Velu Raghavan v. Mathai Babu — 1968 DIGILAW 257 (KER)

Judgment :- 1. The second appeal is filed by the third defendant in O. S.78 of 1965 on the file of the Munsiff's Court, Shertallai. 2. The plaintiff filed the suit for redemption of the mortgage dated 22-1-ll18 in respect of plaint item No. 1 and for recovery of the same. Plaint item No. 2 is a building in plaint item 1. The suit was contested by defendants 2 and 3. According to them, the mortgage was taken by their father benami in the name of the first defendant who is their mother. They therefore claimed value of improvements to the extent of Rs. 3500/ . It was also pleaded by them that the suit is barred by resjudicata on account of the decision in O. S.223 of 1956 on the file of the same court between the same parties for redemption of the very same mortgage. Ext. Dl dated 22-12-1961 is the copy of the decree in the suit. By the said decree the plaintiff was allowed to recover the property from the defendants on deposit of the mortgage money and the value of improvements. Ext. Dl has fixed the compensation payable in respect of the building at Rs. 752.44 and in respect of the trees at Rs. 2528.02. 3. The courts below overruled the plea of res judicata and allowed the plaintiff to redeem the mortgage and to recover possession of the plaint property on payment of mortgage money and value of improvements. The compensation payable to the defendants both in respect of the building and the trees was fixed at Rs. 1590.08. The second appeal is filed by the third defendant against the concurrent decrees of the courts below. 4. The plea of res judicata was overruled by the courts below because the cause of action in each successive suit for redemption of the same mortgage is different until the right of redemption is extinguished or the suits for redemption is barred by time. Since this proposition is well-settled, it was not challenged before me. But the point raised by the learned counsel for the appellant was that the suit was instituted on 29-1-1965 when the execution of Ext. Dl decree had not become barred and therefore the suit is barred under S.47 C. P. C. This point was not raised before the courts below. But the point raised by the learned counsel for the appellant was that the suit was instituted on 29-1-1965 when the execution of Ext. Dl decree had not become barred and therefore the suit is barred under S.47 C. P. C. This point was not raised before the courts below. It is not possible to consider the contention on the merits as the necessary materials to show that Ext. Dl decree was alive on the date of the institution of the suit have not been filed. The plea is therefore overruled. 5. Learned counsel for the appellant then submitted that even if the suit is not barred because of Ext. D-1 the finding in Ext. Dl fixing the quantum of improvements will operate as res judicata in the suit in respect of the improvements due till the date of Ext. Dl and it is not open to the courts below to go behind the said finding. 6. The total value of improvements fixed in Ext. Dl is Rs. 3339.46. This is made up of Rs. 2528.02 being the compensation payable for the trees and Rs. 762.44 being the value for the building. Ext. D2 is the commissioner's report in Ext. Dl suit and Ext. Cl is the commissioner's report valuing the improvements filed in the present suit. In Ext. Cl the value of the building is not assessed and in the trial court the parties accepted the value of the building given in Ext. D2 as sufficient compensation. The value for the building awarded under the decrees of the court below is therefore Rs. 762.44 and the value awarded towards vettozhivu is Rs. 62.52. There was no dispute before me regarding these two items. 7. The value of the trees awarded under Ext. Dl is Rs. 2528.02 and the value awarded to the defendants under Ext. Cl is Rs. 765.12. This is accepted as the amount payable by the courts below. There is thus a huge difference between the value of improvements granted by the courts below and the value awarded under Ext. Dl decree. The plea of the learned counsel for the appellant was that even though the suit is maintainable the finding in regard to the redemption price fixed under Ext. Dl will operate as res judicata and binding between the parties. In support of his contention he relied on the decision in Ramji v. Pandharinath (ILR. Dl decree. The plea of the learned counsel for the appellant was that even though the suit is maintainable the finding in regard to the redemption price fixed under Ext. Dl will operate as res judicata and binding between the parties. In support of his contention he relied on the decision in Ramji v. Pandharinath (ILR. 43 Bombay 334) and Raghunath Singh v. Sheo Partap Singh (AIR. 1929 Allahabad 409). Ia Ramji v. Pandharinath, Scott, C. J., observed at page 354 thus: "A second redemption suit must recognise the binding effect of the previous redemption decree nisi in so far as it settles the accounts upto the date of that decree, and the duty of the Court in the second suit would be limited to the ascertainment of the amount due at the date of the second suit or decree and to give such consequential relief the law permits." In Raghunath Singh v. Sheo Partap Singh, their Lordships of the Allahabad High Court observed thus: "As to the second point whether the Subordinate Judge was right in holding that he was bound by the previous suit in respect of the amount then found due, we may refer to a Bombay Full Bench decision: Ramji v. Pandharinath ( (1919) 43 Bom. 334). It was there held by the Chief Justice of the Bombay High Court and one other judge (a third judge dissenting) that in similar circumstances an earlier decree, although ending in dismissal of a suit by reason of non-payment of the sum decreed, would operate as res judicata in respect of all matters decided at that date. On the other hand, we have been referred to the Allahabad decision just mentioned: Hari Ram v. Indraj, AIR. 1922 All. 377, as an authority for the contrary. It was there stated by Ryves. J., that the parties would be relegated to their position as it was at the commencement of the previous suit. It it sufficient to say that the present matter was not in issue before that Court, and the sole question then was the right to bring a second suit. Furthermore, this Allahabad decision uses the same language as was used by a Subordinate Judge and quoted with approval by their Lordships of the Privy Council in Maina Bibi v. Chaudhri Vakil Ahmad, (AIR. 1925 P. C. 63). Furthermore, this Allahabad decision uses the same language as was used by a Subordinate Judge and quoted with approval by their Lordships of the Privy Council in Maina Bibi v. Chaudhri Vakil Ahmad, (AIR. 1925 P. C. 63). This latter case clearly and emphatically decided that in similar circumstances matters decided in a previous suit could not be reopened. It decided particularly that where the rate of interest was decided in an earlier suit, dismissed for the same reason, that the earlier suit was dismissed in this case, the subsequent suit could not call it in question. The authority, therefore, is clear for hold ing that any matter arising in the earlier suit which was decided cannot be reopened in the present suit." 8. The learned counsel for the respondent brought to my notice the decision in Soma v. ajipad v. Krishnan Menon, (ILR. 1965 TC.196) as an authority against the plea of the appellant. In that case there was a decree in the earlier suit for redemption and it fixed the arrears of purapad due till the date of the decree and provided that the arrears of purapad till the date of recovery of possession of the decree schedule properties should be set off against the mortgage money. It was contended by the mortgagees that since the execution of the decree in the earlier suit was barred by limitation the said decree operated as res judicata in respect of the plaintiff's claim for purappad in the second suit. The trial court accepted this contention and in appeal it was stated by their Lordships thus: "Since the right to redeem has been found in this case to be still subsisting, even after the former decree (Ext. X) has become time-barred, it necessarily follows that the relationship of mortgagor and mortgagee still subsists, and it is open to the mortgagor to ask at the time of redemption for accounts to be taken between himself and the mortgagee. The price redemption has to be fixed after such accounts are taken. If the mortgagor has already realised any arrears of purappad under the decree in a former suit, it is obvious that he cannot claim it again in the second suit from the mortgagee and include the same in the accounting between himself and the mortgagee. The price redemption has to be fixed after such accounts are taken. If the mortgagor has already realised any arrears of purappad under the decree in a former suit, it is obvious that he cannot claim it again in the second suit from the mortgagee and include the same in the accounting between himself and the mortgagee. But if he has not actually realised such arrears and the amount is still due to him from the mortgages, the mere existence of the former decree cannot be a bar to its inclusion in the accounting between the parties for settling the redemption price. The effect of the set off allowed in the former suit, Ext. X, is only to fix the redemption price then