Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act – exemption G.O. – waiver – res judicata – Society purchased a Building – and filed an eviction suit under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the same was dismissed for default – As per sec.29 there is a Go exempting the building of Societies from Rent control proceedings – As per the G.O. , suit for eviction and damages was filed – objection as to maintainability on the ground of Waiver and on the ground of Res judicata – Lower court decreed the suit – appellant court set aside the order of Lower court and dismissed the suit – their Lordships of High court held that Wavier does not arise against Statutory remedies – nor consent confer jurisdiction over the court- and held that res judicata not arise when the rent controller has no jurisdiction over the case as per G.O. – and as such set aside the order of appellant court and confirm the orders of lower court by allowing second appeal =
G.O. Ms.No.II (2)/HO/6060/76 which states that in exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960), the Government of Tamil Nadu hereby exempts the buildings owned by all Government undertakings including Government Companies registered under the Indian Companies Act, 1956 (Central Act 1 of 1956) and by all the Co-operative Societies, from all the provisions of the said Act. =
11. The plaintiff being a Co-operative Society registered under the Tamil Nadu Co-operative Societies Act contended that Rent Control Act is not applicable, only the suit is maintainable under the Transfer of Property Act. Accordingly, the statutory notice under Section 106 of Transfer of Property Act was issued to the respondent on 06.03.2003, terminating the tenancy.
whether the suit filed by the plaintiff is maintainable, in view of the fact that they have already exercised their right and submitted to proceedings under the Rent Control Act.
Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act deals with the exemptions, which is quoted below:
29. Exemptions Notwithstanding anything contained in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any building or class of buildings from all or any of the provisions of this Act.
when a benefit or privilege conferred upon a person it can always be waived unless the statute imposes a bar from contracting out. If a particular owner did not wish to avail of the benefit of that Section there was no bar created by it in the way of his waiving or giving up the advantage or benefit contemplated by the Section.
whether the filing of the suit is barred by res judicata, in view of the Rent Control proceedings initiated earlier. It is contended that once by the Government order, the Co-operative Society has exempted from the purview of the Rent Control Act and therefore an order passed by the Rent Controller would be a nullity.
In the present case, it is contended that parties who were at logger heads before the Rent Control Tribunal are the same parties contesting each other in the suit. The landlord as a petitioner before the Rent Control Authorities though exempted from the purview of the Rent Control Act, filed the petition for eviction. The first defendant/tenant also had not raised any objection regarding the maintainability of the RCOP and suffered an order fixing the fair rent. No doubt, the petitions filed for eviction on various grounds, were dismissed for default. Now when the suit is filed by the plaintiff for eviction of the tenant invoking the Transfer of Property Act, the tenant is making a hue and cry about the applicability of the Act, waiver, etc. It can be seen that though the plaintiff had filed the earlier proceedings under the Rent Control Act, it was dismissed for default and the plaintiff/ landlord had not taken any executable order. Mere filing of the RCOP by the landlord, cannot be said that he has waived his right to file a suit subsequently. Even in the cause of action paragraph, the plaintiff has stated that cause of action for the suit arose on 30.06.1989, when the plaintiff purchased the property and on subsequent dates, when the plaintiff issued notice seeking eviction of the first defendant and on the date on which the plaintiff filed eviction petition against first defendant on 20.12.1999, when the eviction petition was dismissed and again on 06.03.2003, when the plaintiff issued statutory notice terminating the tenancy. Once it is held that the building is exempted as per the G.O., the Rent Controller will not have jurisdiction to pass any order. Even though the plaintiff had filed R.C.O.P. for eviction, they were only dismissed for default and there was no merited order for eviction. When the RCOP. was dismissed for non-prosecution, it is not a decision on merit. Consequently the said order cannot operate as res judicata. Therefore, the appellant is not precluded from filing a fresh suit for eviction under the Transfer of Property Act because the act of filing of RCOP. does not amount to waiver and the right to sue by the plaintiff is not lost.
2014( Feb. Part) judis.nic.in/judis_chennai/filename=45260