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2008 DIGILAW 89 (MAD)

M. Anandan & Others v. A. Dakshinamoorthy

2008-01-08

C.NAGAPPAN

body2008
Judgment :- 1. The defendants have preferred the present Appeal challenging the judgment and decree dated 111. 1994 made in O.S. No.396 of 1987 on the file of the Court of the Subordinate Judge, Arni. 2. The respondent herein filed the Suit seeking for a decree directing the defendants to pay the Suit Claim of Rs.41,192.50 with subsequent interest and costs. The case of the plaintiff is that he leased out his rice mill to the defendants on a monthly lease of Rs.5,100/- and the tenancy, which was oral, commenced from 11. 1985 onwards and an advance amount of Rs.20,000/- was paid by the defendants to the plaintiff at the time of tenancy and the defendants were carrying on rice business in the rice mill of the plaintiff and suddenly on 10. 1987 they left the rice mill without informing anything to the plaintiff. According to the plaintiff, the defendants have not paid the monthly lease amount from 11. 1985 to 10. 1985 and a sum of Rs.43,350/- is due by the defendants by way of rent for 8 1/2 months period and the plaintiff has adjusted the advance amount of Rs.20,000/- and the defendants owe rental arrears of Rs.23,350/- to the plaintiff. It is further stated by the plaintiff that the defendants, at the time of vacating the premises, have taken the rice mill materials to the value of Rs.5,000/- with them and they are liable to pay the said sum also to the plaintiff. It is the further case of the plaintiff that the defendants using the name of the plaintiff have purchased gunny bags from one M. Ramasamy Mudaliar and Sons, Coimbatore, and they have not cleared that amount and the plaintiff has paid the said sum to Ramasami Mudaliar and Sons and he is entitled to recover the said sum also from the defendants and in spite of repeated demands made by the plaintiff, the defendants have not paid the above said sums and the plaintiff issued lawyers notice on 210. 1985 and 13. 1986 and the defendants sent reply containing false and frivolous allegations and hence, the Suit. 3. 1985 and 13. 1986 and the defendants sent reply containing false and frivolous allegations and hence, the Suit. 3. The defendants in their written statement have denied the lease agreement and have stated that the plaintiff was in possession of a tentative draft of the arrangement which has not been produced with the Plaint and it was agreed that the lease agreement is to come into existence and take effect only after a properly drawn up and registered lease agreement is effected and till then, there was to be no contractual relationship and the plaintiff received an advance amount of Rs.20,000/- from the defendants on 11. 1985 and within 2 or 3 days itself, it was found that the rice mill was under Court attachment and the defendants called on the plaintiff to clear the cloud or refund the advance and the plaintiff was not in a position to clear the cloud and he undertook to refund the advance with interest after a period of three months. According to the defendants, there was no relationship of lessor and lessee except the obligation of the plaintiff to refund the advance of Rs.20,000/- with interest and the plaintiff immediately let out the rice mill to one T.R. Danasekaran, who ran his business in the rice mill and he also subsequently vacated, and the plaintiff then let out the building to other persons. It is further stated by the defendants that they never took possession or ran any business in the rice mill for any period and there is no question of vacating on 10. 1985 as stated by the plaintiff. It is further stated in written statement that the defendants never purchased gunny bags from Ramasamy Mudaliar and sons using the plaintiffs name and the plaintiff issued legal notice making a false claim and a suitable reply has been sent by the defendants. The defendants have preferred a counter-claim seeking for refund of advance amount of Rs.20,000/- and a sum of Rs.7,550/- as interest, totaling a sum of Rs.27,550/- from the plaintiff. 4. The plaintiff filed a reply statement denying the counter-claim and has stated that in pursuance of the oral tenancy, a collateral agreement was effected in writing on 11. 1985 for record purpose and the plaintiff did not file the same with the Plaint as there was a risk of stamp duty penalty and the plaintiff has validated the same. 4. The plaintiff filed a reply statement denying the counter-claim and has stated that in pursuance of the oral tenancy, a collateral agreement was effected in writing on 11. 1985 for record purpose and the plaintiff did not file the same with the Plaint as there was a risk of stamp duty penalty and the plaintiff has validated the same. It is further stated by the plaintiff that the lease came into effect on 11. 