1. Suit for eviction and damages for encroachment — Claim for protection under Madras City Tenants Protection Act — Application under Section 9 for court-directed sale. (Para 2 , 3 )
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1991 Supreme(SC) 738
SUPREME COURT OF INDIA
B.P.Jeevan Reddy : T.K.Thommen
Thailammal
Versus
Janardhan Raju
Case No. : 3942 of 1991
Date of Decision : 12/20/91
Advocates Appeared: Bhasme Ajit S. : Bhasme S.B. : Mohan R. : Nedumaran R. : Padmanabhan S.
Advocates:
Ajit S.Bhasme, R.MOHAN, R.NEDUMARAN, S.B.Bhasme, S.Padmanabhan
Ajit S.Bhasme, R.MOHAN, R.NEDUMARAN, S.B.Bhasme, S.Padmanabhan
An application under Section 9 of the Tenants Protection Act is interlocutory; thus, under Section 105 of the Code of Civil Procedure, its dismissal can be challenged in an appeal against the final decree without requiring a separate appeal or a fresh application.
Headnote:(A) Tenants Protection Act - Sections 9, 9-A, 11 - Transfer of Property Act - Section 106 - Code of Civil Procedure - Section 105 - Suit for eviction - Application for direction to landlord to sell land - Interlocutory order - Challenge in appeal against final decree - An application filed under Section 9 of the Tenants Protection Act in an ejectment suit is in the nature of an interlocutory application - Once an appeal is filed against the decree of the trial court, the defendant is entitled to challenge the correctness of any interlocutory order passed in the suit by virtue of Section 105 of the Code of Civil Procedure - It is not necessary to prefer an independent appeal against the order dismissing an interlocutory application, even if it is appealable - Such an application must be deemed to be pending during the pendency of the appeal or second appeal. (Para 10)
(B) Applicability of Tenants Protection Act - Effect of repeated extensions and rescissions of the Act to a specific town - The sequence and necessity of repeated applications of the Act to the same town, including extensions and subsequent rescissions, are material for determining the entitlement of a tenant to the benefit of the Act and must be clarified. (Para 9)
Facts of the case:
Plaintiffs filed a suit for eviction of defendants from a specific portion of land, alleging that the defendants had encroached upon an adjoining area. The defendants claimed tenancy over the larger area and sought protection under the Tenants Protection Act, filing an application under Section 9 of the Act. The trial court decreed the suit and dismissed the Section 9 application. While the appellate court reversed this, the High Court restored the trial court's decree, holding that the defendants were not entitled to protection because they did not file a fresh application under Section 9 within the prescribed period after a subsequent amendment act extended the Act to the town.
Findings of Court:
The court found that the repeated extensions and rescissions of the Act to the town were unclear and required clarification to determine the legal status of the tenancy. Furthermore, the court held that the High Court was incorrect in ruling that a fresh application under Section 9 was required, as the original application, being interlocutory, could be challenged in an appeal against the final decree.
Issues: Whether an application filed under Section 9 of the Tenants Protection Act, having been dismissed by the trial court, requires a fresh filing after a subsequent extension of the Act, or if it can be challenged in an appeal against the final decree under Section 105 of the Code of Civil Procedure.
Ratio Decidendi: An application under Section 9 of the Tenants Protection Act is an interlocutory application. Under Section 105 of the Code of Civil Procedure, the correctness of any interlocutory order can be challenged in an appeal against the final decree. Consequently, the application is deemed pending during the pendency of the appeal or second appeal.
Result: Appeal allowed in part and the matter is remitted back to the High Court.
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2. Whether a prior dismissed application under Section 9 is deemed compliance with subsequent amendment requirements or if a fresh independent application is mandatory. (Para 8 )
3. Ambiguity exists regarding the timeline of the Act's extension to the town; interlocutory orders can be challenged in appeals against the final decree under Section 105 CPC. (Para 9 , 10 )
4. An interlocutory application under Section 9 of the Act can be challenged in an appeal against the final decree per Section 105 of the Civil Procedure Code. (Para 10 )
5. Appeal allowed in part — Matter remitted to High Court for clarification of Act extensions and final disposal. (Para 12 )
6. Can an order dismissing an interlocutory application under Section 9 of the Madras City Tenants Protection Act be challenged in an appeal against the final decree?
