Posted On by &filed under High Court, Madras High Court.


Madras High Court
Tmt. Chandra Ammal vs K. Kuppammal, K. Venkatesan And S. … on 7 November, 2002
Author: B S Reddy
Bench: B S Reddy, C Nagappan


JUDGMENT

B. Subhashan Reddy, C.J.

1. This Letters Patent Appeal is directed against the judgment rendered by the learned single Judge in A.S. No. 974 of 1990. The matter relates to the eviction under the provisions of Transfer of Property Act. Respondents 1 and 2 are the owners of the property. It devolved upon them through the original owner and that part is not disputed. The land has been given on lease to the third respondent and the third respondent had constructed the superstructure for the purpose of running a theatre to screen the movies and the lease was for 30 years from 4.6.1969. Ex.A-1 is the lease deed. The appellant is the sub-tenant of the third respondent. O.S. No. 1 of 1983 was instituted on the file of the Subordinate Judge, Villupuram, for eviction on the ground of wilful default and also for forfeiture of tenancy. The trial Court dismissed the suit against which appeal was preferred. In the suit, I.A. No. 77 of 1983 was filed by the appellant claiming protection under Section 9 of the Madras City Tenants’ Protection Act, 1921. But the same was not considered by the trial Court on the ground that the suit itself was being dismissed against which C.M.A. No. 373 of 1991 was filed by the appellant herein. Against the dismissal of the suit, A.S. No. 974 of 1990 was filed by the respondents and both the Appeal Suit and the Civil Miscellaneous Appeal were heard by the learned single Judge and the judgment was rendered on 11.6.2002 allowing the appeal of the respondents 1 and 2 while dismissing the C.M.A. of the appellant. The result is this Letters Patent Appeal.

2. Mr. T.R. Rajagopalan, learned senior counsel for the appellant, submits that the judgment of the learned single Judge is erroneous for the reason that the suit was filed for eviction on the specific ground of default in rents and the trial Court was correct in dismissing the suit and no other consideration would arise excepting the consideration regarding default or otherwise of the rent. He also submits that the rent paid by the appellant was accepted and as such, the appellant has to be considered as a tenant and entitled to protection under Section 9 of the Madras City Tenants’ Protection Act.

3. Mr. A.L. Somayaji, learned senior counsel for the respondents 1 and 2, countered the above arguments submitting that the learned single Judge was correct in passing a decree for eviction on the ground of efflux of time of lease and that whenever the lease expires by efflux of time, the question of issuance of any notice under Section 106 of the Transfer of Property Act does not arise and that during the pendency of the suit, if the lease expires by efflux of time, the same can be taken into consideration and that the learned single Judge has correctly applied the law laid down by the Supreme Court in P. VENKATESWARALU v. MOTOR AND GENERAL TRADERS .

4. The ratio laid down by the Supreme Court in the above said case was that the appeal is in continuation of the suit and the events subsequent to the disposal of the suit can always be taken into consideration during the course of the arguments in appeal. This judgment was followed by a Division Bench judgment of this Court in HINDUSTAN PETROLEUM CORPORATION v. UMA RANI (1996 (II) Law Weekly 568). In fact, not only the legal principles stated therein following the judgment of the Supreme Court, but also the facts in the above judgment of the Division Bench of this Court, are squarely applicable to the facts of this case. A lease of immoveable property determines under Section 111 of the Transfer of Property Act by several modes as indicated in sub-clauses (a) to (h) therein. Under clause (a) of Section 111 of the Act, the lease automatically gets terminated by efflux of time and only if the lease is subsisting, then clause (h) is applicable which contemplates issuance of notice under Section 106 of the Transfer of Property Act. If no action is taken by the landlord to press the eviction of the tenant on the expiry of the tenure of the lease, then the tenant automatically becomes a ‘tenant by holding over’ under Section 116 of Transfer of Property Act. When the litigation has been pending since 1983, the respondents 1 and 2, who could not get the appellant evicted on the ground of wilful default in payment of rents, have rightly opted to determine the tenancy by efflux of time and the learned single Judge had validly accepted the said plea. No landlord can be forced to continue the tenancy beyond the tenure of the lease and then suffer another round of litigation for another two decades. The respondents 1 and 2 had travelled a long way since the institution of the suit and it is two decades since the suit has been filed. It is against all canons of principles of law to drive the respondents 1 and 2 to again file a suit on the ground of efflux of time. The learned single Judge had rightly applied the principle laid down by the Supreme Court in P. VENKATESWARALU’s case (cited supra), which was followed by a Division Bench of this Court.

5. But Mr. T.R. Rajagopalan, learned senior counsel, submits that the judgment in P. VENKATESWARALU’s case (cited supra) is over ruled by a three-Judge Bench of the Supreme Court in KISHAN v. MANOJ KUMAR (AIR 1988 S.C. 999). But the judgment of the Supreme Court in KISHAN’s case (cited supra) has got no bearing on the facts of the case on hand. It was a case on which the landlord had sued the tenant for eviction by applying the provisions of the Transfer of Property Act within the period of exemption of 10 years as per the provisions of the Rent Control Act but the suit proceedings continued beyond the period of 10 years and the tenant’s contention that because of the lapse of 10 years, exemption ceased to exist, was not acceded to by the Supreme Court on the ground that pendency of the suit during the exemption period could enure to the benefit of the landlord to avail of the exemption and mere passage of time in disposal of the suit cannot defeat the very purpose of granting exemption. The said proposition of law enunciated by the Supreme Court is not applicable to the facts of this case.

6. Mr. T.R. Rajagopalan then submits that the appellant is entitled to the protection under Section 9 of the Madras City Tenants’ Protection Act, 1921. But the said Act was amended by the Tamil Nadu Act 11 of 1979, which came into force from 3.3.1980. The appellant had got the lease- hold rights assigned in his favour from the third respondent, on 27.7.1981 under Ex.A4. The said protection was available only to the first respondent but he had not exercised his rights at all and the appellant being a sub-tenant is not entitled for the rights because of the definition of tenant in sub-Section (4) of Section 2 of the Act which only recognises the heirs of tenant and not a sub-tenant. The appellant being the sub-tenant was not at all entitled for the said protection.

In view of what is stated above, we affirm the judgment and decree rendered by the learned single Judge and accordingly, we dismiss this Letters Patent Appeal. No costs. Consequently, C.M.P. is also closed.


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

114 queries in 0.583 seconds.