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S.A Ramachandran v. S. Neelavathy .
Factual and Procedural Background
The appellant is the tenant of a vacant plot owned by the respondent. After the appellant erected super-structures on the land, the respondent filed OS No. 110 of 1981 before the District Munsif, Poonamalle, seeking the appellant’s eviction. The trial court dismissed the suit on 5-5-1988 because the respondent had not served the three-month notice required by Section 11 of the Madras City Tenants’ Protection Act, 1921 (“the Act”).
On 20-9-1989 the Subordinate Judge, Poonamalle, dismissed the respondent’s first appeal (AS No. 26 of 1989), affirming the trial court. The respondent’s second appeal (SA No. 25 of 1990) was allowed by the Madras High Court on 5-4-1994, which held that the appellant had waived the Section 11 notice requirement by filing an application under Section 9 for purchase of the land.
The appellant’s Section 9 application was itself filed 20 days late. His separate request for condonation of delay was rejected by the District Munsif on 12-7-1982, and that rejection was affirmed by the High Court in CRP No. 1349 of 1983 on 9-9-1983. Consequently he obtained no relief under Section 9. After leave to file an additional written statement, the appellant specifically pleaded want of notice under Section 11.
The present appeal challenges the High Court’s decision.
Legal Issues Presented
- Whether compliance with Section 11 of the Madras City Tenants’ Protection Act, 1921 (issuance of a three-month notice before filing an ejectment suit) is a mandatory condition precedent to the institution of the suit.
- Whether the appellant, by filing an out-of-time application under Section 9 of the Act, waived his right to object to the suit on the ground of non-issuance of the Section 11 notice.
Arguments of the Parties
Appellant's Arguments
- The trial court and first appellate court correctly held the suit non-maintainable because no Section 11 notice was served.
- The appellant never derived any benefit under Section 9; his application was rejected as time-barred, and the High Court confirmed that rejection. Therefore he could not have waived the statutory protection of Section 11.
- The High Court erred in applying the doctrine of waiver because the appellant was prevented by the courts themselves from invoking Section 9.
Respondent's Arguments
- The appellant’s act of filing an application under Section 9—seeking compulsory sale of the land in his favour—constituted an implied waiver of the requirement of prior notice under Section 11.
- Reliance was placed on earlier Madras High Court decisions that recognise the tenant’s ability to waive the Section 11 notice.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vedachala Naicker v. P.K. Duraiswami Mudaliar (1950) 1 MLJ 732 | Invoking Section 9 amounts to a waiver of the Section 11 notice. | Relied upon by the High Court to decree eviction; reviewed but not accepted by the Supreme Court. |
| Vellayan Chettiar v. Government of Province of Madras, AIR 1947 PC 197 | Requirement of notice under Section 80 CPC can be waived by the Government. | Cited by the High Court by analogy; Supreme Court distinguished Section 11 from Section 80 CPC. |
| Mohd. Hussain Rowther v. T.M. Tirupathi Chettiar (1966) 1 MLJ 206 | Supports the view that Section 11 notice may be waived. | Part of the High Court’s reasoning; Supreme Court did not adopt this view on the facts. |
| Ranganatham Chettiar v. Mariappa Mudali (1942) 1 MLJ 92; AIR 1942 Mad 334 | Section 11 is mandatory and imposes an unqualified obligation on the court not to entertain suits filed without such notice. | Consistent with the Supreme Court’s conclusion that non-compliance is fatal. |
| Sri Agatheeswarar Prasanna Venkatesa Perumal Devasthanam v. M. Narasimhan (1982) 2 MLJ 70 | Although Section 11 is mandatory, its requirements can be waived expressly or impliedly. | Considered by the High Court; Supreme Court noted but declined to rely on the waiver doctrine in the present facts. |
Court's Reasoning and Analysis
1. Section 11 imposes two prohibitions: (a) no ejectment suit shall be filed without first issuing the specified notice, and (b) even after notice, the suit cannot be filed until three months have elapsed. These are “conditions precedent” to jurisdiction; failure to satisfy them renders the suit non-maintainable.
2. The Court distinguished Section 11 from Section 80 CPC. Whereas Section 80 concerns suits against the Government—which courts repeatedly view with latitude—Section 11 is a protective measure for tenants, “who may, if not always, be poor tenants.” Consequently the analogy drawn by the High Court to Section 80 CPC and the Privy Council decision in Vellayan Chettiar was inappropriate.
