M/s. Saree Sansar and Others vs Nandakumar

S. Tamilvanan, J.—Heard both the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondent.

This Civil Revision has been preferred under Article 227 of the Constitution of India, seeking an order to strike off R.C.O.P. No. 223 of 2009

pending on the file of the Rent Controller/District Munsif Court, Coimbatore.

It is an admitted fact that the petitioners are the tenants and the respondent is the landlord. Learned counsel appearing for the petitioners submits

that earlier, the respondent herein filed R.C.O.P. No. 113 of 2010 under Sections 10(2)(i), 10(2)(ii)(a), 10(2)(b)(vi) and 10(3)(a)(iii) of the Tamil

Nadu Buildings (Lease and Rent Control) Act (herein after referred to as ""the Act""), on the ground of willful default in payment of rent and other

grounds, however, the same was dismissed for default.

Subsequently, the respondent filed R.C.O.P. No. 340 of 2008, seeking an order for fixation of fair rent and the same is pending before the

Court below and the present R.C.O.P. No. 223 of 2009 was filed by the respondent herein, seeking eviction, under Sections 10(2)(ii)(a) and

10(3)(a)(iii) of the Act. According to the learned counsel appearing for the petitioners, it is an abuse of process of law and the Court, as the

respondent/landlord has filed the subsequent RCOP.

Learned counsel appearing for the petitioners also relied on the following decisions:

N. Babu Vs. S. Shanmugam and Others, .

RM. Subbiah Vs. S. Ramakrishnan, S. Ratnam and The Commissioner, Corporation of Chennai, Chennai - 600003, .

Per contra, learned counsel appearing for the respondent submitted that the jural relationship of the landlord and tenant between the respondent

and the petitioners is not in dispute. Since the petitioners have not paid the rent regularly, the earlier R.C.O.P. No. 113 of 2000 was filed by the

respondent, herein seeking eviction, however, that was dismissed. The subsequent R.C.O.P. No. 340 of 2008 is different from the other RCOP,

since the same is filed u/s 4 of the Act, seeking an order for fixation of fair rent. According to the learned counsel appearing for the petitioners,

petitioners have filed their counter in the said R.C.O.P. No. 223 of 2009 before the Court below and the matter was posted for enquiry, in which

P.W. 1 was examined in Chief and the matter is posted for the cross-examination of the said witness. At that stage, the petitioners came forward

with this revision, seeking an order to strike off the RCOP, by adopting delay tactics.

Learned counsel appearing for the respondent also submits that the matter is beyond the purview of revision. In support of her contention,

learned counsel for the petitioners relied on the following decisions:

Mr. Chandmull Verma alias Anantha Verma and Mrs. Anilkumar Verma Vs. Daga Commercial Corporation (P) Ltd.,

C. Keval Chand and Another Vs. Karuppanna Mudaliar and Others, .

Both the decisions cited by the learned counsel for the respondent are directly applicable to the present revision petition, since the

petitioners/tenants are directly approaching this Court, without seeking appropriate remedy before the Court below, though it is a part-heard case.

It is seen that the facts relating to the decision in N. Babu Vs. S. Shanmugam and Others, , is that in a second appeal, confirming the ownership

of the revision petitioner therein, the revision petition was dismissed and after the dismissal, the suit property was bequeathed by way of a Will. As

the issue had already been decided and reached finality, agitating again by way of filing a suit was held as an abuse of process of law and the Court

and accordingly, the plaint relating to the subsequent suit was ordered to be strike off. However, the decision is not applicable to the facts and

circumstances of this Revision, since the subsequent RCOP filed by the landlord, seeking eviction for a different period is maintainable, as the jural

relationship of landlord and tenant is not in dispute between the respondent and the Revision petitioners herein.

The facts relating to RM. Subbiah Vs. S. Ramakrishnan, S. Ratnam and The Commissioner, Corporation of Chennai, Chennai - 600003, , is

that the suit was filed for specific performance of agreement of sale, after reaching finality and the same was again agitated by way of filing a suit. It

was held by this Court that the party had not come with clean hands and re-agitating the matter again and again would be construed as an abuse of

process of law, accordingly, the suit filed by the respondent therein was struck off. However, the aforesaid decisions are no way related to the

facts and circumstances of the case.

Learned counsel appearing for the respondent/landlord submits that the cause of action is different. Merely because the earlier RCOP filed by

the respondent was dismissed for default, the petitioners/tenants cannot raise a plea that the subsequent RCOP is affected by way of res judicata.

As the jural relationship of the respondent and the petitioners has been established as landlord and tenant, the Revision petitioners, without

exhausting the remedy before the Court below would not be entitled to file this revision, seeking strike off the RCOP.

In C. Keval Chand and Another Vs. Karuppanna Mudaliar and Others, , held that rent control legislation should not be construed as beneficial

legislation to the tenant alone. It has to be construed for both and when grounds have been made out, they should not be thwarted by a wrong

interpretation of the Statute, wherein this Court has held as follows:

In the pleading, no case of res judicata was put forward and no reference is also made to H.R.C.O.P. No. 225 of 1979. In fact, in the

counter, the only statement is that from the year 1969, the petitioners were trying to evict him and the case was fought upto the High Court. When

a defence is taken that an application is not maintainable on the ground of res judicata or bar u/s 19 of the Rent Control Act, it is for the person

challenging the maintainability, to substantiate the same. The best evidence in this case is, the eviction and the order dismissing the main petition.

Those documents are not filed. Merely because the present petition is also one for own occupation, it does not automatically follow that the cause

of action is the same. No evidence has been let in to show what was the averment in the earlier petition and the reasons for dismissing the same.

Only if that evidence is before Court, a conclusion can be arrived at whether the petition is barred by res judicata. The matter did not end there.

The principle of res judicata has been made applicable even as against the other tenants against whom no application for eviction was filed earlier.

Both the Authorities were moved by this contention to hold against the landlord. The said finding, according to me, can only be said as perverse.

In Mr. Chandmull Verma alias Anantha Verma and Mrs. Anilkumar Verma Vs. Daga Commercial Corporation (P) Ltd., , this Court has held,

when the previous rent control proceedings have not conclusively and substantially decided the issue of fair rent as well as the need for eviction of

the tenant, on the ground of additional accommodation was maintainable and the dismissal of the RCOP as not pressed, would not be a bar for the

subsequent rent control proceeding initiated u/s 19 of the Rent Control Act.

In the said decision, it was held that one of the essential ingredient for deciding res judicata is that there must be a formal adjudication between

parties in respect of the relief sought for and after full hearing and the matter should have been finally decided between the parties. Sec. 19 of the

Act, incorporates the principle of res judicata more or less on the same lines as that of C.P.C. There are two important requirements for complying

this Section. One is that there must not be identity of issues in the two proceedings and the other is that former proceedings must have been

decided on the very issues which arise in the latter proceeding. When a defence is taken raising the plea of res judicata, the burden of proof is

heavily on the person who is raising the plea.

In the instant case, the plea of res judicata has been raised by the petitioners/tenants, when the RCOP was a part-heard matter before the

Court below. It is seen that the Rent Control Original Petition had been posted for cross-examination of P.W. 1, hence, the petitioners/tenants are

not entitled to raise such a plea before this Court, without raising the same before the Court below. In the Rent Control Original Proceeding, the

jural relationship of landlord and tenant between the respondent and the revision petitioners is not in dispute. Merely because the earlier RCOP

filed by the respondent herein, seeking eviction, on the ground of willful default or landlord''s own use and occupation was dismissed, it could not

be said that there was a bar for the landlord for filing similar RCOP for the subsequent period. Even in case of fixation of fair rent, dismissal of the

earlier RCOP won''t be a bar for seeking similar relief subsequently and the concept of res judicata is not applicable. In fact, directly filing a

petition, invoking Article 227 against the landlord to strike off the RCOP has to be construed as an abuse of process of Court.

On the aforesaid circumstances, invoking Article 227 of the Constitution of India and seeking an order to strike off the RCOP is not legally

sustainable, accordingly, the Revision is liable to be dismissed. In the result, this Civil Revision Petition is dismissed. Consequently, connected

miscellaneous petition is also dismissed. No costs.