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Judgment
Ratnam, J.—The plaintiff in O.S. 9318 of 1975, IX Assistant Judge, City Civil Court, Madras is the appellant in this second appeal. The
appellant was in occupation of the downstair portion of the premises bearing door No. 7, Appavoo Pillai Lane, Royapuram, Madras, as a tenant
on a monthly rental of Rs. 130 under the respondent. On 26.9.1974, the respondent issued a notice to the appellant terminating the tenancy of the
appellant and demanding delivery of vacant possession by 31.10.1974, as, according to her, the premises in the occupation of the appellant
enjoyed the benefit of exemption under S.30(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Rent
Control Act). The appellant, in his reply, refuted this claim of the respondent. However, the respondent instituted the Ejectment Suit No. 10 of
1975 before the Third Judge, Court of Small Causes, Madras, for securing possession of the premises in the occupation of the appellant. One of
the defences raised by the appellant in the course of that suit related to the jurisdiction of the Court to entertain the suit, as according to the
appellant, the respondent cannot claim the benefit of exemption under S.30(1) of the Rent Control Act, in relation to the building in question. That
objection was considered by the Court of Small Causes and it was held that the respondent was entitled to the benefit of the exemption under
S.30(1) of the Rent Control Act, and that the court had jurisdiction to entertain the suit. On 5.11.1975 the Court of Small Causes, decreed the suit
in ejectment, but granted time till 5-12-1975 to the appellant to deliver vacant possession of the premises in his occupation to the respondent. The
correctness of this was questioned by the appellant in further proceedings and it is now common ground that the decree in ejectment passed on
5.11.1975 was confirmed. It is thereafter, the appellant intuited O.S. 9318 of 1975 praying for the relief of perpetual injunction restraining the
respondent from ejecting the appellant from the premises in his occupation in execution of the decree in ejectment. The principal ground upon
which the appellant instituted the suit and sought relief therein was that the exemption granted under S.30(1) of the Act was not available to the
respondent and therefore, the court of Small Causes had no jurisdiction to pass a decree in ejectment and further that the period of exemption had
also lapsed by the time the decree in ejectment suit was passed on 5.11.1975, automatically attracting the provisions of the Rent Control Act, On
12-1-1976, the respondent obtained possessions of the premises in the occupation of the appellant in execution of the decree in ejectment suit No.
10 of 1975 and thereupon, the appellant by an amendment to the plaint, sought the relief of redelivery to him of the premises taken possession of
by the respondent in execution of the decree in ejectment suit No. 10 of 1975. In the written statement filed by she respondent, she contended that
the premises in the occupation of the appellant was exempt from the provisions of the Rent Control Act, and therefore, ejectment suit No. 10 of
1975 was filed and the objection regarding jurisdiction had also been raised and adjudicated upon and the decree passed therein had also been
executed and therefore, the appellant was not entitled to any other reliefs prayed for in the suit.
On a consideration of the oral as well as the documentary evidence, the learned IX Assistant Judge, City Civil Court, Madras, found that though
the premises in question could not have been reconstructed in 1970, as claimed by the respondent, in as much as the appellant had not prayed for
the setting aside the decree in ejectment suit, he could not be granted any relief. On those conclusions, the suit was dismissed. Aggrieved by this,
the appellant preferred A.S. No. 254 of 1978 before the Second Additional Judge City Civil Court, Madras. The appellate Court held that though
the suit could not be dismissed merely on the ground of want of a prayer to set aside the decree in the ejectment Suit, yet, the appellant had
unsuccessfully canvassed every finding of the Court of Small Causes, inclusive of the one relating to jurisdiction, and therefore, he cannot be
permitted to question its finality by a separate suit and that the prior adjudication in Ejectment suit No. 10 of 1975 on the question of jurisdiction
affirmed by this Court, would operate as res judicata, and preclude the appellant from canvassing the same question. In view of the conclusions so
arrived at, the appellate Court, dismissed the appeal, the correctness of which is challenged in this second appeal.
The main contention of Mr. V. Narayanaswami, learned counsel for the appellant is that the decree in Ejectment Suit No. 10 of 1975 had
become in executable, in view of S.30(1) of the Rent Control Act, and therefore, the appellant is entitled to be restored to possession of the
premises from which he was earlier evicted. On the other hand, Mr. G. Subramaniam, who appeared as amicus curiae for the respondent, at the
instance of the court, submitted that before the appellant can invoke Sec. 10(1) of the Rent Control Act, he must fulfil the character of a tenant
under the Act, and if he does not, then, he is not entitled to any relief. Elaborating this, the learned counsel pointed out, that even before the
commencement of Ejectment Suit, the tenancy in favour of the appellant had been terminated and further on and from the date of the passing of the
decree in ejectment, the tenancy had been put an end to and the fact that the appellant had been granted time under the decree till 5.12.1975 for
vacating the premises in his occupation, clearly established that the possession of the appellant after 5.11.1975, could not be referred to any
tenancy between the respondent and the appellant, but only to the decree of the court and therefore, the appellant cannot put forth any claim as a
tenant entitled to be restored to possession.
The main attack on the decree obtained by the respondent in Ejectment Suit 10 of 1975 is that it was passed by the Court of Small Causes at
Madras, which had no jurisdiction to entertain a suit in ejectment and therefore, proceedings taken pursuant to the decree are invalid and the
appellant should be put back in possession. The question whether the appellant is so entitled to the relief prayed for by him in the suit, would
depend upon (a) the jurisdiction of the court of Small Causes to entertain ejectment suit 10 of 1975; and (b) whether he is a tenant as defined in
the Rent Control Act.
In so far as the jurisdiction of the Court of Small Causes with reference to Ejectment Suit 10 of 1975 is concerned, it is seen from the record of
proceedings that the appellant had disputed its jurisdiction even in the course of that suit, but had failed. The appellant had disputed the claim of the
respondent regarding the availability of exemption under S.30(1) of the Rent Control Act in relation to the appellant with reference to the premises
in his occupation. That objection was overruled and it was held that the premises in the occupation of the appellant enjoyed the benefit of
exemption and therefore, the suit in ejectment was rightly laid before the Court of Small Causes, Madras. This finding regarding jurisdiction as well
as the other findings on merits, have all been upheld in the proceedings taken by the appellant challenging their correctness and that is not in
dispute. It therefore follows that on the materials available, the Court of Small Causes had concluded that the benefit of exemption under S.30(1)
of the Rent Control Act, could be availed of by the respondent and further that the suit in ejectment had also been properly laid before the Court of
Small Causes, Madras. That conclusion, inter parties, had become final and it is that conclusion which is now sought to be challenged by the
appellant in the course of the present suit.
The suit instituted by the appellant does not purport to be one under S.47(2) of the Presidency Towns Small Cause Courts Act, but is merely a
suit of the ordinary kind, challenging the correctness of the decree in the ejectment suit. Though the learned counsel for the appellant referred to a
large number of decisions having a bearing upon the scope of the establishment of title to continue in possession of the property as per S.47(2) of
the Presidency Small Cause Courts Act, as on a reading of the plaint the suit dose not purport to be one falling under that provision, it is not
necessary to refer to any of the decisions relied on by the learned counsel for the appellant. Further, the question of jurisdiction would largely
depend upon the averments in the application under S.41 of the Presidency Towns Small Cause Courts Act and upon proof of the same and it
cannot be made to depend upon the mere accident of the appellant raising a dispute regarding the jurisdiction of the court or the entitlement to the
benefit of exemption. It would suffice to state that the question of the jurisdiction of the Court of Small Causes had been adjudicated upon even in
that very proceedings and the objection of the appellant in that regard was not accepted. It would be useful in this connection to refer to the
decision in Institute of Radio Technolog v. Pandurang AIR 1946 Bom. 212. In that case, four blocks on the second floor of a building had been
leased out and after issuing a notice to quit, the landlord filed an application under S.41 of the Presidency Towns Small Cause Courts Act. The
tenant pleaded protection under the provisions of the Bombay Rent Restriction Act, and contended that when a defence of that nature is raised, the
matter fell outside the scope of the Small Cause Courts Act. Dealing with this, Divatia J. pointed out that even if the tenant relied upon the
provisions of S.11, the tenancy will be deemed to be subsisting, only if his defence succeed and it is the court, which is seized of the application
which has the power to decide whether the defence is good and that the jurisdiction is not ousted by just taking the defence and further that the
only result of the defence being successful is the Court cannot pass an order of eviction and the application would be dismissed. In this case, it has
already been seen that the appellant pointedly raised the objection relating to the jurisdiction of the Court of Small Causes to entertain the suit in
ejectment and that was put in issue, though the final adjudication was against the appellant. The objection raised was on the score that the provision
of the Rent Control Act would apply but this was negatived and that finding was also upheld by the superior courts on further proceedings. It
would thus appear on the facts of this case that the question of jurisdiction had been raised by the appellant at the earliest possible opportunity and
had been adjudicated against him and has also been upheld in proceedings taken up by the appellant before the higher forums. Under those
circumstances, the appellant cannot now be heard to contend that the Court of Small Causes did not have jurisdiction to entertain the ejectment
suit 10 of 1975 and pass a decree therein and further that, the decree so passed had no legal effect and could not have been put in execution.
