Judgment:
This appeal has come before me on remand from the Supreme Court of India. The facts relevant are shortly as follows:--
2. The mother of the appellants filed O. S. 1472 of 1976 for recovery of possession fromIrusappa Asari who was a tenant with respect to the suit property. According to the plaintiffs, the lease was taken on 6-5-1957. It was alleged that the tenant had encroached on an adjacent land which was not the subject matter of the lease. Pending the suit, the mother of the appellants died and the appellants were brought on record as her legal representatives.
3. The defendant contested the suit claiming that he was a tenant from January, 1955 with reference to a larger property than what was set out by the plaintiffs. He claimed the benefits of the Tamil Nadu City Tenants Protection Act are filed a petition under S. 9 of the Act. It was contended that the suit was not maintainble as there was no notice under S. 11 of the Act.
4. The trial Court granted a decree in favour of the plaintiffs and dismissed the application filed by the defendant under S. 9 of the Act. The trial Court held that the tenancy commenced on 6-5-1957 and the Act having been extended to Salem Town on 19-9-1956, it was a post-Act tenancy to which the Act would not apply. The trial Court also held that the defendant took on lease only the portion marked as ABCD in the plaint plan which was the case of the plaintiffs.
5. An appeal was filed by the defendant in the Court of Subordinate Judge, Salem, against the decree in the suit. There was no appeal against the order dismissing the application under S. 9 of the Act. Pending the appeal, he died and his legal representatives came on record as appellants. The Subordinate Judge reversed the conclusion of the Trial Court with reference to the applicability of the Act and dismissed the suit holding that the Act was applicable to the tenancy in question. According to the Appellate Judge, the Act was extended to Salem Town on 29-1-1958 and the tenancy was prior to the Act, with the result that the Act applied thereto but, the Appellate Judge held that the tenancy commenced on 6-5-1957 as found by the Trial Court. On the question of the extent of the subject-matter of the tenancy, the Appellate Court affirmed the finding of the Trial Court that the defendant was a lessee with referenceto the portion marked as ABCD only in the plaint plan.
6. The plaintiffs preferred second appeal 1014 of 1980 which was disposed by this Court on 2-3-1990. After the filing of the second appeal in this Court, the Tamil Nadu City Tenants Protection Act was amended by Act 2 of 1980, pursuant to which the Act was made applicable to all tenancies of land created before 3-3-1980. Justice Beltie disposed of the second appeal. He allowed the appeal and restored the judgment of the Trial Court excepting with regard to a small modification with reference to the amount due towards compensation payable to the defendant. The learned Judge found that the defendant's application under S. 9 of the Act having been dismissed by the Trial Court and there being no appeal against the same, the defendant was not entitled to the benefits of the Act. The learned Judge held that unless an application under S. 9 of the Act was pending when Tamil Nadu Act 2 of 1980 was passed, the tenant would not be entitled to the benefits of the Act. It was also found that the Act was extended originally to Salem Town on 19-9-1956 and the tenancy was a post-Act tenancy as it came into being on 6-5-1957. Consequently, the learned Judge held that the Act was not applicable when the suit was instituted. It was also held by him that S. 11 of the Act would not come into play as at the time of filing of the suit, Tamil Nadu Act 2 of 1980 had not been passed.
7. The matter was taken to the Supreme Court of India by the defendant's legal representatives. The Supreme Court set aside the judgment of this court and remanded the matter for fresh disposal in accordance with law. It is better to extract the relevant portions of the judgment of the Supreme Court, which are as follows:--
'After hearing counsel for both the parties we are of the opinion that the matter must go back to the High Court since certain relevant aspects are not clear from the record before us ..... The first aspect which could notbe clarified before us is this : If the Act was extended to Salem Town on 19-9-1956 in the first instance, why was it necessary to extend it over again on 29-1-1968. It is equally notclear what is the effect of G. O. No. 1695 dated 17-6-1959 rescinding the extension on 29-1-1958. Yet again, what was the occasion for extending the Act once again in 1980 by the Amendment Act 2 of 1980. We are unable to understand this repeated application of the Act to the same town and the occasion or the necessity therefor. We are of the opinion that this aspect is quite material for the decision of this case and must be clarified .....So far as the contention of the learned counsel for the plaintiffs is concerned, we are of the opinion that according to S. 9, it is open to a defendant to file an application thereunder in the suit for ejectment filed by the landlord against him. Such an application would be in the nature of an interlocutory application in the suit. In such a siutation, it follows that once an appeal is filed by the defendant against the decree of the trial Court, he is entitled to challenge the correctness of any interlocutory order passed in the suit, in such appeal, by virtue of S. 105 of the Civil Procedure Code. It is not necessary in such a case that he should prefer an inpendent appeal against the order dismissing an interlocutory application, even if it is appealable. This principle is of equal application herein even though the interlocutory application is one under S. 9 of the Act. Accordingly, it must be held that in the appeal/ second appeal against the decree of the Trial Court, it was open to the defendants to challenge the correctness of the order dismissing their application under S. 9. The High Court was, therefore, not right in holding that the said application having been dismissed by trial Court and no fresh application having been filed, it must be held that there was no application under S. 9. The application filed by the defendants in the trial Court must be deemed to be pending during the pendency of the appeal/second appeal. Of course, what is its effect in law is a matter to be considered by High Court hereinafter ..... For thereasons stated above, the appeal is allowed in part and the matter is remitted back to the Madras High Court. The High Court shall now deal with the same and dispose it of in accordance with law. We make it clear that if the High Court finds it necessary, it shall be open to it to receive such additional materialas it thinks appropriate for clarifying the aspect mentioned hereinabove or to call for a finding from the Courts below in that behalf.'