payable by deducting from the mortgage money of Rs. 22 000 the arrears payable till 14th Thulam ll17.As has been pointed out by the Privy Council in Ragunath Singh v. Mt. HansraJ. ILR. 56 All. 561 P. C. what had to be decided in the former suit was whether the mortgagor was then entitled to redeem and what was the amount then to be paid if redemption then took place, and what has to be decided in the second suit is whether the right to redeem now exists and what is the amount now to be paid if redemption now takes place. No question Of res judicata, therefore, arises in connection with the inclusion of the arrears of purapad in the accounting for settling the redemption price in the two suits, and no prejudice can also be caused to the mortgages in taking the same arrears into account in both suits." The facts of the above case are clearly distinguishable from the facts of the case before me. The view taken by their Lordships is supportable on the principle that the barred arrears of purappad payable to the mortgagor can be set off against the price of redemption due to the mortgagee. There was no attempt to go behind the finding in the earlier decree fixing the quantum of purappad payable by the mortgagee. There was no plea in Somavajipad v. Krishnan Menon that the amount due towards arrears of purappad fixed under the former decree can be varied by the subsequent decree. There was no attempt to go behind the finding in the earlier decree fixing the quantum of purappad payable by the mortgagee. There was no plea in Somavajipad v. Krishnan Menon that the amount due towards arrears of purappad fixed under the former decree can be varied by the subsequent decree. The contention was only that since the former decree was allowed to be barred by limitation it is not open to the mortgagors to claim an adjustment of the said amount in the price of redemption. I am therefore of the view that the decision in Somavajipad v. Krishna Menon, does not is any way run counter to the decisions in Ramji v. Pandharinath and Raghunath Singh v. Sheo Partap Singh. I therefore hold that the finding in Ext. Dl regarding the value of improvements for the trees belonging to the mortgagee will operate as res judicata in the present suit. 9. It has to be mentioned that Ext. DI has fixed the value of the trees under the provisions of Act 29 of 1958. It is not the contention of the plaintiff in the suit that any of the trees included in Ext. Dl are not in existence on the date of the institution of the suit or cut and removed subsequent thereto or that any waste has been committed in the property by the mortgagee. The quantum of value of improvements found under Ext. Dl has therefore to be accepted as binding between the parties in this suit. 10. It was then urged by the appellant's counsel that the value for the trees fixed by the courts below is wrong. In Ext. Cl the commissioner has found that the total yield from the coconut trees planted by the mortgagee is ll80 nuts. After deducting 1/4th towards droppings the balance is 885 coconuts. The commissioner has valued them at Rs. 149/-per thousand and the income arrived at is Rs. 191.87 per year. The other income derivable from these trees is stated to be Rs. 31.80. There is one arecanut tree in the property and on the basis of the yield the income has been calculated at Rs. 3/.- The total income from the trees is stated in Ext. Cl as Rs. 166.67. Therefrom the commissioner has deducted Rs. 140.25 being expenses in connection with maintenance etc. at the rate of Rs 4/-p2r coconut tree and 25 Ps. 3/.- The total income from the trees is stated in Ext. Cl as Rs. 166.67. Therefrom the commissioner has deducted Rs. 140.25 being expenses in connection with maintenance etc. at the rate of Rs 4/-p2r coconut tree and 25 Ps. per arecanut tree. After deducting R.1.12 toward tax, the balance annual net income is fixed by the commissioner in Ext. Cl at Rs. 25.30. The value of Rs. 379.56 has been arrived at by the commissioner by capitalising Rs. 25.30 by fifteen times. It was pointed out by the learned counsel that the deduction at the rate of Rs.4/-per coconut tree and at the rate of 25 Ps. per arecanut tree towards expenses for maintenance is not correct. The learned District Judge upheld the contention in Ext. Cl in view of S.ll of Act 29 of 1958. The said provision is in these terms: 11. Improvement consisting in protection and maintenance of trees and plants. When the improvement consists in the protection and maintenance of timber or fruit trees or of other useful trees or plants not sown or planted by any of the persons mentioned in S.4, or of such trees or plants spontaneously grown prior to the commencement of the tenancy, the compensation to be awarded shall be the proper costs of such protection and maintenance ascertained as provided in S.9." S.ll deals with compensation payable to the tenant for protection and maintenance of the trees belonging to the owner. The 3rd defendant has not made any claim under S.11 of Act 29 of 1958. The value of improvements claimed by him has to be fixed under S.7 of Act 2) of 1958. S.7 (1) reads: 7. (1) Improvement producing an increase in the value of the annual net produce. The 3rd defendant has not made any claim under S.11 of Act 29 of 1958. The value of improvements claimed by him has to be fixed under S.7 of Act 2) of 1958. S.7 (1) reads: 7. (1) Improvement producing an increase in the value of the annual net produce. When the improvement is not an improvement to which S.11 applies and has caused an increase in the value of the annual net produce of the holding, the court shall determine, as nearly as may be, the average net money value of such increase and shall award as compensation for the improvement three-fourths of the amount arrived at by capitalising such net money value at 20 times." Explanation I: "The value of the net produce means the amount remaining after deducting from the value of the gross produce the cost of cultivation and the Government assessment and local taxes." The question is what is the meaning of the term "the cost of cultivation" in Explanation.) to S.7 (1) of the Act. The learned judge would say that 'the cost of cultivation' is the same as the amount payable under S.11 of Act 29 of 1958 for protection and maintenance of trees not belonging to the tenant under the Act. The learned judge observed thus: "It is evident from the wording of S.7 itself that the net income can be assessed only by taking into account the gross income from the trees less the cost of protection and maintenance. The word costs of cultivation in the case of coconut trees could only be the cost of maintenance and protection and therefore in the absence of other evidence adduced by the parties the rate mentioned in the notification under S.13 has to govern. It is to be noted in this connection that even under S.13 the rate notified is to govern only in cases where there are no definite materials to assess the actual cost of protection and maintenance. In other words there is only a presumption regarding the correctness of the rate notified and it is open to the parties to adduce evidence to the effect that the cost of protection and maintenance is something less than or something more than the rate notified. There is therefore nothing wrong in the commissioner adopting the rate under the notification in the absence of other evidence." ll. There is therefore nothing wrong in the commissioner adopting the rate under the notification in the absence of other evidence." ll. I am afraid that the view of the learned District Judge is the result of a misunderstanding of S.7, 11 and 13 of Act 29 of 1958. S.13 of the Act enables the Government to prepare tables prescribing the cost of protecting and maintaining coconut tree etc. S.13 of the Act has nothing to do with the cost of cultivation referred to in Explanation to S.7(1) of Act 29 of the Act. I do not accept the view of the learned judge that the cost of cultivation in the case of coconut tree could only b3 the cost of maintenance and protection of the tree. Both are entirely different. In assessing the value of bearing coconut trees the normal rule is that 1/4 has to be deducted towards droppings and the rest of the yield is taken as the gross produce. Out of the gross produce thus arrived at 1/4th has to be deducted towards the cost of cultivation and tax and the balance represents the net income, which according to the Act has to be capitalised by twenty times. Even in the matter of capitalisation the commissioner has adopted only the 15 years' rule disregarding S.7 (1) of the Act. In these circumstances, the finding of the courts below accepting the calculation made in Ext. Cl cannot be sustained. Since I have held that Ext. Dl will operate as res judicata in respect of the redemption price fixed till that date it is not necessary to remand the suit to the trial court to refix the value of improvements on the basis of Act 29 of 1958. The price of redemption fixed under Ext. Dl including the mortgage amount is Rs. 3339.46. This amount is payable by the plaintiff before he can recover the property. I therefore modify the judgement and decree of the court below and hold that the plantiff will be entitled to redemption and recovery of possession of the plaint item on payment of Rs. 3339.46. The appeal would prove a vain forensic enterprise involving wasted litigation costs for the landlord and avoidable litigation harrassment for the tenant. It is an ill wind that blows nobody any good. 3. Bearing in mind these factors as background material, let us study the actual provision. 3339.46. The appeal would prove a vain forensic enterprise involving wasted litigation costs for the landlord and avoidable litigation harrassment for the tenant. It is an ill wind that blows nobody any good. 3. Bearing in mind these factors as background material, let us study the actual provision. The case with which I am directly concerned in the revision petition is an order of return of an appeal by the District judge on the ground that the subject matter is one relating to recovery of arrears of rent and is therefore, "a proceeding hit by S.5 of Act 9 of 1967". The question is whether the appeal should be entertained and stayed, or not be entertained at all. 4. I shall reproduce the relevant portions of S.5 and whatever applies to S.5 applies to S.4. " no suit or application or other proceedings for the recovery of arrears of rent in respect of, or for damages for use and occupation of a holding or part of a holding or a holding or a kudikidappu, accrued due before the first day of April, 1966, shall lie in any court or Land Tribunal, and all suits, applications, proceedings in execution of decree or orders and other proceedings pending in courts or Land Tribunals at such commencement for recovery of such arrears of rent or damages shall be stayed." Thus the section is in two parts. The first part halts the institution of impending proceedings, the second part holds up pending cases. "No suit or application or other proceedings for the recovery of arrears of rent shall lis in any court" is the first part of S.5. If an appeal is a proceeding, and if the plain meaning of what I have extracted above is to be given to those words, it amounts to this that an appeal shall not lie in any Court. S.96 (1) of the Civil Procedure Code reads as follows: "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie " Therefore, an appeal shall lie under S.96 of the Civil Procedure Code only subject to any other law and, undoubtedly, Act 9 of 1967 is one such law. The argument would be complete only if two more links in the chain of reason, ing are effectively forged. Is an appeal a proceeding? The argument would be complete only if two more links in the chain of reason, ing are effectively forged. Is an appeal a proceeding? Is the institution of an appeal the commencement of a proceeding or merely the continuation of a suit? I have no doubt that an appeal is a proceeding, generally speaking, and particularly, in the context of wide words used in S.4 and 5 of the Act and the object of the statute. If no suit should be filed against a tenant there is no understandable reasons why an appeal should be allowed to be filed, since the policy behind the rebuff of suits applies equally to appeals. And the language of the section is comprehensive. A plethora of decisions has considered the concept of proceeding. Venkataramana Rao J. in Pallipurayil Asan Kutti v. Mukkolakkal Koyaman Kutti (AIR 1937 Madras 342) had occasion to consider what is a proceeding within the meaning of S.153 CPC. and adopted the definition given in Black's Law Dictionary viz., "any application to a Court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages or for any remedial object". (Vide also 1962 KLJ. 428). I need not dwell at length on the connotation of this expression as it is elementary that an appeal against a decree is a legal proceeding in Court. But a slightly more difficult question confronts me when the second aspect of the question is tackled. Is an appeal a continuation of the suit? It is. Is an appeal a proceeding instituted in the appellate Court? It is. And there need not be any incompatibility between these two answers. There is no doubt that an appeal, so far as the appellate Court is concerned, is a new proceeding because till it is filed there is no proceeding in that Court. To say that an appeal, once instituted, will relate back to the suit involves a legal fiction which unless compelled by the needs of the statute or language of the provision need not be invoked. Moreover, how can we say that it is not a new proceeding when the day before the filing of the appeal there was no proceeding relating to arrears of rent or eviction in any Court? Moreover, how can we say that it is not a new proceeding when the day before the filing of the appeal there was no proceeding relating to arrears of rent or eviction in any Court? The suit had come to an end by the decree passed therein and the appeal had not come into existence because it had not been filed, and only a theory of relation back can bridge this gap and there is no need to invoke this theory for a futile purpose i. e. for salvaging the filing of an appeal which should be stayed immediately thereafter. I agree that an appeal is a rehearing of the suit, from the point of view of the powers of an appellate Court. Lachmeshwar Prasad Shukul v. Keshawar Lal Chaudhuri (AIR. 1941 FC. 5) and Cannanore District Motor Transport Employees Co-operative Society Ltd. v. Malabar Public Conveyance, Tellicherry (1962 KLT. 446). It is also true that an appeal is a continuation of the suit for certain purposes and even may be said to be not the commencement of a new litigation. A Division Bench of the Calcutta High Court, in a ruling reported in Damodar Mukherjee v. Bonwarilal Agarwalla (AIR. 1960 Cal. 469), had occasion to consider whether an appeal marked the commencement of a suit or the continuation of a proceeding. The question there arose in the insolvency jurisdiction. A claim was sought to be proved by a creditor on the basis of a decree obtained by him in appeal. The contention of the insolvent was that when the creditor filed the appeal he had not obtained the leave of the Insolvency Court for filing the appeal which under S.28 (2).of the Provincial Insolvency Act he was bound to obtain and since the appeal was the commencement of a new proceeding, according to the insolvent, as distinguished from the continuation of the suit, the decree obtained in appeal should be treated as non est or as a void decree. The learned judges, after a review of the authorities, held that the decree obtained in appeal was one obtained in a proceeding which was only a continuation of the suit and as such no fresh leave was necessary before the appeal was instituted. As I observed earlier, there are circumstances and circumstances, statutes and statutes and even the expression 'sue' has received different constructions depending on the statute concerned. As I observed earlier, there are circumstances and circumstances, statutes and statutes and even the expression 'sue' has received different constructions depending on the statute concerned. (See Province of Bombay v. Khushaldas (AIR. 1950 SC. 222). In many cases where the powers of the appellate authority have to be delineated Courts have held that it is co-extensive with that of the original authority since an appeal is a re-hearing (Vide Cannanore District Motor Transport Employees' Co-operative Society Ltd. v. Malabar Public Conveyance, Tellicherry (1962 KLT. 446) Similarly in certain statutes an appeal may virtually amount to the continuation of the suit, but no general or universal proposition that an appeal is never a new proceeding and is always a continuation of the suit can be arrived at. So far as the present statute is concerned, I have no doubt that the language of S.5 bears the only reasonable construction that an appeal is a new proceeding instituted in the appellate Court and its institution is therefore barred by the provisions of S.4 and 5 of the Act. The proceeding, vis a vis the District Court, is a fresh one. Therefore, the return of the appeal by the learned District Judge was in order. 5. Nor is there any possible calamity in the offing for the litigants on account of this construction. S.8 of the Act provides that "In computing the period of limitation for the institution of suits, applications or other proceedings prohibited or stayed under this Act, the time during which such suits proceedings were prohibited or stayed shall be excluded". In view of this protective provision, the apprehension that suits and appeals would be barred is out of place. Of course, there will be some inconvenience even to tenants who went to challenge decrees passed against them but cannot institute appeals in view of the construction I have put upon S.4 and 5 and many be lulled, by the statute of stay, into deceptive repose. Of course, there will be some inconvenience even to tenants who went to challenge decrees passed against them but cannot institute appeals in view of the construction I have put upon S.4 and 5 and many be lulled, by the statute of stay, into deceptive repose. Of course, I am not going into the question as to whether an appeal filed by a tenant against a decree for eviction or for arrears of rent is one which comes within the ambit of S.5 of the Act although I am inclined to think that such suits are descriptive of the litigation rather than indicative of the party who pilots the litigation and must therefore be covered by S.4 and 5 of the Act. 6. I therefore dismiss this Civil Revision Petition, but in the circumstances, there will be no order as to costs. Dismissed.