{"id":258896,"date":"1996-12-20T00:00:00","date_gmt":"1996-12-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-a-ramachandran-vs-s-neelavathy-on-20-december-1996"},"modified":"2017-04-03T02:01:55","modified_gmt":"2017-04-02T20:31:55","slug":"s-a-ramachandran-vs-s-neelavathy-on-20-december-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-a-ramachandran-vs-s-neelavathy-on-20-december-1996","title":{"rendered":"S.A. Ramachandran vs S. Neelavathy on 20 December, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S.A. Ramachandran vs S. Neelavathy on 20 December, 1996<\/div>\n
Author: S S Ahmad.J.<\/div>\n
Bench: Kuldip Singh, S. Saghir Ahmad<\/div>\n
           PETITIONER:\nS.A. RAMACHANDRAN\n\n\tVs.\n\nRESPONDENT:\nS. NEELAVATHY\n\nDATE OF JUDGMENT:\t20\/12\/1996\n\nBENCH:\nKULDIP SINGH, S. SAGHIR AHMAD\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nS. SAGHIR AHMAD.J.\n<\/p>\n
     The appellant who is the tenant of a vacant plot of
\nland owned  by the  respondent\thas  approached\t this  court
\nagainst the  judgment dated  5.4.1994 passed  by the  Madras
\nHigh Court  by which  the  respondent’s\t second\t appeal\t was
\nallowed and  the appellant  was directed  to be evicted from
\nthat plot.\n<\/p>\n
2.   The suit  (O.S. No. 110 of 1981) which was filed by the
\nrespondent in  the court  of the District Munsif, Poonamalle
\ntor the\t eviction of  the appellant  was dismissed  by\tthat
\ncourt on 5.5.1988 on the ground that the suit was instituted
\nwithout first  issuing notice to the appellant under Section
\n11 of the TamiI Nadu City Tenants’ Protection Act<\/a>. 1921 (for
\nshort, the  Act) . The Sub-ordinate Judge. Poonamalle before
\nwho first  appeal (A.S.No.26  of  1988)\t was  filed  by\t the
\nrespondent, dismissed the appeal on 20.9.1989 and upheld the
\njudgment of  the trial\tcourt. The  respondent,\t thereafter,
\nfiled second  appeal (25  of 1990 ) in the High Court which,
\nas pointed  out above,\twas allowed  by the High Court. by a
\njudgment dated 5.4.1994 on the ground that the appellant had
\ninvoked the provisions of Section 9<\/a> of the Act by marking an
\napplication that the  property in dispute may be directed to
\nobject to  the institution  of the  suit without  issuing  a
\nnotice under section 11<\/a> of the act.\n<\/p>\n
3.   It may  be pointed\t out  the  appellant  bad  filed  an
\napplication under  section 9<\/a>  of the  Act for a direction to
\nthe   respondent to sell the property in question on a price
\nto be  fixed by\t the court. The application was riled beyond
\ntime prescribed under the Act and consequently, he had filed
\na separate  application for condonation of 20 day’s delay in
\nfiling that  application. The application for condonation of
\ndelay was rejected by the District Munsif by his order dated
\n12.7.1982 against which the appellant filed a Civil Revision
\n(C.R.P. No.  1349 of 1983) in the High court of Madras which
\nby its\torder dated  9.9.83 dismissed  the Revision with the
\nresult that the appellant could not invoke the provisions of
\nSection 9<\/a>  of the  Act. Thereafter,  the appellant  who\t had
\nalready filed  a  written  statement  in  the  suit,  sought
\npermission of  the District  Munsif   to file  an additional
\nwritten statement  in O.S. No. 110 of 1991 which was allowed
\nand the\t appellant filed the additional written statement in
\nwhich he  raised the  plea that\t the suit  instituted by the
\nrespondent was\tnot maintainable  for want  of notice  under
\nSection 11<\/a>  of the  Act. This  plea, as pointed out earlier,
\nwas accepted  by the  trial court  as well  as by  the first
\nappellate  court.  But\tthe  High  Court  in  second  appeal
\nreversed the  judgment and  held that  the appellant  having
\nwaived his  right to  object to\t the maintainability  of the
\nsuit for  want of  notice under\t Section 11<\/a>  of the  Act was
\nliable to be evicted from the plot in question over which he
\nhad, admittedly, raised super-structures.\n<\/p>\n