3. Even assuming waiver is conceptually possible, the facts disclose none. The appellant’s Section 9 application was out of time, and both the trial court and the High Court (in revision) refused to condone the delay. The appellant therefore never obtained, nor even pursued, any benefit under Section 9. His subsequent plea—raised in an additional written statement—that the suit was bad for want of notice cannot amount to a waiver already rejected by the courts.
4. Because the statutory pre-condition was not met and no valid waiver occurred, the suit was liable to dismissal ab initio. The decisions of the trial court and first appellate court were thus correct and should be restored.
Holding and Implications
Appeal Allowed; High Court judgment dated 5-4-1994 set aside. The suit for eviction is dismissed with quantified costs of Rs 15,000, and the judgments of the District Munsif and Subordinate Judge are restored.
Implications: The ruling re-emphasises that compliance with Section 11 of the Madras City Tenants’ Protection Act is mandatory and that non-compliance is fatal to an ejectment suit. While the Court left the broader question of waiver open, it clarified that an unsuccessful or time-barred invocation of Section 9 cannot, by itself, establish waiver. No new precedent was set on the doctrine of waiver; the decision primarily safeguards tenants by insisting on strict adherence to the statutory notice requirement.
S. Saghir Ahmad, J.— The appellant who is the tenant of a vacant plot of land owned by the respondent has approached this Court against the judgment dated 5-4-1994 passed by the Madras High Court by which the respondent's second appeal was allowed and the appellant was directed to be evicted from that plot.
2. The suit (OS No. 110 of 1981) which was filed by the respondent in the Court of the District Munsif, Poonamalle for the eviction of the appellant was dismissed by that court on 5-5-1988 on the ground that the suit was instituted without first issuing notice to the appellant under Section 11 of the Madras City Tenants' Protection Act, 1921 (for short “the Act”). The Subordinate Judge, Poonamalle before whom the first appeal (AS No. 26 of 1989) was filed by the respondent, dismissed the appeal on 20-9-1989 and upheld the judgment of the trial court. The respondent, thereafter, filed second appeal (No. 25 of 1990) in the High Court which, as pointed out above, was allowed by the High Court by a judgment dated 5-4-1994 on the ground that the appellant had invoked the provisions of Section 9 of the Act by making an application that the property in dispute may be directed to be sold in his favour and has thus waived his right to object to the institution of the suit without issuing a notice under Section 11 of the Act.
3. It may be pointed out that the appellant had filed an application under Section 9 of the Act for a direction to the respondent to sell the property in question on a price to be fixed by the court. The application was filed beyond time prescribed under the Act and consequently, he had filed a separate application for condonation of 20 days' delay in filing that application. The application for condonation of delay was rejected by the District Munsif by his order dated 12-7-1982 against which the appellant filed a Civil Revision (CRP No. 1349 of 1983) in the High Court of Madras which by its order dated 9-9-1983 dismissed the revision with the result that the appellant could not invoke the provisions of Section 9 of the Act. Thereafter, the appellant, who had already filed a written statement in the suit, sought permission of the District Munsif to file an additional written statement in OS No. 110 of 1981 which was allowed and the appellant filed the additional written statement in which he raised the plea that the suit instituted by the respondent was not maintainable for want of notice under Section 11 of the Act. This plea, as pointed out earlier, was accepted by the trial court as well as by the first appellate court. But the High Court in second appeal reversed the judgment and held that the appellant having waived his right to object to the maintainability of the suit for want of notice under Section 11 of the Act was liable to be evicted from the plot in question over which he had, admittedly, raised superstructures.
4. The learned counsel for the appellant has contended that the judgment passed by the High Court is erroneous as the appellant was not permitted by the court itself to invoke the provisions of Section 9 as his application for condonation of delay was rejected by the trial court and the trial court's judgment was upheld by the High Court. The High Court was, therefore, in error in invoking the principles of waiver and decreeing the suit of the respondent for his eviction. The respondent's counsel, on the contrary contended that the appellant had preferred to take advantage of the institution of the suit and had made an application under Section 9 of the Act (though beyond time) for a direction for the sale of the property in his favour and, therefore, he could not invoke the provisions of Section 11 and contend that the suit was not maintainable for want of notice under that section was not given to him. Section 3 of the Act provides as under:
“3. Payment of compensation on ejectment.—Every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by him, by any of his predecessors-in-interest, or by any person not in occupation at the time of the ejectment who derived title from either of them, and for which compensation has not already been paid. A tenant who is entitled to compensation for the value of any building shall also be paid the value of trees which may have been planted by him on the land and of any improvements which may have been made by him.”
5. Section 9 provides as under:
“9. Application to Court for directing the landlord to sell land.— (1)(a)(i) 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 of the date of the publication of Madras City Tenants' Protection (Amendment) Act, 1979, in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town, township or village in which the land is situate or within one month after the service on him of summons apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of, the extent of land specified in the application.
(ii) Notwithstanding anything contained in clause (a)(i) of this sub-section, any such tenant as is referred to in sub-clause (ii)(b) of clause (4) of Section 2 or his heirs, may within a period of two months from the date of the publication of the Madras City Tenants' Protection (Amendment) Act, 1973 apply to the Court. Whether or not a suit for ejectment has been instituted or proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882 (Central Act XV of 1882) has been taken by the landlord or whether or not such suit or proceeding is pending having jurisdiction to entertain a suit for ejectment or in the City of Madras either to such Court or to the Presidency Small Cause Court, for an order that the landlord under the tenancy agreement shall be directed to sell for a price to be fixed by the Court the whole or part of the extent of land specified in the application.
(b) On such application, the Court shall first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. The Court shall then fix the price of the minimum extent of the land decided as aforesaid, or of the extent of the land specified in the application under clause (a) whichever is less. The price aforesaid shall be the average market value of the three years immediately preceding the date of the order. The Court 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.
(2) In default of payment by the tenant of any one instalment, the application under clause (a) of sub-section (1) shall stand dismissed, provided that on sufficient cause being shown, the Court may excuse the delay and pass such orders as it may think fit, but not so as to extend the time for payment beyond the three years above mentioned. On the application being dismissed, the Court shall order the amount of the instalment or instalments, if any, paid by the tenant to be re-paid to him without any interest.
(3)(a) On payment of the price fixed under clause (b) of sub-section (1) the Court shall pass an order directing the conveyance by the landlord to the tenant of the extent of land for which the said price was fixed. The Court shall by the same order direct the tenant to put the landlord into possession of the remaining extent of the land, if any. The stamp duty and registration fee in respect of such conveyance shall be borne by the tenant.
(b) On the order referred to in clause (a) being made, the suit or proceeding shall stand dismissed, and any decree or order in ejectment that may have been passed therein but which has not been executed shall be vacated.”
6. Section 11 provides as under:
“11. Notice before institution of suits or applications against tenants.—No suits in ejectment or applications under Section 41 of the Presidency Small Cause Courts Act, 1882, shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building, and offering to pay compensation for the building and trees, if any, and stating the amount thereof.
A copy of such notice shall at the same time be sent, in the case of property situated in the City of Madras, to the Commissioner of the Corporation of Madras, or, in the case of property situated in any municipal town, township or village to which this Act is extended, to the executive authority of the municipality or township or the executive officer of the panchayat, as the case may be or any other authority as may be notified by the Government.”
7. The appellant is the tenant of a plot of land over which he raised superstructures and consequently, he is entitled to compensation. Section 9 which has been reproduced above indicates that a tenant who is entitled to compensation under Section 3 and against whom suit for ejectment is filed may apply to the court for an order that the landlord be directed to sell, for a price to be fixed by the court, the whole or part of the land specified in the application. The court shall, then, fix the price and direct the tenant to pay the price in one or more instalments with or without interest. If, however, the tenant commits any default in payment of any of the instalments, his application for sale of the property shall stand dismissed. Otherwise the court would direct the landlord to execute the conveyance in favour of the tenant.
8. Section 11 contains the prohibition to the institution of the suit for ejectment. It specifically provides that no suit for ejectment shall be instituted against the tenant without first giving him a notice, in writing, requiring him to surrender possession of the land and building and offering to pay compensation for the building and trees and stating clearly the amount offered therefor. Another prohibition is that the suit shall not be instituted until the expiration of three months next after notice in writing has been given to the tenant.
9. It is obvious that if a suit is instituted without giving notice or if a notice is given but the suit is filed before the expiry of three months, it would be in violation of the prohibitions set out in Section 11. Such a suit cannot proceed. Even the cause of action, which consists of a bundle of facts, apart from other facts, would depend upon giving a notice to the tenant and waiting for a period of three months before instituting the suit. From the tenor of Section 11, it appears that in every suit instituted under Section 11 of the Act, it will have to be mentioned in the plaint that the plaintiff had given a notice (contemplated by that section) in writing to the tenant and that the suit was being instituted after the expiry of three months from the notice.
