Applicability of the Act at the time of execution.

Defendant has preferred this revision petition against the order of the executing Court directing delivery of possession of the suit property overruling the contentions raised by him.

2. The short facts are: The respondent filed O.S. No. 543 of 1977 and O.S. No. 216 of 1977 on the file of the District Munsif's Court, Salem. O.S. No. 543 of 1977 is for recovery of possession while the other suit is for an injunction restraining the defendant from utilising the suit property for any purpose other than that for which it was leased out. Both the suits were tried together and disposed of by a common judgment on 8-3-1979. The contention raised by the defendant, who is the petitioner herein, was that the suit for recovery of possession was not maintainable as he was entitled to the benefits of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter referred to as 'Act'. That contention was met by the plaintiff on the ground that the building was a new one completed in 1974 and the Act would not apply for a period of five years from the date of completion. It was stated on behalf of the plaintiff that the old building which existed was destroyed by a fire accident and the plaintiff had to erect a new structure. It was argued before the trial Court that the plan which was sanctioned by the Municipality showed that what was done by the plaintiff was only to change the roof and there was no new construction by the plaintiff. That aspect of the matter was dealt with by the trial Court in para 21 of its judgment. The relevant passage in the judgment reads thus :

"........According to him, as a tenant, he is entitled to protection under the Madras Buildings (Lease and Rent Control) Act. The plaintiff has filed the suit in O. S. No. 216 of 77 for a permanent injunction to restrain the 1st defendant who is the defendant in that suit from using the leasehold premises for any purpose other than the present business and from putting any additional power service. In that suit, the plaintiff has stated that the building was completely reconstructed in the year 1974. In his written statement in O.S. 216 / 77, the defendant has categorically admitted that there was fire accident in the row of shops, that five shops were damaged and that in the process of reconstruction in that place the shops and a staircase were constructed. It is in evidence that the fire accident took place in the year 1973. Ex. Bl is a copy of the plaint in O.S. 241 of 76, on the file of the Sub Court, Salem. That was a suit for damages filed by defendants 3 to 8 and the plaintiff against one Kasim and others for loss caused to them as a result of the fire accident. It is stated that the shops bearing Door Nos. 32 to 36 and 38 were completely gutted and burnt. The date of accident is proved to be 20-4-1973. Ex. B2 is the plan filed by the 3rd defendant before the Municipality showing the proposed re-roofing of the existing shops destroyed by the fire accident in T.S. No. 42 Ward Block 1 in the bus stand road, Salem. It is also stated therein that it is a proposal for conversion of the roof. The evidence of p.w.1 is that the building was not constructed according to the plan, Ex. B2. It is seen from Ex. B2 that the width of the shop is 85, but the report of the commissioner shows that it is about l0 and this is also spoken to by P. W. 1. The evidence of P. W. 2, who is the husband of the plaintiff, is that the building is a new building. A perusal of the plan filed in this case shows that the cubical content of the enclosed space has increased. It was contended by the learned counsel for the plaintiff that if the building had not been constructed according to the plan, it was for the municipality to take action against the owner of the building and that the tenant cannot take advantage of it. There is force in this contention. Thus, it is abundantly clear that the suit property is a new building constructed after the fire accident and that it was completed