An application under Section 9 of the City Tenants Protection Act is an interlocutory application, and the correctness of any order passed thereon could be challenged in the appeal against the main decree.

The Judgment was delivered by :

This appeal has come before me on remand from the Supreme Court of India. The facts relevant are shortly as follows :-

2. The mother of the appellants filed O. S. 1472 of 1976 for recovery of possession from Irusappa Asari who was a tenant with respect to the suit property. According to the plaintiffs, the lease was taken on 6-5-1957. It was alleged that the tenant had encroached on an adjacent land which was not the subject matter of the lease. Pending the suit, the mother of the appellants died and the appellants were brought on record as her legal representatives.

3. The defendant contested the suit claiming that he was a tenant from January, 1955 with reference to a larger property than what was set out by the plaintiffs. He claimed the benefits of the Tamil Nadu City Tenants Protection Act are filed a petition under S. 9 of the Act. It was contended that the suit was not maintainable as there was no notice under S. 11 of the Act.

4. The trial Court granted a decree in favour of the plaintiffs and dismissed the application filed by the defendant under S. 9 of the Act. The trial Court held that the tenancy commenced on 6-5-1957 and the Act having been extended to Salem Town on 19-9-1956, it was a post-Act tenancy to which the Act would not apply. The trial Court also held that the defendant took on lease only the portion marked as ABCD in the plaint plan which was the case of the plaintiffs.

5. An appeal was filed by the defendant in the Court of Subordinate Judge, Salem, against the decree in the suit. There was no appeal against the order dismissing the application under S. 9 of the Act. Pending the appeal, he died and his legal representatives came on record as appellants. The Subordinate Judge reversed the conclusion of the Trial Court with reference to the applicability of the Act and dismissed the suit holding that the Act was applicable to the tenancy in question. According to the Appellate Judge, the Act was extended to Salem Town on 29-1-1958 and the tenancy was prior to the Act, with the result that the Act applied thereto but, the Appellate Judge held that the tenancy commenced on 6-5-1957 as found by the Trial Court. On the question of the extent of the subject-matter of the tenancy, the Appellate Court affirmed the finding of the Trial Court that the defendant was a lessee with reference to the portion marked as ABCD only in the plaint plan.

6. The plaintiffs preferred second appeal 1014 of 1980 which was disposed by this Court on 2-3-1990. After the filing of the second appeal in this Court, the Tamil Nadu City Tenants Protection Act was amended by Act 2 of 1980, pursuant to which the Act was made applicable to all tenancies of land created before 3-3-1980. Justice Bellie disposed of the second appeal. He allowed the appeal and restored the judgement of the Trial Court excepting with regard to a small modification with reference to the amount due towards compensation payable to the defendant. The learned Judge found that the defendant's application under S. 9 of the Act having been dismissed by the Trial Court and there being no appeal against the same, the defendant was not entitled to the benefits of the Act. The learned Judge held that unless an application under S. 9 of the Act was pending when Tamil Nadu Act 2 of 1980 was passed, the tenant would not be entitled to the benefits of the Act. It was also found that the Act was extended originally to Salem Town on 19-9-1956 and the tenancy was a post-Act tenancy as it came into being on 6-5-1957. Consequently, the learned Judge held that the Act was not applicable when the suit was instituted. It was also held by him that S. 11 of the Act would not come into play as at the time of filing of the suit, Tamil Nadu Act 2 of 1980 had not been passed.

7. The matter was taken to the Supreme Court of India by the defendant's legal representatives. The Supreme Court set aside the judgement of this court and remanded the matter for