Skip to content


S. Mani Vs. T.K. Jacob - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1983)2MLJ293
AppellantS. Mani
RespondentT.K. Jacob
Cases ReferredLakshmiammal and Anr. v. V.K. Sivasubramanian
Excerpt:
.....case to meet the ends of justice the preliminary issue as well as the other issues will have to be decided to avoid protracted litigation and the consequent loss t the parties concerned- bearing this principle in mind, we will have to examine the case to ascertain whether on the facts of the case the bar of section 19 is readily applicable. the interest f the parties will be well served only if the rent controller considers the issue of res judicata along with the other issues and comes to a conclusion with reference to the claim of the landlord-hence the argument on behalf of the respondent that the issue of res judicata will have to be decided as a preliminary issue will have to be negatived. in the present case also, therefore, it is clearly open to the appellant to raise this plea..........appellate authority in h.r.a. no. 837 of 1981, which was filed against the order of the learned rent controller, in m.p. no. 358 of 1981 in h.r.c. no. 3761 of 1980 on the file of the rent controller.2. the facts of the case are briefly these. the landlord, the civil revision petitioner herein, filed h.r.c no. 3761 of 1980 on the file of the rent controller for eviction of the tenant, the respondent herein, from the petition mentioned premises, under section 10(3)(a)(iii) on the ground that the landlord requires the petition mentioned premises for his own use and occupation for the purpose of carrying on his own profession. the civil revision petitioner herein purchased the petition mentioned premises from the previous landlord by means of a sale deed, dated 16th may, 1980 and after.....
Judgment:

R. Sengottuvelan, J.

1. This civil revision petition arises out of the order of the learned 7th Judge, Court of Small Causes, Madras, and the appellate authority in H.R.A. No. 837 of 1981, which was filed against the order of the learned Rent Controller, in M.P. No. 358 of 1981 in H.R.C. No. 3761 of 1980 on the file of the Rent Controller.

2. The facts of the case are briefly these. The landlord, the civil revision petitioner herein, filed H.R.C No. 3761 of 1980 on the file of the Rent Controller for eviction of the tenant, the respondent herein, from the petition mentioned premises, under Section 10(3)(a)(iii) on the ground that the landlord requires the petition mentioned premises for his own use and occupation for the purpose of carrying on his own profession. The civil revision petitioner herein purchased the petition mentioned premises from the previous landlord by means of a sale deed, dated 16th May, 1980 and after purchase he filed H.R.C. No. 3761 of 1980, for eviction on the ground that he required the premises for his own profession. The landlord civil revision petitioner is a qualified medical practitioner and the tenant-respondent also is a qualified medical petitioner having his nursing home in the petition mentioned premises. The previous landlord of the petition mentioned premises, one Mr. Venkatarama Iyer prior to the sale of the petition mentioned premises in favour of the civil revisior petitioner filed H.R.C No. 482 of 1979 on the file of the 10th Judge, Court of Small Causes, Madras and the Rent Controller, for eviction on the ground that the then landlord needed the premises for his own use and occupation for the purpose of carrying on his business. The claim of the landlord was not found to be bona fide and hence the petition was dismissed on 27th August, 1979,on merits after a full-fledged trial. As against the said order of dismissal the previous landlord Mr. Venkatarama Iyer preferred H.E.A. No. 1990 of 1979 on the file of the Court of the 4th Judge, Court of Small Causes, Madras and the appellate authority and the said appeal was also dismissed. Thus the prior proceeding between the respondent herein and the previous landlord, Mr. Venkatarama Iyer had become final. Earlier to this proceeding the said Mr. Venkatarama Iyer also filed a suit in O.S. No. 8343 of 1973 on the file of the Court of the learned Third Assistant Judge, City Civi1 Court, Madras, praying for possession of the petition mentioned premises and that suit was also dismissed on the ground that the provisions of the Bent Control Act are applicable to the tenancy in question.

3. In H.R.C. No. 3761 of 1980, the tenant-respondent, in addition to the other objections also took the plea that the application is not maintainable on account of the earlier proceedings for the very same relief between the predecessor-in-title of the landlord-civil revision petitioner and the tenant-respondent which had become final. During the pendency of H.R.C. No. 3761 of 1980 the tenant-respondent filed an application in M.P. No. 358 of 1981 under Section 19 of the Tamil Nadu Buildings (Lease and Bent Control) Act praying for the summary rejection of the application without taking further evidence on the ground that the very same issue had already been decided between the landlord's predecessor-in-title and the tenant and the subsequent proceeding for the very same relief is barred under Section 19 of the above said Act. The learned Rent Controller after hearing both sides passed the following order

The question whether the main petition is hit by res judicata or not can be decided in the H.R.C. itself under separate point. No provision is available either in the Rent Control Act or in the Rules for filing a separate petition under Section 19 of the Act to decide this point in a M.P. Therefore, I have come to the conclusion that this petition is not maintainable in law. In the result the petition is dismissed.

