Suit filed for ejectment cannot be dismissed due to filing of application u/s 9(1)(a)

T. Sathiadev, J.

1. Plaintiff in ejectment suit No. 40 of 1974 on the file of the II Judge, Court of Small Causes, Madras is the petitioner herein and the defendant is the respondent. Plaintiff filed the suit as owner of I ground and 28 sq.ft. in R.S. No. 1523/4, at Rathnasabapathi Pillai St., Madras 7, and that a superstructure now exists thereon bearing door No. 10 Rathnasabapathi Pillai Street. Plaintiff leased out the plot of land originally to one Rajamanickammal on a monthly rent of Rs. 3.25 and she left behind huge arrears and expired 27 years ago intestate, and that in September 1970, on plaintiff being told that defendant is claiming to be the lessee of the property and collecting ground rent from sub-tenants, a notice was sent on 15.9.1970 calling upon him to prove that he is the successor-in-interest of Rajamanickammal, He replied through his Counsel on 26.9.1970, stating that he is her son and may be treated as a lessee under the plaintiff and undertook to pay the arrears of rent for three years, but failed to do so, and therefore, under Section 106 of the Transfer of Property Act, a notice was issued on 7.10.1970. This was replied on 26.11.1970, by defendant promising to pay the arrears of rent, but committed default. Again, another notice was sent and reply was received and that having received only a sum of Rs. 117, for the balance of the amount, a separate suit is being filed for recovery of arrears. Hence the suit has been laid for evicting the defendant. The suit was filed on 15.4.1974, by the plaintiff called Vasudeva Pillai Trust represented by its Honorary Secretary and that was recognized in Appln. No. 241 of 1982 in C.S. No. 246 of 1930 by order dated 22.4.1982 by the High Court. On filing the suit on 15.4.1974, defendant filed M.P. No. 2747 of 1947 invoking Section 9 of Tamil Nadu Act III of 1922, stating that originally the suit property had been leased to his grand-father Appavoo Chetti, who had settled the property in favour of his mother, Rajamanickammal, and after her death, as the only son, he had become entitled to the lease-hold rights and that he has applied for the purchase of the suit land.

2. The said petition was opposed and after the Commissioner having been appointed to ascertain the value of the property, on 4.8.1976 it was ordered that the extent involved was 2,810 sq. ft. and that the market value was Rs. 16,000 per ground, and therefore, the defendant was directed to pay with interest a sum of Rs. 18,733 towards the value of the land at Rs. 624.43 every month in 30 equal monthly instalments commencing from 1.11.1976.

3. Aggrieved against this order, Ejectment Appeal No. 20 of 1977 was filed and it was allowed on 11.9.1978, fixing the market value at Rs. 15,333 per ground. In spite of it, he filed M.P. No. 1371 of 1979 for review of the judgment so as to fix the market value at Rs. 10,000, per ground, and this was dismissed for default, once on 13.10.1979, and later it was restored and again on 17.12.1979 it was dismissed for non-appearance, and thereafter M.P. No. 115 of 1980 was filed to restore it, and it was dismissed on 15.3.1980, holding that the tenant was bent upon protracting the proceedings during the past six years, and the reason claimed in the supporting affidavit for non-appearance by counsel and party was not correct.

4. It is admitted by defendant that-the order in ejectment appeal No. 20 of 1977 had become final and the instalment of Rs. 511 fixed therein to be paid monthly with interest at 6 per cent per annum had not been complied with because of financial difficulties. Defendant filed M.P. No. 1556 of 1984 by invoking Section 5 of the Limitation Act, for condoning the delay of 42 months in paying the market value as fixed by the order dated 11.9.1978 claiming that he could not possess the necessary funds to pay on time. By order dated 11.2.1985, this was rejected. Reliance was placed by the Court below on Section 9(2) of the Act, which provides that even if the ten