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2021 DIGILAW 1246 (MAD)

Veeralakshmi @ Kasthuri v. A. K. Chithambarathanu

2021-04-01

R.SUBRAMANIAN

body2021
JUDGMENT : Prayer: Second Appeal filed under Section 100 of Code of Civil Procedure, to set aside the judgment and decree in A.S.No.52 of 2004, dated 19.11.2004 on the file of the I Additional Subordinate Court, Nagercoil, confirming the judgment and decree in O.S.No.211 of 1996, dated 23.07.2003 on the file of the Principal District Munsif Court, Nagercoil. 1. These appeals and revisions arise out of the suits in ejectment and applications filed under Section 9 of the Madras City Tenants Protection Act, 1921. 2. Since the questions involved are the same and the suits as well as the applications filed under Section 9 of the Madras City Tenants Protection Act, 1921, have been disposed of by a common judgment, these appeals and revisions are heard together and are disposed of by this common judgment. 3. The facts, that are necessary for disposal of these appeals and revisions, are as follows: 4. The land owners, namely, respondents in the second appeals and revision petitions, have sued for eviction of the tenants claiming that the predecessor-in-interest of the appellants were let in possession as tenants of the land and they had put up the superstructure. It is the plea of the land owners that the leases in question commenced in the year 1933 to be precise under a lease dated, 25.09.1933. 5. A suit was filed by the predecessor-in-interest of the land owners in O.S.No.525 of 1970 seeking ejectment. In the said suit, the tenants, namely, the predecessors-in-interest of the appellants, Vallinayagam Pillai and Velupillai had filed an application in I.A.No.942 of 1970 under Section 9 of the Madras City Tenants Protection Act, 1921, seeking to purchase the land at a price to be fixed by the Court. However, the said application in I.A.No.942 of 1970 was withdrawn and the Court, while disposing of the suit in ejectment, fixed the value of the superstructure at Rs.20,136.83 and directed the landlords to deposit the said sum as required under Section 4(2) of the Madras City Tenants Protection Act, 1921. 6. It is not in dispute that the landlords failed to comply with the said order and the suit in O.S.No.525 of 1970 eventually stood dismissed. 6. It is not in dispute that the landlords failed to comply with the said order and the suit in O.S.No.525 of 1970 eventually stood dismissed. However, it appears that the landlords had taken possession of the property in execution of the said decree on 16.02.1978 and the said order directing the delivery was reversed by this Court in C.R.P.No.1347 of 1978 and re-delivery was ordered on 02.12.1980. After the order of re-delivery, the plaintiff in O.S.No.211 of 1996, Krishnammal, purchased a portion in D.No.11, from Bagavathy Ammal and the plaintiff in O.S.No.213 of 1996, Rukmaniammal, purchased the property in D.No.13 and the plaintiff in the O.S.No.215 of 1996, Meenambal, purchased the property in D.No.12. 7. The three purchasers filed three suits as above seeking ejectment of the tenants. Upon service of summons in the said suits, the tenants filed C.T.O.P.Nos.5, 6 and 7 of 1996 claiming benefits under Section 9 of the Act. The suits and the Original Petitions were tried together. The sum and substance of the case of the plaintiffs is that, as purchasers of the properties, they are entitled to sue for ejectment after five yeas from the date of the dismissal of the original suit in O.S.No.525 of 1970 under Section 4(4) of the Madras City Tenants Protection Act, 1921. Due notice of termination was also issued. 8. The tenants, apart from resisting the suits on various grounds, initiated proceedings under Section 9 of the Act offering to purchase the land as stated supra. As already stated, the suits and the Original Petitions were tried together. 9. At trial, the second plaintiff in O.S.No.211 of 1996, was examined as PW-1, one Ramasamy, husband of Meenambal, plaintiff in O.S.No.215 of 1996, was examined as PW-2, Rukmaniammal, plaintiff in O.S.No.213 of 1996 was examined as PW-3 and one Kanakasabapathy was examined as PW-4. Ex-A1 to Ex-A16 were marked. On the side of the defendants, the first defendant in all the suits, Kasthuri @ Veeralakshmi was examined as DW-1 and Ex-B1 to Ex-B3 were marked. 10. Upon a consideration of the evidence on record, the learned Principal District Munsif, Nagercoil, concluded that the plaintiffs are entitled to maintain the suits in ejectment and a valid notice to quit under Section 11 of the Madras City Tenants Protection Act, 1921, has also been issued. 