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Ramachandra Chetti v. C. Mothaliyandan Chettiar.
Factual and Procedural Background
This revision petition arises from eviction proceedings initiated under the Madras Buildings (Lease and Rent Control) Act, 1960, although the proceedings commenced under the earlier Act XXV of 1949. The landlord originally filed an application for eviction on the ground of wilful default in payment of rent. The Rent Controller passed an order for eviction on 3 July 1956. The tenant appealed; the appellate court granted time for payment of arrears until 22 July 1959 but, as the tenant did not pay, the appellate court ordered eviction on 23 July 1959.
The landlord filed a revision petition in the High Court complaining that the appellate authority had granted indulgence to the tenant. The tenant in turn filed a revision petition to this Court in C.R.P. 1344 of 1959 and obtained a stay of execution during its pendency. The tenant died circa October 1960 and his legal representatives were not brought on record within 30 days as required by rule 32 under the Act. On 31 August 1962 the tenant's revision petition (C.R.P. 1344 of 1959) was dismissed on the representation that the tenant petitioner was not anxious to prosecute, resulting in a dismissal on the merits.
The landlord filed the present execution petition E.P. 1244 of 1963 on 13 November 1963. The execution petition is resisted by one Ramachandra Chetty, who claims to be a sub-tenant alleged to have been inducted into the premises as early as 1943.
Legal Issues Presented
- Whether the application for execution (filed 13 November 1963) was barred by limitation because limitation began to run after the one-month period following the tenant's death (i.e., from November 1960) rather than from the date of the formal dismissal of the revision petition (31 August 1962).
- Whether proceedings begun under the old Act (Act XXV of 1949) must be regarded and treated as proceedings under the Madras Buildings (Lease and Rent Control) Act, 1960 by virtue of section 35 of the 1960 Act, and whether that operation changes the executability of an order passed under S.7-A(4) of the old Act (i.e., whether an order deemed under S.35 as one under S.11(4) falls outside the scope of S.18 for execution).
- Whether a sub-tenant (here, the petitioner resisting execution) must be impleaded under S.26 of the 1960 Act for an eviction order to be executed against him, and whether failure to implead the sub-tenant prevents execution of an eviction decree obtained against the main tenant.
Arguments of the Parties
Petitioner's Arguments (as presented in the opinion)
- Limitation: The petitioner (through learned Counsel) contended that the execution application was time-barred because the three-year limitation period for executing the decree should commence from November 1960 — i.e., one month after the tenant's death in October 1960 — on the premise that the appeal had abated by failure to bring legal representatives on record within the prescribed period.
- Application of the 1960 Act via S.35: The petitioner argued that proceedings begun under the old Act must be treated as proceedings under the 1960 Act by virtue of S.35; that the order made under S.7-A(4) of the old Act should be deemed to have been made under S.11(4) of the 1960 Act; and that S.18 of the 1960 Act (which enumerates the orders amenable to execution) does not include orders under S.11(4), thereby rendering the old order not executable.
- Protection of sub-tenants (S.26): The petitioner contended that S.35(2)(a) brings pending proceedings within the ambit of the new Act so that S.26 (which concerns impleading sub-tenants) requires the sub-tenant to be made a party and given an opportunity to resist before execution can be ordered against him; absence of impleading would therefore bar execution against the petitioner as sub-tenant.
The opinion does not contain a detailed account of arguments advanced by the landlord or other parties beyond the landlord having filed the execution petition and the sub-tenant's resistance.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hussain Ashgar v. Ramditta, 60 Cal. 662 (Privy Council decision referenced) | Supports the principle that when an appeal abates for failure to bring legal representatives on record, limitation for execution does not commence merely from the date of abatement by lapse of time; limitation begins from the date the court passes the formal order dismissing the appeal after declaring it abated. | The Court relied on this principle (as cited in Rustomji on Limitation) to reject the petitioner's contention that limitation began one month after the tenant's death; instead, limitation was held to commence from the date of the formal dismissal of the revision petition, i.e., 31 August 1962. |
| Rupchand v. Raghavangri (P.) Ltd., A.I.R. 1964 S.C. 1689 | Affirms that a decree for possession obtained against a lessee will bind and can be executed against a sub-lessee even if the sub-lessee was not impleaded in the suit; the omission to implead is not an improper act and the decree can be enforced against the sub-lessee. | The Court cited this Supreme Court decision to support the conclusion that an eviction decree against the main tenant can be straightaway executed against a sub-tenant who was not impleaded, and therefore S.26 of the 1960 Act did not prevent execution in the present circumstances. |
| Sailendranath v. Bijanlal, A.I.R. 1945 Cal. 283 (Bench decision of Calcutta High Court) | Contains discussion of legal principles regarding the proper array of parties in ejectment proceedings instituted by a landlord against a tenant who has created a sublease. | The Court referred to this decision as part of the body of authority showing that eviction decrees against tenants can bind sub-tenants and to support the view that S.26 does not aid the petitioner's contention in the present factual matrix. |
| Yusuf v. Jyotichandra Banerje, 59 Cal. 739 | Also discusses principles relating to party array in ejectment proceedings and the effect of decrees on sub-tenants. | The Court relied on the ratio in this case as supportive authority for its conclusion that the eviction order against the tenant can be enforced against the sub-tenant even if the latter was not made a party. |
| C.R.P. No. 494 of 1964 (recent decision of this Court referenced) | Considered the extent to which an order for eviction obtained against a tenant can be enforced and executed against a sub-tenant. | The Court said the principle of that decision clearly applied to the instant case and relied on it to reinforce the conclusion that execution against the sub-tenant was permissible without impleading him in the original proceedings. |
Court's Reasoning and Analysis
The Court addressed each of the principal contentions raised by the petitioner's counsel in turn and applied statutory interpretation and authority-based reasoning to reach its conclusions.
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Limitation:
The Court rejected the petitioner's submission that the three-year limitation period for execution began to run from November 1960 (one month after the tenant's death). Relying on the statement of law in Rustomji on Limitation (6th Edn.), and the Privy Council decision in Hussain Ashgar v. Ramditta, the Court explained that limitation does not commence merely from the time an appeal abates by lapse of time for failure to bring legal representatives on record. Instead, limitation begins from the date the court passes the formal order dismissing the appeal after declaring it abated. In this case the revision petition had been dismissed on the merits on 31 August 1962; accordingly, limitation for execution began to run only from that date. The Court recognized that legal representatives might have remedies to set aside that order, but until such steps are taken the dismissal stands as a decision on the merits.
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Effect of S.35 of the 1960 Act on orders under the old Act; executability under S.18:
The Court considered the argument that S.35 of the 1960 Act causes orders made under the old Act (specifically an order under S.7-A(4) of the old Act) to be treated as orders under the corresponding provision in the 1960 Act (S.11(4)), and that S.18 of the 1960 Act (which lists the orders subject to execution) excludes S.11(4), thereby depriving the landlord of an executable order.
The Court found this interpretation unacceptable and "absurd" because it would effectively nullify orders that had already become enforceable and executable under the old Act and force landlords to recommence proceedings. The Court held that S.18 read with S.35 should apply only "insofar as may be applicable" to old proceedings; an order which was already enforceable under the former law does not cease to be so merely because the new statute contains a different enumeration of executable orders. Thus the Court preserved the executability of the eviction order obtained under the provisions of the old Act.
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S.26 (impleading sub-tenants) and applicability to the present case:
The Court acknowledged that the petitioner's contention based on S.26 and S.35(2)(a) raised a difficult point. However, after careful consideration the Court concluded that S.26 read with S.35(2)(a) does not apply to a situation where an order for eviction has already been passed by the Rent Controller and confirmed by the appellate authority and a revision petition is filed from that order. To accept the petitioner's contention would require this Court, on revision, to set aside both earlier orders and remit the matter for fresh trial and investigation so that the sub-tenant could be given an opportunity to resist — despite the landlord having previously made out his case and obtained a binding eviction order.
The Court interpreted S.26 as having a limited application: it applies only where the statutory scheme allows its operation without reopening and retrial of matters already decided. If giving effect to S.26 would entail reopening the entire matter and ordering a fresh trial, S.26 cannot be applied to defeat an otherwise binding eviction order. The Court further held that it was not the legislative intention to depart from the settled position in law that a decree for eviction against a main tenant can be executed against a sub-tenant even if the sub-tenant was not impleaded; rather, S.26 simply provides that where a sub-tenant is impleaded, the order passed will be binding on him.
To support this reasoning the Court relied on the recent Supreme Court decision in Rupchand v. Raghavangri (P.) Ltd. (A.I.R. 1964 S.C. 1689) and earlier High Court decisions (Sailendranath v. Bijanlal; Yusuf v. Jyotichandra Banerje), as well as a recent internal decision (C.R.P. No. 494 of 1964) that had considered the enforcement of eviction orders against sub-tenants.
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Conclusion from reasoning:
On the combined reasoning above, the Court found no merit in the petitioner's contentions regarding limitation, statutory effect of S.35 on executability, or the necessity of impleading the sub-tenant under S.26 to prevent execution. The Court therefore concluded that the execution petition could proceed and that the revision petition resisting execution was without substance.
Holding and Implications
Holding:
The revision petition is dismissed with costs; the petitioner is given three months' time to vacate.
Implications and consequences:
- Direct effect: The dismissal disposes of the petitioner's challenge to execution; the execution petition filed by the landlord may be proceeded with, and the petitioner (claiming to be a sub-tenant) must vacate the premises within three months as ordered.
- On limitation: The Court held that limitation for execution began to run from the date the revision petition was formally dismissed on the merits (31 August 1962), and not from the date the appeal arguably abated by lapse of time after the tenant's death.
- On statutory interpretation: The Court construed S.35 of the 1960 Act and S.18 so as not to deprive already enforceable orders under the old Act of their executability; the 1960 Act's provisions apply only insofar as they are applicable to pending old proceedings and do not operate to nullify enforceable rights acquired under the earlier law.
- On impleading sub-tenants (S.26): The Court applied settled authority to hold that an eviction decree obtained against a main tenant may be executed against a sub-tenant even if the sub-tenant was not impleaded; S.26 does not, in the circumstances of this case, prevent execution or require the Court to order a retrial or reopening of decided issues merely because a sub-tenant was not made a party.
- Precedential impact: The Court's decision rests on existing authorities and statutory interpretation; the opinion applies established principles rather than purporting to announce a novel rule of law.
This summary is confined to and derived exclusively from the text of the provided opinion. No facts, arguments, or conclusions beyond those present in the opinion have been added.
