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A. Amirtharaj Vs. Dr. (Mrs.) K. Inayath Ali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1979)2MLJ324
AppellantA. Amirtharaj
RespondentDr. (Mrs.) K. Inayath Ali
Cases ReferredSalam Sahib v. Lakshmi Ammal
Excerpt:
- .....the argument, in the first instance, is undoubtedly attractive. but, as on the date when the earlier application was disposed of, the law was slightly different. if would enable a landlord or landlady to apply, in the case of a residential building, for eviction of the tenant if the landlord or his own independent occupation. the authorition if he or she is not occupying a residential building of his or her own in the city, town or village. but, by an explanation added by tamil nadu act xxiii of 1973 (which was, indeed, the result of the decisions of this court), the alteration made to the section would enable a landlord or landlady to seek for such eviction not only for his or her own occupation, but also for the occupation of any member of his or her family, if he or she or any.....
Judgment:

T. Ramaprasada Rao, C.J.

1. No doubt, Mr. Subramania Iyer has raised an interesting question, in his Civil Revison Petition, whether Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is applicable to the facts of this case. The respondent was a doctor. She was practising and she needed a clinic for her own use but she was residing in a rented premises. Therefore, she filed H.R.C. No. 4843 of 1963 in the Court of the Rent Controller seeking for eviction of the petitioner under Section 10(3)(a)(i) of the Act as it then stood. The respondent was not successful both before the Rent Controller as well as before the Appellate Authority.

2. The present petition (H.R.C. No. 1080 of 1973) has been filed by the respondent in 1973, about ten years later. Her case was that she was unable to exercise her profession as a doctor and that she was unable to Continue in the rented premises along with her husband and children who are grown up and who find it very difficult to continue their occupation in the rented premises. She would also mention an additional factor that her son has become a doctor and that he is occupying the downstairs in the rented premises, which makes it impossible for her in her old age to live with her husband and the other members of the family in the upstairs. On this different state of affairs and 'facts, she filed the present petition ten years after she lost the earlier petition filed in 1963, in which she had asked the portion in the occupation of the petitioner for her own use and occupation.

3. The only contention raised by the petitioner-tenant both before the Rent Controller and the Appellate Authority was a legal contention. That legal contention was that under Section 19, any application filed under Section 10, amongst others, shall be summarily rejected by the Authorised Officer or the Controller, as the case may be, if such application raises between the same parties substantially the same issues as haying been finally decided or purported to have been finally decided in a former proceeding under the Act.

4. Both the Rent Controller and the Appellate Authority held against the tenant Hence the civil revision petition.

5. Mr. Subramania Iyer repeats the legal contention and urges that the earlier order made in 1963 would operate as a bar to the maintainability of the present petition for eviction. The argument, in the first instance, is undoubtedly attractive. But, as on the date when the earlier application was disposed of, the law was slightly different. If would enable a landlord or landlady to apply, in the case of a residential building, for eviction of the tenant if the landlord or his own independent occupation. The Authorition if he or she is not occupying a residential building of his or her own in the city, town or village. But, by an Explanation added by Tamil Nadu Act XXIII of 1973 (which was, indeed, the result of the decisions of this Court), the alteration made to the section would enable a landlord or landlady to seek for such eviction not only for his or her own occupation, but also for the occupation of any member of his or her family, if he or she or any member of the family is not occupying a residential building of his or her own in the city, town or village. This change in law apparently prompted the respondent to come up with the present petition for eviction. Though, of course, this was not the main sheet-anchor of the respondent, yet, it appears to me that by reason of the change of law, certain vested rights which have come into existence for the first time could be availed of and taken advantage of by the landlord or landlady if he or she fits in with the facts and circumstances which he or she has to establish under the modified section.

6. I have already referred to the present petition in which the respondent, after referring to the growth of her family after the previous petition, stated that she being in a rented premises, needs her own premises in the occupation of the petitioner not only for her own occupation but also for the members of her family who do not own any house of their own. She has also incidentally mentioned about the requirement of her son, who, by the time the second petition (the present petition) was filed became a doctor himself and needed a residential portion for his own independent occupation. The Authorities below rightly thought that the averments in the second petition are different from the facts as disclosed in the first petition and therefore Section 19 would not come into operation. As already stated by me, the principle of res judicata is based on the well-known doctrine that what all might and ought to have been raised on an earlier occasion when a lis is on, ought to have been urged by the party who comes to Court, and if he or she fails to do so, he or she will not be allowed to raise that question which he or she might or ought to have raised earlier. This is the basic principle on which the doctrine of res judicata rests. If so, under Section 19, it should be held that if the landlord or landlady in the second petition could not be said to have raised a point which he or she could not have or ought not to have raised earlier because of the prevailine law, then, the ultimate decision, though between the same parties, would not operate as a bar under Section 19. In a case reported in Salam Sahib v. Lakshmi Ammal 1976 T.L.N.J. 478, Ramanujam, J., took a similar View. Though, the facts in that case are not quite clear, yet, it appears to me that the learned Judge was of the view that if the subsequent application is for a purpose different from that on which the earlier petition was based, then, notwithstanding the dismissal of the earlier application, the second petition is maintainable, even though Section 19 might apparently present an interdict in such cases. I agree with Ramanujam, J., and having regard to the facts and circumstances of this case and the changed law, I feel that Section 19 is not a bar to the maintainability of the application by the respondent for eviction. The Authorities below rightly allowed her application. I accept the bona fides of the petitioner because of the reason stated above and for the reasons mentioned in the citation.

7. The civil revision petition, therefore, fails and is dismissed. The petitioner is granted six months' time to vacate.


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