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S.S. Khader Mohammed Rowther and Co. Vs. G.S. Sundaram and Bros. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 2288 of 1976, against order of 3rd Judge, Sm. C.C. Madras in H.R.A. 79 of 1976
Judge
Reported inAIR1977Mad379; (1977)1MLJ268
AppellantS.S. Khader Mohammed Rowther and Co.
RespondentG.S. Sundaram and Bros.
Cases ReferredVide Peer Ammal v. Nallusami Pillai
Excerpt:
.....of the common judgment in which ultimately he failed cannot bar him from filing or having recourse to such an available remedy in law against the other portion of the common judgment which was not the subject matter of the earlier..........the entire authority has misconceived the entire situation. there was an order setting the tenant ex parte and consequent upon it there was an order of eviction passed against him in a proceeding initiated by the landlord under act 18 of 1960. unfortunately the rent controller clubbed both these orders. the tenant took up the matter whereby he was set ex parte to the appellate court and there he was not successful. a further attempt to bring it up to the high court in revision also failed. thereafter or probably contemporaneously the tenant filed an appeal against the ultimate order of eviction. when this came up for hearing and which was after the above processes were exhausted and after the high court refused to interfere in the matter to set aside the ex parte order, the.....
Judgment:
ORDER

1. The Rent Control appellate authority has misconceived the entire authority has misconceived the entire situation. There was an order setting the tenant ex parte and consequent upon it there was an order of eviction passed against him in a proceeding initiated by the landlord under Act 18 of 1960. Unfortunately the Rent Controller clubbed both these orders. The tenant took up the matter whereby he was set ex parte to the appellate court and there he was not successful. A further attempt to bring it up to the High Court in revision also failed. Thereafter or probably contemporaneously the tenant filed an appeal against the ultimate order of eviction. When this came up for hearing and which was after the above processes were exhausted and after the High Court refused to interfere in the matter to set aside the ex parte order, the appellate court held that such an appeal was not maintainable. It held so on the ground that it would lead to multiplicity of proceedings. The appellate Judge was of the view that the tenant having availed himself of the opportunity in filing an appeal against the order of dismissal of the miscellaneous petition, no further appeal on the substantive order was maintainable and hence dismissed the appeal. It is against this the present revision is filed.

2. No doubt, there is always bound to be confusion, when common judgments are rendered on matters which are totally distinct and separable. It is equally fundamental that when common issues are tried and a common judgment rendered thereon and if the party affected files an appeal only as regards one phase of that common judgment and does not attack the other part of it, then he cannot at a later stage having failed in his first attempt file another appeal challenging the untouched part of the affected judgment, the correctness of which he did not want to canvass before. This is however a very different matter when a common judgment deals with two independent subject matters. An application to set aside an ex parte decree is one part of the main order which was part of the common judgment. Then the other part of the common judgment consists of an order of the same rent Controller in which, relying upon the fact that there was no representation on the side of the tenant, he passed an order of eviction. These two subject matters are obviously distinct, separable and independent. Therefore any proceeding taken by the tenant questioning the separable part of the common judgment in which ultimately he failed cannot bar him from filing or having recourse to such an available remedy in law against the other portion of the common judgment which was not the subject matter of the earlier proceeding. Either on the ground of res judicata or on the ground of estoppel, the landlord in the instant case can say that the appeal filed by the tenant against that distinct part of the common judgment which has not been agitated or canvassed earlier is not maintainable in law. A Division Bench of our court, under similar circumstances, held that such an appeal is maintainable though of course the appellate Judge would have jurisdiction to consider whether there is any equity on the part of the appellant or any merits in his representation that he had sufficient cause for having absented himself earlier--Vide Peer Ammal v. Nallusami Pillai, : AIR1937Mad922 . To say that an appeal is not maintainable is one thing and to say that the appeal has no merits is another. The court below is expected to deal with the merits and pass an order but ought not to have said that the appeal is not maintainable. In that view an error of jurisdiction has taken place. The Civil Revision Petition is allowed. There will be no order as to costs. The appellate Judge will be no order as to costs. The appellate Judge will take up the appeal in December 1976 and complete the hearing by the end of that month.

3. Petition allowed.


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