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G. Venkatachala Odayar Vs. Ramachandra Odayar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1292 of 1957
Judge
Reported inAIR1961Mad423; (1961)1MLJ188
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 and 11; Madras Cultivating Tenants Protection Act, 1955 - Sections 3(4) and 6
AppellantG. Venkatachala Odayar
RespondentRamachandra Odayar and anr.
Appellant AdvocateK. Raman, Adv.
Respondent AdvocateS. Bhaskaran, Adv.
DispositionRevision petition allowed
Cases ReferredVenkatraya v. Louis Souza
Excerpt:
.....to be evicted or not. therfore, the decision by the revenuecourt as to whether a cultivating tenant was in arrears of rent or not could not operate as res judicata in a subsequent civil suit between the parties to revover arrears of rent. - - .....is not in arrears of rent in an application filed by the landlord for evicting him can bar a civil suit filed by the landlord for recovery of such arrears of rent.2. the petitioner in the revision petition leased out his properties to the deceased father of the first respondent and the second respondent under a lease deed dated 5-9-1954 for the fasli year 1364. the rent fixed under the lease deed was 158 kalarns of paddy. the petitioner claimed that the lessees were in arrears of rent to the extent of 18 kalams for that fasli year. for the subsequent fasli 1365 a fresh lease deed was executed by respondents 1 and 2 in favour of the petitioner on 25-1-1956 agreeing to measure 176 kalams of paddy as rent. according to the petitioner the respondents were in arrears in respect of this.....
Judgment:
1. This civil revision petition raises a question of law of general importance. The question is whether a finding of the Revenue Divisional Officer functioning under the Madras Cultivating Tenants Protection Act, Madras Act XXV of 1955, that the cultivating tenant is not in arrears of rent in an application filed by the landlord for evicting him can bar a civil suit filed by the landlord for recovery of such arrears of rent.

2. The petitioner in the revision petition leased out his properties to the deceased father of the first respondent and the second respondent under a lease deed dated 5-9-1954 for the fasli year 1364. The rent fixed under the lease deed was 158 kalarns of paddy. The petitioner claimed that the lessees were in arrears of rent to the extent of 18 kalams for that fasli year. For the subsequent fasli 1365 a fresh lease deed was executed by respondents 1 and 2 in favour of the petitioner on 25-1-1956 agreeing to measure 176 kalams of paddy as rent. According to the petitioner the respondents were in arrears in respect of this fasli year to the extent of 20 kalams of paddy.

The petitioner filed S.C.S. No. 726 of 1956 on the file of the District Munsif's Court, Tiru-varur, against the respondents claiming to recover the sum of Rs. 296-12-0 being the value of the arrears of rent of 38 kalams of paddy and interest thereon at 5 1/2 per cent per annum. "The respondents pleaded in that suit that they were not in arrears at all.

3. During the pendency of the suit the petitioner filed P. No. 2 of 1957 before the Revenue Court, Tiruvarur, seeking to evict the respondents from their holdings under the provisions of Madras Act XXV of 1955 on the ground that they were in arrears of rent to the extent of 38 kalams of paddy for the fasli years 1364 and 1365. The Revenue Divisional Officer enquired into that petition and held that the respondents were not in arrears of rent and accordingly dismissed the-eviction petition by his order dated 14-3-1957. Thereupon the respondents filed an additional written statement in the pending suit S.C.S. No. 726 of 1956 on the file of the District Munsif Court. Tiruvarur, urging the plea that the finding of the Revenue Court holding that there was no arrear operated as res judicata and that the civil court had no jurisdiction to adjudicate this dispute of arrears of rent between the parties.

The learned District Munsif tried this issue as a preliminary issue and upheld the respondents' contention. The suit was therefore dismissed with costs. This civil revision petition has been preferred by the petitioner-landlord, against the said judgment and decree. In this judgment we are referring to the civil suit as a subsequent suit though it was instituted prior to petition in the revenue court as the civil suit was tried only after the termination of the revenue enquiry.

4. Somasundaram, J. heard the civil revision petition in the first instance. On behalf ot the respondents the decision of this court in Narasimha Chettiar v. Muthuswami Gounder 1958 2 Mad LJ 216 was cited before the learned Judge. In that decision Ramaswami, J. held that the finding of the revenue court in the decisions rendered by it in the course of proceedings under Madras Act XXV of 1955 would operate as res jucdicata. Somasundaram, J. was unable to agree with this view and he was of opinion that the civil revision petition may be heard by a Division Bench. The civil revision petition has therefore been posted before us.

5. Section 11 C. P. C. embodies the doctrine of res judicata. The section however is not exhaustive and the doctrine of res judicata has often been invoked and applied to cases not strictly within the compass of that section. The maxim "No man should be vexed twice over the same cause" (Nemo debet bis vexari prouna of cadem causa) is recognised to be a principle of law which has to be given effect to and followed without being unduly restricted by the terms ot the statute as enacted in Section 11 C. P. C.