8. When the matter was posted before me after remand, learned counsel M/s. Raj and Raj who were appearing previously for the respondents in the appeal represented that the records had been taken away by the parties and they had no instructions to appear for the respondents. I directed notice to the respondents through Court. On 30-3-1992, the 1st respondent Thailammal appeared in Court and prayed for adjournment to engage counsel. She assured the Court that the other respondents who are her children, would also give vakalat and engage the same counsel. I adjourned the matter to 28-4-1992 after informing her in Tamil that the appeal would be heard on that date. I told her that no adjournment will be granted. On 20-4-1992, when the matter was called, the 6th respondent, one of the sons of the 1st respondent appeared before court and prayed for further adjournment to engage counsel alleging that he had come from Bombay. I refused to grant long adjournment and posted the matter to this day clearly informing the 6th respondent that the matter will be beared today at 2.15 p.m. When the matter was called to day, both the 1st respondent and the 6th respondent appeared in Court and prayed for further adjournment. I refused to grant the same. I told them that I would hear the appellants' counsel and post the matter to tomorrow so that their counsel could argue the appeal. I told them that they could either argue the appeal themselves or engage a counsel to argue the same. I proceeded to hear counsel for the appellants. After hearing him, I am of the view that the appeal has to be dismissed in view of the present position in law. Hence, T find no necessity to adjourn the matter to tomorrow nor hear counsel for the respondents.
9. The portions of the judgment of the Supreme Court as extracted above clearly point out two aspects of the matter. Firstly, their Lordships of the Supreme Court have categorically held that an application under S. 9 of the City Tenants Protection Act is aninterlocutory application and the correctness of any order passed thereon could be challenged in the appeal against the main decree. Thus, they have held that in this second appeal, the correctness of the order of the Trial Court dismissing the application under S. 9 of the City Tenants Protection Act can be canvassed by the respondents herein.
10. Secondly, it is held by the Supreme Court that the application filed under S. 9 of the Act by the defendant is deemed to be pending in the second appeal. In so far as the above two aspects are concerned, learned counsel for the appellants contends that the proper interpretation of the order of the Supreme Court is that this Court should consider whether the application under S. 9 of the City Tenants Protection Act could be treated as an interlocutory application and a pending application for the purpose of this second appeal and proceed to decide the rights of parties on that basis. Learned counsel proceeds to argue that by the very nature of the application, it cannot be considered to be an interlocutory application. According to him, an application under S. 9 of the Act has always been considered by this Court to be an original application independent of the suit and the result of the suit would not affect the application in question. He submits that even if the suit is dismissed, the application under S. 9 could be considered by the Court and relief could be granted to the applicant if it is found that he is entitled to the benefits of the Act.
11. I am unable to accept the contentions of the learned counsel for the appellants. The order of remand made by the Supreme Court is not an open remand, it is a remand with certain definite conclusions arrived at by the Apex Court itself. I cannot go behind the said conclusion and reconsider the matters which have been decided by that court once and for all. I have already extracted the relevant portions. There can be no ambiguity whatever in the following observations of the Supreme . Court.
'Such an application would be in the nature of an interlocutory application in the suit ..... The application filed by thedefendants in the trial court must be deemed to be pending during the pendency of the appeal/second appeal.'
The above two conclusions of the Supreme Court cannot be canvassed in this Court, nor can they be ignored and the matter be considered afresh by me. I have to proceed only on the basis of the above two conclusions.
12. Learned counsel placed reliance on the first paragraph of the judgment of the Supreme Court, in which it is stated that the matter must go back to this Court, since certain relevant aspects are not clear from the record before the Supreme Court. Learned counsel also invites my attention to the following sentences in the judgment of the Supreme Court.