4.   The learned  counsel for  the appellant  has  contended
\nthat the  judgment passed  by High Court is erroneous as the
\nappellant was  not permitted  by the  court itself to invoke
\nthe provision  Section 9<\/a>  as his application for condonation
\nof delay  was rejected\tby the\ttrial court  and  the  trial
\ncourt’s judgment  was upheld  by the  High Court.  The\tHigh
\nCourt was, therefore, in error in invoking the principles of
\nwaiver and decreeing the suit of the respondent for his
\neviction.  The\t respondent’s  counsel,\t  on  the  contrary,
\ncontended that the appellant had preferred to take advantage
\nof the\tInstitution of\tthe suit and had made an application
\nunder Section  9<\/a> of  the Act  (though  beyond  time)  for  a
\ndirection for  the sale\t of the\t property in his favour and,
\ntherefore, he  could not invoke the provisions of Section 11<\/a>
\nand contend  that the  suit was not maintainable for want of
\nnotice under that Section was not given to him. Section 3<\/a> of
\nthe Act provides as under:\n<\/p>\n
     “3.  Payment   of\tcompensation  on
\n     ejectment” –  Every tenant shall on
\n     ejectment\tbe  entitled  to  be  as
\n     compensation  the\t value\tof   any
\n     building,\twhich\tmay  have   been
\n     erected  by  him,\tby  any\t of  his
\n     predecessors in  interest or by any
\n     person not\t in  Occupation\t at  the
\n     time of  the ejectment  who derived
\n     title from\t either of  them and for
\n     which compensation\t has not already
\n     been paid. A tenant who is entitled
\n     to compensation  for the  value  of
\n     any building shall also be paid the
\n     value of  trees which may have been
\n     planted by him on the land\t Land of
\n     any  improvements\twhich  may  have
\n     been made by him.]”\n<\/p><\/blockquote>\n
     5. section 9<\/a> provides as under:
\n     “Application of Court for directing
\n     the landlord to sell land-
\n     [(1) (a)  (i)  Any\t tenant\t who  is
\n     entitled  to   compensation   under
\n     Section 3<\/a>\tand against  whom a suit
\n     in ejectment has been instituted or
\n     proceeding under  Section 41<\/a> of the
\n     Presidency Small Causes Courts Act,
\n     1982, taken  by the  landlord  may,
\n     (Amendment) Act<\/a>, 1979, in the Tamil
\n     Nadu Government  Gazette or  of the
\n     date with\teffect form  which  this
\n     act is  extended to  the  municipal
\n     town, township  or village in which
\n     the land is situate or within. [one
\n     month] after  the service on him of
\n     summons; apply  to the Court for an
\n     order that\t the landlord  shall  be
\n     directed [to sell for a price to be
\n     fixed by  the Court,  the whole  or
\n     pat  of,\tthe   extent   of   land
\n     specified in the application.]\n<\/p><\/blockquote>\n
     (ii)    Notwithstanding\tanything
\n     contained in clause (a) (i) of this
\n     sub-section, any  such tenant as is
\n     referred to  in sub-clause (ii) (b)
\n     of clause\t(4) sub-section 2<\/a> or his
\n     heirs, may\t within a  period of two
\n     months    form    the    date    of
\n     the publication  of the Madras city
\n     Tenants’\tProtection   (Amendment)
\n     Act<\/a>,  1973\t  apply\t to   the  court
\n     (whether  or   not\t  a   suit   for
\n     ejectment has  been  instituted  or
\n     proceeding under  section 41<\/a> of the
\n     Presidency Small  Cause Courts Act,
\n     1882 (Central  Act<\/a> XV  of 1882) has
\n     been  taken   by  the  landlord  of
\n     whether  or   not\tsuch   suit   or
\n     proceeding\t  is\tpending\t  having
\n     jurisdiction to  entertain\t a  suit
\n     for ejectment  or in  the\tcity  of
\n     Madras either  to such  Court or to
\n     the Presidency  Small cause  Court,
\n     for  an  order  that  the\tlandlord
\n     under the\ttenancy agreement  shall
\n     be directed  to sell for a price of
\n     the fixed by the Court the whole or
\n     part  of\tthe   extent   of   land
\n     specified in the application].
\n     [(b) On such application, the Court
\n     shall  first   decide  the\t minimum
\n     extent of\tthe land  which\t may  be
\n     necessary\t for\tthe   convenient
\n     enjoyment by the tenant. The court,
\n     shall, then  fix the  price of  the
\n     minimum extent  of the land decided
\n     as aforesaid,  or of  the extent of
\n     the   land\t   specified   in    the
\n     application   under    clause   (a)
\n     whichever\tis   less.   The   price
\n     aforesaid\tshall\tbe  the\t average
\n     market value  of  the  three  years
\n     immediately preceding  the date  of
\n     the order.\t The Court  shall  order
\n     that  within   a\tperiod\t to   be
\n     determined by  the Court, not being
\n     less be  determined by  the  Court,
\n     not being\tless than  three  months
\n     and not  more than three years form
\n     the date  of the  order, the tenant
\n     shall pay\tinto Court  or otherwise
\n     as directed  the price  so fixed in
\n     one or  more  instalments\twith  or
\n     without interest.]
\n     (2) In  default of\t payment by  the
\n     tenant of\tany one\t instalment, the
\n     application  under\t Clause\t (a)  of
\n     sub-Section   (1)\t  shall\t   stand
\n     dismissed.\t  Provided    that    on
\n     sufficient cause  being shown,  the
\n     Court may excuse the delay and pass
\n     such orders  as it\t may think  fit,
\n     but not  so as  to extend\tthe time
\n     for  payment   beyond  three  years
\n     above mentioned. On the application
\n     being dismissed,  the  Court  shall
\n     order the\tamount of the instalment
\n     or instalments, if any, paid by the
\n     tenant to be re-paid to him without
\n     any interest.\n<\/p><\/blockquote>\n
     [(3) (a)  On payment  of the  price
\n     fixed  under  Clause  (b)\tof  sub-
\n     section (1) the Court shall pass an
\n     order directing  the conveyance  by
\n     the landlord  to the  tenant of the
\n     extent of\tland for  which the said
\n     price was fixed. The Court shall by
\n     the same order direct the tenant to
\n     put the landlord into possession of
\n     the remaining  extent of  the land,
\n     if\t any.\tThe   stamp   duty   and
\n     registration fee in respect of such
\n     conveyance shall  be borne\t by  the
\n     tenant ..\n<\/p><\/blockquote>\n
     (b) On  the order\treferred  to  in
\n     Clause (a)\t being made, the suit or
\n     proceeding shall  stand  dismissed,
\n     and  any\tdecree\t or   order   in
\n     ejectment that may have been passed
\n     therein  but  which  has  not  been
\n     executed shall be vacated.]\n<\/p><\/blockquote>\n
     6. Section 11<\/a> provides as under :
\n     “Notice before institution of suits
\n     or application  against tenants- No
\n     suits in  ejectment or applications
\n     under Section  41<\/a> of the Presidency
\n     small  causes   Courts  Act<\/a>,  1882,
\n     shall be  instituted  or  presented
\n     against   a    tenant   until   the
\n     expiration\t of  three  months  next
\n     after notice  in writing  has  been
\n     giving  to\t him  requiring\t him  to
\n     surrender possession  of  the  land
\n     and building,  and offering  to pay
\n     compensation for  the building  and
\n     trees,  if\t  any  and  stating  the
\n     amount thereof.\n<\/p><\/blockquote>\n
     [A copy of such notice shall at the
\n     same time\tbe sent,  in the case of
\n     property situated\tin the\tcity  of
\n     Madras, to\t the Commissioner of the
\n     Corporation of  madras, or,  in the
\n     case of  property situated\t in  any
\n     municipal\t town,\t [township]   or
\n     village  to   which  this\t Act  is
\n     extended, to  the executive officer
\n     of the  panchayat, as  the case may
\n     be or any other authority as may be
\n     notified by the Government.”\n<\/p><\/blockquote>\n
7.   The appellant  is the  tenant of  a plot  of land\tover
\nwhich he  raised super-structures  and consequently,  he  is
\nentitled  to   compensation.  Section\t9<\/a>  which   has\tbeen
\nreproduced above  indicates that a tenant who is entitled to
\ncompensation under  Section 3<\/a>  and  against  whom  suit\t for
\nejectment is  filed may apply to the court for an order that
\nthe landlord be directed to sell, for a price to be fixed by
\nthe court,  the whole  or part\tof the land specified in the
\napplication. The court shall, then, fix the price and direct
\nthe tenant  to pay the price in one or more instalments with
\nor without  interest. If  however, the\ttenant\tcommits\t any
\ndefault\t in   payment  of   any\t of   the  instalments,\t his
\napplication for\t sale of the property shall stand dismissed.