6. Sir Lawrence Jenkins delivering the judgment of the Judicial Committee in Sheopar-san Singh v. Ramnandan Prasad Narayan Singh, 43 Ind App 91 : (AIR 1916 PC 78) referred to the principle of res judicata in die following terms:

" .....the rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. 'It hath been well said', declared Lord Coke, interest reipublicoe ut sit finis litium, otherwise great oppression might be done under colour and pretence of law -- (Ferrer's case (1599) 6 Co. Rep. 7a at P. 9a). Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnaueswara and Nilakanla include the plea of a former judgment among (hose allowed by law, each citing for this purpose the text of Kalyayana, who describes the plea thus: 'If a person though defeated at law sue again he should be answered, 'You were defeated formerly'. This is called the plea of former judgment. (See the Mitak. (Vyava-hara). Book II, ch. i, edited by J. R. Gharpure, p. 14 and the Mayuka, ch. i, s. 1, p. 11 of Mand-lik's edition). And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law",

7. The question for consideration is whether the plea of res judicata either in its statutory form as found in Section 11 C.P.C. or as a rule of Jaw of general jurisprudence can avail the respondents in this civil revision petition to defeat the suit of the petitioner in the court below. Section 11 C.P.C. is as follows:

"No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India, established, or continued by the Central Government and having like jurisdiction, or before the Supreme-Court".

One of the essential requirements of the section is that the adjudication relied upon as a bar in the subsequent suit must have been by a court and that court must have been a court competent to by the subsequent suit in which the bar of res judicata is pleaded. It is obvious that even-assuming that the Revenue Divisional Officer having jurisdiction under Madras Act XXV of 1955 can be called a court he was not competent to try the suit filed by the petitioner in the District Munsif's Court, Tiruvarur, for recovery of arrears of rent- A strict and literal application-of the terms of Section 11 C.P.C. will certainly disarm the respondents of this plea of res judicata.

8. We have therefore to consider the other aspect of the question whether the general principles of res judicata can help the respondents to sustain the plea. The fact that the Revenue Divisional Officer is not a competent court to entertain the subsequent suit on the file of the District Munsif's Court, Tiruvarur is not a ground which will disentitle the respondents in calling: in aid the plea of res judicata. In Raj Lakshmi Dasi v. Banamali Sen, the Supreme

Court observed thus :

"It was urged that to substantiate the plea of res judicata even on general principles of law it was necessary that the court that heard and decided the former ease should be a court competent to hear the subsequent case. This contention was based on the language of Section 11. The condition regarding the competency of the former court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the court that heard and decided the former case Was a court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction, like revenue courts, land acquisition courts, administration courts etc. It is obvious that these courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute''.

We shall now refer to the provisions of the Madras Cultivating Tenants Protection Act to as certain the jurisdiction of the special machinery of the revenue court functioning under that Act-The Act confers upon the Revenue Divisional Officer specific powers and allots particular disputes between the landlord and the cultivating tenant to be decided by him. The landlord can evict a cultivating tenant only on application made to the Revenue Divisional Officer. This is provided for in Section 3(4) of the Act. The grounds of eviction are set out in Section 3 (2) of the Act. Default in the matter of payment of rent by the cultivating tenant is one of the grounds that entails eviction of the cultivating tenant.

Section 3 (3) of the Act enables the cultivating tenant to seek an adjudication before the Revenue Divisional Officer of the quantum of rent payable by him. Section 4 of the Act provides for a cultivating tenant who was in possession of the land on 1-12-1953 and who was not in possession at the commencement of this Act to be restored to possession on application to the Revenue Divisional Officer. Section 4 A enacts that a landlord can resume the land for personal cultivation by appropriate proceedings before the Revenue Divisional Officer subject to certain terms and conditions mentioned therein. These are the matters on which the Revenue Divisional Officer can adjudicate. Section 6 of the Act enacts a rule of ouster of the jurisdiction of the civil courts. It is as follows :

"No civil court shall, except to the extent specified in Section 3 (3) have jurisdiction in respect! of any matter which the Revenue Divisional Officer is empowered by or under this Act to determine and no injunction shall he granted by any court in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."

