Right of tenant to benefit u/s 9 affected.

This Civil Revision Petition is brought against the order of the-Court of the District Munsif, Poonamallee, in I.A. No. 1066 of 1946. The petitioner was the defendant in O.S. No. 331 of 1946 instituted by the landlord in ejectment on the ground that the tenancy was determined. He pleaded that he was entitled to protection under the Madras City Tenants’ Protection Act by reason of the fact that the suit site was included in the City of Madras with effect from 1st April, 1946. He also filed an application under section 9 of the Act within the time prescribed by the section praying that the Court might be pleased to direct the plaintiff-landlord to sell him the land for a price to be fixed by the Court according to the provisions of that section.

Some time thereafter the plaintiff filed an application under Order 23, rule 1, to withdraw the suit with liberty to file a fresh suit on the ground that there was a formal defect in the suit inasmuch as the plaintiff failed to issue the notice required under section 11 of the Act. At that time the petition filed by the tenant under section 9 of the Act was pending. The application for withdrawing the suit was opposed by the defendant on the-ground that by virtue of the filing of the suit a right to claim relief under section 9 has accrued to him and that it was not open to the plaintiff to withdraw the suit. It was also contended on his behalf that in any event his application should be proceeded with in spite of the withdrawal of the suit. Overruling the objection raised by the defendant, the lower court allowed the plaintiff to withdraw the suit with liberty to file a fresh suit and dismissed the defendant’s petition (I.A. No. 1066 of 1946) leaving open the question of defendant’s right to purchase the suit site to be determined in a fresh suit that might be filed by the plaintiff.

The defendant has preferred this civil revision petition against the order of, the District Munsif in I.A. No. 1066 of 1946. The contention raised by Mr. Ramaswami Aiyangar who appeared for the petitioner is that the trial court had no. jurisdiction to dismiss the application under section 9 of the Act without inquiring into it as the defendant had acquired an indefeasible right under section 9 of the Act to purchase the suit site from the plaintiff, the moment the suit for eviction was filed into court. According to him the fact that the plaintiff was not prepared to proceed with the suit on a ground of formal defect in the plaint would not make any difference for the defendant’s application under section 9 of the Act.

In support of this contention he relied on an unreported decision of Mack, J. in C.R.P. No. 378 of 1948 which will be referred to presently.

Before dealing with the case it is useful to set out the relevant provisions of the Act. The material portions of section 9 of the Madras City Tenants’ Protection Act runs as follows:

“Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord, may within one month after the date of this Act coming into force or within fifteen days after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell the land for a price to be fixed by the Court. The Court shall fix the price according to the lowest market value prevalent within seven years preceding the date of order and shall order that within a period to be determined by the Court, not being less than three months and not more than three years from the date of the order, the tenant shall pay into Court or otherwise as directed the price so fixed in one or more instalments with or without interest.” Section 11 provides that no suits in ejectment or applications under section 41 of the Presidency Small Cause Courts Act, 1882, shall be instituted or presented against tenant until the expiration of three