As against this order of the tenant-respondent filed H.R. A. No. 837 of 1981, on the file of the Court or the 7th Judge, Court of Small Causes, Madras, and the the appellate authority. The learned appellate authority after hearing both sides ca me to the con elusion that the Order of the Rent Controller is not correct and the Rent Controller ought to have given a finding one way or the other with regard to the question raised by the tenant. The learned appellate authority also observed that the question raised by the tenant is p substantial question of law affecting his rights and liabilities as a tenant of the premises in question. The provisions of Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act are mandatory in character and that being so, the observation of the Rent Controller that whether the main petition is hit by res judicata or not car be decided in the H.R.C. itself under separate point is clearly unsustainable and that in dismissing the petition the Rent Controller has failed to adhere to and comply with the mandatory requirements of Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act. Hence, the order of the Rent Controller was set aside by the learned appellate authority and the matter was remitted back to the learned Rent Controller with a direction to restore the miscellaneous petition to its file and dispose of the same according tow and in the light of the observations contained in the appellate order after giving an opportunity to both sides to put forward their respective cases. The learned appellate authority also observed that the Rent Controller is free to come to any conclusion that he deems fit and proper and that it is not the intention of the appellate authority to inhibit or fetter his discretion in the exercise of jurisdiction by the Rent Controller. As against the said order this civil revision petition is filed by the landlord.

4. Before considering the contentions raised by the landlord-civil revision petitioner, it is advisable to understand the provisions of Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act, which is a provision analogous to section H of the Civil Procedure Code. Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act reads as fallows:

19. Decisions which have become final rot to be reopened.--Any application under Section 3-A or Section 12 and any application under Sub-section (2) Or Sub-section (3) or Sub-section (3-A) of Section 10 or under Sections 14, 15 or 16, shall be summarily rejected by the authorised officer or the Controller, as the case may be if such application 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

(i) under this Act ; or

(ii) under any other law from time to time in force before the date of the commencement of this Act and relating to matters dealt with in this Act.

This section is intended to bar frivolous applications which may be made on the same grounds by landlord for eviction against his tenant Broadly speaking, this section indicates the rule of res judicata. In applying such rules it is obvious that the provision should be strictly construed. We will have to also construe the meaning imported by the words 'shall be summarily rejected by the authorised officer or the Controller.'

5. In Stroud's Judicial Dictionary (4th Edn. at page 2681) under the heading 'summarily' the following observation is extracted from an English case:

Civil matters may be disposed of in a 'summary manner' under R.S.C. Order 59, Rule 8, now Order 17, Rule 5 though the subject-matter exceeds 50 in value Harbottle v. Roberts (1905) 1 K.B. 572; See Here an Bryont v. Reading 17 Q.B.D. 128. The word 'summarily' in Rule 5(2) does not mean that the Master can determine the matter forthwith but only that he can determine it without directing an issue Davis (P.J.B) Manufacturing Co. v. Fahn Fahn (claimant.) (1967) 1 W.L.R. 1059.

In Black's Law Dictiorary, 5th Edn. at page 1287, for the word ' summarily' the meaning is given as without ceremony or delay, short or concise. In the same dictionary the meaning for the word 'summary' in the noun form is given as an abridgment; brief, compendium; digest; also a short application to a Court or Judge, without the formality of a full proceeding The meaning of the word 'summary' in the adjective form is given as short ; concise ; immediate; peremptory; offhand; without a jury ; provisional; statutory. The term as used in connection with legal proceedings means a short, concise and immediate proceeding. The meaning of the words 'summary judgment' in the very same dictionary is given as follows

The Rule of Civil Procedure 56 which permits any party to a civil action to move for a summary judgment on a claim, counter-claim or cross-claim when he believes that there is no genuine issue of material fact and that he is entitled to prevail as a matter of law. The motion may be directed towards all or part of a claimor defence and it may be made on the basis of the plea dings or other portions of the record in the case or it may be supported by affidavits and a variety of outside material.

In the same dictionary at page 1085 the meaning of the words 'summary proceeding' is given as follows:

Any proceeding by which a controversy is settled case disposed of or trial conducted, in. a prompt and simple manner, without the aid of a jury, without presentment or indictment, or in other respects out of the regular course of the common law. In procedure, proceedings are said to be summary when they are short and simple in comparison with regular proceedings; e.g. conciliation or small claims, Court proceedings as contrasted with usual civil trial.

Taking all these interpretations together it can be concluded that 'summary procedure' is meant to be a procedure resorted to in cases where there is no real issue to be decided between the parties and that the plaintiff is entitled to the relief claimed by him under the provisions of law in which case there need not be framing of any issue or taking of evidence. In such a case the matter is disposed of with out the formality of an enquiry.

