HAJEE ABDULLA SAIT Vs. K.D. MOORJANI AND ORS.

JUDGEMENT

(1.) The Appellant is the landlord, who brought a suit in ejectment. The lease dated February 20, 1954, related to a non -residential building. The rent was fixed at Rs. 195 per month. Madras Act XVIII of 1960 came into force on September 30, 1960 but it had no application to a non -residential building, the rental value of which exceeded a certain limit. The building in question far exceeded that limit and, therefore, was not then governed by the provisions of the Act. On February 20, 1961, the lease period came to an end. Then followed, on April 4, 1961, a notice by the Appellant terminating the tenancy on or before June 1, 1961, the receipt of which was duly acknowledged by the tenant on April 10, 1961. Since the tenant did not deliver possession the Appellant instituted in October 1961 the suit, out of which this appeal arises in the City Civil Court, Madras. On November 30, 1961, the suit ended in an ex -parte decree, and in execution of the decree, in February 1962, the Appellant took possession of the building on February 12, 1962, through a bailiff. Two days later, the Appellant entered into an agreement with a new tenant stipulating a rent of Rs. 450 per month. On May 5, 1962, an application, which had been filed by the tenant to set aside the ex -parte decree, was dismissed. At that stage, came into force Madras Act II of 1962, with effect from June 30, 1962. According to Sec. 2 of the Amending Act, a non -residential building or part thereof occupied by any one tenant would come within the purview of the Act if the rent he was liable to pay per month was less than Rs. 400. Sec. 3 had the effect of abating certain pending proceedings. We will refer to the Sec. presently. On October 29, 1962, a Civil Miscellaneous Appeal filed by the tenant was allowed and the suit for eviction was restored, and the Appellant's civil revision petition against the order in the Civil Miscellaneous Appeal was unsuccessful. There was an execution petition for restitution of possession. But this was held over by consent till the disposal of the suit. On February 8, 1964, the suit was decreed and the execution petition was dismissed. On June 10, 1964, came into force another Amending Act omitting altogether the exemption to non -residential buildings. There was a provision for abatement as in the 1962 Amending Act. But the decree for eviction was reversed in appeal on December 8, 1964, and the Civil Miscellaneous Appeal filed by the tenant was allowed, the result of which was, there was a direction for re -delivery. Thus, the second appeal comes before us against the appellate decree. We may mention that on January 3, 1967, pending disposal of the second appeal the tenant died, and in April 1967, his legal representatives were brought on record.

(2.) Mr. Chagla, who appears for the Appellant, contends that in view of the fact that the tenant died on January 3, 1967, and inasmuch as the tenancy agreement with him had been brought to an end by a notice to terminate the tenancy on and from June 1, 1961, and the suit being one in ejectment treating the tenant as a trespasser, the legal representatives of the deceased tenant are no longer entitled to any statutory protection inasmuch as such protection was but personal to the original tenant. In support of his contention, he relied on J.C. Chatterjee v/s. S.K. Tandon : A.I.R. 1972 S.C. 2526. That was a case under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. There, the Plaintiff had prayed for ejectment of the tenant of a residential premises on the ground that he required the premises bona fide for purposes of his residence and that of his family. The suit was contested by a denial that it was required for the purpose mentioned. The landlord, in the first instance, succeeded. But on appeal the decree of the trial Court was reversed by accepting the defence. The matter went up to the Rajasthan High Court in second appeal filed by the landlord. During the pendency of this appeal, the tenant died, and his widow and children were brought on record as his heirs and legal representatives. The widow too died later and her heirs were brought as her legal representatives. The High Court allowed the appeal on the view that the statutory protection available under the Rajasthan Act to the tenant was personal to him and after his death, his legal representatives could not set up as a defence to the suit in ejectment that in that capacity they were also entitled to the statutory protection. The Supreme Court, dealing with this question, observed:

(3.) That being so, the Court is entitled to take into account the altered circumstance at the hearing of the second appeal and direct eviction. Mr. Kesava Ayyangar for the legal representatives of the tenant stresses before us (1) that because of Sec. 3 of Madras Act II of 1962, the suit itself had abated and (2) that the language of the definition of tenant in Madras Act XVIII of 1960, made a difference and that, therefore, J.C. Chatterjee v/s. S.K. Tandon : A.I.R. 1972 S.C. 2526 was distinguishable. We have no hesitation in rejecting these contentions. As to the first, Sec. 3 of Madras Act II of 1962 is as follows: