Gudivada Jagannadham vs A.S. Krishna and Co., Ltd. and Another

Subba Rao, J.—This is an application for issuing a writ of certiorari to quash the order of the Additional Subordinate Judge of Guntur made

in an appeal filed against the order of the Rent Controller of Guntur.

The first respondent is the owner of a three-fifths share in the house and premises bearing door No. 7411 in Guntur Municipality. The petitioner is

a tenant in respect of that share. It is not necessary to notice the previous litigation between the first respondent and others whereunder the first

respondent''s right to three-fifths share in the suit premises was recognized and declared) as the title of the first respondent to that share is not now

disputed before me. The first respondent filed H.R.C. No. 13 of 1949 u/s 7(2)(1) of the Madras Act 25 of 1949 for evicting the petitioner. It was

alleged in that petition that the house required urgent repairs and also that the petitioner made a default in payment of the rent. That application was

filed on 2nd February 1949. On 12th April I949, the petitioner filed another application for amendment of the petition by adding the following

clause to paragraph 7. It reads: ""as the petitioner''s lease to occupy the premises which he has been occupying has expired by 1st February 1949

and the petitioner has vacated the same and as the petitioner does not own any other non-residential ""Building in Guntur town for the purpose of

carrying his business and as there is no other non-residential building in Guntur to the possession of which it is entitled for carrying on its business.

There is some argument before me on the question whether this amendment was actually ordered by the Rent Controller of Guntur. A counter

affidavit was filed to the application for amendment on 18th April 1949. The Rent Controller noticed the argument based upon the amendment. He

practically, though not definitely, accepted all the grounds alleged in the petition and those added by the amendment and ordered eviction. The

respondent preferred an appeal (C. M. A. No. 54 of 1949) to the Subordinate Judge of Guntur. In that appeal the points formulated for decision

were as follows:

Whether the rent fixed by the Rent Controller is fair and reasonable; if not, what is the fair rent due for the building in question?

Whether the appellant was in arrears of rent and was liable to be evicted?

The appellate judgment also disclosed that the advocate who appeared for the respondent at that stage gave up his other two contentions, namely,

that the appellant caused damage to the buildings and that, subsequent to the filing of the petition for eviction, the respondent wanted the building

for carrying on his own business. The learned Subordinate Judge held against the petitioner on the points formulated and allowed the appeal. From

the aforesaid facts, it is manifest that the amendment must have been allowed. Otherwise, the Rent Controller would not have decided the point

raised by the amendment. Nor would the appellate Judge have recorded the fact that the point raised by the amendment was not pressed before

him. Indeed, the learned Subordinate Judge who disposed of the present appeal observed in his judgment that the amendment must presumably

have been allowed. In the counter affidavit filed by the respondent before him it is not stated either expressly or by necessary implication that the

amendment was not made. Indeed, throughout the proceedings the case was argued on the basis that the amendment was allowed. It may

therefore be accepted for the purpose of this application that the amendment was allowed. The result of the previous litigation would then be that

the petitioner applied for eviction on four grounds and that he gave up two grounds, and, in respect of the other two grounds, the learned

Subordinate Judge found against him. The respondent filed the present application for eviction against the petitioner, the main ground being that the

petitioner required the premises for his own occupation. The Rent Controller ordered eviction. The appeal filed against that order was also

dismissed. The petitioner questions that order on the ground that the learned Subordinate Judge erred in holding that the order in the previous

application did not preclude the respondent from filing the present application u/s 10 of the Madras Act 25 of 1949. Section 10 reads as follows:

The Controller shall summarily reject any application under Sub-section (2) or under Sub-section (3) of Section 7, which raises between the same

parties or between the parties under whom they or any of them claim, substantially the same issues as have been finally decided, or as purport to

have been finally decided in former proceedings.

The only question therefore is whether the learned Judge in C. M. A. No. 54 of 1949 finally decided or purports to have finally decided the

question, namely, whether the respondent required the premises for his own occupation. From the narration of the aforesaid facts it will be seen

that the learned Subordinate Judge dismissed the application of the respondent as ho did not press the present contention before him and as he

found against him on other contention raised. Ordinarily, a decision arrived at by a court of law in those circumstance, would operate as a bar of

res judicata u/s 11, Civil P. C. But Mr. Rajah Aiyar contended that the wording of Section 10 of Madras Act 25 of 1949 is different and that

unless the question was finally decided in the previous application, Section 10 would not operate as a bar for the maintainability of a fresh

application. In support of his argument, he relied on the decision of Rajamannar C. J. and Raghava Rao J. in -- '' Miss Revathi v. Venkataraman'',

1949-2 MLJ 594 . There, the previous application was dismissed for default. When a second application was filed, the learned Judges held that a

dismissal for default would not be a final decision within the meaning of Section 10 . I respectfully agree with the view expressed therein. But that

decision has no bearing on the question to be decided in the present case, where an application is dismissed not for default, but on merits. It is also

not necessary to consider the question whether the principle of constructive res judicata applies to this case, for the question was specifically raised

and not pressed. I hold that when an application with specific grounds is filed and if some of the grounds are not pressed, the order of the court

dismissing the application on that basis is a final adjudication on the question raised but not pressed. In that view; the order made in C. M. A. No.

54 of 1949 is a bar to the maintainability of the present application. In the result, the order of the learned Subordinate Judge is hereby quashed and

the petitioner will have his costs.