10. Upon a consideration of the evidence on record, the learned Principal District Munsif, Nagercoil, concluded that the plaintiffs are entitled to maintain the suits in ejectment and a valid notice to quit under Section 11 of the Madras City Tenants Protection Act, 1921, has also been issued. On the right of the tenants to purchase the land, that is the subject matter of the lease, the trial Court concluded that in view of the fact that the predecessors-in-interest of the tenants had withdrawn the application in I.A.No.942 of 1970 filed by them seeking to purchase the land under Section 9 of the Madras City Tenants Protection Act, 1921, the tenants were not entitled to maintain a second application for the same relief. 11. On the above findings, the learned Principal District Munsif decreed the suits and dismissed the Original Petitions filed under Section 9 of the Madras City Tenants Protection Act, 1921. The learned trial Judge made a provision for determination of the value of the superstructure, that is to be paid by the landlords. Aggrieved, the tenants preferred appeals in A.S.Nos.121 of 2003, 24 and 52 of 2004 on the file of the I Additional Sub - Court, Nagercoil. As against the order dismissing the petitions filed under Section 9 of the Act, Civil Miscellaneous Appeals in C.M.A.Nos.30, 31 and 32 of 2003 were filed by the tenants. 12. The above appeals came to be disposed of by a common judgment. The learned appellate Judge, upon a re-consideration of the evidence on record and the law relating to withdrawal of a proceeding without liberty to file a fresh proceeding on the same subject matter, concurred with the findings of the trial Court. While dismissing the Civil Miscellaneous Appeals filed by the tenants and confirming the decree in ejectment, the learned appellate Judge, however, remitted the suits to the trial Court with the directions to the trial Court to appoint a Commissioner to assess the value of the improvements made by the tenants after possession was restored to them and to enable the landlords to pay the said value before taking possession in view of Section 4(2) of the Madras City Tenants Protection Act, 1921. It is these judgments of the learned Additional Subordinate Judge made in Appeal Suit Nos.121 of 2003, 24 and 52 of 2004 and C.M.A.Nos.30, 31 and 32 of 2003, are the subject matter of challenge in these appeals and revisions. 13. The following substantial questions of law were framed in the appeals at the time of admission: “1.Whether the courts below are justified in law in holding that the defendants are not entitled to file a second petition under Section 9 of the City Tenants Protection Act in the second suit? 2.Whether there is any statutory bar for filing second application by the tenant under Section 9 of the City Tenants Protection Act in the second suit filed by the landlord? 3.Whether the courts below are justified in law refusing to adjudicate the rights of the defendant under Section 9 of the City Tenants Protection Act in the suit filed under Section 4(4) of the said Act?” 14. I have heard Mr.C.Godwin, learned Counsel for the appellants in the appeal and the petitioners in the Civil Revision Petitions and Mr.H.Thayumanaswamy, learned Counsel for Mr.D.Hari, learned Counsel for the respondents. 15. Mr.C.Godwin, learned Counsel appearing for the appellants would vehemently contend that the Courts below were not right in concluding that the tenants are not entitled to maintain a second application under Section 9 of the Madras City Tenants Protection Act, 1921. According to him, even though there is no provision enabling the tenants to file a second application, once the landlords allow the suits in ejectment to be dismissed for non payment of the compensation payable under Sub Section 2 of Section 4 of the Madras City Tenants Protection Act, 1921 and bring in a fresh suit after a lapse of five years taking advantage of the liberty given to him/her under Sub Section 4 of Section 4 of the Act, the tenants would be entitled to file a second application under Section 9 of the Act, in the new suits that are brought about by the landlords. 16. The learned Counsel for the appellants would also submit that withdrawal of an application or a proceeding would not preclude the tenants from bring in another application or proceeding in the changed circumstances or on a different cause of action. 