1985 itself and the defendants were put in possession of the rice mill on the very same day and they were in possession and enjoyment of the rice mill for a period of 8¼ months and there was no Court attachment of the Mill as alleged by the defendants. It is further stated by the plaintiff that the rice mill was not let out to T.R. Danasekaran and the defendants were in possession and enjoyment of the rice mill for a period of 8¼ months and the question of return of advance amount does not arise at all. 5. The Trial Court framed nine issues and the plaintiff examined himself as P.W.1 and examined P.W.2 and marked Exs.A1 to A43 on his side and the first defendant examined himself as D.W.1 and examined D.W.2 and marked Exs.B1 to B3 on their side. The Trial Court, on a consideration of oral and documentary evidence, held that the plaintiff is entitled to a sum of Rs.23,350/- towards rental arrears; a sum of Rs.5,000/-towards the value of missing materials; and a sum of Rs.3,500/- towards the value of gunny bags; in total a sum of Rs.31,850/- from the defendants and granted decree for that sum with subsequent interest and it further held that the defendants are not entitled to the counter-claim and dismissed the counter-claim. Aggrieved by the decree granted to the plaintiff for recovery of Rs.31,850/-with subsequent interest, the defendants have preferred the present Appeal and no Appeal is preferred by them against the dismissal of their counter-claim. For the sake of convenience, in this judgment, the parties re referred to as arrayed in the Suit. 6. Mr. T.R. Rajaraman, learned counsel for the respondent, raises a preliminary objection as to the maintainability of the Appeal on the ground that no Appeal has been preferred by the appellants/defendants against the dismissal of their counter-claim decision in this Appeal on merits by the principles of res judicata. 6. Mr. T.R. Rajaraman, learned counsel for the respondent, raises a preliminary objection as to the maintainability of the Appeal on the ground that no Appeal has been preferred by the appellants/defendants against the dismissal of their counter-claim decision in this Appeal on merits by the principles of res judicata. In support of his contention, he squarely relies on the decision of this Court in Vediammal and others v. M. Kandasainy and others, 1997 T.L.N.J. 96. He also brought to the notice of this Court, the decision of Kerala High Court in Nherapoyil N.P. Moideen v. K. Narayanan Nair, AIR 1997 Ker. 318 . 7. Per contra, Mr. C. Prakasam, learned counsel for the appellants, submits that there is only one Suit and Appeal has been preferred against the decree passed in the Suit and the principle of res judicata will not apply. In support of his submission, he relies on the decision of the Supreme Court in Narhari and others v. Shanker and others, AIR 1953 SC 419 . 8. Order 8, Rule 6-A of Code of Civil Procedure provides for a counter-claim by the defendants. Sub-Rule (2) therein says that such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same Suit, both on the original claim and on the counter-claim. A liberty is given to the plaintiff to file a written statement in answer to the counter-claim, under sub-rule (3). Sub-Rule (4) stipulates that the counter-claim shall be treated as a Plaint and governed by the rules applicable to Plaints. In the event of the Suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with, as per Rule 6-D and if the plaintiff makes default in putting in a reply to the counter-claim, the Court may deliver judgment against the plaintiff in relation to the counter-claim as provided under Rule 6-E. 9. A counter-claim is declared as a cross-suit in the above provisions of Code of Civil Procedure enabling the Trial Court to pronounce a final judgment, both in the original claim and on the counter-claim. In effect, the Suit and the counter-claim is disposed of by a common judgment and if no Appeal is filed against one of the judgments, that becomes final. This finality can be taken away only in accordance with law. In effect, the Suit and the counter-claim is disposed of by a common judgment and if no Appeal is filed against one of the judgments, that becomes final. This finality can be taken away only in accordance with law. When a judgment or decree in a connected cross-suit is not appealed from, the principle of res judicata has to be applied. 10. S.S. Subraminai, J., in the decision rendered in the case of Vediammal and others, referred above, has elaborately considered the question as to what happens where no Appeal is filed against the judgment in the counter-claim, which is allowed to become final, and has laid down that the principle of res judicata is applicable to it. In fact, the decision of the Supreme Court reported in AIR 1953 SC 419 , referred above, has been cited before the learned Judge and it was held that the decision may not have any application to the case. I am in entire agreement with the view taken by the learned Judge in the above decision. 11. In the present case, it can be concluded that as the Suit claim and the counter-claim have been tried together and the findings recorded in one of them have become final, in the absence of an Appeal, the Appeal preferred against the findings recorded in the other would definitely be barred by the principle of res judicata. 12. For the foregoing reason, the Appeal is dismissed. However, there shall be no order as to costs.