Yes. Since a Section 9 application is an interlocutory application in an ejectment suit, the defendant can challenge the correctness of such an order in an appeal against the final decree under Section 105 of the Civil Procedure Code. (Para 10 )
7. Is a separate independent appeal mandatory for an order dismissing an interlocutory application if an appeal against the final decree is filed?
No. It is not necessary to prefer an independent appeal against the order dismissing an interlocutory application, even if it is appealable, provided an appeal is filed against the final decree. (Para 10 )
8. What is the status of a dismissed interlocutory application during the pendency of an appeal against the final decree?
The application is deemed to be pending during the pendency of the appeal or second appeal, allowing the court to consider its legal effect. (Para 10 )
JUDGMENT
B.P. JEEVAN REDDY, J.
(1) AFTER hearing counsel for both the parties we are of the opinion that the matter must go back to the High court since certain relevant aspects are not clear from the record before us.
(2) DEFENDANTS are the appellants. The respondents-plaintiffs instituted a suit for eviction in the court of District Magistrate, Salem being O.S. No. 1472 of , 1972. The plaintiffs case was that they had let out the portion marked ABCD admeasuring 20 ft. x 16 ft., delineated in the plaint plan, on lease to the defendants for a period of three years. At the end of three years the plaintiff sent a notice terminating the defendants tenancy under Section 106 of the Transfer of Property Act. The defendants not only did not vacate the land but also encroached upon an adjoining portion and have thus come into possession of a larger area MNOP. They are not only liable to be evicted and to pay the arrears of rent but are also liable to pay damages for use and occupation of the excess land occupied by them.
(3) THE defence of the appellants was that they were the tenants of the entire area marked as MNOP and that the tenancy had commenced in January 1955 and not on 6/05/1957 as alleged by the plaintiffs. They stated that they had also put up a thatched construction on the said land at a cost of Rs. 3,000.00 and that they are entitled to the benefit of MADRAS CITY TENANTS PROTECTION ACT (hereinafter called the Act). They also filed an application under Section 9 of the Act in the said suit.
(4) THE trial court framed appropriate issues and after considering the evidence adduced by both the parties, decreed the suit on the following findings:
"(A) The lease was in respect of the smaller portion ABCD only and that the defendants have subsequently encroached upon the adjoining portion.
(B) The tenancy commenced on 6/05/1957 and not in January 1955.
(C) That the Act was extended to Salem Town on 19/09/1956 and then again on 29/01/1958, but the subsequent extension was rescinded in G.O. No. 1695, which meant that the extension of the Act on 19/09/1956 was effective. Inasmuch as the defendants tenancy commenced subsequent to 19/09/1956, the defendants are not entitled to the protection of the Act."
(5) THE application filed by defendants under Section 9 of the Act was also dismissed.
(6) THE defendants appealed against the decree of the trial court, which was allowed, and suit dismissed, on the following findings :
"(A) The lease was in respect of ABCD area only and the defendants had indeed encroached upon the adjoining site as alleged by the plaintiffs.
(B) The plaintiffs have not filed GOMs. 1695 dated 17/06/1959 which means that the extension of the Act on 29/01/1958 was effective. If so, the tenancy of the defendants having commenced on 6/05/1957 - i.e., earlier to 29/01/1958 - they are entitled to the benefit of the Act.
(C) The plaintiffs have also not issued the notice under Section 11 of the Act terminating the lease and, therefore, the suit is not maintainable."
(7) AGAINST the judgment and decree of the trial court plaintiffs filed the second appeal which has been heard and allowed by a learned Single Judge under the impugned judgment. The learned Single Judge agreed with the contention of the counsel for the plaintiffs that GOMs, 1695 dated 17/06/1959 was indeed a part of the record and, therefore, it must be deemed that the extension of the Act on 29/01/1958 has been rescinded. Having said so, the learned Judge observed that the said circumstance has no significance inasmuch as the Act was subsequently extended to Salem town by Act 2 of 1980. Accordingly, the learned Judge held that the suit lease is covered by the Act and the defendants can seek the benefit of the Act provided they comply with the conditions prescribed therein. The learned Judge then examined whether the defendants did in fact comply with the requirements of Section 9 of the Act and found