This section has not introduced anything new or strange in the realm of law relating to the general jurisdiction of civil courts as it is now well settled that where a statute creates new rights and establishes a special machinery for working out those rights by constituting a Tribunal or a special court that tribunal or court becomes vested with exclusive jurisdiction to decide the matters entrusted to it by the statute, and thereby excludes the jurisdiction of the civil courts as well. But the civil courts being courts of unlimited jurisdiction, subject to limits of Pecuniary jurisdiction imposed by statutes and limits of territorial jurisdiction, must be presumed to have jurisdiction in respect of every civil right unless exclusion of such jurisdiction is expressed or can be necessarily implied. In Secy. of State v. Mask and Co., 67 Ind App 222 : (AIR 1940 PC 105) Lord Thankerton delivering the judgment of the Judicial Committee observed thus at p 236 (of Ind App) : (at p 110 of AIR):

"It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction, is so excluded the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure".

In the context of the general jurisdiction ot a civil court and the exclusive jurisdiction of a special court or tribunal the legal conception ot a plea of res judicata in respect of a matter decided by the court of exclusive jurisdiction cannot appropriately be termed as the doctrine ot res judicata but can only he called as a bar oi the civil court's jurisdiction to decide that which is within the exclusive jurisdiction of the special tribunal.

9. There may however be cases in which the court of exclusive jurisdiction having decided and granted relief which it was competent to grant, the identical question may again arise in another form before the civil court. Proceedings before the Land Acquisition Officer under the Land Acquisition Act culminating in a reference to a civil court under Sections 18, 30 or 31 of that Act are instances in point. In such proceedings the title to the claimant's property is directly involved and the Land Acquisition Act clothes the special court with jurisdiction to decide it. Any adjudication of title in those proceedings will certainly constitute res judicata between the parties or their privies in a subsequent suit in a civil court.

But two things must he particularly noted in this connection. Firstly the special court or the; court of exclusive jurisdiction must be a competent court having jurisdiction to decide and adjudicate upon the particular matter, the decision in which is invoked as a bar in a subsequent suit, Secondly the bar of res judicata can come in only in respect of the actual decision by the court of exclusive jurisdiction and not in respect of any other matter which might have been dealt with by that court incidentally of course necessarily, to enable it to render its decision.

10. We shall now refer to a few decisions ot this court which dealt with the question of res judicata of a decision of the revenue court functioning under the Madras Estates Land Act-Under that Act the revenue court is entrusted with exclusive jurisdiction in respect of applications and suits, to grant reliefs and to work out the statutory rights of the parties governed by it. The question for consideration was whether any adjudication by the revenue court in the course of its exercise of exclusive jurisdiction on matters incidental to that determination can operate as res judicata. It was held that such incidental determination cannot bring in the bar of res judicata in a subsequent civil suit between the parties.

11. In Ramadina Das Gosayiji v. Boisharao Mundalo, AIR 1921 Mad 473 Wallis, C. J. and Oldfield, J. observed thus:

"It has been well pointed out by Sesbagiri Aiya: and Napier, JJ. is S.A. Nos. 1002 and 1213 of 19.16 that the revenue court is not the competent authority to decide finally whether any particular lands constitute an estate or not. If they constitute an estate, then the revenue court has jurisdiction and exclusive jurisdiction in the matter of computing rents. For the purpose ot deciding whether it should exercise that jurisdiction, the revenue court like any other court of limited jurisdiction, has to determine whether the facts are such as to give it jurisdiction just as a small cause court has to determine the question of title to a land in a summary action for rent, or for damages for trespass. That decision however will not he binding as held in the case just referred to, on a civil court".

12. In Appa Rao v. Venkataraju, ILR 43 Mad 859 : (AIR 1920 Mad 558) it was held that Section 189 (3) of the Madras Estates Land Act does not constitute the decisions of the revenue courts on an issue as to title to land or occupancy rights therein arising incidentally in suits to enforce the acceptance of pattas which are cognisable exclusively by such courts res judicata in a subsequent suit in a civil court instituted by the landlord for ejectment of the tenant from such land. Spencer, J. observed thus at P. 866 (of ILK Mad) : (at p. 561 of AIR):

"In the present case, I am of opinion that the prior decision having been a decision upon an incidental question as to occupancy rights, and not a matter falling within the exclusive jurisdiction of a revenue court, is not binding on the civil court under Section 189 (3) although it did arise in a suit to enforce acceptance of pattas which was exclusively cognisable by a revenue court".

In Venkatararna Rao v. Venkayya, (FB), this identical question was considered by a Full Bench of this court. At page 790 the learned Chief Justice observed thus:

"If a particular matter is one which does not fall within the exclusive jurisdiction of the revenue court, then a decision of a revenue court on such a matter, which might be incidentally given by the revenue court, cannot be binding on the parties in a civil court. One particular test would be to determine if that particular matter would not be a matter in respect of which the civil court would have jurisdiction. To give an obvious instance, suppose in a suit under Section 55 for the grant of a patta instituted by a person claiming to be the adopted son of the ryot who was a pattadar, the landlord raises a plea that he is not entitled to the patta because his adoption is not valid. It may be that the revenue courts would have to summarily go into the question whether the person suing is or is not the validly adopted son of the previous ryot. Can it possibly be said that the finding of the revenue court on the issue of adoption is binding on the parties in a subsequent suit in a civil court in which the validity of the adoption might fall to be decided? There can be 110 doubt about the answer".

13. The Revenue Divisional Officer is empowered under the Madras Act XXV of 1955 to decide the question whether a cultivating tenant is liable to be evicted from his holding or not. That is a matter in which he is vested with exclusive jurisdiction, the jurisdiction of the civil court having been expressly taken away by section & of that Act, A cultivating tenant in arrears of rent having committed default in the matter of payment of rent is a person liable to be evicted. In order to determine whether the cultivating tenant can be evicted on the ground of his being in arrears of rent the Revenue Divisional Officer has necessarily to go into the question whether in fact the tenant is in arrears or not.

But such determination of arrears of rent is only a matter incidental to the exercise of his jurisdiction to grant eviction. The Act has nowhere clothed the Revenue Divisional Officer with jurisdiction to grant relief to the landlord for recovery of arrears of rent. The landlord can recover arrears of rent from a cultivating tenant only through the medium of a civil court. It is obvious that the question of the arrears of rent of a cultivating tenant and the right of the landlord to recover such arrears of rent irons the tenant are not matters which the Revenue Divisional Officer is empowered under the Act to determine.

The Revenue Divisional Officer is not a competent court in respect of this matter which may however arise incidentally in determining the question whether a cultivating tenant is liable to be evicted or not. On the principle of the decisions referred to above arising under Section 189 (3) of the Madras Estates Land Act, we are ot opinion that the decision of the Revenue court on the question whether a cultivating tenant is in arrears of rent or not being only incidental to the exercise of its jurisdiction to grant eviction cannot operate as res judicata in a subsequent civil suit between the parties.

14. In 1958-2 Mad LJ 216, Ramaswami, J. dealing with a case arising under the Madras Cultivating Tenants Protection Act, and dealing with the contention of the bar of res judicata observed thus at page 219 :

"The argument of the learned advocate for the revision petitioner is that the decision, whether the arrears are due or not, is only incidental and collateral and not a final determination by the Revenue Divisional Officer against whose order, it has to be remembered, no appeal is provided for but only a revision to the High Court. But having regard to the principle of res judicata and the provisions of hierarchy of tribunals for deciding this matter and a revision being provided to the High Court and the continuance of the relationship of landlord and tenant itself being made dependant upon the question whether there are arrears or not, it seems to me that it is a mere quibble to say that all the requirements of res judicata are not fulfilled".

With respect, we disagree with this observation. The learned Judge has not Considered the question as to how far the Revenue Divisional Officer was competent to grant relief to the landlord in the matter of recovery of arrears of rent.

Somasundaram, J. in his referring judgment in this case observed thus:

"It is clear from the section that the issue must have been decided in a court competent to try such a subsequent suit. Can the revenue court give a decree for arrears of rent? In a civil court, the plaintiff applies for a decree for the arrears of rent. But before the revenue court he can only apply to evict the cultivating tenant on the ground that he has not paid the rent due to him. He cannot get a decree before the revenue court for arrears of rent even if the revenue court finds that the rent is in arrear. It the revenue court is not competent to give a decree to recover the arrears of rent, then certainly that is not a court competent to try the subsequent suit, and the principle of res judicata embodied in Section 11 C.P.C. cannot therefore apply".

15. With respect we are in complete agreement with this observation of the learned Judge.

16. We may refer to a recent decision of the Mysore High Court in Venkatraya v. Louis Souza, AIR 1960 Mys 209 in which the head-note is as follows;

"Section 6 (Madras Cultivating Tenants Protection Act) when read along with the other provisions of the Act makes it clear that only the decision of the Assistant Commissioner ordering eviction or refusing to order eviction of cultivating tenant cannot he challenged before a civil court. Incidental determinations such as quantum of arrears or the rate of rent are also final in so far as they relate to the question of eviction. The Assistant Commissioner is empowered by the Act to determine the quantum of arrears of rent only for the purpose of deciding whether the tenant should be evicted or not and not for any other purpose. To that extent only the jurisdiction of the civil court is excluded."

17. The learned Judges of the Mysore High Court disagreed with the decision of this court in 1958-2 Mad LJ 216 cited already.

18. We arc therefore of opinion that there is no bar of res judicata preventing the petitioner from having his suit in the court below tried on the merits, and that the jurisdiction of that court is not taken away by Section 6 of the Madras Cultivating Tenants Protection Act. The judgment and decree of the learned District Munsif are therefore set aside and the suit S.C.S. No. 726 is restored to his file to be tried and disposed of on the other issues arising in the case. The costs of the civil revision petition will abide and follow the result.


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