http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: S.A. RAMACHANDRAN

       Vs.

RESPONDENT: S. NEELAVATHY

DATE OF JUDGMENT:       20/12/1996

BENCH: KULDIP SINGH, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. SAGHIR AHMAD.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  the  respondent’s  second  appeal  was allowed and  the appellant  was directed  to be evicted from that plot. 2.   The suit  (O.S. No. 110 of 1981) which was filed by the respondent in  the court  of the District Munsif, Poonamalle tor 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 11 of the TamiI Nadu City Tenants’ Protection Act. 1921 (for short, the  Act) . The Sub-ordinate Judge. Poonamalle before who first  appeal (A.S.No.26  of  1988)  was  filed  by  the respondent, dismissed the appeal on 20.9.1989 and upheld the judgment of  the trial  court. The  respondent,  thereafter, filed second  appeal (25  of 1990 ) in the High Court which, as pointed  out above,  was allowed  by the High Court. by a judgment dated 5.4.1994 on the ground that the appellant had invoked the provisions of Section 9 of the Act by marking an application that the  property in dispute may be directed to object to  the institution  of the  suit without  issuing  a notice under section 11 of the act. 3.   It may  be pointed  out  the  appellant  bad  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 riled beyond time prescribed under the Act and consequently, he had filed a separate  application for condonation of 20 day’s delay in filing that  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  Act. Thereafter,  the appellant  who  had already filed  a  written  statement  in  the  suit,  sought permission of  the District  Munsif   to file  an additional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

written statement  in O.S. No. 110 of 1991 which was allowed and the  appellant filed the additional written statement in which he  raised the  plea that  the 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 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. 4.   The learned  counsel for  the appellant  has  contended that the  judgment passed  by High Court is erroneous as the appellant was  not permitted  by the  court itself to invoke the provision  Section 9  as his application for condonation of delay  was rejected  by the  trial court  and  the  trial court’s judgment  was upheld  by the  High Court.  The  High Court was, therefore, in error in invoking the principles of waiver and decreeing the suit of the respondent for his eviction.  The   respondent’s  counsel,   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 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  be  entitled  to  be  as      compensation  the   value  of   any      building,  which   may  have   been      erected  by  him,  by  any  of  his      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 the land  Land 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-      [(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,      1982, taken  by the  landlord  may,      (Amendment) Act, 1979, in the Tamil      Nadu Government  Gazette or  of the      date with  effect form  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      summons; apply  to the Court for an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

    order that  the landlord  shall  be      directed [to sell for a price to be      fixed by  the Court,  the whole  or      pat  of,   the   extent   of   land      specified in the application.]      (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    form    the    date    of      the publication  of the Madras city      Tenants’   Protection   (Amendment)      Act,  1973   apply  to   the  court      (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  of      whether  or   not  such   suit   or      proceeding   is    pending   having      jurisdiction to  entertain  a  suit      for ejectment  or in  the  city  of      Madras either  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 of      the 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      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 be  determined by  the  Court,      not being  less than  three  months      and not  more than three years form      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) In  default of  payment by  the      tenant of  any one  instalment, the      application  under  Clause  (a)  of      sub-Section   (1)    shall    stand      dismissed.   Provided    that    on      sufficient cause  being shown,  the      Court may excuse the delay and pass

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

    such orders  as it  may think  fit,      but 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 instalments, 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)  of  sub-      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) 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.]      6. Section 11 provides as under :      "Notice before institution of suits      or application  against tenants- No      suits in  ejectment or applications      under Section  41 of the Presidency      small  causes   Courts  Act,  1882,      shall be  instituted  or  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,  and offering  to pay      compensation for  the building  and      trees,  if   any  and  stating  the      amount thereof.      [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 Commissioner of the      Corporation 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      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  filed may apply to the court for an order that the landlord be directed to sell, for a price to be fixed by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

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   the  instalments,  his application for  sale of the property shall stand dismissed. Otherwise the court would direct the landlord to execute the 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 instituted  against the tenant without first giving him a notice, in writing, requiring him to  surrender  possession  of  the  land  and  building  and offering to  pay compensation for the building and trees and stating  clearly   the  amount   offered  therefor.  Another prohibition 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  it a  suit is  instituted  without giving notice  or if a notice is given but the suit is filed therefore the  expiry  of  three  months,  it  would  be  in violation 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 opened upon  giving a notice to the tenant and waiting for a period of three months before instituting the suit. 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. 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 directly drawn into litigation before a court.  If an  opportunity is  given to  him to  surrender possession with  offer that he would be duly compensated 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 to quit. 11.  If he  decides to  contest the  suit instituted against him, he  gets another opportunity under Section 5 of the Act by making an application to the court for a direction to the landlord to  sell the  property in  how 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  contemplated 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 respondent 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  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  vs. Duraiswami  Mudalair,(1950) 1  M.L.J. 732  to   come  to  the  conclusion  that  by  invoking  the provisions of  Section 9,  the appellant waived his right to object for  want to  notice under  Section 11. In that case,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

the High Court has relied upon the Privacy Council  decision in Vellayan  Chettiar vs.  The Government of Madras, 74 I.A. 223 =  AIR 1947  PC 197  in  which  it  was  held  that  the requirement of  a notice  under  Section  80  C.P.C.  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  vs.  Tirupathi Chettiar,  (1966)   1  M.L.J.   206.    In  Ranganatham  vs. Mariappa,(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 not  to  entertain  a  suit  for  ejectment  in  absence  of compliance with  its provisions.  These decisions  as also a few others were considered by a Division bench of the Madras High Court  in Sri  Agatheeswarar Prasanna Venkatesu Perumal Devasthanam by  its hereditary  Trustee P.Valliammal  vs. M. Narsimhan, (1982)  2 M.L.J.  70 and  it was  laid down  that although the 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 impliedly by 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 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 requirements under  Section 11  cannot be  compared with the requirements under  Section 80  C.P.C. The right of a tenant who may, if not always, be a poor tenant, cannot be compared with the  mighty Governments  regarding  whom  it  has  been observed times  out of number by the courts that they should not litigate  with  their  citizens  on  technicalities  and should not  endeavour to  defeat the  suit by  pleading  the technical questions,  as for  example, want  to notice under Section 80 C.P.C. or limitation in cases which are eminently just, proper  and equitable.  The Act essentially is for the protection for  the tenants  whereas no  such protection for the Government  is contemplated by Section 80 of the code of Civil Procedure.  But without entering into 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 appellants  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  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 to  have taken advantage of Section 9 of the Act and  consequently. it  cannot be said that by filling 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 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/-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7