the New Theaters (Carnatic Talkies) Ltd., Coimbatore v. N. Vajrapani Naidu

Judgment

The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave is directed against an order dated March 30, 1971 of the Madras High Court dismissing a , revision petition arising out of proceedings under the Madras City Tenants Protection Act, 1921. Almost fifty years ago, on September 19, 1934, the respondent and his mother gf8nted a lease in favour of one Abhirama Chettiar in respect of 50 cents of open land in Coimbatore for a period of twenty years on an annual rent of Rs. 1080 for the construction of a building suitable .for use as a theatre. Abhirama Chettiar constructed a theatre on the site. Subsequently, on July 14, 1937 Abhiram~ p 3J2 Chettiar assigned his rights to the appellant. The appellant attorned to the respondent and 'was accepted as· a tenant. In March, i 964, the respondent served notice upon tqe appellant calling upon it to · vacate the property and 5urrendcr vacant possession of the site..

The appellant refused to do so, and set up an oral agreement entitling it to an extension of the lease for a . further period of twenty years. The respondent filed a suit against the appellant for its ejectment. Shortly thereafter, the appellant filed a suit against the respondent for specific performance of an agreement to extend the lease. On January 16, 1957 the learned Subordinate Judge, Coimbatore, decreed the respondent's suit for possession with· mesnc profits and dismissed the appellant's suit. The appellant appealed to the High Court against the two decrees. · During the pendency .of the appeals the Madras City Tenants' Protection Act, 1921 was extended to the town of Coimbatore with effect from February 19, 1958: ·The appellant filed Civil Miscellaneous Petition No. 1835 of 1958 in the appeal arising put of the suit for ejectment and prayed for directions under s. 9 of the Act for the sale of tho.site to it.

The application was resisted by the respondent on tho ground that' s. 9 was void. On July 28, 1958 Panchapkesa Iyer J. passed the following order : "I declare that the petitioner is entitled to purchase the site concerned in the petition under Section 9 of the Act, bu.t on paying the full market value .current· today as freely undertaken by himself. The lower Court will 'appoint a suitable experienced commissioner to fix the value of the site based on the market value prevalent this da.Y (28th July 1958) .. The Commissioner's fees will 'be· paid by tho commissioner who will bear it himself. In this. petition all the parties will bear their own costs. As $OOn as this order becomes final the petitioner wm with~ draw A.S. No. JOO or 1957 and 255 or 1957 on the file or this Court, as infructuous as undertaken by. him, and they will then ~e dismissed without costs."

The petition was remitte.d by the learned Judge to the Subordinate Court, Coimbatore for appointing a Commissioner to fix the market value of the site. Against that order the respondent preferre,d a Letters Patent Appeal, which was dismissed. The respondent then appealed to the Supreme Court. By its judgment ·dated March 4, 1964, reported as N. Vajrapani Naidu and Another v. The New Theatre • • J j NEW THEATRES v. N.V. NAIDU (Pathak, J,) Carnatic Talkies Ltd., Coimbatore(!) the Supreme Court upheld the l judgment of Panchapakesa Iyer J. and dismissed the. appeal. Now during the pendency of the appeal in the Supreme Court, s. 9 of the Madras City Tenant's Protection published in the Fort St. George Gazette dated· July 27, 1960 Act was· amended by Madras Act No. XIII of 1960. Upon that, the respondent.filed two petitions in the High Court, C.M.P. No. 7241 of 1960 praying for t.he review and modification of the order dated July 28, 1958 in the light of ' the amended s. 9, and C.M P. No. 7242 of 1960 praying ·for stay of the enquiry directed by that order.· On April l, · 1964, upon the dismissal of the respondent's appeal in this Court, the High Court dismissed the appeals against the .decrees passed by· Panchapakesa Iyer J. as withdrawn:

The High 9ourt also transferred the C.M.P. ]'llos. 7241 and 7242 of 1960 to the trial court for consideration, and directed the trial court to fix the market value and pass· final orders in C.M.P. No. 1835 of 1958. The foarned Subordinate Judge belJ that the respondent was enti tied to the benefit qf the a~ended s. 9 of the Act, and directed the Commissioner to determine the minimum extent of land necessary for convenient eojoyment by the ·appellant to take steps for fixing the price thereof on the basis of the average market value of the three years imniediatcly preceding the date of its order. C.M.P. ,No. 7242 of 1960 was dismissed as superfluous. Against the order of the trial court the appellant filed an appeal in the court of the learned First Additional Judge, Coimbatore. The appeal was dismissed. Thereafter, the· appellant filed Civil Revision Petitibn No. 1883 of 1968 in the High Court, and on March 30, 1971 the High Court dismissed the Revision Petition.

The High Court affirmed that the case was governed by the amended s. · 9 of the Act, and rejected the contention of the appellant that C.M.P. No. 7241 of 1960 was not competent in the High Court as the order dated July 28, 1958 by Patfchapakesa Iyer J. had been confirmed by the Supreme Court, in appeal. Two contentions have been raised by the appellant in this appeal.. The. first is that the. amended s. 9 · of the Madras City Tenants' Protection. Act cannot be invoked in the present case, and ·that s. 9, as it stood before the aniendment, is· the provision which governs the rights of the parties. The other contention is that, in any event, the amended s. 9 should have been invoked in the appeal (\) (1964] 6 S.C.R,. 101~. 33.4 SUPREMB COURT REPORTS (198.4]

1 s.c.a. pending in this Court and the relief not having been sought there it was not open to the respondent \O seek relief after the appeal has , been disposed by this Court and the order of Panchapakesa Iyer J, had acquired finality. Before its amendment by Madras Act XIII of 1960, s. 9 provided as follows :- "9. (I) Any tenant who 'is entitled to compensation · under section 3 and against whom a suit in ejectm¢nt has been instituted or proceeding under section 41 of the Presidency Small Cause Courts Act 1882, taken by the landlord, may within one month of the date of the Madras City Tenants Protection (Amendment) Act, 1955, coming into force or of the date withl, effect from which this Act is extended to the municipal town or village' in . which the land is situated or within one month after the -service on ~ of summons, apply to the court for an order that the landlord shall be directed to sell the land for a price to be fixed by the court.

The court shall fiX the price according to the lowest market value prevalent within seven years preceding the date of . the order and shall order that, within a period to be determined by the court, not being less than three monihs and not more than three years from the date of the order, the tenant shall pay into court or otherwise as directed the price so fixed in one or more instalments with or without interest. (2) xx. xx XX I . (3) On payment of the price 1he court shall pass a final order directing the conveyance of the land by the landlord to the tenant. On such order being .made the suit or proceeding shall stand dismissed, and any decree or order in ejectment that may have been passed therein but which has not been executed shall be vacated."· Upon its amendment, s. 9 now reads ;- "9 (I) (a) Any tenant who is,entitled to compensation under section- 3 and against whom,a suit in ejectment has been instituted or proceeding . under section 41 of the .

Presidency Small Cause Courts Act, 1882, taken by the landlord, may within\>~ mo11th \lf the. d(te of Madras r NEW TilllA'rRES v. N.v. NAIDU (Pathak, J.) City Tenants, Protection (Amendment) Act, 1955 coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situated or within one month after the service i:>n him of summons apply to the court for an order that the landlord shall be directed to sell. for a price to be fixed by the court, the whole or part of, the extent of land speci· fled in the application . (b) on such application, the court shall first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. The court, shall then fix the price of the minimum extent of the land decided as aforesaid, or of the extent of the land specified in the application under clause (a) whichever ;is• less.

The price aforesaid shall be the average market value of the three years immediately preceding the date of the order. The court shall order that within a period to be determined by the court not being less than three' months and not more than three ye~rs from the date of the ·order, the teil'ant shall pay into court or otherwise as directed the price so fixed in one or more instalments with or without interest. (2) xx xx xx xx • (3) (a) on payment of the price fixed under clause (b) of sub-section (I) , the court shall. pass ~n order directing the conveyance by the landlord to the tenant of the extent of land for which the said price was fixed. The court shall by the same order direct the tenant to put the landlord into possession,of the remaining extent of the land, if any. The stamp duty and registration fee in respect of such conveyance shall be borne by the tenant. (b)

On the ·order referred to in clause (a) being made, the suit or proceeding shall stand dismissed, and any decree or order in ejectment that may have been ·passed therein bnt which has not been executed ·sliall be vacated." The question whether the case is governed by the unamended s.·9 or.the. amended s. 9 'turns on the consideration whether the amendment of s. 9. was intended to operate retrospectively or must 8 SUPREME COURT RBPORTs · ft984] l s.c.~. be construed as prospective ooly. Let us begin from the beginning. When the Madras City Tenants' Protection Act was extended to the town of Coimbatore in 1958, the respondent's suit for ejei:tment had already been filed' and in fact was pending in appeal. It was never disputed between the parties that s. 9 would operate retrospectively and affect the rights of the parties in the pending appeal. It was on that basis that the appellant applied to the court .for the benefit of the provisions of s. 9.

The A9t itself clearly laid down that ·S. 9 could be invo.ked in .a pending suit or proceeding, for s. IO declared . that s: 9, among other provisions, would "apply to suits in ejectment ........... which are pending ..... .. in the city of Madras before the commencement of the Madras City Tenants' Protection (Amendment) Aci, 1958; and in any m~nicipal town or village before th~ date with effect from which this Act is extended to such town or ' village." It is to enable a tenant to secure the benefit 'of s. 9 in a pending suit or proceeding that s. 9 (I) provides that such tenants may apply under that provision "wnhin one month 'of .the date of the Madras City Tenants' Protection (Amendment) Act, 1955 com· ing into force or of the date with effect fro!ll which this Ac( is extended to the municipal to\Vn vr village in which the land is situated ......... " This provision was necessary to enable s.

9 to govern pending suits and proceedings. the other provision in S/ 9 (!) providing that the period of one month would commence. from "the service on him of summons" applied to future suits·· and proceedings. · When the Madras Act XIII of 1969 amended the principal Act, it amenCled not only s. 9 thereof but s. IO · also. Section 10 was . amended in order that the amended provisions should apply to pen· ' ding ejectment suits and proceedings. The Legislature employed the same d~vice in respect of pending suits and proceedings as it bad when respect of pending suits and proceedings as it had . when the Act was originally applied to such suits and proceedings, the only' difference being that.while the original s. 10 ·referred to the then existing provisions of the Act, the amended s. 10 referred to the amended provisions, including the amended s. 9,' of the Act. It is. apparent from the provisions of the ·amended. s.

9 (1) .extracted . earlier that !be scheme respecting the tenant's right to purchase and the landlord's obligation to . sell, the land now stood modified. Whereas the original s. 9 (1) provided for the making of an appli• cation by the tenant within a specified .period to the court for an . order directing the landlord to sell the land for a price to be, fixed 1 NE\V TllEATRBS v: N.v. NAIDU (Pathak, J.) by the couri, and the courf was required to Di the price aceording to the lowest market value prevalent within seven years preceding the date of the order, and to order, within a period to be determined ·by the court, the tenant to pay into ~ourt or otherwis'e as directed the price so fixed; the amended s. 9 (I) is divided into. two clauses. Clause (a) entitles the tenant, within an identlcal period, to apply to the c91rl for an order reqJliring the landlord lo sell, for a price to be fixed by the court, the whole, or part ·of, the -extent of the land specified in the application.