6. Having understood the purport of 'summary proceeding' we will have to come to a conclusion about the procedure to be adopted with reference to the principle laid down in Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act in this case. On behalf of the tenant-respondent my attention was drawn to a case reported in M.V. Natasamma v. M. Venkataratnam : AIR1965AP12 , where a single Judge of the Andhra Pradesh High Court had occasion to deal with a similar case arising out of the Madras Estates (Abolition and Conversion in to Ryotwari) Act. The relevant observation of the learned Judge can be usefully referred to:

Without assigning any reason, it cannot be stated by any tribunal that any issue which fails within the purview of Order 14, Rule 2, Civil Procedure Code, will be heard only at the end of the trial- For example, Section 3 of the Indian Limitation Act obliges the Court to consider at the initial stage, whether the suit is time barred or not- Similarly, a question of jurisdiction raised ought to be disposed of as a preliminary issue- On the same analogy any objection taken under Section 11, Civil Procedure Code., i.e., objection as to res judicata, that objection has to be disposed of at the earlier stage of the suit the opening words of Section 11, Civil Procedure Code, clearly stated that no Court shall try any suit or issue in which the matter was directly and substantially in issue in a former suit and was finally disposed of by a Competent Court. The very purpose of this section will be defeated if it is uniformly insisted that such issues also should be tried at the end of the trial along with the other issues of fact. That wholesome principle referred to above is applicable where the preliminary issues do not reach the roots of the case.

While there cannot be any objection to the principle laid down by the learned single Judge of the Andhra Pradesh High Court, yet the law or the rule with reference to the procedure can be interpreted only with the ultimate object of rendering justice in the most effective manner- If on the facts of the present case, the provisions of Section 19 of the above said Act are readily applicable without the possibility of any con traverse with reference to the application of that action then there cannot be any objection in following the principle laid down in the above decision. But, the question whether the provision of Section 19 is applicable or not is a debatable point and there are substantial points to be urged on behalf of both sides and deciding the case on the preliminary point itself will result in protracting the litigation as the appellate authority may come to a different conclusion on the preliminary point in which case the matter will have to be once again remitted for a fresh disposal on other issues. In such a case to meet the ends of justice the preliminary issue as well as the other issues will have to be decided to avoid protracted litigation and the consequent loss t the parties concerned- Bearing this principle in mind, we will have to examine the case to ascertain whether on the facts of the case the bar of Section 19 is readily applicable. I find in this case the applicability of Section 19 depends upon the conclusion on the following issues:

1. The question whether the phrase 'between the parties under whom they or, any of them claim' refers only to the legal representatives who have succeeded to the erstwhile landlord by operation of law or it includes .the transferees for consideration from the erstwhile landlord, is to be decided.

2. Since the bona fides of the landlord is a criterion, the question whether the previous decision based on the bona fides of the erstwhile landlord can bar a claim by a landlord who is a transferee from the original landlord in respect of whom the bona fides with reference to the claim for eviction may differ.

In view of the above said debatable propositions it cannot be said that the provisions of Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act can be applied ipso facto to the facts of the present case. In such a case it would be unwise to dispose of the case on the preliminary point of res judicata. The interest f the parties will be well served only if the Rent Controller considers the issue of res judicata along with the other issues and comes to a conclusion with reference to the claim of the landlord-Hence the argument on behalf of the respondent that the issue of res judicata will have to be decided as a preliminary issue will have to be negatived.

7. The next point urged on be half of the civil revision petitioner is that the decision of the Rent Controller that the issue of res judicata can be considered along with the other issues in the rent control proceedings is a matter which does not affect the rights of the parties and as such no appeal lies to the Appellate Authority against the order of the Rent Controller in the above matter. In support of this contention reliance is placed on the following decisions. In the case reported in The Central Bank of India Ltd. v. Gokal Chand : [1967]1SCR310 , the Supreme Court in dealing with a similar provision of the Delhi Rent Control Act observed as follows

The object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the con text of Section 38(1) the words 'every Order of the Controller made under this Act', though very wide, do not include interlocutory orders which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Sections 36 and 87 such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination f witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question- All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pen din g proceeding; they regulate procedure only and do not affect any right or liability of the parties. The Legislature could not have intended that the parties would be harassed with endless expenses and delay by appeal from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under Section 37(2) is an order passed under the Act and is subject to appeal under Section 38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal.

