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Srinivasamurthy Mandiram by Its Managing Trustee Venkatasubbiah Vs. Vaduvambal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1969)1MLJ407
AppellantSrinivasamurthy Mandiram by Its Managing Trustee Venkatasubbiah
RespondentVaduvambal
Cases ReferredRamaswami Reddi v. Marudai Reddi
Excerpt:
- .....the application and allowed it. in doing so, it was of opinion that the previous order on the earlier application under section 9 did not operate as res judicata. it also noted that the view expressed in sivananda gramani v. mohammed ismail (1959) 1 m.l.j. 263, no longer held the field in view of sundareswarar devastanam v. marimuthu i.l.r. : air1963mad369 . the aggrieved landlord is before this court in revision.2. it has been held in vedachala naicker v. doraiswami mudaliar : air1951mad593 , that having regard to the scheme of the act, the application under section 9 is independent of the suit and can be prosecuted even if the suit is withdrawn. section 9-a provides for an appeal from an order under section 9. the very question as to whether the plaintiff in his capacity as a.....
Judgment:
ORDER

K. Veeraswami, J.

1. This petition by the landlord is directed against an order of the Fifth Assistant Judge of the City Civil Court, Madras. He had filed a suit O.S. No. 359 of 1960 for ejectment and to recover arrears of rent. The defendant filed an application under Section 9 of the Madras City Tenants Protection Act, 1921. Both the suit and the application were dismissed. The dismissal of the suit was rested on the ground of want of notice under Section 11. The application under Section 9 was dismissed because, in the view of the Court of the Explanation to Section 9, the plaintiff as a trustee had no power to execute a sale in favour of the defendant except for. necessity. In taking that view, the Court below purported to follow Sivananda Gramani v. Mohammed Ismail (1959) 1 M.L.J. 263. The landlord subsequently brought O.S. No. 2907 of 1963 for ejectment and for recovery of arrears. The tenant taking advantage of this, filed over again an application under Section 9. Pending that suit, the Court below heard the application and allowed it. In doing so, it was of opinion that the previous order on the earlier application under Section 9 did not operate as res judicata. It also noted that the view expressed in Sivananda Gramani v. Mohammed Ismail (1959) 1 M.L.J. 263, no longer held the field in view of Sundareswarar Devastanam v. Marimuthu I.L.R. : AIR1963Mad369 . The aggrieved landlord is before this Court in revision.

2. It has been held in Vedachala Naicker v. Doraiswami Mudaliar : AIR1951Mad593 , that having regard to the scheme of the Act, the application under Section 9 is independent of the suit and can be prosecuted even if the suit is withdrawn. Section 9-A provides for an appeal from an order under Section 9. The very question as to whether the plaintiff in his capacity as a trustee of the institution, which is a Bajana Madam, is entitled to sell is raised over again as between the very parties. It seems to me that merely because the view on which the previous order on the earlier application under Section 9 was based no longer holds the field because Sundareswarar Devasthanam v. Marimuthu I.L.R. : AIR1963Mad369 takes a different view, it does not follow that it set the matter at large as between the parties. The doctrine of res judicata covers an adjudication both on factual as well as legal matters. That a different view of the law has been subsequently taken will not affect the applicability of the doctrine. I am inclined, therefore, to think that the Court below is not right in its view that the previous order did not : operate as a bar to an order on the subsequent application.

3. It is, however, argued that the fact that a different view of the law has been. taken subsequently made a difference. I do not accept the contention. The observation I have made earlier is an answer. Neither Annamali & Co. Ltd. v. Cibgathullah Sahib (1955) 2 M.L.J. 653 : I.L.R. (1956) Mad. 251, nor Ramaswami Reddi v. Marudai Reddi : AIR1924Mad469 , in any way is of assistance to the respondent. In the first of these cases, the earlier decision related to an entire block of land with buildings thereon. This decision was held to be not res judicata on a subsequent occasion, where only a portion of the land without building thereon was in question with reference to which Section 9 was invoked. In such circumstances, a Division Bench of this Court held that the earlier decision did not operate as res judicata. There is no such change of the subject matter in the present case. So too, in the second case cited, there was no final determination on the earlier occasion on the question of permanent tenancy in appeal. The order of the trial Court was confirmed in appeal only on the ground of want of notice to quit. In that situation it was held that the earlier decision did not operate as res judicata on the subsequent occasion when the question of permanent tenancy was raised.

4. I do not think that there is anything in the scheme of the Act, which bars the application of the doctrine of res judicata to an order under Section 9. It may be that when the petitioner filed a second suit, the respondent would have the right of filing an application under Section 9. But the proceedings in this application would be governed by the principle of res judicata. As I said, the decision on a similar or identical point as between the same parties cannot be raised over again and the same decided, notwithstanding the fact that the earlier order was a wrong order. The petition is allowed. The result of it is that the application under Section 9 will stand dismissed. No costs.


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