16. The learned Counsel for the appellants would also submit that withdrawal of an application or a proceeding would not preclude the tenants from bring in another application or proceeding in the changed circumstances or on a different cause of action. The learned Counsel would also submit that it is not a principle of res judicata, that would bar the tenants from bringing in a second application, since there was no decision on merits in the earlier proceedings. Therefore, according to the learned Counsel for the appellants, the dismissal of the applications filed by the tenants under Section 9 of the Act, is not justified and therefore, the decree in the suits cannot be sustained, inasmuch as it is a consequence of a wrongful dismissal of the second application filed under Section 9 of the Act. 17. Contending contra, Mr.H.Thayumanaseamy, learned Counsel for the respondents would submit that even though the principles of res judicta would not strictly apply, the tenants would be precluded from filing a second application under Section 9 of the Act, after having withdrawn the earlier application filed in I.A.No.942 of 1970 in view of the bar contained in Order XXIII Rule 1(4) of CPC. The learned Counsel would also submit that the provisions of Order XXIII Rule 1(4) CPC are wide enough to include a subsequent application, even based on a different cause of action, if the earlier application has been withdrawn. The learned Counsel for the respondents would draw my attention to the language of Sub Rule 4 of Rule 1 of Order XXIII of Code of Civil Procedure to buttress his contention. 18. I have considered the rival submissions. 19. The one and only question, that is to be decided in these appeals and the revisions, is as to whether a tenant is precluded from bringing in a second application under Section 9 of the Madras City Tenants Protection Act, 1921, after having withdrawn the first application filed in an earlier suit in the given circumstances. 20. The facts are not in dispute. 20. The facts are not in dispute. The fact that the predecessor-in-interest of the landlords filed a suit in O.S.No.525 of 1970 seeking ejectment; the fact that the tenants filed an application in I.A.No.942 of 1970 seeking to purchase the land under Section 9 of the Act; the fact that the tenants withdrew the said application; and the fact that the suit in O.S.No.525 of 1970 was eventually dismissed because, the landlords failed to pay the compensation determined for the superstructure, as required under Sub Section 2 of Section 4 of the Madras City Tenants Protection Act, 1921, are all admitted. 21. The moot question is as to whether the tenants would be entitled to re-agitate their rights, which they chosen to waive in the earlier proceedings, when the landlords bring in a suit for ejectment taking advantage of the liberty given to the landlords under Sub Section 4 of Section 4 of the Madras City Tenants Protection Act, 1921. The answer to this question in my mind lies in the language of Sub Rule 4 of Rule 1 of Order XXIII of CPC, which reads as follows: “(4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.” 22. The effect of the provision is that a plaintiff/applicant, who abandons or withdraws a suit or a part of the claim without the permission referred to under Sub Rule 3 of Rule 1 of Order XXIII of CPC, is precluded from bringing in any fresh suit in respect of such subject matter or such part of the claim. What is barred is a new action on the subject matter of the claim. According to Black's Law Dictionary, the term “subject matter” means, “the issue presented for consideration; the thing in which a right or duty has been asserted; the thing in dispute.” Therefore, the term “subject matter” means a little more than a mere cause of action or it takes in its sweep an issue that is presented for consideration or a thing in which a right or duty is asserted. The appellants/tenants have asserted their rights available to them under Section 9 of the Act before the competent Court in I.A.No.942 of 1970. Needless to point out that the right under Section 9 of the Act, is independent of the suit filed by the landlords. Even if the suit filed by the landlords is dismissed or withdrawn, the application filed under Section 9 of the Act, would stand on its own and has to be disposed of on its own merits. 23. Under the provisions of the Madras City Tenants Protection Act, 1921, a tenant is entitled to maintain the application de hors the pendency or otherwise of the suit for ejectment filed by the landlords. May be, the cause of action for the suit would be the service of summons in a suit in ejectment. But, the result of the suit in ejectment will not under all circumstances affect the determination of right of the tenant under Section 9 of the Act. Therefore, the question, that is now raised in these appeals and revisions, has to be decided in the bearing in mind the scope of the rights of the tenants under Section 9 of the Act. 24. The Honourable Supreme Court, in Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior and others, reported in (1987) 1 SCC 5 , has considered the scope of term “subject matter” used in Sub Rule 4 of Rule 1 of Order XXIII of CPC. After examining the language of Sub Rule 4 of Rule 1 of Order XXIII of CPC, the Honourable Supreme Court has held as follows: “7.The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in subrule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in subrule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. ...... The principle underlying the above rule is rounded on public policy, but it is not the same as the rule of res judicata contained in section 11of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit. or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.” 25. or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.” 25. It could be seen that the Honourable Supreme Court, after noticing the difference between the principles of res judicata enshrined under Section 11 CPC and the bar created under Order XXIII Rule 1(4) CPC, had held that even in the absence of a prior adjudication on the rights of the parties, if a party withdraws or abandons his claim, he shall be precluded from bringing in a fresh suit or making a fresh claim in view of the bar enacted under Order XXIII Rule 1(4) CPC. As already pointed out, the language of Sub Rule 4 of Rule 1 of Order XXIII CPC, which uses the term “subject matter” in preference to the term “cause of action”, which is used in Order IX Rule 9 CPC, would show that the intendment of the legislature is to widen the application of the bar under Sub Rule 4 of Rule 1 of Order XXIII CPC. 26. As already pointed out, an application under Section 9 of the Act, does not depend on the disposal of the suit in ejectment. Even if a suit in ejectment is dismissed for the default of the landlord, the application under Section 9 of the Act, would stand independently and the rights of the tenants will have to be decided thereunder. The tenants, having withdrawn their application and having allowed the Court to pronounce upon the rights of the landlords in O.S.No.525 of 1970, cannot be heard to contend that merely because, the landlords are allowed to sue afresh for ejectment after lapse of certain period, they would also be entitled to bring in an application under Section 9 of the Act, for the second time. 27. In Vallabh Das vs. Dr.Madan Lal and others, reported in 1970 (1) SCC 761 , the Honourable Supreme Court had examined the meaning of the term “subject matter”. In doing so, the Honourable Supreme Court has observed as follows: “5.The expression “subject-matter” is not defined in the Civil Procedure Code. It does not mean property. 27. In Vallabh Das vs. Dr.Madan Lal and others, reported in 1970 (1) SCC 761 , the Honourable Supreme Court had examined the meaning of the term “subject matter”. In doing so, the Honourable Supreme Court has observed as follows: “5.The expression “subject-matter” is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed.....” 28. In view of the above conclusions of the Honourable Supreme Court, it is clear that the second application filed under Section 9 of the Act, is barred under Sub Rule 4 of Rule 1 of Order XXIII of CPC. The Courts below cannot be faulted for having held that the applications under Section 9 of the Act, are barred. The appellate Court had rightly remitted the suits for fixation of the value of the buildings put up by the tenants, after they were restored to possession in terms of Section 4(2) of the Madras City Tenants Protection Act, 1921. 29. In view of the above, the substantial questions of law raised in these appeals are answered against the appellants and the appeals stand dismissed. As a consequence, these Civil Revision Petitions would also have to fail. 30. In fine, the Second Appeals and the Civil Revision Petitions fail and they are dismissed confirming the judgments and decrees of the appellate Court. However, in the circumstances, there will no order as to costs. Consequently, connected miscellaneous petitions are closed.