This revision petition arises out of proceedings under the Madras Buildings (Lease and Rent Control) Act, 1960, though commenced under the old Act XXV of 1949. The landlord filed an application for eviction on the ground that the tenant was guilty of wilful default in the payment of rent and the Rent Controller passed an order for eviction on 3rd July 1956. The tenant preferred an appeal and the appellate Court gave time for payment of the rent till 22nd July 1959, but as the tenant did not pay arrears of rent within the time fixed by the appellate court, the appellate court, passed an order for eviction on 23rd July 1959. The landlord filed a revision petition in the High Court feeling aggrieved by the order of the appellate authority granting time and giving indulgence to the tenant to pay the rent by 22nd July 1959 as observed earlier. The tenant had in his turn preferred a revision petition to this court in C.R.P. 1344 of 1959 against the order of eviction. During the pendency of C.R.P. 1344 of 1959 the tenant had obtained an order for stay of execution of the order of eviction. It appears that the tenant died somewhere about October 1960 and his legal representatives were not brought on record within 30 days time as required under rule 32 of the rules framed under the Act. On 31st August 1962, the revision petition of the tenant C.R.P. 1344 of 1959 was dismissed on the representation that the tenant petitioner was not anxious to prosecute the matter. The result was that on 31st August 1962 there was a dismissal of the revision petition on the merits. At this stage it may be mentioned that the learned Counsel for the petitioner tenant was not aware of the fact that the tenant had died and the legal representatives were not brought on record. Evidently he must have been instructed to by some persons representing the tenant and learned Counsel must have proceeded on the footing that the tenant was still alive. The present execution petition E.P. 1244 of 1963 was filed by the landlord on 13th November 1963, and is resisted by one Ramachandra Chetty who claims to be a sub-tenant alleging to have been inducted into the premises as early as 1943.
Learned Counsel for the petitioner first contended that the application for execution was barred by limitation on the ground that the three years time to execute the decree would commence to run even from November 1960 after the expiry of on month from the date of death of the tenant in October 1960. He urges that as soon as the one month period had expired after the death of the tenant without his legal representatives having been brought on record, the revision proceedings must be deemed to have terminated and limitation would commence from that date. I see no force in this contention. It is enough to refer to the statement of the law in Rustomji on Limitation, 6th Edn. at page 1046, where the learned author deals with the scope of Art. 182 (2) which provides a fresh starting point of limitation for the execution of the decree calculated from the date of the final decree or order of the appellate court passed on the appeal. Learned authority has referred to the decision of the privy Council in Hussain Ashgar v. Ramditta 60 Cal. 662. from which it is clear that even though an appeal has abated limitation would commence to run not from the time when the appeal abates by mere lapse of time for failure to bring on record legal representatives, but only from the date the court passed the formal order dismissing the appeal after declaring the appeal as having been abated. In this case, the order which has been passed is one on the merits a dismissal of the revision petition. It may be that this order may not be binding on the legal representatives provided they cake necessary proceedings to set aside that order on the ground that at that time the tenant was dead. But so long as that has not been done, the order has got to be regarded as a decision on the merits and limitation would commence to run only from 31st August, 1962.
Learned Counsel next contended that the proceedings though initiated under the old Act of 1949, must be regarded and dealt with as proceedings under the Act of 1960 by reason of the special provision contained in S. 35 of the Act of 1960, hereinafter referred to as the Act. He urged that all orders passed under the old Act must be deemed to be orders passed under the corresponding provision of this Act (XVIII of 1960) and in the instant case the order for eviction was passed under S. 7-A (4) of the old Act, which provided that if during the pendency of an application for eviction that tenant does not deposit the arrears of rent due by him upto that time, the Rent Controller or the appellate authority as the case may be shall stop all further proceedings and made an order directing the tenant to put the landlord in possession of the building. In this case, from the record it is clear that such an order was passed by the appellate authority as the tenant did not deposit the rent as required by S. 7-A (4) of the old Act, with the result that under S. 9 of the old Act, the landlord would be entitled to execute the decree for eviction. Learned Counsel urges that the order which was passed under S. 7-A (4) of the old Act by reason of S. 35 of the present Act, must be deemed to be an order passed under S. 11(4) of the present Act. According to learned Counsel S. 18 of the new Act which provides