Whether the appellant can still be considered as a tenant and on that footing, he can be permitted to seek the relief of restoration of possession
may now be considered. Under Sec. 2(8) of the Rent Control Act, the expression ''tenant'' includes a person continuing in possession after the
termination of tenancy in his favour. In this case, the tenancy in favour of the appellant was determined by the respondent by the issue of a notice
dated 26.9.1974. It was, thereafter, the respondent instituted the ejectment suit 10 of 1975 and obtained a valid decree on 5.11.1975, it has
therefore, to be taken that the ejectment decree passed by the Court of Small Causes brought to an end the relation that had subsisted between the
respondent and the appellant prior to that date. The circumstance that the appellant under the terms of the decree in the ejectment suit had been
granted time till 5.12.1975 would not in any manner enable the appellant to claim that he continued to remain in possession of the premises as a
tenant. At best, the act of the Court in granting time to the tenant at the time of the passing of the decree in ejectment can be construed to be out of
sympathy and not in recognition of any right as a tenant. What is significant is that the definition of expression ''tenant'' in Sec. 2(8) of the Rent
Control Act, is not so couched as to include persons against whom decrees in ejectment have already been passed putting an end to the tenancy in
their favour, but remaining in possession even after such decrees, pursuant to the conferment of the privilege to continue in possession by orders of
court. Even widely construing the definition of the expression ''tenant'' occurring in Sec. 2(8) of the Rent Control Act, the appellant cannot claim to
be a tenant continuing in possession after the termination of the tenancy in his favour. Apart from it, on the facts of this case, it is seen that the
appellant had been actually exicted also on 12.1.1976 and after that date, the appellant could not have continued in possession of the premises as
a tenant under Sec. 2(8) of the Rent Control Act, and he cannot, therefore, claim that he is entitled to be restored to possession of the premises
from which he had been evicted. It is seen from the plaint that the appellant had also taken exception to ejectment decree passed on 5.11.1975 on
the ground that by the time that decree came to be passed, the period of exemption, viz, five years had lapsed rendering the provisions of the Rent
Control Act automatically applicable to the premises in question. This objection of the appellant is without any substance, for it is now well settled
that if the suit is instituted within the period of exemption, the decree passed therein, though after the expiry of the period of exemption, is not
rendered ineffective, or inexecutable, in view of the provisions of the Rent Control, Act, vide Nand Kishore Marwah v. Samundri Devi 1987-4
S.C.C. 383. Thus on a consideration of the scope of the prior adjudication in ejectment suit 10 of 1975 as well as the subsequent happenings,
referred to above, it is obvious that the appellant is not entitled to any of the reliefs prayed for in the suit. The courts below were right in non-suiting
the appellant. No case is made out to interfere with the judgments and decrees of the courts below. Consequently the second appeal fails and is
dismissed. There will however be no order as to costs. Before parting with the case, the court places on record the valuable assistance rendered
by Mr. G. Subramaniam, who appeared as amicus curiae at the instance of the court.