'Of course, what is its effect in law is a matter to be considered by High Court hereinafter.'
According to learned counsel, the Supreme Court has permitted this Court to consider the entire matter afresh in accordance with law. I do not agree. In the previous sentence, it is categorically stated that the application filed by the defendants in the Trial Court must be deemed to be pending during the pendency of the appeal and second appeal. Hence, in this Court, the position is that an application under S.9 filed by the defendant is still pending.
13. Once that position is clear, there can be no doubt whatever that the respondents are entitled to the benefits of the City Tenants Protection Act. I have already referred to Tamil Nadu Act 2 of 1980. That Act came into force on 3-3-1980. By that time, the second appeal was filed in this Court and it was actually taken on file on 8-7-1980 and admitted on 11-7-1980. Thus, even when the second appeal was taken on file, Act 2 of 1980 had come into force and the Act was extended to all tenancies created before that date. Consequently, the respondents were entitled to the benefits of the Act, as their tenancy was created as early as 6-5-1957. Their application under S. 9 being deemed to be pending, they are entitled to work out their rights in thatapplication. Hence, there is no difficulty in holding that the respondents are entitled to an order for sale of the land under S. 9 of the Act. Of course, the extent of the land which should be directed to be sold and price thereof should be fixed only by the Trial Court after allowing the parties to adduce necessary evidence in that regard.
14. One matter which was required to be clarified by the Supreme Court, for which the relevant materials were not available to the Supreme Court, is this. The Act was originally extended to Salem Town by the Government Notification G. 0. Ms. 3439, Revenue, dated 11-9-1956, which was published in the Gazette on 19-9-1956. On that date, the Act was extended to Salem Town. Without taking note of that Notification, the Government published another Notification by mistake in G. 0. Ms. 159, Revenue, dated 17-1-1958 in the Gazette dated 29-1-1958. On realising the mistake and seeing that the second Notification was unnecessary, the Government issued a third Notification in G. O. Ms. 1695, dated 4-6-1959 in the Gazette dated 17-6-1959 rescinding the Notification dated 17-1-1958. Thus, the original Notification dated 11-9-1956 continued to be in existence unaffected by the subsequent Notifications. There is no doubt whatever that the Act was extended to Salem Town on 19-9-1956 and continued to be applicable to the Town since then, but the tenancy having commenced on 6-5-1957 was not covered by the Act as it stood then. The tenancy was brought within the purview of the Act only by Tamil Nadu Act 2 of 1980.
15. The concurrent finding that the subject-matter of tenancy was the land marked ABCD in the plan attached to the decree is one of fact, it is based on the evidence on record. Hence, it is confirmed. As the respondents are entitled to the benefits of the Tamil Nadu City Tenants Protection Act and to purchase the land under S. 9 of the Act, there shall be a decree in 0. S. No. 1472 of 1990 on the file of the District Munsif, Salem, to the effect that the respondents herein are entitled to purchase the land under S. 9 of the City Tenants Protection Act. Further proceedings shall be held by the Court of DistrictMunsif, in which the extent of the land which should be actually sold to the respondents, shall be ascertained and the market value, thereof shall also be fixed in accordance with the provisions of the Act. Consequently, the appellants are not entitled to have a decree as prayed for by them. The second appeal has to fail to that extent.
16. The dismissal of the suit in toto by the Appellate Court for want of notice under S. 11 of the Act is also unsustainable. This Court has held in Vedachala Naicker v. Duraiswami Mudaliar ( : AIR1951Mad593 and Natesa Naicker v. Vedagiri (1975) 1 Mad LJ 301 that filing an application under S. 9 of the Act would amount to waiver of notice under S. 11 of the Act. Hence, the suit cannot be dismissed for want of notice,
17. Hence, there will be a decree declaring the rights of the respondents under the Tamil Nadu City Tenants Protection Act to purchase such extent of land as may be necessary for their convenient enjoyment, The Trial Court shall decide such extent of land and fix the price therefor. The Trial Court shall on receipt of records issue notices to both parties fixing a date for further proceeedings under S. 9 of the Act. It shall act in accordance with the principles laid down by a Division Bench of this Court in Arasan Chettiar v. Narasimhalu Naidu's Estate Trust : AIR1980Mad305 and pass orders. Thereafter, it shall finally pass orders under S. 9(3)(a) of the Act.
18. The second appeal is ordered accordingly. There will be a decree as indicated above in substitution of the decree of the Lower Appellate Court. The parties will bear their respective costs.
19. Order accordingly.