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SUPREME COURT OF INDIA
A.C. GUPTA AND E.S. VENKATARAMIAH, JJ.
K. Balakrishna Rao and others, Appellants
Versus
Haji Abdulla Sait and others, Respondents.
Civil Appeal No. 1172 of 1979
Decided on 10-10-1979.
Advocates appeared
Mr. G. Swaminathan, Sr. Advocate (M/s. A. C. Muthana, M. Subramaniam, K. Rajendra Chowdhary and N. N. Sivan, Advocates, with him), for Appellants; Mr. S. V. Gupte, Sr. Advocate (Mr. V. N. Ganpule, Advocate, with him), (for Nos. 2, 4 and 6) and M/s. P. Chidambaram, Shakeel Ahmed, M. N. Krishmani and M. A. Malik, Advocates (for No. 1), for Respondents.
* O.S.A. No. 75 of 1977, D/- 1-2-1979 (Mad).
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 – Section 30 - Tamil Nadu Buildings (Lease and Rent Control) Amendment Act, 1964 – Section 35 and 30(iii) - Madras Act XVIII of 1960 – Section 30 and 10(2)(ii)(a) – Suit for property - Lease deed - Property tax- Father of plaintiff, was the owner of a building - He leased it out in favour of defendant, under a lease deed for the purpose of running a restaurant known as Modern Cafe in it for a period of three years with effect on a monthly rent - Agreed period of lease expired but the defendant continued to be in possession of building as a tenant holding over - Aforesaid Order was replaced by Madras Buildings (Lease and Rent Control) Act, 1949 which was also applicable to said building - On the death of the landlord, under a partition amongst his heirs plaintiff became the owner of building - Protection which defendant was enjoying under Act of 1949 came to an end on passing of the principal Act by virtue of Section 35 thereof which repealed Act of 1949 and S. 30 (iii) thereof which provided that nothing contained in the principal Act was applicable to any non-residential building, rental value of which on date of the commencement of principal Act as entered in property tax assessment book of municipal council, district board, panchayat or panchayat union council or Corporation – Dependent, continued to be in possession of building by paying the rent every month - Plaintiff issued a notice to defendant terminating the tenancy with effect from expiry and as building was not governed by principal Act at that point of time, he instituted a suit in Civil Suit on the file of the City Civil Court, Madras for eviction and for damages at the rate - Whether defendants have no legal interest in the premises and consequently liable to be ejected – Held, it is thus seen that there was no proceeding in eye of law pending after cause of action on basis of which relief was claimed was totally different and persons against whom relief was sought were also different - Parties could not either by consent or acquiescence confer jurisdiction on court when law had taken it away - In these circumstances, court feel that the only course which court can adopt is to set aside findings of the trial court and of Division Bench on issues relating to claim of plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e issues Nos. 4 and 6 and to leave questions involved in them open reserving liberty to parties to agitate them in appropriate proceedings - In view of court finding on issue No. 3, court hold that the decree passed by the trial court and the appellate court are unsustainable - Court accordingly allow the appeal, set aside decrees passed by trial court and by Division Bench of High Court and dispose of suit as having abated - Findings on issues are set aside without expressing any opinion on them reserving liberty to parties to agitate the questions in appropriate proceedings - Having regard to the peculiar circumstances of the case - Appeal allowed.
JUDGMENT
VENKATARAMIAH, J. :—The question involved in this case is whether a suit for ejectment filed in respect of any non-residential building or part thereof pending before any court on the date on which the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Act No. XVIII of 1960) (hereinafter referred to as the principal Act) was amended by the Tamil Nadu Buildings (Lease and Rent Control) Amendment Act, 1964 (Act No. XI of 1964) (hereinafter referred to as the Amendment Act) could have been proceeded with after that date. It arises in the following circumstances :
Haji Mohamed Hussain Sait, the father of the plaintiff, Haji Abdulla Sait was the owner of a building situated in the city of Madras. He leased it out in favour of the defendant, K. Seetharama Rao under a lease deed dated July 8, 1940 for the purpose of running a restaurant known as Modern Cafe in it for a period of three years with effect from July 15, 1940 on a monthly rent of Rs.950. The agreed period of lease expired in July, 1943 but the defendant continued to be in possession of the building as a tenant holding over. On the coming into force of the Madras Non-residential Buildings Rent Control Order in 1946, the defendant became a statutory tenant of the said building and fair rent in respect of it was fixed under that Order in the year 1946 at Rs.1,680 per month. The aforesaid Order was replaced by the Madras Buildings (Lease and Rent Control) Act, 1949 which was also applicable to the said building. On the death of the landlord Haji Mohamed Hussain Sait in 1955, under a partition amongst his heirs the plaintiff became the owner of the building. The protection which the defendant was enjoying under the Act of 1949 came to an end on the passing of the principal Act by virtue of Section 35 thereof which repealed the Act of 1949 and S. 30 (iii) thereof which provided that nothing contained in the principal Act was applicable to any non-residential building, the rental value of which on the date of the commencement of the principal Act as entered in the property tax assessment book of the municipal council, district board, panchayat or panchayat union council or the Corporation of Madras exceeded Rs.400 per mensem. The dependent, however, continued to be in possession of the building by paying the rent every month. The plaintiff issued a notice to the defendant terminating the tenancy with effect from the expiry of February 29, 2964 and as the building was not governed by the principal Act at that point of time, he instituted a suit in Civil Suit No. 730 of 1964 on the file of the City Civil Court, Madras on March 2, 1964 for eviction and for damages at the rate of Rs.6,000 per month. The defendant filed his written statement on May 2, 1964 before the City Civil Court. On June 10, 1964, the Amending Act came into force. The relevant part of it is reproduced below :-
"2. Amendment of Section 30, Madras Act XVIII of 1960. In Section 30 of the Madras Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the principal Act).
(i) in clause (ii) the word "or" occurring at the end shall be omitted;
(ii) clause (iii) shall be omitted;
(iii) in the Explanation, for the words, brackets and figures "clauses (ii) and (iii)", the word, brackets and figures "clause (ii)" shall be substituted.
3. Certain pending proceedings to abate - Every proceeding in respect of any non-residential building or part thereof pending before any court or other authority or officer on the date of the publication of this Act in the Fort St. George Gazette and instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue of clause (iii) of Section 30 of the principal Act, shall abate in so far as the proceeding relates to such building or part. All rights and privileges which may have accrued before such date to any landlord in respect of any non-residential building or part thereof by virtue of clause (iii) of Section 30 of
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