1. This is an appln by the owner of premises bearing municipal door No. 91 Mowbrays Road, Alwarpet, for the issue of a writ of 'certiorari' to quash the order of the Chief Judge of the Ct of Small Causes in H. R. A. No. 264 of 1948, dated 24-8-1948. That appeal arose out of an appln filed by the petnr before the Rent Controller, Madras, for eviction of the first resp from the premises on the ground that he had committed default in the payment of the rent for January 1947. One of the main pleas of the resp was that the appln was not maintainable because of the dismissal of a prior appln made by the petnr to the Rent Controller on 5-6-1947. On that date, neither the petnr nor her advocate was present when the appln was called, & therefore the petn was dismissed for default. The resp also raised other pleas on the merits. The Bent Controller by his order dated 29-1-1948, passed an order for eviction of the resp. He found that the resp committed default in payment of the rent for January 1947. He overruled the objection as to the maintainability of the appln because the prior appln had not-been judicially decided on the merits. There was an appeal by the resp to the Ct of Small Causes at Madras. The learned Chief Judge agreed with the Rent Controller on the merits that the resp had committed default in paying the rent for January. He, however, considered that the objection of the resp to the maintainability of the appln was well founded. Relying mainly upon the provisions of Sub-section (4) of Section 12 & Section 10 of the Act, he held that the present appln was barred by reason of the dismissal of the prior appln.
2. Section 10 of the Act runs thus :
'The Controller shall summarily reject any appln under Sub-section (2) or under Sub-section (3) of Section 7 which raises substantially the same issues as have been finally decided in a former proceeding under this Act or under the corresponding provisions of the Madras House Rent Control Order, 1945, or the Madras Non-Residential Rent-Control Order, 1945, between the same parties or between parties under whom they or any of them claim,'
Sub-section (4) of Section 12 is as follows :
'The decision of the appellate authority & subject only to such decision, an order of the Controller shall be final & shall not be liable to be called in question in any Ct of law whether in a suit or other proceeding or by way of appeal or revn.'
Mr. V. K. Thiruvenkatachari, the learned Counsel for the petnr, contended that neither provision has the effect of operating as a bar to the present appln. The present words 'finally decided' in Section 10 clearly imply that the prior appln should have been decided on the merits. Without an adjudication on the merits; an issue cannot be said to have been finally decided. He relied upon the catena of decisions relating to the corresponding provision in the C. P. C., where it has been held that a decree of dismissal passed in a suit on default of appearance of the pltf does not operate as 'res judicata' under Section 11, C. P. C., or any other general principle. We agree with this contention. The words 'finally decided' are words found in Section 11, C. P. C., & we do not see why the judicial interpretation of the words in the C. P. C. should not apply in construing the same words in the Bent Control Act.
3. Under the provisions of the C. P. C., when a suit is dismissed for the default of appearance of the pltf, a fresh suit on the same cause of action is barred. That is because of the specific provision of Order 9, Rule 9. This provision must be construed along with the provision made in Order 9 for setting aside dismissals for default of appearance. In the absence of a provision similar to the provision of Order 9, Rule 9, . C. P. C., there is no authority to compel us to -hold that there is a general & universal rule . of procedure, according to which once a suit or a petn is dismissed for default of appearance of the pltf or the petnr a subsequent suit or petn shall not be entertained claiming the same relief & based on the same cause of action. On the other hand, the decision of the Calcutta H. C. in 'Shailabaladassee v. Gobar-dhadas Lalsaria : AIR1935Cal212 lends support to the contrary view. In that case, a suit filed on the Original Side of that Ct was dismissed for non-prosecution under the provisions of B. 36 of Chap. X of the Ruleson the Original, Side. It was held that in the absence of any rule forbidding the bringing ofa fresh suit, the pltf whose suit had been sodismissed was at liberty to bring a fresh suit. Mr. P. Somasundaram, learned counsel for the resp, urged upon us that this decision was based upon the practice obtaining on the original side of the Calcutta H. C. which again was based on the practice of the S. C. in England. It is true, no doubt, that the learned Judges, in discussing the question & in referring to the authorities in England, advert to the practice obtaining in England & on the Original Side of that H. C. But the principle of that decision is not to be found in the ruleof practice, but in the general rule that in the absence of any provision, either in the general adjectival law or in the rules of a Ct preventing a pltf from proceeding with a suit in the circumstances abovementioned, the later suit could not be held to be not maintainable. Just as Mr. Somasundaram pressed before us it appears that it was pressed before the learned Judges there, that the result of this decision would be that a pltf, if he so chooses, might use the procedure of the Ct as an instrument of oppression & that he might indulge in a succession of suits & thus harass his opponent. But the learned. Judges, while sympathising with the hardship of such a contingency, nevertheless came to the conclusion that the subsequent suit was maintainable in law. As the learned Judges there point out, we hasten also to point out that it is highly desirable that a rule corresponding to Order 9 Rule 9 & possibly provisions also corresponding to Order 9 Rules 8 & 13 should be made under Madras Act XV (15) of 1946, or as we pointed out on another occasion, some of the salutary rules of procedure contained in the C. P. C. might be made applicable to the procedure under Madras Act XV (15) of 1946.
