Skip to content


Gudivada Jagannadham Vs. A.S. Krishna and Co., Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Miscellaneous Petition No. 9258 of 1950
Judge
Reported inAIR1953Mad208; (1952)1MLJ156
ActsMadras Buildings (Lease and Rent Control) Act, 1949 - Sections 10; Code of Civil Procedure (CPC) , 1908 - Sections 11
AppellantGudivada Jagannadham
RespondentA.S. Krishna and Co., Ltd. and anr.
Appellant AdvocateV. Sulvamaniam and ;V. Ramakrishna, Advs.
Respondent AdvocateK. Rajah Ayyar and ;A.V. Krishna Rao, Advs.
Cases ReferredMiss Revathi v. Venkataraman
Excerpt:
- .....of the additional subordinate judge of guntur made in an appeal filed against the order of the rent controller of guntur.the first respondent is the owner of a three-fifths share in the house and premises bearing door no. 7411 in guntur municipality. the petitioner is a tenant in respect of that share. it is not necessary to notice the previous litigation between the first respondent and others whereunder the first respondent's right to three-fifths share in the suit premises was recognized and declared) as the title of the first respondent to that share is not now disputed before me. the first respondent filed h.r.c. no. 13 of 1949 under section 7 (2) (1) of the madras act 25 of 1949 for evicting the petitioner. it was alleged in that petition that the house required urgent repairs.....
Judgment:
ORDER

Subba Rao, J.

1. This is an application for issuing a writ of certiorari to quash the order of the Additional Subordinate Judge of Guntur made in an appeal filed against the order of the Rent Controller of Guntur.

The first respondent is the owner of a three-fifths share in the house and premises bearing door No. 7411 in Guntur Municipality. The petitioner is a tenant in respect of that share. It is not necessary to notice the previous litigation between the first respondent and others whereunder the first respondent's right to three-fifths share in the suit premises was recognized and declared) as the title of the first respondent to that share is not now disputed before me. The first respondent filed H.R.C. No. 13 of 1949 under Section 7 (2) (1) of the Madras Act 25 of 1949 for evicting the petitioner. It was alleged in that petition that the house required urgent repairs and also that the petitioner made a default in payment of the rent. That application was filed on 2nd February 1949. On 12th April I949, the petitioner filed another application for amendment of the petition by adding the following clause to paragraph 7. It reads: 'as the petitioner's lease to occupy the premises which he has been occupying has expired by 1st February 1949 and the petitioner has vacated the same and as the petitioner does not own any other non-residential 'Building in Guntur town for the purpose of carrying his business and as there is no other non-residential building in Guntur to the possession of which it is entitled for carrying on its business.'

There is some argument before me on the question whether this amendment was actually ordered by the Rent Controller of Guntur. A counter affidavit was filed to the application for amendment on 18th April 1949. The Rent Controller noticed the argument based upon the amendment. He practically, though not definitely, accepted all the grounds alleged in the petition and those added by the amendment and ordered eviction. The respondent preferred an appeal (C. M. A. No. 54 of 1949) to the Subordinate Judge of Guntur. In that appeal the points formulated for decision were as follows:

' 1. Whether the rent fixed by the Rent Controller is fair and reasonable; if not, what is the fair rent due for the building in question?

2. Whether the appellant was in arrears of rent and was liable to be evicted?'

The appellate judgment also disclosed that the advocate who appeared for the respondent at that stage gave up his other two contentions, namely, that the appellant caused damage to the buildings and that, subsequent to the filing of the petition for eviction, the respondent wanted the building for carrying on his own business. The learned Subordinate Judge held against the petitioner on the points formulated and allowed the appeal. From the aforesaid facts, it is manifest that the amendment must have been allowed. Otherwise, the Rent Controller would not have decided the point raised by the amendment. Nor would the appellate Judge have recorded the fact that the point raised by the amendment was not pressed before him. Indeed, the learned Subordinate Judge who disposed of the present appeal observed in his judgment that the amendment must presumably have been allowed. In the counter affidavit filed by the respondent before him it is not stated either expressly or by necessary implication that the amendment was not made. Indeed, throughout the proceedings the case was argued on the basis that the amendment was allowed. It may therefore be accepted for the purpose of this application that the amendment was allowed. The result of the previous litigation would then be that the petitioner applied for eviction on four grounds and that he gave up two grounds, and, in respect of the other two grounds, the learned Subordinate Judge found against him. The respondent filed the present application for eviction against the petitioner, the main ground being that the petitioner required the premises for his own occupation. The Rent Controller ordered eviction. The appeal filed against that order was also dismissed. The petitioner questions that order on the ground that the learned Subordinate Judge erred in holding that the order in the previous application did not preclude the respondent from filing the present application under Section 10 of the Madras Act 25 of 1949. Section 10 reads as follows:

'The Controller shall summarily reject any application under Sub-section (2) or under Sub-section (3) of Section 7, which raises between the same parties or between the parties under whom they or any of them claim, substantially the same issues as have been finally decided, or as purport to have been finally decided in former proceedings.'

The only question therefore is whether thelearned Judge in C. M. A. No. 54 of 1949 finallydecided or purports to have finally decidedthe question, namely, whether the respondentrequired the premises for his own occupation.From the narration of the aforesaid facts itwill be seen that the learned Subordinate Judgedismissed the application of the respondent asho did not press the present contention beforehim and as he found against him on othercontention raised. Ordinarily, a decision arrivedat by a court of law in those circumstance,would operate as a bar of res judicata under Section 11, Civil P. C. But Mr. Rajah Aiyar contended that the wording of Section 10 of Madras Act25 of 1949 is different and that unless thequestion was finally decided in the previousapplication, Section 10 would not operate as a barfor the maintainability of a fresh application.In support of his argument, he relied on thedecision of Rajamannar C. J. and Raghava RaoJ. in -- 'Miss Revathi v. Venkataraman', 1949-2MLJ 594. There, the previous application wasdismissed for default. When a second application was filed, the learned Judges held that adismissal for default would not be a final decision within the meaning of Section 10. I respectfullyagree with the view expressed therein. Butthat decision has no bearing on the question tobe decided in the present case, where an application is dismissed not for default, but onmerits. It is also not necessary to consider thequestion whether the principle of constructiveres judicata applies to this case, for the questionwas specifically raised and not pressed. I holdthat when an application with specific groundsis filed and if some of the grounds are notpressed, the order of the court dismissing theapplication on that basis is a final adjudicationon the question raised but not pressed. In thatview; the order made in C. M. A. No. 54 of1949 is a bar to the maintainability of the present application. In the result, the order ofthe learned Subordinate Judge is herebyquashed and the petitioner will have his costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //