by the court itself to invoke the provisions of Section 9 as his application of condonation of delay was rejected by the trial court and the trial court s judgment was upheld by the High Court. The High Court was, therefore, in error in invoking the principles of waiver and decreeing the suit of the respondent for his eviction. The respondent s counsel, on the contrary, contended that the appellant had preferred to take advantage of the institution of the suit and had made an application under Section 9 of the Act (though beyond time) for a direction for the sale of the property in has favour and, therefore, he could not invoke the provisions of Section 11 and contend that the suit was not maintainable for want of notice under that Section was not given to him. Section 3 of the Act provides as under :

"3. Payment of compensation on ejectment"-Every tenant shall on ejectment be entitled to be as compensation the value of any building, which