for execution of orders includes within its scope only orders made under Ss. 10, 12, 13, 14, 15, 16 and 17, and every order passed on appeal under S. 23 or on revision under S. 25. S. 18 does not take in an order passed under S. 11 (4). I am not prepared to accept this interpretation of S. 35 of the new Act which would result in absurd and anamalous results. If before Act XVIII of 1960 an order has become an enforceable and executable order, by reason of the particular provision in S. 9, read with S. 7-A(4) of the old Act, it cannot cease to be an executable or enforceable order by reason of S. 35 of the Act, such an interpretation would result in this absurd consequence that an order for eviction obtained by the landlord under the old Act of 1949 will become absolutely useless and the landlord will be obliged to commence fresh proceedings. I have no doubt whatsoever that the Legislature never intended that S. 35 should have such an effect. In my opinion (S. 18 Madras with S. 35 of the new Act) would apply only in so far as may be applicable to the old proceedings. Learned Counsel lastly contended that the present petitioner who is a sub-tenant cannot be evicted from the premises as under S. 56 of the present Act, a sub-tenant should be impleaded in the proceedings for eviction, Here again learned Counsel relied upon S. 35(2)(a) and contended that all proceedings taken and commenced under the old Act must be deemed to be proceedings taken and conducted under the new Act with the result that the moment in a pending proceedings it is brought to the notice of the court that a sub tenant is in possession, the sub-tenant cannot be evicted unless he is made a party to the proceedings in question and an opportunity is given to him to resist the application for execution. The point raised is not free from difficulty. But on a careful consideration of all the aspects of the matter, I am inclined to take the view that having regard to the scheme of the Act, S. 26 read with S. 35 (2)(a) cannot apply to a situation in which an order for eviction had been passed by the Rent Controller and confirmed by the appellate authority and a revision petition is filed from that order. The acceptance of the contention of the learned Counsel for the petitioner would mean that in the revision petition this Court will have to set aside the order of the Rent Controller and the appellate authority and send the matter again to the Rent Controller for fresh trial and investigation after giving an opportunity to the sub-tenant to resist the application even though the landlord has already made out his case and obtained an order for eviction binding not only on the tenant, but also on the subtenants under the then existing law. In my opinion, S. 26 must receive a limited application read with S. 35 (2)(a) only where that scheme of the enactment can be carried out. In other words, Sec. 26 read with S. 38 would apply only in so far as they are applicable to a particular situation. But if it would involve ??? fresh trial reopening the entire matter S. 26 cannot possibly have application to such a situation.
Even otherwise I am not inclined to agree with the learned Counsel for the petitioner that if the sub-tenant is not impleaded under S. 26, the order for eviction cannot be executed against the sub-tenant. It is settled law that if a decree for eviction is passed against the main tenant, the order of eviction can be straightaway enforced and executed as against the sub-tenant. I do not think that by enacting S. 26 it was the intention of the Legislature to make deliberate departure from this settled and accepted position in law. In my opinion S. 26 is merely intended to provide that if the sub-tenant is made a party the order passed in the proceedings will be binding upon him. It does not follow from this that if a sub-tenant is not made a party, the order of eviction obtained against the main tenant would not be binding upon the subtenant. In a recent judgment in C.R.P. No. 494 of 1964, I had occasion to consider how far an order for eviction obtained against a tenant can be straightaway enforced and executed against the sub-tenant. The principle of that decision clearly applied to the instant Case. It is sufficient to refer to the recent decision of the Supreme Court in Rupchand v. Raghavangri (P.) Ltd. A.I.R. 1964 S.C 1689., in which the Supreme Court stated the law thus :
"Where the landlord institutes a suit against the lessee for possession of the, land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessees as a party to the suit the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite Jegitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sublease. The law allows this and so the omission cannot be said to be an improper act."
I may also refer to the Bench decision of the Calcutta High Court in Sailendranath v. Bijanlal A.I.R. 1945 Cal. 283. and Yusuf v. Jyotichandra Banerje 59 Cal. 739. which contain a discussion of the legal principles regarding the array of parties in a proceeding for ejectment instituted by the landlord against his tenant, when the tenant has created a suit lease. I am therefore of opinion that S. 26 of the present Act of 1960 does not help the contention of the petitioner.
For all these reasons, I dismiss the revision petition with costs. The petitioner is given 3 months time to vacate.
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