Supreme Court of India

SA. RAMACHANDRANversusS. NEELAVATHY

Citation: 1996 INSC 1526
Decided: 20 December 1996
Disposal: Appeal(s) allowed
Bench: KULDIP SINGH

Holding

The Supreme Court held that the tenant did not waive his right to object; the notice and waiting period under Section 11 are mandatory conditions precedent that cannot be waived, and the High Court's finding of waiver was erroneous.

Summary

The appellant, a tenant, occupied a plot owned by the respondent and raised super‑structures. The respondent filed an eviction suit without first giving the tenant a written notice and observing the three‑month waiting period required under Section 11 of the Tamil Nadu City Tenant's Protection Act, 1921. The trial court dismissed the suit for this non‑compliance, but the High Court reversed, holding that the tenant had waived his right to object by having filed an application under Section 9 of the Act, even though that application was filed out of time and the condonation of delay was rejected. The Supreme Court examined whether the filing of a Section 9 application, which could not be entertained, amounted to a waiver of the statutory notice requirement. It held that the requirements of Section 11 are mandatory conditions precedent that cannot be waived, and since the tenant was never permitted to invoke Section 9, no waiver occurred. Consequently, the High Court’s decision was set aside, the trial court’s dismissal was restored, and the suit was dismissed with costs.

Issues considered

Whether filing an out‑of‑time application under Section 9 of the Tamil Nadu City Tenant's Protection Act, 1921, and its subsequent rejection amounts to a waiver of the tenant's right to object to the non‑compliance with Section 11 notice requirements.
Whether the notice and three‑month waiting period prescribed in Section 11 are mandatory conditions precedent that can be waived by the tenant, either expressly or impliedly.
Whether the principle of waiver as applied in cases involving governmental notices under Section 80 of the CPC is applicable to the tenant‑protection statute.
Whether the tenant could invoke Section 9 after the condonation of delay was denied.

Legislation cited

Subjects

evictiontenant protectionSection 11 notice requirementwaiverSection 9 applicationconditions precedentrent controlTamil Nadu

Judgment

A SA. RAMACHANDRAN
v.
S. NEELAVATHY

DECEMBER 20, 1996

B (KULDIP SINGH AND S. SAGHIR AHMAD, JJ.]

Rent Control Laws: Tamil Nadu City Tenant's Protection Act, 1921:
Section 3,9 and 11-Suit for Eviction-Tenant directed to be evicted-Right
to object-Waiver of-Earlier the tenant filed application under Section 9-Ap-
C plication rejected being beyond time-Separate application for condonation
of delay in filing the application also rejected-Tenant unable to invoke Sec-
tion 9-Application of the principle of waiver by the High Court against the
tenant-Validity of-Held, requirements under Section 11 are in the nature of
conditions precedent, their non-compliance will render suit liable to be dis-
D missed at the threshold-Since the application was rejected being beyond time,
tenant cannot be said to have waived his right to object to the imgularity or
illegality in the institution of the suit:

Code of Civil Procedure, 1908: Section Bo-/ntent of-Explained
vis-a-vis Section 11 of Tamil Nadu City Tenant's Protection Act, 1921.
E Appellant was a tenant on a plot owned by the respondent, A suit for
eviction of. the appellant was field by the Respondent. 'The suit was dis-
missed on the ground that it was instituted without first issuing notice to
the appellant under Section 11 of the Tamil Nadu City Tenant's Protection
Act, 1921. The first appellate Court dismissed the appeal of the respon-
F dent. The second appeals was allowed by the High Court on the ground
that the appellant by invoking the provisions of Section 9 of the Act by
making an application that the property in dispute may be directed to be
sold in his favour had waived his right to object to the institution of the
suit without issuing a notice under Section 11 of the Act.
G Earlier,the appellant had filed an application under Section 9 of the
Act for a direction of the respondent to sell the property in question for a
price to be fixed by the Court. As the application had been filed beyond
time, he had filed a separate application for condonation of delay. This
application for condonation was rejected by the Trial Court, the Civil
H Revision against which was dismissed by the High Court. The result was
870
S.A RAMACHANDRAN v. S. NEELAVA1HY 871

that the appellant could not invoke Section 9 of the Act. A
In appeal to this Court, on behalf of the appellant it was contended
that the appellant was not permitted by the Court to· invoke Section 9 as
his application for condonation of delay was rejected by the Trial Court
and the Triai Court's judgment was upheld by the High Court. The High
Court, therefore, was in error in invoking the principle of waiver. B

On behalf of the respondent it was contended that the appellant had
preferred to take advantage of the institution of the suit and had made an
application under Section 9 of the Act (though beyond time) and, therefore,
he could not invoke Section 11 and contend that the suit was not main- C
tainable for want of notice.

