Srinivasamurthy Mandiram vs Vaduvambal

K. Veeraswami, J.—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 u/s 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 u/s 11. The application u/s 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 u/s 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 u/s 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 Sree Siddhi Budhi

Vinayakagar Sree Sundareswarar Devastanam Vs. S.V. Marimuthu, . The aggrieved landlord is before this Court in revision.

It has been held in Vedachala Naicker Vs. P.K. Duraiswami Mudaliar, , that having regard to the scheme of the Act, the application u/s 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independent of the suit and can be prosecuted even if the suit is withdrawn.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 u/s 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 u/s 9 was based no

longer holds the field because Sree Siddhi Budhi Vinayakagar Sree Sundareswarar Devastanam Vs. S.V. Marimuthu, 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.

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 : ILR

(1956) Mad. 251, nor Ramaswami Reddi Vs. Talaivasal Marudai Reddi and Others, , 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.

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 u/s 9. It may

be that when the petitioner filed a second suit, the respondent would have the right of filing an application u/s 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 u/s 9 will stand dismissed. No costs.