PALANIAPPA CHETTIAR (DIED) AND ORS. Vs. BABU SAHIB AND ORS.
LAWS(MAD)-1970-12-20
HIGH COURT OF MADRAS
Decided on December 02,1970

Palaniappa Chettiar (Died) And Ors. Appellant
VERSUS
Babu Sahib And Ors. Respondents

JUDGEMENT

G.Ramanujam, J. - (1.) ONE Khaji Peer Batcha Sahib leased out a vacant site of 21 cents in. survey field No. 894 Chinnaveedhi to the father of the petitioners herein for a period of ten years on a monthly rental of Rs. 3. The lease contained a covenant against subletting. On the grounds that the tenant, father of the petitioners 2 to 9, had sublet the land to various persons and that he had also committed wilful default in payment of the rents a petition for eviction was filed before the Rent Controller by respondents 1 and 2 herein who are the settles from the original owner Khaji Peer Batcha Saheb in respect of the suit property. The Rent Controller passed an order for eviction which has also been affirmed by the appellate and revisional authorities constituted under the Madras Buildings (Lease and Rent Control) Act, 1960. This revision in directed against that eviction order.
(2.) THE learned Counsel for the petitioners mainly contends that the proceedings for eviction before the Rent Controller are without jurisdiction and the orders passed by the Rent Controller as well as the appellate and revisional authorities have, therefore, to be set aside. His contention is that the lease being of a vacant site and the superstructure having been erected by their tenant the provisions of the Lease and Rent Control Act would not apply to such a lease and the Courts below have wrongly -assumed jurisdiction in entertaining the eviction petition. The learned Counsel for the respondents, on the other hand contends that it is not open to the petitioners to raise the question of jurisdiction of the Rent Controller to entertain the eviction petition in view of certain earlier proceedings wherein there is a binding decision between the parties that the matter could be agitated before the Rent Controller. Before deciding the tenability of the rival contentions of parties, a few relevant facts have to be set out. As already stated, the lease was of a vacant site which commenced on 22nd September, 1947 and under the terms of the lease deed the tenant had been authorised to have the superstructure of his own. In or about 1958 respondents 1 and 2 filed a suit, O.S. No. 803 of 1958, for recovery of possession of the demised land and arrears of rent against the tenant father of the petitioners 2 to 9. In that suit the tenant denied the plaintiff's title and set up title in himself on the basis of a sale deed dated 10th December, 1952 said to have been executed by the plaintiffs and compulsorily registered on 10th December, 1952. The said suit for recovery of possession was decreed against the tenant and the matter came up to this Court in S.A. No. 1153 of 1960. In that appeal this Court accepted the contention put forward by the tenant that the civil Court had no jurisdiction to entertain the suit for eviction and that the provisions of the Rent Control Act alone could be invoked to view of certain decisions of this Court holding that though the original lease was only in relation to a vacant site, if on the date of the eviction petition the land had been built upon, the Rent Controller will have jurisdiction to entertain an application for eviction of the tenant from the demised land, and allowed the appeal in favour of the tenant. Subsequently respondents 1 and 2 filed an application before the Rent Controller for eviction but at that stage the tenant filed a suit O.S. No. 3 of 1964 for a declaration of his title to the vacant site which was ultimately dismissed. This matter also was brought to this Court in S.A. No. 583 of 1970, which is pending disposal. In view of the fact that the tenant had filed a suit for a declaration of his title in respect of the leasehold site, the petition for eviction filed earlier by the respondents 1 and 2 had been withdrawn. After the dismissal of the suit O.S. No. 3 of 1964 filed by the tenant to establish their title, respondents 1 and 2 filed R.C.O.P. No. 33 of 1966, before the Rent Controller seeking eviction of the tenant from the demised, land on the ground of unauthorised subletting as well as wilful default in payment of the arrears of rent. In the light of the view prevailing then, the Rent Controller entertained the eviction petition and passed an order for eviction on the merits of the case. The matter was taken in appeal before the appellate authority by the legal representatives of the tenant the petitioners herein. They contend that the lease of a vacant site cannot come within the purview of Section 10 of the Madras Buildings (Lease and Rent Control) Act, 1960 in view of the decision of the Supreme Court in Salay Mohamed Salt v. J. M. S. Charity, (1969) 1 M.L.J. 16 :, (1969) 1 An. W.R. 16 :, (1969) 1 S.C.J. 63., wherein the earlier view of this Court holding that the Controller will have jurisdiction to entertain an eviction petition even in respect of vacant site if the vacant site has been built upon by the tenant had been overruled. The appellate authority had rejected that contention on the ground that the Supreme Court decision sought to be relied on by the petitioners had not yet been reported, that it would not be proper to rely on an unreported decision and that on the date of the order of the Rent Controller the only ruling that held the field being the one in Palaniappa Chettiar v. Vairavan Chettiar : (1963) 1 MLJ 130 :, I.L.R. (1963) Mad. 519, it was not open to the petitioners to question the jurisdiction of the Rent Controller relying on the subsequent unreported judgment of the Supreme Court. The revisional Court had also rejected the same contention on the ground that the decision in S A. No. 1153 of 1960 will bind the petitioners and that a subsequent decision of the Supreme Court in a different case cannot be said to affect the earlier ruling of this Court rendered between the parties.
(3.) THE question now therefore is whether the petitioners claiming under a person who successfully contended before this Court in S.A. No. 1153 of 1960 that the lease fell within the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960 and that the Rent Controller alone had jurisdiction to entertain an application for eviction, can now turn round and say that the lease will not come under the provisions of the said Act and that the Rent Controller had no jurisdiction to entertain the eviction petition in relation thereto.;


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