The court can now direct the sale -of a-part.only of the land' mentioned in the application and is not compelled to pass an order in' respect of the entire land. Clause (b) provides that the court will first decide the minimum extent of the land necessary for convenient enjoyment liy the tenant, and there· after the court will fix the price of such minimum extent of !_and or - of the extent of the land specified in the application, whichever is less. Furthermore, the price is to be the average market -value of the three years immediately preceding the date of the order. We are cJear in our mind that if the s_uit was pending on the date when the _ amendments in the ptincipal Act were brought into force, the. amended provisions of the .Act will govern the disposal of_ the •uit; Now, the appellant had already filed C.M.P. No. 1835 of 1958 _praying for directions under s .. 9 for the sale of the· site.

Qn that' application Panchapakesa Iyer J. had passed an order dated July 28, 1958-holding the appellant entitled to purchase the site on paying the full market value current on that date, and had directed the trial court io appoint a Commissioner to fix the value of the site. The order did riot dispose of the application and the suit, for under the - original s_ 9· OJ the statute contemplated an order by_ the court, after it was satisfied that the tenant bad paid the price determine!! by it, directing the conveyance of thr laqd by the landlord to the tenant. I_t was only after such order was made that the application and the 'suit would stand concluded. In Gnanaprakasam and Another v. Mahboob Bi and others,(1) a learned Single Judge of the Madras High Co~rt held -that even where the original courJ had made an order / fixing the price o~ the land and directing its payment by the tenant, the application filed by ihe tenant could not be regarded as at an end so long as fina) orders directing execution -of coniieyance and deli· very of possession were not passed. -_The stage for passing such order · had not been reached yet when the principal Act was amended by - (1)

[196211 M.L.J. 254. 0 tl984) 1 s.c.lt Act XIII of 19.60. Th.e suit continued pending on the date when the amendments took effect. And consequently, it was now governed by the provisions of the amended s.9, We may reiterate that the order dated July 28,1958 did not complete the proceeding in the suit. It constituted one stage only in the suit, and inasmuch as thesuit was now to be disposed of in accordance with the amonded statute the incomplete proceeding had to give w~y to t~ the operatwn of the amended statute. As the scheme under ·the original section stood superseded by the scheme enacted under the amended sections· the order of July 28,1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the court . in order to dispose o( the suit. The respondent, therefore, filed C.M.P.No.7241 of 1960 praying for a review of the order dated July 28,1958 in the light of the amended s.9.

In other words, the court was now called upon to · disppse of the application of the appellant, not in t_he light of t b,.e provisions of the original s.9 but on the basis of the ·provisions of the amended s.9. We are of opinion ·that the trial court is right in taking the view, and the High Court in affirming it, that C.M.P. No. 1883 ·of 1968 and t,he suit had to be disposed of on the basis of the provisio.ns of the amended s.9. The contention to the contrary raised by the appellant must fail. We are also unable to accept the other contention of the appellant that the respondent should have invoked the benefit of the amended s. 9 in' the appeal pending in this Court, and that not having done so it was not open to the respondent 'to apply for relief in the court below after the appeal bad been disposed of by this Court: It is apparent that the scope of the appeal filed in this Court was restricted to the vailidity of s.9 and s. 12 of the unamended Madras City Tenants' Protection Act.

It must be remem· · bered that the order of Panchapakesa Iyer J, when gave rise to that ·appeal, was made before the Act was amended in 1960, and Ibis Court concerned itself. solely with the validity or the unamended statutory provisions. In fact, perusal of its judgment will show that this Court declined to consider the operation of the amendments brought about iif 1960. In the circumstances, it is· not possible to· urge that the respondent might; or ought to, have insisted on relief under the amended s.9. in the appeal pending in this Court. It was, 1 Nl!W j:'HEATRES v. N.VMNl\IDU (Pathak, J.) therefore, open to the respondent after the disposal of the appeal . by this Court to apply to the court below for an order in terms of the amended s.9. In the result, the appeal is dismissed with costs . N.V.U .. Appta/ dismissed. r