4. This case, however, must be decided on the present state of the law, & in the absence of a provision corresponding to Order 9, Rule 9, C. P. C., we have no alternative but to hold that the present appln for eviction was sustainable in spite of the dismissal for default of the prior appln.
5. Mr. Somasundaram relied considerably on the provision of Sub-section (4) of Section 12. In our opinion, that provision does not help the resp for two reasons. For one thing, the order of the Controller of which a finality is laid down in that provision must be an order on the merits. Secondly, that provision only declares that the order of the Controller, & if there is an appeal, the decision of the appellate authority, shall be final in the sense that it shall not be liable to be called in question in a suit or other proceeding or challenged by way of appeal or revn. The petnr strictly is not doing any of the things prohibited by that provision. He is not actually calling in question the prior order of the Rent Controller. He has filed another substantive appln. That appln must be heard & decided, unless it is barred under the provisions of Section 10 of the Act & therefore has to be summarily rejected. As we hold that Section 10 does not apply to the present case, it follows that the appln was maintainable.
6. Another contention raised by Mr. Somasundaram, a contention which did not find favour with the appellate authority, was based upon Sub-section (6) of Section 7 which is also as follows :
'Where an appln under Sub-section (2) or Sub-section (3) for evicting a tenant has been rejected by the Controller, the tenancy shall subject to the provisions of this Act be deemed to continue on the same terms & conditions as before & shall not be terminable by the landlord except on one or more of the grounds mentioned in Sub-section (2) or Sub-section (3).'
The short answer to this contention is that the provisions of this sub-section apply only to a case where an appln has been 'rejected' by the Controller. The circumstances under which an appln has to be rejected are found set out in Sub-section (2) & Sub-section (3). Under Sub-section (2) which is material for the purpose of this petn, if the Controller is not satisfied that any of the grounds alleged by the landlord existed, then he shall make an order 'rejecting' the appln. There is a similar provision in Sub-section (3). In this case, it cannot be said that the prior appln was rejected because the Controller was not satisfied as to the existence of one, or other grounds set out in Sub-section (2) of Section 7. The Controller never went into the merits at all. We cannot, therefore, accept this contention of Mr. Somasundaram.
7. Nor is there any substance in the argument that there has been an acquiescence in the order of the appellate authority by reason of the delay in filing the appln for a writ of certiorari. The appellate order was made on 24-8-1948, but it appears that it was only on 1st December that a certified copy of the order was obtained, & the appln was made in December 1948. It cannot be said that there has been any delay, nor is there any proof of conduct which would justify this Ct to hold that the petnr has lost her rights by laches or acquiescence.
8. Finally, Mr. Somasundaram pointed out that he raised specifically in his counter affidavit a plea of estoppel in para 5 & also adduced evidence on that plea, but the Rent Controller failed to give a finding on it. He made it a ground of complaint in his memorandum of appeal to the Ct of Small Causes but that Ct also did not deal with that point. It is true that the appellate order does not refer to this plea, though it was made a specific ground of appeal.
9. For the reasons, set out above, the order of the learned Judge of the Ct of Small Causes is vitiated by a clear error apparent on the face of the record & has to be quashed. As already mentioned, one of the points which arose for decision in the appeal has not been heard & decided by the appellate authority & the appeal may have to be heard afresh on that point.
10. As the petnr has substantially succeededin the appln, resp I will pay her the costs ofthis appln.