B A WOODMAN Vs. REGINA RAJAN
HIGH COURT OF MADRAS
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Basheer Ahmed Sayeed, J. -
(1.) This civil revision petition is against the order of the learned City Civil Judge passed in E. A. No. 1772 of 1951 in E. P. No. 862 of 1951 in L. Dis. No. 4315 H. B. C. 1950.
(2.) The petitioner is the tenant against whom an order for eviction was passed by the Rent Controller on 7-9-1950. The order is in the following terms:
"Petitioner by advocate. Respondent hi person. By consent respondent is given time for vacating till 7-3-1951. Eviction is ordered." It transpires a further extension of time for vacating and delivery of possession was given till 26-5-1951. This extension of time was given on 12-4-1951 by the City Civil Court. It was obviously given when the landlady filed an execution application on 21-3-1951. In between the filing of the execution application and the expiry of the extended time for delivery of possession, a new legislation viz. Act 8, Of 1951 came into force on 1-5-1951. That Act amended the original Act 15 of 1946 as amended by further Acts. By the amendment of 1951 several new provisions were added to the existing Act. The relevant provisions which are material to this petition are those relating to Sections 7(3A), I2B, 18 and 20. Under Section 7(3A) it was provided that no order for eviction shall be passed under Sub-section (3) (1) against any tenant who is engaged in any employment or class of employment notified by the State Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified. In this case it is common ground that the petitioner is engaged in an employment notified by the State Government as an essential service, he being employed in the High Court as a sergeant of the High Court. The next section that is relevant is the one contained in Section 12B which gives the High Court and the District Court power to revise, on the application of any aggrieved party, any order passed or proceedings taken under the Act by the authority, either the "Rent, Controller or the executing authority. There is an explanation to this section which is also very relevant for the purpose of this petition and that explanation reads:
"The jurisdiction of the High Court or District Court under this section shall extend also to orders passed on proceedings taken at any time within six months before the commencement of the Madras Buildings (Lease and Rent Control) Amending Act, 1951." The next section which is relevant is Section 18 but I do not think I need extract it here ; but the more important section that is very material is the one B.A. Woodman vs. Mrs. Regina Rajan (23.01.1952 -MADHC) Page 3 of 6 enacted as Section 20 which is to the following effect:
"Any rule or order made or deemed or purporting to have been made, any decision or direction given or deemed or purporting to have been given, any notification issued or deemed or purporting to have been issued, any action or proceeding taken or deemed or purporting to have been taken, or anything done or deemed or purporting to have been done.........shall be deemed to be a rule or order made, decision or direction given, notification issued, action or proceeding taken, or thing done, under the corresponding provisions of this Act." When E. P. No. 862 of 1951 was pending before the executing Court the tenant put in a petition E. A. No. 1772 of 1951 on 16-5-1951 praying that the Court may be pleased to cancel the warrant issued in E. A. No. 862 of 1951 on the ground that no order of eviction should be passed against him by virtue of the new provision under Section 7 (3A). His contention was that on a proper interpretation of Section 7(1) wherein it was stated that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section and while Section 7(3A) stated that no order for eviction shall be passed under Sub-section (3) against any tenant who has been notified by the State Government to be employed in an essential service, the order was unexecutable as against him and therefore the warrant should be cancelled. The learned City Civil Judge took the view that Section 7(1) of the Act refers only to eviction in execution of decrees and the decision in the case or order of eviction having been passed prior to the coming into force of Act 8 of 1951 there was no justification for him to cancel the order directing delivery of possession against the tenant. Against that order this revision petition has been preferred by the tenant.
(3.) The contention that is now raised before me by the learned counsel for the petitioner is that the order of the learned City Civil Judge is not sustainable by reason of the very provisions which he has failed to consider and whose effect he has simply brushed aside by stating that no reliance can be placed on Section 7(1) of the Act. That section does not merely contemplate eviction in execution of a decree but also contemplate eviction by other means and the word "otherwise" would certainly include orders by the Rent Controller as well. Even under orders passed by the Rent Controller, if eviction is to take place it must be in accordance only with the provisions laid down in Section 7(1) and one of the provisions laid down in the amended Section 7(3A) states that an employee who is notified to be of an 'essential service' cannot be evicted. The question is whether the City Civil Court, which is only executing an order of the Rent Controller passed long prior to the coming into force of the Act, can take notice of this statutory prohibition against eviction of an employee notified to belong to an essential service and pronounce that the order is not executable against such an employee. It is the contention of the learned counsel for the respondent that the City Civil Court, being simply an executing court, under Section 9 of the Act and being called upon to execute every order made under B.A. Woodman vs. Mrs. Regina Rajan (23.01.1952 -MADHC) Page 4 of 6 Section 7, or Section 8 and every order passed on appeal under Section 12, or in revision under Section 12B, as if it was a decree passed by the execution Court itself, will not be entitled to go behind the order of the Rent Controller wherein eviction of the tenant has already been ordered. It is the application of this section that is now in dispute. It has no doubt to be observed in the first instance that this civil revision petition is only against the order of the City Civil Judge passed on the application of the tenant in which the applicant claimed that he was entitled to the benefit of the statutory prohibition that has been enacted under Section 7 (3A) and that the execution Court should take notice of it. But actually the learned City Civil Judge has not proceeded on this simple point that as an executing Court it is not possible for him to hear an objection raised by the tenant which according to the learned counsel for the respondent should have been raised before the Rent Controller. The reasoning given by the learned Judge is different from the point that has now been raised by the learned counsel for the respondent before me. The point stressed by the learned counsel for the petitioner on the other hand is that though the order of the Rent Controller which was passed prior to the coming into force of Act 8 of 1951 might have been valid, still no proceeding could be taken under that order in view of the new Section 7(3A) that has been enacted and that by virtue of that section the order pronounced by the Rent Controller has become unexecutable, and therefore the learned City Civil Judge was not entitled to execute an order which had by law become void or illegal and by reason of that new law which has given the benefit to the tenant, the tenant cannot be asked to deliver vacant possession of the property in question. He further contends that he has acquired a statutory protection by virtue of the new section and therefore the executing Court was bound to consider the validity of the order originally passed and then give the tenant the protection under the new section. I think there is force in the contention of the petitioner's advocate when he says that the order which had been sought to be executed by the respondent was no more capable of being executed by virtue of the new law which has therefore become a nullity. His further contention is that under Section 24 of the Act any application made, appeal preferred or other proceeding instituted under the Act and pending at the commencement of Act 8 of 1951 shall be disposed of as if Act 8 of 1951 had been in force at the time when such application, appeal or proceeding was made, preferred or instituted. The effect of this section is that the application made by the petitioner should be deemed to have been made under this Act and the proceeding instituted by the respondent for evicting the tenant should also be deemed to have been pending at the time Act 8 of 1951 came into force and the application of the tenant and the landlady will have to be disposed of as if they were made under the Act as was amended by Act 8 of 1951 under which the tenant was given the protection that in so far as he is an employee in an essential service notified by the State Government, the eviction order shall not be executed against him.;
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