10. The prohibitions set out in the section work against the plaintiff. They also create a right in favour of the tenant so that he may not be directly drawn into litigation before a court. If an opportunity is given to him to surrender possession with the offer that he would be duly compensated for the building and the trees and the amount of compensation is also disclosed to him, he may, during the period of three months, before the expiry of which the suit cannot be instituted, consider the offer and decide whether to litigate with the landlord or to quit.
11. If he decides to contest the suit instituted against him, he gets another opportunity under Section 9 of the Act by making an application to the court for a direction to the landlord to sell the property in his favour for a price which may be fixed by the court.
12. The High Court after having come to the conclusion that the provisions of Section 11 were mandatory has held that the notice contemplated by Section 11 of the Act which is required to be given to the tenant can be waived expressly or impliedly by the tenant by his conduct and it is on the ground of waiver that the High Court has, in the instant case, interfered and decreed the suit of the respondent for the appellant's eviction from the premises in question as the High Court was of the opinion that the appellant having made an application under Section 9, waived his right to object to the institution of suit which, admittedly, was filed without giving notice contemplated by Section 11 of the Act.
13. The High Court has relied upon its earlier decision in Vedachala Naicker v. P.K Duraiswami Mudaliar (1950) 1 MLJ 732 to come to the conclusion that by invoking the provisions of Section 9, the appellant waived his right to object to the institution of suit for want of notice under Section 11. In that case, the High Court has relied upon the Privy Council decision in Vellayan Chettiar v. Govt. of Province of Madras AIR 1947 PC 197 in which it was held that the requirement of a notice under Section 80 CPC before instituting a suit against the Government can be waived by the Government. A similar view was also taken by the Madras High Court in Mohd. Hussain Rowther v. T.M Tirupathi Chettiar (1966) 1 MLJ 206. In Ranganatham Chettiar v. Mariappa Mudali (1942) 1 MLJ 92, AIR 1942 Mad 334 it was held by Patanjali Sastri, J. (as he then was) that Section 11 was mandatory and imposed an unqualified obligation upon the court not to entertain a suit for ejectment in the absence of compliance with its provisions. These decisions as also a few others were considered by a Division Bench of the Madras High Court in Sri Agatheeswarar Prasanna Venkatesa Perumal Devasthanam v. M. Narasimhan (1982) 2 MLJ 70 and it was laid down that although the provisions of Section 11 were mandatory and the suit for ejectment of the tenant could not be instituted without a prior notice, the requirement of notice could be waived by the tenant expressly or impliedly by his conduct.
14. We are of the view that since the requirements under Section 11 are in the nature of conditions precedent which had to be complied with before instituting a suit in a court, the non-compliance would be fatal and such suit would be liable to be dismissed at the threshold. The requirements under Section 11 cannot be compared with the requirements under Section 80 CPC. The right of the tenant who may, if not always, be a poor tenant, cannot be compared with the mighty Governments regarding whom it has been observed times out of number by the courts that they should not litigate with their citizens on technicalities and should not endeavour to defeat the suit by pleading the technical questions, as for example, want of notice under Section 80 CPC or limitation in cases which are eminently just, proper and equitable. The Act essentially is for the protection of the tenants whereas no such protection for the Government is contemplated by Section 80 of the Code of Civil Procedure. But without entering into this controversy any further and leaving the question of waiver open, we may, in this case, observe that on facts there is no waiver.
15. The appellant, in the instant case, at no stage, was allowed to invoke the provisions of Section 9 of the Act as he had filed an application under that section beyond time. His application for condonation of delay was rejected not only by the trial court but also by the High Court in revision. The occasion to invoke the provisions of Section 9, therefore, did not come. In the meantime, the appellant filed the additional written statement and pleaded that the suit was liable to be dismissed for want of notice under Section 11 of the Act. Since the application filed by the appellant was beyond time and was rejected, the appellant cannot be said to have taken advantage of Section 9 of the Act and consequently, it cannot be said that by filing an application under Section 9, he waived his right to object to the irregularity or illegality in the institution of the suit.
16. For the reasons stated above, the appeal is allowed and the judgment and order dated 5-4-1994 passed in the second appeal by the High Court is set aside and those of the trial court and the Subordinate Judge (Appellate Court) are restored and the suit of the respondent is dismissed with costs which are quantified at Rs 15,000.
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