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S.P. Perumal Chettiar vs M.K. Kondal Chetty And Anr. on 3 November, 1938

Madras High Court
S.P. Perumal Chettiar vs M.K. Kondal Chetty And Anr. on 3 November, 1938
Equivalent citations: (1939) 1 MLJ 80
Author: Burn

JUDGMENT

Burn, J.

1. The appellant is the owner of 1/34, Selva Vinayakar Koil Street, Old Washermanpet, Madras. This house is the superstructure upon a site belonging to the respondents, and the appellant pays ground rent to the respondents. The respondents applied by a petition under Section 7 of the Madras City Tenants Protection Act (Madras Act III of 1922) to the City Civil Court to fix a reasonable rent for the occupation of the land on which the appellant’s house is built. The ground rent previously paid was Rs. 7 per1 month. The learned Principal Judge of the City Civil Court heard the application, came to the conclusion that a reasonable rent would be Rs. 7-12-0 and fixed the rent at that figure. This is Within the limit fixed by the proviso to Section 7 of the Act. The proviso is:

That the rent previously payable for the land shall not be enhanced by more than two annas in the rupee.

2. The appellant has filed this appeal purporting to be under Section 15 of the City Civil Court Act read with Section 96 bf the Civil Procedure Code.

3. Learned Counsel for the respondents has taken a preliminary objection that the order passed by the learned Principal Judge of the City Civil Court in this case is not subject to appeal. He has pointed out that Section 7 enables the Court to fix a reasonable rent “by its order”. In the Madras City Tenants Protection Act, no appeal is given from an order passed under Section 7. On general principles, it is Laid down in Section 105 of the Civil Procedure Code:

Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction.

4. Learned Counsel for the appellant relies on Section 8 of the Act which runs as follows:

An order passed by a Court under Section 6, Section 7 or Section 7-A, shall have effect as a decree in a suit and the rent so fixed shall not be revised nor shall a tenant be liable to be evicted, for a period of five years.

5. Appellant’s learned Counsel refers to Section 96 of the Civil Procedure Code by which it is provided:

Save where otherwise expressly provided in the body of this Code or any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

6. Learned Counsel says that, since the order passed in this case is to have effect as a decree in a suit, therefore it must be treated as a decree for all purposes and therefore it is appealable. We are not able to accept this contention. As already noticed, Section 7 of the Act says that the Court shall by its order fix such rent, as it deems reasonable. Section 8 shows that the decision of the Court is, expressed, in an order and the direction that this order shall have effect as a decree in a suit shows that it is not a decree. If it were a decree, the provision that it “shall have effect as a decree in suit” would be superfluous and otiose. We think the scheme of the Act is to make these orders not appealable. In the first place the Court is authorised to fix such rent as it deems reasonable”. It would obviously be very difficult for an appellate Court to deal in appeal with a matter decided under this section by a Judge. Further Section 8 gives a kind of compensation to the tenant by which the tenant is not liable to be evicted for a period of five years after the determination of the rent under Section 7. Agreeing with the learned Counsel for the respondents. We uphold the preliminary objection and find that no appeal lies. This appeal is therefore dismissed with costs.

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