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MADRAS HIGH COURT
S. RAMACHANDRA IYER,ANANTANARAYANAN
Sree Siddhi Budhi Vinayakagar Sree Sundareswarar Devastanam represented by K.Sambanda Mudaliar
Versus
S.V. Marimuthu
Letters Patent Appeal No. 94 of 1961
Decided On : 7 November, 1962
TENANT PROTECTION ACT - APPLICABILITY TO HINDU RELIGIOUS INSTITUTION - QUALIFIED POWER OF DISPOSAL - CONSTRUCTION OF S. 47 OF THE PRESIDENCY SMALL CAUSE COURTS ACT, 1882.
Fact of the Case:
The appellant, Sri Siddhi Budhi Vinayakar Sree Sundareswarar Devastanam is a Hindu temple which owned a considerable tract of land in St. Georges Cathedral Road, Royapettah. Out of that extent, its trustee leased out a small plot measuring 25 ft. by 35 ft. (the date of the lease not being in evidence) to the respondent on a rent of Re. 1 per mensem. There is nothing to show that the respondent was prohibited from putting up any building on the land. On the other hand, it appears fairly clear that he was permitted to put up a building thereon which he did, the precise point of time at which he did so, not again being in evidence.
Finding of the Court:
The provisions of Sec. 9 will not therefore apply to the instant case. The respondent, would however, be entitled to be paid compensation for the superstructure. We, therefore, set aside the judgment of the learned Judge, and of the lower Appellate Court and remand the case to the Trial Court for ascertainment of the value of the superstructure and for passing consequent orders. In case the Trial Court finds that the superstructure had not been removed by the respondent, it will pass a decree in his favour for its value which will be recovered by him from the appellant. There will be no order as to costs.
Issues: 1. Whether the Madras City Tenants Protection Act, 1921, is applicable to a property owned by a Hindu religious institution over which the trustee or the Manager has only a qualified power of disposal? 2. What is the true construction of S. 47 of the Presidency Small Cause Courts Act of 1882?
Ratio Decidendi: 1. The provisions of Section 9 of the Madras City Tenants Protection Act, 1922, will not apply to the instant case as the respondent did not file an application within one month after the service of summons or within a like period after the Act came into force in a suit for ejectment or proceeding under S. 41 of the Presidency Small Cause Courts Act. The suit in question was not a suit for possession, and therefore, the provisions of Sec. 9 will not apply. 2. The provisions of S. 47 of the Presidency Small Cause Courts Act, 1882, are mandatory and the conditions therein being satisfied, the Court passed an order staying proceedings on the application for eviction until the suit to be filed by the respondent was disposed of.
Final Decision: Appeal allowed.
RAMACHANDRA IYER, C.J. :- Two questions fall to be decided in this appeal, one with respect to the applicability of Sec. 9 of the Madras City Tenants Protection Act, 1921, to a property owned by a Hindu religious institution over which the trustee or the Manager has only a qualified power of disposal, and the second as to the true construction of S. 47 of the Presidency Small Cause Courts Act of 1882.
2. The appellant, Sri Siddhi Budhi Vinayakar Sree Sundareswarar Devastanam is a Hindu temple which owned a considerable tract of land in St. Georges Cathedral Road, Royapettah. Out of that extent, its trustee leased out a small plot measuring 25 ft. by 35 ft. (the date of the lease not being in evidence) to the respondent on a rent of Re. 1 per mensem. There is nothing to show that the respondent was prohibited from putting up any building on the land. On the other hand, it appears fairly clear that he was permitted to put up a building thereon which he did, the precise point of time at which he did so, not again being in evidence. His case was that both the lease as well as the putting up of the superstructure on the land were prior to the year 1921 and that he was entitled to the benefits of the Madras City Tenants Protection Act of 1922.
3. But this question has become academic as by reason of the amendment introduced into the Madras City Tenants Protection Act by Madras Act 19 of 1955 which came into force on 10th September 1955, a tenant on the land otherwise entitled to the benefits of the Act would be entitled to protection, if he had put up the superstructure prior to the coming into force of the amendment.
4. On 8th November 1948 the appellants trustee who had by then terminated the lease in favour of the respondent filed an application under S. 41 of the Presidency Small Cause Courts Act, for eviction of the tenant. An order was passed directing him to deliver vacant possession by 1st August 1950. On that date the respondent applied to the Court under S. 47 of the same enactment in M. P. No. 6183 of 1950 for stay of further proceedings, undertaking to institute a suit to establish his right to continue in possession of the property. The provisions of that section being mandatory and the conditions therein being satisfied, the Court passed an order staying proceedings on the application for eviction until the suit to be filed by the respondent was disposed of Sec. 47 of the Presidency Small Cause Courts Act prior to its amendment by Madras Act 16 of 1956, did not impose any time limit for the suit to be filed. Presumably such a suit questioning the order passed by the Court of Small Causes under Sec. 13 (sic. S. 43 ?) will have to be filed within the period specified in the Limitation Act. Nor was there any sanction against a tenant who taking advantage of the order, failed to institute the suit contemplated by that section. There can be little doubt that in case a tenant fails to institute the suit within a reasonable time it would be competent for the Court to vacate the order for stay, under its inherent powers.
5. The respondent having secured the order for staying eviction by undertaking to file a suit, became indifferent, thereafter. The appellant, too, appears to have done nothing at all for nearly two years after the order was passed. They however filed on 17th September 1952, an application in the Court of Small Causes, Madras for delivery of vacant possession of the property in pursuance of its original order. That application was allowed, and the Court fixed a certain date for delivery of possession. But even on that date, no delivery could be effected as the respondent came forward with a fresh application for stay on which time was granted till 11th September 1952 to the respondent either to give vacant possession or to file a suit and obtain an order for an injunction preventing the trustee from executing the order for eviction. It may be noticed in passing that by the Amendment Act 16 of 1956, the ori
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