8. In the case reported in Bant Singh Gill v. Shanti Devi and Ors. : [1967]3SCR59 , the Supreme Court dealing with the similar provisions of the Delhi and Ajmer Rent Control Act observed as follows

However when this appeal came up for hearing before us, learned Counsel for the respondents raised another point for challenging the competency of the appeal that was filed against the order of the trial Court. I was urged that the order, rejecting the application of the appellant to record the abatement of the suit and directing continuance of the suit5 was not an order of such a nature against which an appeal could be filed under Section 34 of the Act of 1952. The word 'order' is used in Section 34 without any limitations, with the exception that it must be an order of a Court passed under the Act of 1952, but it is contended that this word cannot be interpreted so widely as to include all interlocutory orders or other similar orders passed in the course of the trial of a suit. This aspect came up for consideration before this Court when interpreting Section 38(1) of the Act of 1958, in which also a provision for appeals has been made, and the language referred is very wide inasmuch as it is laid down that 'an appeal shall lie from every order of the Controller made under this Act'-The extent of this right of appeal under Section 38(1) was considered by this Court in the Central Bank of Indio Ltd. v. Gokal Chand C.A. No. 1339 of 1956, dated 12th September, 1966 since reported in : [1967]1SCR310 , and it was held that that the object of Section 38(1) is to give a right of appeal t a party aggrieved by some order which affects his right or liability- In the context of Section 38(1), the words ' every order of the Controller made under this Act', though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. The principle was thus recognised that the word 'order' used in such context is not wide enough to include every order, whatever be its nature, and particularly orders which only dispose of interlocutory matters. in the case before us also, all that was done by the application presented by the appellant on 13th March, Iii6l, was to raise a preliminary issue about the maintainability of the suit on the ground that the suit had abated by virtue of Section 5C(2) of the Act of 1958. The Court went into that issue and decided it against the appellant. In the decision had been in favour of the appellant and the suit had been dismissed no doubt there would have been a final order in the suit having the effect of a decree (see the decision of the Full Bench of the Lahore High Court in Ram Charan Das v. Hira Nand A.I.R. 1945 Lah. 298 .On the other hand, if as in the present case, it is held that the suit has not abated and its trial is to continue, there is no final order deciding the rights or liabilities of the parties to the suit. The rights and liabilities have yet to be decided after full trial has beer gone through. The decision by the Court is only in the nature of a finding; on a preliminary issue on which would depend the maintainability of the suit. Such a finding, cannot be held to be an order for purposes of Section 34 of the Act of 1952, and, consequently no appeal against such an order would be maintainable. It was indicated by this Court in the case of the Central1 Bank of India Ltd. C.A, No. 1339 of 1966, dated 12th September, 1966 since reported in : [1967]1SCR310 , that in such a case, it is open to the appellant to canvass the error, defect or regularity, if any in the order in an appeal from the final order passed in the proceeding for eviction. In the present case also, therefore, it is clearly open to the appellant to raise this plea of abatement of the suit, if and when he files an appeal against a decree for eviction passed by the trial Court.

9. In the case reported in T.N. Habib Khan Propr : Hotel Impala and Impala Sweets v. Arogya Mari Shanti Luncien (1981) 2 M.LJ. 29 : 94 L.W. 539. Ratnavel Pandian, J., held that the order passed by the Rent Controller on the question of admissibility of a relevant document is an appealable one since it affects the rights and liabilities of the aggrieved party. In the case reported in Chinnararju Naidu v. Bavani Bai (1981) 2 M.L.J. 354 : 94 L.W. 745, the same learned Judge observed that an order in an amendment application seeking to amend the door number of the premises is not a matter affecting the rights of the parties and is not appealable. In the case reported in Lakshmiammal and Anr. v. V.K. Sivasubramanian (1981) 94 L.W. 366 : (1981) 2 M.L.J. 286, Ratnam, J., held that the order relating to the impleading of the legal representatives is merely a procedural one and no appeal lies in respect of such an order.

10. In the present case, also, the decision of the learned Rent Controller that the applicability of Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act need not be tried as a preliminary issue but can be decided along with the other issues is only a procedural one and cannot be considered to be an order affecting the rights of the parties. But, on the other hand, if the Bent Controller comes to the conclusion that the principle of res judicata laid down in Section 19 of the above said Act is applicable to the present case and dismissed the rent control petition on that ground, then such an order may be said to be an order affecting the rights of parties.

11. As observed in the above decisions the ground of res judicata even if found against the tenant in the enquiry, can be agitated as one of the grounds in the appeal. In view of the principles laid down that an appeal can be maintained only in respect of orders which affect the rights of parties and in view of the fact that the order in question cannot be said to be an order affecting the rights of the parties I will have to conclude that the appeal to the appellate authority itself is not maintainable.

12. In view of the conclusions arrived at on the above said two points I have no hesitation in setting a side the order of the appellate authority and allowing the civil revision petition End confirming the order of the Rent Controller passed in M.P. No. 358 of 1981. Accordingly, the civil revision petition is allowed. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //