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M. Govindrajulu Vs. M. Jayaraman - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1976)1MLJ406
AppellantM. Govindrajulu
RespondentM. Jayaraman
Cases ReferredOfficial Trustee v. S.N. Ghatterjee
Excerpt:
- - with these submissions, the learned counsel for the petitioner herein submits that the present application for eviction is clearly barred under section 19 of the act. 80, clearly states that a finding which is unnecessary for the disposal of the suit in respect of an issue raised will not be res judicata in a subsequent proceeding. in that privy council case, the board has confirmed the finding of the bench of the calcutta high court wherein it was held 'that inasmuch as the subordinate judge in the dhanbad suit had held that that suit did not lie by reason of the failure to comply with section......mr. pichai next cited mathura prasad v. dossibhai : [1970]3scr830 . in that decision, it has been held:a question of jurisdiction of the court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. rankin, c.j. observed in tarini charan bhattacharjee v. kedar nath haldar : air1928cal777 :the object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recon testing that which has been finally decided.8. a question relating to the.....
Judgment:

P.R. Gokulakrishnan, J.

1. The tenant is the revision petitioner herein. The respondent herein, who is the landlord, filed an eviction petition, under Sections 10(3)(a)(i) and 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960. The respondent here in averred in the eviction petition that he has no other residential house in the City of Madras, that he filed an eviction petition against all the tenants in the premises including the respondent, that the eviction petition against the tenant herein, was dismissed as the tenant claimed to be entitled to the protection under Section 10(4)(i) of the Act, that the landlord then moved the Government under Section 29 of the Act and got exemption with regard to the benefit of Section 10(4)(i) of the Act and that since the tenant did not vacate, the landlord, after giving lawyer's notice, filed the eviction petition. The landlord has further averred that since he wanted the whole of the premises for his own occupation, he has kept the portions that had fallen vacant under lock and key as it is not suitable or sufficient.

2. The tenant, as the respondent in the eviction petition, contended that the order in H.R.C. No. 395 of 1968 is a bar for the present eviction petition, that there is no bona fides in the landlord's petition for eviction, that the downstairs portion that has fallen vacant is sufficient for the landlord to occupy, that the inconvenience that will be caused to the tenant will be much more than to the landlord if eviction is ordered and that the notice of termination does not conform to the statutory requirements.

3. The Rent Controller, observing that the landlord is not living in his own house and residing in a rented house and that the landlord's requirement is bona fide, ordered eviction giving three months' time to the tenant to vacate.

4. Aggrieved by the order of the Rent Controller, the tenant preferred an appeal to the IV Judge, Court of Small Causes, Madras who is the appellate authority. The appellate authority took up for consideration, as to whether the requirement of the landlord is bona fide and that whether the present application is barred under Section 19 of the Act. The Court below also took up for consideration as to whether the notice to quit is valid. The lower appellate Court, after observing that the prior finding as regards the bona fides of the requirement by the landlord is quite unnecessary for the disposal of the application inasmuch as that application was dismissed under Section 10(4) of the Act, held that the present application is not hit by Section 19 of the Act. The lower appellate Court also found that there is bona fides in the requirement of the landlord to occupy the building in question for his own use and that the petition under Section 10(3)(a)(i) is maintainable.

5. Aggrieved by the order of the Court below, the tenant has preferred the above civil revision petition. Mr. Viswanatha. Rao, the Learned Counsel appearing for the revision petitioner urged all the points raised before the Courts below As regards the bona fides, both the Courts below have concurrently found that the requirement of the landlord is bona fide. It is clear from the facts of the case that the respondent herein purchased the property for the purpose of occupying it by himself and that he was not able to occupy the same, inasmuch as the petitioner alone has not vacated the upstairs portion of the building even though other tenants were evicted from the suit premises. It is also clear from the facts of the case that unless all the portions are vacated, it is not possible for the landlord to occupy the house. Hence I am of the view that there is absolutely no impropriety, illegality or irregularity in the finding of the Courts below as regards the bona fide requirement of the landlord and also as regards the finding that the petition under Section 10(3)(a)(i) of the Act will lie in this case.

6. The next question which was vehemently urged by Mr. Viswanatha Rao is that the prior application for eviction, though dismissed under Section 10(4) of the Act, gave a finding as regards the bona fide nature of the requirement made by the respondent herein. That finding as per Section 19 of the Act is a bar to agitate once again the question of bona fides in this proceedings? I have been taken through the order passed in the prior application and also the relevant provisions of the Rent Control Act. Mr. Viswanatha Rao also cited in Gangappa v. Rachawwa : [1971]2SCR691 , to substantiate his contention under Section 19 of the Act. In that case the Supreme Court has held:

Where the plaint on the face of it does not show that any relief envisaged by Section 80 of the Code is being claimed, it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under Section 80 was necessary. If the Court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties, apart from the question as to the applicability of Section 80 of the Code and absence of notice there under should not operate as res judicata in a subsequent suit where the identical question arises for determination between the same parties.

From this, Mr. Viswanatha Rao says that inasmuch as in the prior proceedings the Court has gone into the question of bona fides and decided against the landlord, the dismissal is both on the ground of Section 10(4) and also alter considering the bona fide nature of the claim made by the landlord. In such circumstances, the Learned Counsel submits that the present application is hit by Section 19 of the present Act. The Learned Counsel also cited in Union of India v. Nanak Singh : (1970)ILLJ10SC , for the very same proposition. Mr. Viswanatha Rao also read Veerasami Mudali v. Palamappan : (1924)46MLJ515 and pointed out that the lower appellate Court has misconstrued the said decision. According to this decision, a Bench of our High Court has held that even though the suit has been dismissed for wan t of notice, the finding as regards the other aspects of the case will constitute res judicata in the subsequent proceedings filed after valid notice contemplated under the Act. With these submissions, the Learned Counsel for the petitioner herein submits that the present application for eviction is clearly barred under Section 19 of the Act.

7. Mr. Pichai, the Learned Counsel appearing for the respondent submitted that Shankarlal v. Hiralal A.I.R. 1950 P.C. 80, clearly states that a finding which is unnecessary for the disposal of the suit in respect of an issue raised will not be res judicata in a subsequent proceeding. In that Privy Council case, the Board has confirmed the finding of the Bench of the Calcutta High Court wherein it was held 'that inasmuch as the Subordinate Judge in the Dhanbad suit had held that that suit did not lie by reason of the failure to comply with Section. 80, Civil Procedure Code, he was bound to dismiss the suit under Order 7, Rule 11 of the Code and the findings of the Court on the merits were obiter and could not support a plea of res judicata'. This decision, according to Mr. Pichai, has not been overruled in Gangappa v. Rachawma : [1971]2SCR691 , though it has been referred. Mr. Pichai next cited Mathura Prasad v. Dossibhai : [1970]3SCR830 . In that decision, it has been held:

A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J. observed in Tarini Charan Bhattacharjee v. Kedar Nath Haldar : AIR1928Cal777 :

The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recon testing that which has been finally decided.

8. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision, of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.

The next decision cited by Mr. Pichai is Rajagopal Transports v. Presiding Officer : (1971)1MLJ488 , In that decision. Ramaprasada Rao, J., has held:

The essential requirement of the doctrine of res judicata is that both the Court which rendered the finding on an earlier occasion and the Court which is to compulsorily review the matter on a subsequent occasion, are competent Courts in the sense that they have the jurisdiction to entertain and adjudicate upon the lis or the subject-matter. If the earlier Court which gave its findings is incompetent to decide on merits on the ground that it lacked jurisdiction, then ab initio those findings of fact need not be looked into and much less acted upon.

9. No doubt, Mr. Viswanatha Rao, argued that Section 10(4) of the Rent Control Act does not take away the jurisdiction of the Court but only confers a right upon the tenant by making the landlord not to file eviction, petition if they come under the purview of Section 10(4) of the Act. Mr. Viswanatha Rao also cited the decision reported in Veerasami Mudali v. Palaniappan : (1924)46MLJ515 , where in it has been held that the question of the plaintiff's title was a matter substantially in issue between the parties and the decision of the same is final and cannot be reopened in a subsequent suit brought after due notice to quit. The Learned Counsel also referred to Muthu Pillai v. Veda Viyasa Ghariar (1920) 12 L.W. 277 : 60 Ind.Cas. 397, wherein it has been held that an adverse finding in prior suit, though ended in favour of the person who agitates the matter in a subsequent suit, will operate as res judicata as far as that finding is concerned.

10. There is no difficulty in accepting the said contention. But it is for the Court to find out as to whether the finding given by the Court on issues which are not necessary to dispose of the suit is an observation without the seal of finding or is ab initio void as per the provisions of the particular enactment. Section 10(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 states:

No order for eviction shall be passed under Sub-section (3)-

(i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purposes of this sub-section unless the landlord is himself engaged in any employment or class of employment which has been so notified.

11. The prior eviction proceeding was dismissed because of this provision in Section 10(4). Subsequently, the landlord obtained exemption, as far as this section is concerned, from the Government under Section 29 of the Act. After obtaining exemption, the landlord has filed the present eviction petition. It is unnecessary 'for the Rent Controller's Court, which decided the prior proceeding, to go into the question of bona fides inasmuch as Section 10(4) specifically states that no order for eviction shall be passed in such cases. When there is such a mandatory direction prohibiting the Court to pass any eviction order against that person who comes squarely under Section 10(4)(i) of the Act, the finding on other issues regarding the bona fides must be construed as ab initio void. In cases wherein want of notice was raised and the same was decided as one of the issues along with other issues, there is no prohibition to go into such issues along with the question of want of notice. In those circumstances, the cases cited by Mr. Viswanatha Rao, held that the findings which went against a party concerned, even though he succeeded on the question of notice or lost on the question of notice, will constitute a bar for the subsequent proceedings on the same issues. In as much as the present finding in the prior proceedings has to be construed as ab initio void in view of Section 10(4)(i) of the Act, I am of the view that Section 19 is not a bar for the present proceedings. Further in Official Trustee v. S.N. Ghatterjee : [1969]3SCR92 , the Supreme Court has held:

It is clear that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties.

Thus it is clear from the abovesaid decision that the Rent Control Court in the prior proceeding should not have decided the other issues in view of the clear prohibition contained in Section 10(4)(i) of the Act. In those circumstances, the civil revision petition is dismissed and the order of eviction passed by the Courts below is confirmed. There will be no order as to costs. Time to vacate two months.


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