\nOtherwise the court would direct the landlord to execute the
\nconveyance in favour of the tenant.\n<\/p>\n
8.   Section 11<\/a>\t contains the prohibition to the institution
\nof the\tsuit for ejectment. It specifically provides that no
\nsuit for  ejectment shall  be instituted  against the tenant
\nwithout first giving him a notice, in writing, requiring him
\nto  surrender  possession  of  the  land  and  building\t and
\noffering to  pay compensation for the building and trees and
\nstating\t clearly   the\tamount\t offered  therefor.  Another
\nprohibition that  the suit shall not be instituted until the
\nexpiration of  three months next after notice in writing has
\nbeen given to the tenant.\n<\/p>\n
9.   It is  obvious that  it a\tsuit is\t instituted  without
\ngiving notice  or if a notice is given but the suit is filed
\ntherefore the  expiry  of  three  months,  it  would  be  in
\nviolation of  the prohibitions set out in Section 11<\/a>. Such a
\nsuit cannot,  proceed.\tEven  the  cause  of  action.  which
\nconsists of a bundle of facts. apart from other facts  would
\nopened upon  giving a notice to the tenant and waiting for a
\nperiod of three months before instituting the suit. From the
\ntenor  of   Section  11<\/a>,  it  appears  that  in\t every\tsuit
\ninstituted under  Section 11<\/a>  of the Act, it will have to be
\nmentioned in  the plaint  that the  plaintiff  had  given  a
\nnotice (contemplated  by that  Section) in  writing  to\t the
\ntenant and  that the  suit was\tbeing instituted  after\t the
\nexpiry of three months from the notice.\n<\/p>\n
10.  The prohibitions  set out\tin the\tSection work against
\nthe plaintiff.\tThey also  create a  right in  favour of the
\ntenant so  that he may directly drawn into litigation before
\na court.  If an\t opportunity is\t given to  him to  surrender
\npossession with\t offer that he would be duly compensated for
\nthe building and the trees and the amount of compensation is
\nalso disclosed\tto him,\t he may,  during the period of three
\nmonths, before\tthe expiry   of\t which the  suit  cannot  be
\ninstituted,  consider\tthe  offer  and\t decide\t whether  to
\nlitigate with the landlord or to quit.\n<\/p>\n
11.  If he  decides to\tcontest the  suit instituted against
\nhim, he\t gets another opportunity under Section 5<\/a> of the Act
\nby making an application to the court for a direction to the
\nlandlord to  sell the  property in  how favour\tfor a  price
\nwhich may be fixed by the court.\n<\/p>\n
12.  The High Court after having come to the conclusion that
\nthe provisions\tof Section  11<\/a> were  mandatory has held that
\nthe notice  contemplated by  Section 11<\/a>\t of the Act which is
\nrequired to  be given  to the tenant can be waived expressly
\nor impliedly  by the  tenant by his conduct and it is on the
\nground of  waiver that\tthe High  Court has , in the instant
\ncase, interferred and decreed the suit of the respondent for
\nthe appellant’s\t eviction from\tthe premises  in question as
\nthe High  Court was of the opinion that the appellant having
\nmade an\t application under  Section 9<\/a>,\twaived his  right to
\nobject to  the institution  of suit  which, admittedly,\t was
\nfiled without  giving notice  contemplated by  Section 11<\/a> of
\nthe\t\t\t\t\t\t\tAct.\n<\/p>\n
13.  The High  Court has relied upon its earlier decision in
\nVedachala Naicker  vs. Duraiswami  Mudalair<\/a>,(1950) 1  M.L.J.
\n732  to\t  come\tto  the\t conclusion  that  by  invoking\t the
\nprovisions of  Section 9<\/a>,  the appellant waived his right to
\nobject for  want to  notice under  Section 11<\/a>. In that case,
\nthe High Court has relied upon the Privacy Council  decision
\nin Vellayan  Chettiar vs.  The Government of Madras<\/a>, 74 I.A.
\n223 =  AIR 1947\t PC 197\t in  which  it\twas  held  that\t the
\nrequirement of\ta notice  under\t Section  80  C.P.C.  before
\ninstituting a  suit against  the Government can be waived by
\nthe Government.\t A similar view was also taken by the Madras
\nHigh  Court   in  Mohamed   Hussain  Rowther  vs.  Tirupathi
\nChettiar,  (1966)   1  M.L.J.\t206.\tIn  Ranganatham\t vs.
\nMariappa<\/a>,(1942) 1  M.L.J. 92  =\t AIR 1942 Madras 334, it was
\nheld by Patanjali Sastri, J.(as he then was) that section 11<\/a>
\nwas mandatory and imposed an unqualified obligation upon the
\nnot  to\t entertain  a  suit  for  ejectment  in\t absence  of
\ncompliance with\t its provisions.  These decisions  as also a
\nfew others were considered by a Division bench of the Madras
\nHigh Court  in Sri  Agatheeswarar Prasanna Venkatesu Perumal
\nDevasthanam by\tits hereditary\tTrustee P.Valliammal  vs. M.
\nNarsimhan<\/a>, (1982)  2 M.L.J.  70 and  it was  laid down\tthat
\nalthough the provisions of Section 11<\/a> were mandatory and the
\nsuit for  ejectment of\tthe tenant  could not  be instituted
\nwithout a  prior notice,  the requirement of notice could be
\nwaived by the tenant expressly or impliedly by his conduct.\n<\/p>\n
14.  We are  of the  view that\tsince the requirements under
\nSection 11<\/a>  are in  the nature of conditions precedent which
\nhad to\tbe complied  with before  instituting a\t suit  in  a
\ncourt. the  non-compliance would  be   fatal and  such\tsuit
\nwould be  liable to  Be\t dismissed  at\tthe  threshold.\t The
\nrequirements under  Section 11<\/a>\tcannot be  compared with the
\nrequirements under  Section 80\tC.P.C. The right of a tenant
\nwho may, if not always, be a poor tenant, cannot be compared
\nwith the  mighty Governments  regarding\t whom  it  has\tbeen
\nobserved times\tout of number by the courts that they should
\nnot litigate  with  their  citizens  on\t technicalities\t and
\nshould not  endeavour to  defeat the  suit by  pleading\t the
\ntechnical questions,  as for  example, want  to notice under
\nSection 80 C.P.C. or limitation in cases which are eminently
\njust, proper  and equitable.  The Act<\/a> essentially is for the
\nprotection for\tthe tenants  whereas no\t such protection for
\nthe Government\tis contemplated by Section 80<\/a> of the code of
\nCivil Procedure.  But without entering into this controversy
\nany further and leaving the question of waiver open, we may,
\nin this case, observe that on facts there is no waiver.\n<\/p>\n
15.  The appellants  in the  instant case,  at no stage, was
\nallowed to  invoke the provisions of section 9<\/a> of the Act as
\nhe had\tfiled an application under that Section beyond time.
\nHis application\t for condonation  of delay  was rejected not
\nonly by\t the trial  court but  also by\tthe High   Court  in
\nRevision. The occasion to invoke the provisions Of Section 9<\/a>
\ntherefore, did\tnot come.  In the  meantime,  the  appellant
\nfiled the  additional written statement and pleaded that the
\nsuit was  liable to  be dismissed  for want  of notice under
\nSection 11  of the  Act Since  the application\tfiled by the
\nappellant was  beyond time  and was  rejected, the appellant
\ncannot be  said to  have taken advantage of Section 9<\/a> of the
\nAct and\t consequently. it  cannot be said that by filling an
\napplication under  Section 9<\/a>.  he waived his right to object
\nto the\tirregularity or illegality in the institution of the
\nsuit .\n<\/p>\n
16.  For the reasons stated above, the appeal is allowed and
\nthe judgment  and order\t dated 5.4.1994 passed in the Second
\nappeal by the High Court is set aside and those of the trial
\ncourt and  the\tSub-ordinate  judge  (Appellate\t Court)\t are
\nrestored and  the suit\tof the\trespondent is dismissed with
\ncosts which are quantified at Rs. 15,000\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S.A. Ramachandran vs S. Neelavathy on 20 December, 1996 Author: S S Ahmad.J. Bench: Kuldip Singh, S. Saghir Ahmad PETITIONER: S.A. RAMACHANDRAN Vs. RESPONDENT: S. NEELAVATHY DATE OF JUDGMENT: 20\/12\/1996 BENCH: KULDIP SINGH, S. SAGHIR AHMAD ACT: HEADNOTE: JUDGMENT: J U D G M E N T S. SAGHIR AHMAD.J. The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-258896","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS.A. Ramachandran vs S. 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