K.M. Sadasivan Chettiar vs G. Mariappan

Ramakrishnan, J.—This Civil Revision Petition arises under the following circumstances. Two persons, father and son, claimed to be

landlords and sought for eviction of their tenant from a non-residential building in Salem town on the grounds that the tenant was in arrears of rent

and that the landlords required the building for their bona fide occupation. When this petition came for hearing, the Petitioners reported to the

Court that the petition was not pressed and thereupon on 16th August 1961, the petition for eviction was dismissed. Thereafter, the landlords filed

a fresh petition for eviction on identical grounds. The tenant pleaded that the application would be barred r u/s 19 of Madras Act XVIII of 1960,

which reads thus:

Decisions which have become final not to be reopened.--

The Controller shall summarily reject any application under Sub-section (2) or under Sub-section (3) of Section 10 or u/s 14, 15 or 16 which

raises between the same parties or between parties under whom they or any of them claimed, substantially the same issues as have been finally

decided or as purport to have been finally decided, in a former proceeding--

(i) under this Act, or

(ii) under any other law from time to time in force before the date of the commencement of this Act and relating to matters dealt with in this Act.

The Rent Controller held that the dismissal of the prior petition would not operate as a bar and allowed the petition. The learned Principal

Subordinate Judge confirmed the decision and the learned District Judge in revision also confirmed it. The tenant was directed to be evicted as the

landlord had proved that the tenant was in arrears of rent and that the landlord required the building for his bona fide use. The present revision

petition is filed by the tenant.

Learned Counsel appearing for the Petitioner referred to the judgment of Subba Rao J. (as he then was) in Gudivada Jagannadham Vs. A.S.

Krishna and Co., Ltd. and Another, That decision dealt with a case where the landlord applied for eviction on four grounds, but gave up two

grounds and in respect of the other two grounds, which he pressed, a decision was given against him. One of the grounds given up was that he

required the premises for his own business. The landlord filed a fresh petition for eviction on the main ground that he required the premises for his

own occupation. The question that arose in such circumstances was whether the landlord would be debarred from evicting the tenant on the

aforesaid ground by reason of Section 10 of Madras Act XXV of 1949, which corresponds to Section 19 of Madras Act XVIII of 1960. The

learned Judge held that when an application with specific grounds was filed and if some of the grounds were not pressed, the order of the Court

dismissing the application on that basis would be a final adjudication on the questions raised but not pressed. When a prior decision of this Court

Rajamannar C.J. and Raghava Rao J. in Miss Revathi by Next Friend and Guardian S. Parthasarathy Vs. M. Venkataraman and Another, was

brought to the notice of the learned Judge, he distinguished that decision by the observation that the Bench decision dealt with a case where the

application was dismissed for default, but the case before Subba Rao J. (as he then was) was one in which the prior decision was dismissed on the

merits. It would, thus be clear that Subba Rao J. drew a distinction between a case which is dismissed wholly for default and a case which is

decided on the merits even though in that case some of the grounds may be pressed and some other grounds may not be pressed. It would follow,

therefore, that the decision of Subba Rao J. will not be authority for a case where the disposal is either for default or because the Petitioner did not

press his case and where as a consequence, the merits of the case have not at all been gone into. An instance of the latter type of case is Miss

Revathi by Next Friend and Guardian S. Parthasarathy Vs. M. Venkataraman and Another, referred to already where the Bench observed.

Without on adjudication on the merits, an issue cannot be said to have been finally decided.

The Court was dealing with a case where a prior application for a similar relief was dismissed for default of the Petitioner�s appearance. In

the same volume Rajamannar C.J. and Krishnaswami Nayudu J. had to deal with a case P. Rangathaman Vs. Sankarlal Davey and Another,

where the prior application was permitted to be withdawn by the Petitioner with liberty to file a fresh petition after due notice terminating the

tenancy. The Bench observed that the words finally decided in Section 10 clearly implied that the prior application should have been decided on

the merits. The matter again came up before Krishnaswami Nayudu J. in Sivasubramania Chettiar v. Ramaswami Iyer (1955) 2 M.L.J. 457

wherein the learned Judge reviewed the two earlier Bench decisions of this Court as well as the decision of Subba Rao J. and expressed the

distinction between the type of cases dealt with in the Bench decisions and the case dealt with by Subba Rao J. in the following terms:

In whatever manner the previous petition was disposed of, whether it was dismissed for default of appearance, or it was withdrawn with liberty or

without liberty to file a fresh application or was not pressed and dismissed, or in any other manner disposed of, short of adjudication on merits, the

requirements of Section 10 could not be held to have been complied with, as it is only a decision on merits that would justify the view that a

subsequent application is barred by virtue of lection 10 of the Act.

I respectfully agree with this view and hold that the decision in Gudivada Jagannadham Vs. A.S. Krishna and Co., Ltd. and Another, cannot be

applied to a case where the disposal of the prior application was not on merits. I, therefore, hold that the order of the Courts below is right, and I

dismiss this revision petition with costs. Time to vacate three months from to-day.