Allowing the appeal, this Court

HELD : 1.1 Section 11 of the Tamil Nadu City Tenant's Protection
Act, 1921 provides that no suit for ejectment shall be instituted against the D
tenant without first giving him a notice, in writing. Another prohibition is
that the suit shall not be instituted until the expiration of three months next
after notice in writing has been given to the tenant. It is obvious that if a suit
/ is instituted without giving notice or if a notice is given but the suit filed
,_
before the expiry of three months, it would be in violition of the prohibitions E
set-out in Section 11 and sUch a suit cannot proceed. [877-A-D]

1.2 The prohibitions set out in the Section work against the plaintiff.
They also create a right in favour of the tenant so that he may not be
directly drawn into litigation before a court. If an opportunity is given to
him to surrender possession with the offer that he would be duly compen- F
sated for the building and the trees and the amount of compensation is
· also disclosed to him, he may, during the period of three months, before
the expiry of which the suit cannot be instituted, consider the offer and
decide whether to litigate with the landlord or quit. If he decides to contest
the suit, he gets another opportunity under Section 9 by making an G
application to the Court for a direction to the landlord to sell the property
in his favour for a price which may be fixed by the Court. [877-E-G]

2.1 The requirements under Section 11 are in the nature of condi-
tions precedent which have to be complied with before instituting a suit,
the non-compl-iance would he fatal and such suit would be liable to be H
872 SUPREME COURT REPORTS(1996J SUPP. 10 S.C.R.

A dismissed at the threshold. [878-G]
2.2 The requirements under Section 11 cannot be compared with the
requirements under Section 80 C.P.C. The right of a tenant who may be
poor cannot be compared with the mighty Governments regarding whom it
has been observed times out of number by the Courts that they should not
B litigate with their citizens on technicalities and should not endeavour to
defeat the suit by pleading technical questions, as for example, want of
notice under Section 80 C.P.C. or limitation in cases which are eminently
just, proper and equitable. [878-G; 879-B]

C Vedachal Naicker v. Duraiswami Mudalair, (1950)1 M.LJ. 732; Vel-
layan Chettiar v. The Government of Madras, 74 I.A. 223 AIR (1947) PC 197;
Mohamed Hussain Rowther v. Tirnpathi Chettiar, (1966) 1M.LJ.206; Ran-
ganatham v. Mariappa, (1942) 1 M.LJ. 92 AIR (1942) Madras 334, and Sri
Agatheeswarar Prasanna Venkatesa Pernmal Devasthnam by its Hereditary
Trnstee P. Valliamal v. M.Narasimhan, (1982) 2 M.LJ. 70, referred to.
D
3. In the instant case, on facts there is no waiver, since, the applica-
tion filed by the appellant was beyond time and was rejected, the appellant
cannot be said to have taken advantage of Section 9 of the Act and
consequently, it cannot be said that by filing an application under Section
9 he waived his right to object to the irregularity 11r illegality in the
E institution of the suit. [879-B; 879-D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8760 of
1994.

F From the Judgment and Order dated 5.4.94 of the Madras High
Court in S.A. No. 52 of 1990.

. R.K Jain and S. Menon for the Appellant.

M. Kalyansundram and M.A. Krishnamoorthy for the Respondent.
G The Judgment of the Court was delivered by

S. SAGHIR AHMED, J. The appellant who is the tenant of a vacant
plot of land owned by the respondent has approached this Court against
the judgment dated 5.4.1994 passed by the Madras High Court by which
H the respondent's second appeal was allowed and the appellant was directed
S.A. RAMACHANDRAN v. S. NEELAVATHY [S. SAGHIRAHMAD,J.] 873

to be evicted from that plot. A

2. The Suit (O.S. No. 110 of 1981) which was filed by the respondent
in the court of. the District Munsif, Poonamalle for the eviction of the
appellant was dismissed by that court on 5.5.1988 on the ground that the
suit was instituted without first issuing notice to the appellant under Section B
11 of the Tamil Nadu City Tenant's protection Act. 1921 (for short. the
Act). The Sub-ordinate Judge, Poonamalle before whom first appeal (A.S.
No. 26 of 1989) was filed by the respondent, dismissed the appeal on 20.
9. 1989 and upheld the judgment of the trial court. The respondent,
thereafter, field second appeal (25 of 1990) in the High Court which, as
pointed out abvve, was allowed by the High Court by the Judgment dated C
.5.4.1994 on the ground that the appellant had invoked the provisions of
Section 9 0f the Act by making an application that the property in dispute
may be directed to be sold in his favour and has thus waived his right to
object to the institution of the suit without issuing a notice under Section
11 of the Act.
D
3. It may be pointed out that the appellant had filed an application
under Section 9 of the Act for a direction to the respondent to sell the
property in question on a price to be fixed by the Court. The application
was filed beyond time prescribed under the Act and consequently, he had
filed a separate application for condonation of 20 days delay in filing that E
application. The application for condonation of delay was rejected by the
District Munsif by his order dated 12.7.1982 against which the appellant
filed a Civil Revision (C.R.P. No. 1349 of 1983) in the High Court of
Madras which by its order dated 9.9 .83 dismissed the Revision with the
result that the appellant could not invoke the provisions of Section 9 of the F
Act. Thereafter, the appellant, who had already filled a written statement
in the suit, sought permission of the District Munsif to file an additional
written statement in O.S. No. 110 of 1981 which was allowed and the
appellant filed the additional written statement in which he raised the plea
that suit instituted by the respondent was not maintainable for want of
notice under Section 11 of the Act. This plea, as pointed out earlier, was G
accepted by the trial court as well as by the first appellate Court. But the
High Court in second appeal reversed the judgment and held that the
appellant having waived his right to object to the maintainability of the suit
for want of notice under Section 11 of the Act was liable to be evicted from
the plot in question over which he had, admittedly, raised super-structures. H
874 SUPREME COURT REPORTS(l996] SUPP. 10 S.<;.R.

A 4. The learned counsel for the appellant has contended that the
judgment passed by the High Court is erroneous as the appellant was not
permitted by the court itself to invoke the provisions of Section 9 as his
application for condonation of delay was rejected by the trial court and the
trial court's judgment ws upheld by the High Court. The High Court was, .-
B therefore, in error in invoking the principles of waiver and decreeing the
suit of the respondent for his eviction. The respondent's couns,el, on the
contrary, contended that the appellant had preferred to take advantage of
the institution of the suit and had made an application under Section 9 of
the Act (though beyond time) for a direction for the sale of the property
in his favour and, therefore, he could not invoke the provisions of Section
C 11 and contend that the suit was not maintainable for want of notice under
that Section was not given to him. Section 3 of the Act provides as under:

"3. Payment of compensation on ejectment"-Every tenant shall on
ejectment
I
be entitled to be as compensation the value of any
building, which may have been erected by him, by any of his
D predecessors-in-interest, or by any person not in occupation at the
time of the ejectment who derived title from either of them and
for which compensation has not already been paid. A tenant who
is entitled to compensation for the value of any building shall also
be paid the value of trees which may have been planted by him on
E the land (and of any improvements which may have been made by
him.)"

5. Section 9 provides as under :

"Application of Court for directing the landlord to sell land-
F
[(1) (a) (i) 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 Causes
Courts Act. 1882, taken by the landlord may, [within one month
of the date of the publication of Madras City tenants, Protection
G (Amendment) Act, 1978, if the Tamil Nadu Government Gazette
of the the date with effect from which this Act is extended to the
municipal town, township or village in which the land is situate or
within. [One month] after the service on him of summory; apply
to the Court for an order that the landlord shall be directed [to
H sell for a price to be fixed by the Court, the whole or part of, the
SA RAMACHANDRAN v. S. NEELAVATHY [S. SAGHIR AHMAD, J.] 875

extent of land specified in the application.] A
(ii) Notwithstanding anything contained in clause (a) (i) of this
sub-Section, any such tenant as is referred to in sub-Clause (ii) (b)
of Clause (4) sub-Section 2 or his heirs, may within a period of
two months from the date of the publication of the Madras City
Tenants Protection (Amendment) Act. 1973 apply to the Court B
(Whether or not a suit for ejectment has been instituted or
proceeding under Section 41 of the Presidency Small Cause Courts
Act. 1882 (Central Act XV of 1882) has been taken by the landlord
or whether or not such suit proceeding is pending having jurisdic-
tion to entertain a suit for ejectment or in the Cit/ of Madras either C
to such Court or to the Presidency Small Cause Court, for an
order that the landlord under the tenancy agreement shall be
directed to sell for a price to be fixed by the Court the whole or
part of the extent of land specified in the application.

[(b) On such application, the Court shall first decide the minimum D
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 E
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
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 install-
ments with or without interest.] F

(2) In default of payment by the tenant of any one instalment, the
application under Clause (a) of sub-Section (1) shall stand dis-
missed. Provided that on sufficient cause being shown, the Court
may excuse the delay and pass such orders as it may think fit, but G
not so as to extend the time for payment beyond three years above
mentioned. On the application being dismissed, the Court shall
order the amount of the instalment or installments, if any, paid by
the tenant to be re-paid to him without any interest.

[(3) (a) On payment of the price fixed under Clause (b) or sub- H
876 SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R

A Section (1) the Court shall pass an 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
(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 but which has not
been executed shall be vacated.]
c 6. Section 11 Provides as under:-

"Notice before institution of suits or applications against tenants-
No suits in ejectment or applications under Section 41 of the
Presidency Small Causes Courts Act, 1882, shall be instituted or
D presented against a tenant until the expiration of three months next
after notice in writing has been giving to him requiring him to
surrender possession of the land and building, arid offering to pay
compensation for the building and trees, if any and stating the
amount thereof.
E A copy of such notice shall at the same time be sent, in the
case of property situated in the City of Madras, to the Commis-
sioner or the City of Madras, or in the case of property situated
in any municipal town, (township) or village to which this Act is
extended, to the executive officer of the panchayat, as the case may
F be or any other authority as may be notified by the Government."

7. The appellant is the tenant of a plot of land over which he raised
super-structures and consequently, he is entitled to compensation. Section
9 which has been reproduced above indicates that a tenant who is entitled
to compensation under Section 3 and against whom suit for ejectment is
G filed may apply to the court for an order that the landlord be directed to
sell, for a price to be fixed by the court, the whole or part of the land
specified in the application. The court shall, then, fix the price and direct
the tenant to pay the price in one or more instalments with or without
interest. If, however, the tenant commits any default in payment of any of
H the instalments, his application for sale of the property shall stand dis-

/
S.A RAMACHANDRANv. S. NEELAVATHY [S. SAGHIRAHMAD,J.] 877

missed. Otherwise the court would direct the landlord to execute the A
~conveyance in favour of the tenant.

8. Section 11 contains the prohibition to the institution of the suit for
ejectment. It specifically provides that no suit for ejectment shall be in-
stituted against the tenant without first giving him a notice, in writing,
requiring him to surrender possession of the land and building and offering B
to pay compensation for the building and trees and stating clearly the
amount offered therefor. Another prohibition is that the suit shall not be
instituted until the expiration of three months next after notice in writing
has been given to the tenant.

9. It is obvious that if a suit is instituted without giving notice or if a
c
notice is given but the suit is filed before the expirty of three months, it
would be in violaton of the prohibitions set out in Section 11. Such a suit
cannot proceed. Even the cause of action, which consists of a bundle of
facts, apart from other facts, would depend upon giving a notice to the
tenant and waiting for a period of three months before instituting the suit. D
From the tenor of Section 11, it appears that in every suit instituted under
Section 11 of the Act, it will have to be mentioned in the plaint that the
plaintiff had given a notice (contemplated by that Section) in writing to the
tenant and that the suit was being instituted after the expiry of three months
from the notice. E
10. The prohibitions set out in the Section work against the plaintiff.
They also create a right in favour of the tenant so that he may not be
directly drawn into litigation before a court. If an opportunity is given to
him to surrender possession with the offer that he would be duly compen-
sated for the building and the trees and the amount of compensation is F
also disclosed to him, he may, during the period of three months, before
the expiry of which the suit cannot be instituted, consider the offer and
decide whether to litigate with the landlord or to quit.

11. If he decides to contest the suit instituted against him, he gets G
another opportunity under Section 9 of the Act by making an application
to the court for a direction to the landlord to sell the property in his favour
for a price which may be fixed by the court.

12. The High Court after having come to the conclusion that the
provisions of Section 11 were mandatory has held that the notice con- H
878 SUPREME COURT REPORTS[l996] SUPP.10 S.C.R.

A templated by Section 11 of the Act which is required to be given to the
tenant can be waived expressly or impliedly by the tenant by his conduct
and it is on the ground of waiver that the High Court has, in the instant
case, interferred and decreed the suit of the resporident for the appellant's
eviction from the premises in question as the High Court was of the opinion
that the appellant having made an application under Section 9, waived his
B right to object to the institution of suit which, admittedly, was filed without
giving notice contemplated by Section 11 of the Act.

13. The High Court has relied upon its earlier decision in vedachala
Naicker v. Durajswami, (1950) 1 M.L.J. 732 to come to the conclusion that
C by invoking the provisions of Section 9, the appellant waived his right to
object to the institution of suit for want of notice under Section 11. In that
case, the High Court has relied upon the Privy Council decision in Vellayan
Chettiar v. The Govemment of Madras, 74 I.A. 223, = AIR (1947) PC 197
in which it was held that the requirement a notice under Section 80 C.P.C
D before instituting a suit against the Government can be waived by the
Government. A similar view was also taken by the Madras High Court in
Mohamed Hussain Rowther v. Timpathi Chettiar, (1966) 1 M.L.J. 206. In
Ranganatham v. Maiiappa, (1942) 1 M.L.J 92 = AIR (1942) Madras 334,
it was held by Patanjali Sastri, J. (as he then was) that Section 11 was
mandatory and imposed an unqualified obligation upon the court not to
E entertain a suit for ejectment in the absence of compliances with its
provisions. These decisions as also a few others were considered by a
Division Bench of the Madras High Court in Sri Agatheeswrar Prasanna
Venkatesa Perumal Devasthanam by its hereditary Trustee P. Valliammal v.
M.Narasimhan, (1982) 2 M.L.J. 70 and it was laid down that although the
p provisions of Section 11 were mandatory and the suit for ejectment of the
tenant could not be instituted without a prior notice, the requirement of
notice could be waived by the tenant expressly or impliedely b~· his conduct.

14. We are of the view that since the requirements under Section 11
are in the nature of conditions precedent which had to be complied with
G before instituting a suit in a court, the non- compliance would be fatal and
such suit would be liable to be dismissed at the threshold. The require-
ments under Section 11 cannot be compared with the requirements under
Section 80 C.P.C. The right of the tenant who may, if not always. be a poor
tenant, cannot be compared with the mighty Government regarding whom
H it has been observed times out of number by the courts that they should
S.A RAMACHANDRAN v. S. NEELAVATHY [S. SAGHIR AHMAD, J.] 879

not litigate with their citizens on technicalities and should not endeavour A
to defeat the suit by pleading the technical questions, as for example, want
of notice under Section 80 C.P.C. or limitation in cases which are eminently
just, proper an<i equitable. The Act essentially is for the protection of the
tenants whereas no such protection for the Government is contemplated
by Section 80 of the Code of Civil Procedure. But without entering into B
this controversy any further and leaving the question of waiver open, we
may, in this case, observe that on facts there is no waiver.

15. The appellant, in the instant case, at no stage, was allowed to
invoke the provisions of Section 9 of the Act as he had filed an application
under that Section beyond time. His application for condonation of delay C
was rejected not only by the trial court but also by the High Court in
Revision. The occasion to invoke the provisions of Section 9, therefore, did
not come. In the meantime, the appellant filed the additional written
statement and pleaded that the suit was liable to be dismissed for want of
notice under Section 11 of the Act. Since the application filed by the
appellant was beyond time and was rejected, the appellant cannot be said D
to have taken advantage of Section 9 of the Act and consequently, it cannot
be said that by filing an application under Section 9, he waived his right to
object to the irregularity or illegality in the institution of the suit.

16. For the reasons stated above, the appeal is allowed and the E
judgment and order dated 5.4.1994 passed in the second appeal by the
High Court is set aside and those of the trial court and the Sub-ordinate
judge (Appellate Court) are restored and the suit of the respondent is
dismissed with costs which are quantified at Rs. 15,000.

S.S. Appeal allowed.

Search Indian case law

Ask in plain English, not just keywords. 25,000 AI words free, no card.

Try "eviction"Sign in to search