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Dhanapal Chetti Vs. Avva Kanniah Chetti - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtChennai High Court
Decided On
Reported in(1966)2MLJ389
AppellantDhanapal Chetti
RespondentAvva Kanniah Chetti
Cases ReferredPorakutti v. Velapapil Nammath
Excerpt:
.....satisfied that in the present case the contention of mr. i am not satisfied that there is any scope for the admission of additional evidence and for consideration of such evidence in a revision proceeding under section 115, civil procedure..........with section 7(3)(a)(iii) of the old act, yet, the authority had to be satisfied about the bona fides of the landlord. in disposing of the previous application, it was then held, that there were no bona fides. on behalf of the landlord, it was urged that the question of bona fides cannot possibly remain static and that it must necessarily change in the changed circumstances. the house rent controller found that the landlord had demolished one of the non-residential premises owned by him after the disposal of the earlier petition. nevertheless, the rent controller was not satisfied that there was a change in the circumstances. it was also held that premises no. 35/1 was available for occupation of the landlord. on these facts, the lack of bona fides was inferred by the rent.....
Judgment:

K. Srinivasan, J.

1. The petitioner is the tenant. In R.C.O.P. No. 20 of 1960 the respondent landlord sought for eviction of the tenant under Section 10(3)(a)(iii) of the Act of 1960. The landlord claimed that he was carrying on business in a rented premises, which premises was wholly inadequate to his needs. On that ground he purchased the premises in question. In 1958, he had filed an application R.C.O.P. No. 22 of 1958 under the repealed Act, which was dismissed, as also an appeal there from. The ground upon which that petition was dismissed was that under the old Act, the landlord who was in occupation, for the purposes of his business, of a premises, to the possession of which he was entitled, that is to say, as a tenant, was not eligible to the relief of eviction of his tenant from premises which might be the landlord's own. The new Act, by Section 10(3)(a)(iii), however made a departure, and enabled the landlord to obtain possession of the premises which he had let out, so long as he is not occupying, for the purpose of his business, which he is carrying on, a non-residential building which is his own. Under the new Act, therefore, the possession of rented premises for the purpose of a business is no bar to obtaining the eviction of a tenant from the premises which belongs to the landlord. After the new Act came into force, the landlord filed a fresh application. He stated that he is not occupying any premises of his own for the purposes of his business and sought the eviction of the tenant. The contention put forward by the tenant was that the application was barred by res judicata. It was urged that there was no change of circumstances entitling the landlord to maintain his petition. It was also stated that the landlord had two either non-residential buildings in the locality.

2. The House Rent Controller thought that though the new Act enlarged the scope of an application for eviction by Section 10(3)(a)(iii), as contrasted with Section 7(3)(a)(iii) of the old Act, yet, the authority had to be satisfied about the bona fides of the landlord. In disposing of the previous application, it was then held, that there were no bona fides. On behalf of the landlord, it was urged that the question of bona fides cannot possibly remain static and that it must necessarily change in the changed circumstances. The House Rent Controller found that the landlord had demolished one of the non-residential premises owned by him after the disposal of the earlier petition. Nevertheless, the Rent Controller was not satisfied that there was a change in the circumstances. It was also held that premises No. 35/1 was available for occupation of the landlord. On these facts, the lack of bona fides was inferred by the Rent Controller who dismissed the petition.

3. In the appeal from this order, the appellate authority, the Principal Subordinate Judge, Chingleput, agreed that though there was a change in the law, the question relating to bona fides had still to be considered. He also thought that Section 19 of the new Act barred the present application.

4. The landlord moved the District Judge in revision. The learned District Judge observed that there could be nothing like bona fides in the abstract. He, however, held that the Subordinate Judge had found the present petition to be bona fide. He was satisfied that the petitioner did require the premises for his own business, and when the landlord was not in occupation of a premises which is his own, the law entitled him to an order of eviction. He accordingly set aside the orders of the authorities below and directed the tenant to deliver possession of the premises to the landlord within two months.

5. In this revision petition, this order of the District Judge in revision is challenged.

6. I may refer more specifically to the finding of the Subordinate Judge. In paragraph 4 of his order, it is stated:

It is contended before me that it is bona fide application, because otherwise there was no need for the landlord to lock up a large sum of Rs. 9,100 and buy this building. The very fact that he has purchased a new building at such cost now shows that it is a bona fide application. This may be so, and I am led to believe that it is a bona fide application...

7. The first part of this extract is obviously a resume of the arguments advanced before the learned Subordinate Judge and the last sentence is hardly categorical enough to operate as a finding on the question of bona fides. Nevertheless, it may be assumed that the learned Subordinate Judge was inclined in favour of the landlord on the question of bona, fides.

