MOHAMMED HUSSAIN Vs. A.K.M. PITCHAI
LAWS(MAD)-1970-9-19
HIGH COURT OF MADRAS
Decided on September 03,1970

MOHAMMED HUSSAIN Appellant
VERSUS
A.K.M. Pitchai Respondents

JUDGEMENT

G.RAMANUJAM, J. - (1.) THE above two revisions arise out of two applications filed by the respondent herein, one E.A. No. 1126 of 1968 for redelivery of possession of a house from which the respondent was evicted by the Court and the other E.A. No. 197 of 1969 for recovery of damages or mesne profits. The circumstances under which the above two revisions came to be filed by the petitioner are these:
(2.) THE respondent was a tenant under the petitioner herein. The petitioner filed an eviction petition in H.R.C. No. 1894 of 1967 on the ground of wilful default by the respondent in payment of the rents. There was an ex parte order of eviction on 7th August, 1967. The respondent filed LA. No. 880 of 1967 for setting aside the said ex parte order. The Rent Controller passed a conditional order setting aside the ex parte order of eviction but : as the conditions were not complied with, the said application was dismissed on 9th November, 1967. Thereafter, in execution of the ex parte order of eviction, the petitioner got delivery of the property through the City Civil Court at Madras on 14th November, 1967 in E.P. No. 1001 of 1967. The respondent filed an appeal, H.R.A. No. 358 of 1967 against the conditions imposed in I.A. No. 880 of 1967 by the Rent Controller for setting aside the eviction order and the said appeal was allowed on 16th November, 1968. As a result of the appellate order, the ex parte order of eviction stood set aside. The respondent thereafter filed E.A. No. 51 of 1968 in the executing Court for redelivery of possession by way of restitution. But in the meanwhile, the petitioner filed C.R.P. No. 298 of 1968 in this Court against the order in H.R.A. No. 358 of 1967 and got interim stay, as a result of which E.A. No. 51 of 1968 was closed by the executing Court. Ultimately C.R.P. No. 298 of 1968 was dismissed on 15th March, 1968 with a direction to dispose of the eviction petition within two months and not to disturb possession of the new tenants inducted by the petitioner in the meanwhile till the disposal of the eviction petition. H.R.C. No. 1894 of 1967 was actually disposed of on merits on 30th December, 1968 directing the parties to establish their right in a civil suit as it was found that there was a prima facie dispute between the parties as regards the title to the properties. The petitioner filed an appeal against that order in H.R.A. No. 264 of 1968, but without success. He also filed C.R.P. No. 762 of 1968 in this Court against the appellate order in H.R.A. No. 264 of 1968 but the same was also dismissed on 4th June, 1969. He thereafter filed O.S. No. 6369 of 1968 to establish his title to the property in pursuance to the order in H.R.C. No. 1894 of 1967 and obtained an interim injunction in I.A. No. 18525 of 1969 which was later on 19th August, 1969. It is under these circumstances the respondent filed E.A. No. 1126 of 1968 for redelivery, and E.A. No. 197 of 1969 for damages or mesne profits, invoking the provisions; of Sections 144 and 151 of the Code of Civil Procedure. The lower Court by its common order not only directed redelivery of possession but also ordered payment of mesne profits at the rate of Rs. 100 per month from 30th October, 1968 till the date of redelivery. C.R.P. No. 92 of 1970 is against the order in the first application and C.R.P. No. 93 of 1970 is against the order in the second application.
(3.) THE learned Counsel for the petitioner in both the cases contended that an application for redelivery either under Section 144 of the Code of Civil Procedure, or under the inherent powers of the Court cannot be maintained, and that the mesne profits awarded by the lower Court had no basis at all. As regards the first contention relating to the maintainability of the application for redelivery, the learned Counsel referred to the decision in C.R.P. No. 967 of 1968 where Ramaprasada Rao, J., had held that in the absence of an express provision or a provision by necessary intendment which would enable a civil Court to direct redelivery, the Court acting under Section 18 of the Madras Buildings (Lease and Rent Control) Act, (hereinafter called the Rent Control Act) did not possess such power. The facts in that case are practically the same as in this case. There was an ex parte order of eviction and pursuant thereto the landlord took possession of the property and the tenant, after succeeding in having the ex parte order set aside, applied to the Court for redelivery under Section 144 of the Code of Civil Procedure and the Court directed redelivery. That order was set aside by Ramaprasada Rao, J., accepting the contention of the petitioner (landlord) that the Legislature not having chosen to provide for such a situation, the Court acting under Section 18, cannot order restitution invoking the power under Section 144. The learned Judge has referred to the decision of a Division Bench of this Court in Mayilsami Geunder v. Rammoorthi : (1970) 1 MLJ 606, in support of his view. Mayilsami Gounder v. Rammoorthi : (1970) 1 MLJ 606, arose under the Madras Cultivating Tenants Protection Act of 1955 and there, while considering the scope of the power under Section 4(5) of the said Act, the learned Chief Justice speaking for the Bench had expressed that unlike Courts of law which would have inherent powers, although there is no specific enabling statutory provision, the position of statutory bodies entrusted with specific powers is entirely different, that the powers of such a statutory body are entirely limited and controlled by the statute which confers them, that it cannot act outside the limits of the statute creating it and that it is another matter if on a construction of a statutory provision an inference therefrom can be made of an ancillary or necessary power to execute the main purpose covered by the statute but that such a principle will be inapplicable to construction of Section 4(5) of the Act. The question that arose for decision in that case was whether the Revenue Divisional Officer acting under Section 4(5) of the said Act had jurisdiction to order restoration in case the order of eviction in execution of which possession was delivered was reversed by the appellate Court.;


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