Civil Appeal No 1601 of 1971
Appeal by Special Leave from the Judgment and Order dated the 30th March 1971 of the Madras High Court in CRP No 19883 of 1968
TS Krishnamurthy Iyer Gopal Subramanium and Mrs Saroja Gopalakrishnan for the Appellant
P Govindan Nair Miss Seita Vaidyalingam and Mrs Baby Krishnan for the Respondent
The Judgment of the Court was delivered by PATHAK J
This appeal by special leave is directed against an order dated March 301971 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 granted 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 Abhirama 332 Chettiar assigned his rights to the appellant
The appellant attorned to the respondent and was accepted as a tenant
In March 1964 the respondent served notice upon the appellant calling upon it to vacate the property and surrender 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 mesne 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 out of the suit for ejectment and prayed for directions under section 9 of the Act for the sale of the site to it
The application was resisted by the respondent on the ground that section 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 but 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 day 28th July 1958
The Commissioner s fees will be paid by the commissioner who will bear it himself
In this petition all the parties will bear their own costs
As soon as this order becomes final the petitioner will withdraw AS No 100 of 1957 and 255 of 1957 on the file of this Court as infructuous as undertaken by him and they will then be dismissed without costs
 The petition was remitted 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 preferred 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 vs The New Theatre 333 Carnatic Talkies Ltd Coimbatore the Supreme Court upheld the judgment of Panchapakesa Iyer J and dismissed the appeal
Now during the pendency of the appeal in the Supreme Court section 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 CMP No 7241 of 1960 praying for the review and modification of the order dated July 28 1958 in the light of the amended section 9 and CMP No 7242 of 1960 praying for stay of the enquiry directed by that order
On April 1 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 Court also transferred the CMP Nos 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 CMP No 1835 of 1958
The learned Subordinate Judge held that the respondent was entitled to the benefit of the amended section 9 of the Act and directed the Commissioner to determine the minimum extent of land necessary for convenient enjoyment by the appellant to take steps for fixing the price thereof on the basis of the average market value of the three years immediately preceding the date of its order
CMP 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 Petition 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 section 9 of the Act and rejected the contention of the appellant that CMP No 7241 of 1960 was not competent in the High Court as the order dated July 28 1958 by Panchapakesa 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 section 9 of the Madras City Tenants  Protection Act cannot be invoked in the present case and that section 9 as it stood before the amendment is the provision which governs the rights of the parties
The other contention is that in any event the amended section 9 should have been invoked in the appeal 334 pending in this Court and the relief not having been sought there it was not open to the respondent to 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 section 9 provided as follows 9
1 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  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 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 on him 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 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 instalments with or without interest
2 XX XX XX 3 On payment of the price the 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 section 9 now reads 9 1 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  taken by the landlord may within one month of the date of Madras 335 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 on 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 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 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 instalments with or without interest
2 XX XX XX XX 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
 The question whether the case is governed by the unamended section 9 or the amended section 9 turns on the consideration whether the amendment of section 9 was intended to operate retrospectively or must 336 be construed as prospective only
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 ejectment had already been filed and in fact was pending in appeal
It was never disputed between the parties that section 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 section 9
The Act itself clearly laid down that section 9 could be invoked in a pending suit or proceeding for section 10 declared that section 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 Act 1958 and in any municipal town or village before the 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 section 9 in a pending suit or proceeding that section 9 1 provides that such tenants may apply under that provision within one month of the date of the Madras 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   This provision was necessary to enable section 9 to govern pending suits and proceedings
The other provision in section 9 1 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 1960 amended the principal Act it amended not only section 9 thereof but section 10 also
Section 10 was amended in order that the amended provisions should apply to pending ejectment suits and proceedings
The Legislature employed the same device in respect of pending suits and proceedings as it had 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 section 10 referred to the then existing provisions of the Act the amended section 10 referred to the amended provisions including the amended section 9 of the Act
It is apparent from the provisions of the amended section 9 1 extracted earlier that the scheme respecting the tenant s right to purchase and the landlord s obligation to sell the land now stood modified
Whereas the original section 9 1 provided for the making of an application 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 337 by the court and the court was required to fix the price according 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 court or otherwise as directed the price so fixed the amended section 9 1 is divided into two clauses
Clause a entitles the tenant within an identical period to apply to the court for an order requiring the landlord to 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 by the tenant and thereafter the court will fix the price of such minimum extent of land 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 clear in our mind that if the suit was pending on the date when the amendments in the principal Act were brought into force the amended provisions of the Act will govern the disposal of the suit
Now the appellant had already filed CMP No 1835 of 1958 praying for directions under section 9 for the sale of the site
On 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 to appoint a Commissioner to fix the value of the site
The order did not dispose of the application and the suit for under the original section 3 the statute contemplated an order by the court after it was satisfied that the tenant had paid the price determined by it directing the conveyance of the land by the landlord to the tenant
It was only after such order was made that the application and the suit would stand concluded
In Gnanaprakasam and Another vs Mahboob Bi and others a learned Single Judge of the Madras High Court held that even where the original court had made an order fixing the price of the land and directing its payment by the tenant the application filed by the tenant could not be regarded as at an end so long as final orders directing execution of conveyance and delivery of possession were not passed
The stage for passing such order had not been reached yet when the principal Act was amended by 338 Act XIII of 1960
The suit continued pending on the date when the amendments took effect
And consequently it was now governed by the provisions of the amended s9
We may reiterate that the order dated July 281958 did not complete the proceeding in the suit
It constituted one stage only in the suit and inasmuch as the suit was now to be disposed of in accordance with the amended statute the incomplete proceeding had to give way to the operation 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 281958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the court in order to dispose of the suit
The respondent therefore filed CMP No 7241 of 1960 praying for a review of the order dated July 281958 in the light of the amended s9
In other words the court was now called upon to dispose of the application of the appellant not in the light of the provisions of the original s9 but on the basis of the provisions of the amended s9
We are of opinion that the trial court is right in taking the view and the High Court in affirming it that CMP No 1883 of 1968 and the suit had to be disposed of on the basis of the provisions of the amended s9
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 section 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 had been disposed of by this Court
It is apparent that the scope of the appeal filed in this Court was restricted to the validity of s9 and section 12 of the unamended Madras City Tenants  Protection Act
It must be remembered that the order of Panchapakesa Iyer J when gave rise to that appeal was made before the Act was amended in 1960 and this Court concerned itself solely with the validity of 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 in 1960
In the circumstances it is not possible to urge that the respondent might or ought to have insisted on relief under the amended s9 in the appeal pending in this Court
It was 339 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 s9
In the result the appeal is dismissed with costs
NVU Appeal dismissed


Summary:
The respondent and his mother granted a lease in respect of an open site of land for a period of 20 years in favour of a person who constructed a theatre thereon and who later assigned his rights to the appellant and the appellant was accepted as a tenant by the respondent
The respondent subsequently served notice upon the appellant calling upon it to vacate the property and to surrender vacant possession of the site
The appellant refused and set up can oral agreement entitling it to an extension of the lease for a further period of 20 years
The respondent filed a suit for ejectment against the appellant and the appellant filed a suit for specific performance of an agreement to extend the lease
The subordinate Court decreed the respondent s suit for possession with mesne profits and dismissed the appellant s suit
The appellant appealed to the High Court against the two decrees and during their pendency the Madras City Tenants  Protection Act 1921 was extended to the town where the suit property was situated
The appellant thereupon filed a Civil Miscellaneous Petition in the appeal arising out of the suit for ejectment for directions under section 9 of the Act for sale of the site
This application was resisted by the respondent on the ground that section 9 was void
The High Court upheld the validity of the section declared the appellant entitled to purchase the site under section 9 and remitted the matter to the subordinate Court for appointment of a Commissioner to fix the market value of the site
Against that order the respondent preferred a Letters Patent Appeal which was dismissed and this order was confirmed by the Supreme Court
During the pendency of the appeal in this Court section 9 of the Madras City Tenants  Protection Act was amended by Madras Act No XIII of 1960
The respondent filed two Civil Miscellaneous Petitions in the High Court praying for review and modification of the earlier order in view of the amended section 9 and for stay of the valuation proceedings
330 After the dismissal of the respondent s appeal in the Supreme Court the High Court dismissed the pending appeals as withdrawn transferred the two Civil Miscellaneous Petitions to the trial court and directed it to fix the market value of the site and pass final orders
The subordinate Court held that the respondent was entitled to the benefit of the amended section 9 and directed the Commissioner to determine the minimum extent of land necessary for convenient enjoyment and fix the price on the basis of the average market value of the land during the three years immediately preceding the date of its order
The appeal to the District Court and the Civil Revision Petition in the High Court against this order were dismissed
In the appeal to this Court it was contended on behalf of the appellant that the amended section 9 of the Madras City Tenants  Protection Act could not be invoked and that section 9 as it stood before the amendment governed the rights of the parties and that in any event the amended section 9 should have been invoked in the appeal pending in the Supreme Court and that relief not having been sought there it was not open to the respondent to seek relief after the appeal had been disposed of by the Supreme Court
Dismissing the appeal the Court
HELD 1 i If the suit was pending on the date when the amendments in the principal Act Madras City Tenants  Protection Act 1921 were brought into force the amended provisions of the Act will govern the disposal of the suit
337 D ii The suit continued pending on the date when the principal Act was amended by Act XIII of 1960
Consequently it was governed by the provisions of the amended section 9
As the scheme under the original section stood superseded by the scheme enacted under the amended section the order of July 28 1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the Court to dispose of the suit
338 A B iiiWhen the Amendment Act XIII of 1960 amended the principal Act it amended not only section 9 thereof but section 10 also
Section 10 was amended in order that the amended provisions should apply to pending ejectment suits and proceedings
The provisions of the amended section 9 1 reveal that the scheme respecting the tenant s right to purchase and the landlord s obligation to sell the land stood modified
Whereas the original section 9 1 provided for the making of an application 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 by the court and court was required to fix the price according 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 court or otherwise as directed the price so fixed the amended section 9 1 is divided into two clauses
Clause a entitles the tenant within an identical period to apply to the court for an order requiring the landlord to sell for a price to be fixed by the court the whole or part of the extent of the land specified in the application
Clause b provides that the court will first decide the minimum extent of the land necessary for convenient enjoyment by the tenant and thereafter the 331 court will fix the price of such minimum extent of land or of the extent of the land specified in the application whichever is less
336 F H 336 H 337 C In the instant case the appellant had already filed Civil Miscellaneous Petition No 1835 of 1958 praying for directions under section 9 for the sale of the site
On that application the High Court passed an order dated July 281958 holding the appellant entitled to purchase the site on paying the full market value current on that date and had directed the trial court to appoint a Commissioner to fix the value of the site
That order did not dispose of the application and the suit for under the original section 93 the statute contemplated an order by the Court after it was satisfied that the tenant had paid the price determined by it directing the conveyance of the land by the landlord to the tenant
It was only after such an order was made that the application and the suit would stand concluded
337 E G 2
The scope of the earlier appeal filed in the Supreme Court was restricted to the validity of section 9 and 12 of the unamended Madras City Tenants  Protection Act and the Court declined to consider the operation of the amendments brought about in 1960
It was therefore open to respondent after the disposal of the appeal to apply to the court below for an order in terms of the amended section 9
338 F H 339 A