8. Mr. R. Gopalaswami Ayyangar, for the tenant, contends that Section 19 of the Act bars the present application. Section 19, in so far as it is material, reads thus;

Decisions which have become final not to be re-opened.--The Controller shall summarily reject any application under Sub-section (3) of Section 10... which raises between the same parties or between 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 a former proceeding (1) under this Act, or (2) under any other law from time to time in force before the date of the commencement of this Act and relating to the matters dealt with under this Act.

9. Broadly stated, this section does enact a rule of res judicata. But, in applying any such rule, it is obvious that the terms of the provision should be strictly construed. What is it that stands barred by this provision It is an application, under Section 10(3), which raises substantially the same issues as have been decided in the former proceeding under the earlier Act. The former proceeding was under a provision of law which restricted the scope of an application for eviction more than the corresponding provision of the new Act does. When the earlier application was made and disposed of the position was that the landlord was in occupation of a premises for the purpose of his business, to the possession of which premises he was then entitled; that is to say, he was in occupation of a rented premises, and so long as his right to possession of that premises could not be interfered with, Section 7(3)(a)(iii) did not enable the landlord to obtain an order of eviction against his own tenant. But when the new law was enacted, the right of the landlord was enlarged to a certain extent. Apparently, the Legislature thought that it was undesirable to impose a restriction upon a person carrying on his own business and preventing him from obtaining possession of his own premises for that purpose from a tenant who might be in occupation of that premises. The new provision therefore only required that the landlord should not be occupying for the purposes of his business a non-residential building which is his own. If the premises which he was occupying for the purposes of his business is not his own, then he can move under Section 10(3)(a)(iii) and seek the eviction of the tenant of his non-residential building, so as to enable him, the landlord, to carry on his business in his own premises.

10. Though, in the earlier proceeding, it was contended by the landlord that the rented premises which he was occupying was not sufficient for his businessand that was why he had purchased the building in question, Section 7(3)(a)(iii) of the old Act did not cover such a requirement. The question of bona fides was altogether out of place in the disposal of that earlier application. Even if the application was bona fide, Section 7(3)(a)(iii) would not apply to the facts, and notwithstanding the bona fides of the application, that petition was liable to be dismissed. Whatever observations the Rent Controller and the appellate authority might have made in the disposal of the earlier application on the question of bona fides were certainly wholly irrelevant, because there the case of the landlord then did not come within the scope of Section 7(3)(a)(iii) at all.

11. This point must be borne in mind in considering the scope of Section 19.

12. A decision of Rajamannar, C.J., in C.R.P. No. 855 of 1956 has been referred to by Mr. Gopalaswami Ayyangar. That was a case where the National Star Assurance Co. sought the eviction of the tenant from certain premises on the ground of its own requirement. It appears that the Insurance Company had purchased the building at a high cost with a view to locate its head office there. It had till then been carrying on the business in rented premises, but an order for eviction against it had been obtained by its landlord of the rented premises. The petition was dismissed, but on appeal it was allowed. When the matter was pending in revision before the High Court, the Life Insurance Corporation took over the business of all the insurance companies. The petitioner Insurance Company was no longer in existence carrying on a separate life insurance business. The learned Chief Justice held that in those circumstances the order for eviction in favour of the National Star Assurance Company would cease to be effective. I am really unable to see anything in this judgment which helps the determination of the contentions in the present case. Nor do I think it necessary to refer to a decision of Ramaswami, J., in Porakutti v. Velapapil Nammath (1953) 2 M.L.J. 622 where the learned Judge dealt extensively upon the meaning of the expression 'bona fides'.

13. A decision directly bearing upon the point was rendered in C.R.P. No. 2626 of 1964 by Veeraswami, J. The learned Judge observed:

The other point urged is rested on the doctrine of res judicata. Admittedly, the law has been changed since this petition was filed. The doctrine of res judicata will apply only so long as there is no change of circumstances so far as the Rent Control Acts are concerned. What is contended is that the change of position in law might be relevant only in respect of eviction but may not be in respect of res judicata. I am unable to accept that contention.

14. Though the passage is cryptic, it seems to me that the learned Judge accepted the position that in order that the principle of res judicata may apply, the point which was decided and which arises for decision in the later case should be substantially the same, and that can hardly be so when there is a change In the law resulting in the identity of the question for decision being altered.

15. I am accordingly satisfied that in the present case the contention of Mr. Gopalaswami Ayyangar that Section 19 applies cannot be maintained.

16. The petition is, therefore, dismissed with costs. Time to vacate four months' An application was filed for admitting additional evidence. I am not satisfied that there is any scope for the admission of additional evidence and for consideration of such evidence in a revision proceeding under Section 115, Civil Procedure Code. That petition is also dismissed. There will, however, be no order as to costs.


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