R. Somanathan and Co. vs P. Sankaran Asari

K. Sampath, J.—The plaintiff in O.S.No.400/74 on the file of the Principal District Munsif, Tuticorin, is the revision petitioner. The case has

had a long and chequered career. It is necessary to have a background of the case.

The suit was filed by the revision petitioner against one Petchimuthu Asari, father of the respondent herein, who was the third defendant in the

suit for eviction. Pending proceedings Petchimuthu died. His wife, daughter and son, the respondents herein, were impleaded as parties. The

question which arose for consideration in the suit was whether Petchimuthu and subsequent to his death, his legal representatives were entitled to

the benefit of the City Tenants Protection Act. The suit was originally dismissed. A review petition was filed on the ground that the Act had not

been extended to the area in which the property was situated. The review petition was allowed. It was held that the tenant and on his death his

legal representatives were not entitled to the benefits of the said Act. There were civil miscellaneous appeals filed in C.M.A.Nos.4, 5, 6 and 12 of

1976. By judgment dated 19.2.1977 it was held that the tenants were entitled to the benefits of the Act. The case was remitted with a direction to

decide the question of market value. Aggrieved by the remand order, the revision petitioner filed C.R.P.No.1118/77. The decision of the lower

Appellate Court was confirmed by this Court by order dated 6-5-1980. There was a SLP filed before the Supreme Court. The Supreme Court by

order dated 14-10-1992 dismissed the SLP with costs quantified at Rs.1000/- to the respondents herein. After the decision of the Supreme

Court, the revision petitioner again wanted the trial Court to take up the issue as to whether the defendants were entitled to the benefits of the Act,

as, according to the revision petitioner, the tenant had denied the title of the plaintiff landlord and therefore, he was not entitled to the benefits of the

Act. It was also brought to the notice of the trial Judge that even in the appeal filed by the defendants before the District Court, he had denied the

title of the landlord and even though the said contention was not raised, the fact remained that there was denial of title, which could not be brushed

aside and therefore, a fresh decision was required whether the defendants were entitled to the benefits of the Act. Again, the trial Court held that

the denial of title would disentitle the tenants from claiming the benefits of the Act. There was an appeal filed in C.M.A.No.9/96 by the

respondents. The Appellate Court set aside the order of the trial Court and held that the denial of title was bona fide and when the same was not

pursued, that could not be a ground to be taken note of by the Court. The Appellate Court further found that the previous orders concluded the

matter and the same could not be reopened on some other ground. The appeal was allowed against which a civil revision petition was filed in

C.R.P.No.2868/96. By order dated 12-2-1997 S.S. SUBRAMANI, J., as the learned Judge then was, dismissed the civil revision petition

holding that the order of remand restricted the scope of enquiry, after holding that the applicants in the various suits were entitled to the benefits of

the City Tenants Protection Act and that it was only to decide the market value the remand order was passed. Thereafter, the matter went to the

trial Court and the trial Court fixed the price for the site at Rs.13,058/- by order dated 18-7-2001 to be decided within a period of 30 days

therefrom.

Thereafter, the respondents took out an application for amendment of the decree with regard to the Schedule by saying that the petition

property measured north-south 58 feet 6 inches and east-west 16 feet 3 inches of a total area of 955.18 sq. feet = 2.19 cents, as, according to the

respondents, there had been a clerical mistake instead of mentioning as 57 feet, it was mentioned as 47 feet, though the description of the

boundaries had been correctly given.

The petition was opposed by the revision petitioner contending that the prayer for identical relief was refused in I.A.No.1505/75 in

I.A.No.1241/74 and it is barred by the principles of res judicata. The revision petitioner further contended that the respondents filed a suit in

O.S.No.602/82 claiming right in an extent of 58 feet 6 inches x 16 feet and a further extent in the rear and sought injunction and that the matter

came up to this Court and his claim was negatived in S.A.No.506/89.

The lower Appellate court having allowed the application, the present civil revision petition has been filed.

Mr. K. Srinivasan, learned Counsel for the revision petitioner, made the following submissions:

There was an application filed in I.A.No.1505/75 for amendment of the Schedule stating that in stead of mentioning as 57 feet, it was wrongly

mentioned as 47 feet in I.A.No.1505/75 and the same should be amended. This I.A.No.1505/75 was dismissed on 7-11-1975 and under the

pretext of correcting a clerical mistake, the respondent could not set at naught the earlier order passed in the present proceedings themselves for

the same relief. Further, the respondent filed an independent suit for injunction claiming that he was in possession of 58 feet 6 inches x 16 feet and

a further extent on the rear for convenient use of the larger extent and that suit came to be dismissed by this Court in S.A.No.506/89 on 15-9-

1989 and in these circumstances, absolutely no case had been made out and the lower court had misconstrued the principles relating to

amendment and granted the prayer.

Per contra, the party in person, besides filing written arguments and the entire records relating to the case, which are in his favour and leaving out

the orders against him, addressed elaborate arguments as to how he had been fighting the battle from 1974, how he had been successful

throughout, how he was awarded costs by the Supreme Court and how the Courts have been doing justice to him and how this Court also should

do that.

The points actually raised by the learned Counsel for the petitioner were not really met by the party in person. As already noted, the order

passed in the earlier application in I.A.No.1505/75 and the dismissal order of the subsequent suit filed by him in 1982 by this Court have not been

made available by the respondent/party in person. He made a feable attempt to cast aspersions on the Judge who decided the application in

I.A.No.1505/75. He was, however, silent about the dismissal of the second appeal. It is, therefore, necessary to know about the order in

I.A.No.1505/75. The learned Counsel for the revision petitioner has made available the order in the said application. In the affidavit in support of

the said application, the respondent''s father had stated as follows:

He had filed I.A.No.1241/74 on 16-9-1974 u/s 9 of the Tamil Nadu City Tenants Protection Act to direct the plaintiff/respondent to sell the suit

property at a price to be fixed by the Court; the suit was dismissed on 29-9-1975 and the application was ordered; he filed a petition for

appointment of a Commissioner for inspection; at the time of inspection by the Commissioner, the plaintiff gave a memo stating that the tenant

Petchimuthu Asari had encroached upon the plaintiff''s site and put up new shops wherein subsequent to the judgment; the plaintiff also invited

reference to the measurements given by the petitioner in I.A.No.1241/74 as 15 feet x 47 feet; the measurement 47 feet north to south was a

mistake for 57 feet and the mistake had crept in inadvertently; he had clearly stated that Balavinayagar Koil Street was the southern boundary; he

had also stated in his reply notice that the actual measurement north to south was only 57 feet; there were other records to show that the actual site

in the petitioner''s enjoyment was 57 feet north to south and 15 feet east to west; he also gave a memo before the Commissioner stating that the

north-south measurement was only 57 feet; he had also given a copy of the reply notice sent by him to the plaintiff; for the said reasons the

Schedule in I.A.No.1241/74 had to be amended.

In the counter filed by the plaintiff, it was stated that the tenant had encroached on the portion belonging to the plaintiff only after the judgment,

after the previous tenant, viz. Raju Asari had vacated; there was no point in saying that in the petition u/s 9 of the Act, the tenant had shown the

southern boundary as Balavinayagar Koil; the boundary was not correct; in the south even after the new encroachment for about 10 feet, there

was still space belonging to the plaintiff north of Balavinayagar Koil Street; the allegation that in the reply notice the tenant had stated only 57 feet

was not correct; he had only shown 47 feet; by seeking the amendment, the tenant wanted the sanction of the Court recognising his illegal and

unlawful encroachment after judgment, so that he could get a larger extent.

The learned District Munsif rejected the case of the respondent by relying on the report of the Advocate Commissioner, who found that there

was an encroachment of 10 feet 4 inches in the south. The learned District Munsif also referred to the tenant''s oral evidence as D.W.1 that the

portion south of the petition Schedule property was previously occupied by Raju Asari and it was handed over to the plaintiff and the copy of the

reply notice furnished to the Commissioner was not a true copy and that it had not been certified and in the affidavit also the date of reply notice

had not been furnished and even the reply notice was not produced at the time of the enquiry in the petition and on his own evidence he had not

proved that he was in enjoyment of 57 feet north-south. The learned District Munsif ultimately held that it was a clear case of encroachment after

pronouncement of the judgment. This order has not at all been challenged. It must be deemed that it has become final.

After failing in his attempt to have the petition Schedule amended, the respondent herein and his brother Avudaiyappan filed suit

O.S.No.602/82 against the plaintiff for injunction restraining the plaintiff from interfering with his possession and enjoyment of two items of

property. In the first Schedule, they showed an extent of 57 feet x 15 feet as in his possession and in the second Schedule, they showed an extent

of 19 feet x 4 feet. Their case was that their father Petchimuthu had taken on lease the suit properties on rent and from then on he and his sons had

been in possession of the same, that in the first Schedule property, they had put up construction and were doing manufacturing work and that they

were using the second Schedule property beneficially as a passage from the first Schedule property to Balavinayagar Koil Street on the south, that

the defendant company, with a view to cause inconvenience to them in their enjoying the first Schedule property, was trying to put up obstruction in

the second Schedule property and the suit was therefore necessitated.

The defence was that the second Schedule property had not been leased out to the plaintiff, that in the first Schedule property, the plaintiffs

were in illegal occupation more than the extent of land given to them on lease, that the second Schedule property was not being used as a way to

the first Schedule property, that the defendant had every right to put up construction in the second Schedule property.

The trial Court held that the plaintiffs were in possession of the entire first Schedule property, that the second Schedule property was necessary

for the plaintiffs'' beneficial enjoyment of the first Schedule property and on those findings, it decreed the suit. There was an appeal by the

defendant in that suit, viz. the present plaintiff in A.S.No.152/87. The learned Subordinate Judge, Tuticorin, confirmed the decision of the trial

Court and dismissed the appeal. However, on further appeal by the defendant in that suit, this Court by judgment dated 15.9.1989 allowed the

second appeal, set aside the concurrent decision of the Courts below and dismissed the suit. This was on 20.10.1989. This judgment, as already

noted, has not been made part of the typed-set by the respondent while he chose to include the judgments in his favour. Even in the judgment in

A.S.No.152/87 there is a significant observation made in paragraph 12, which, in my view, is worth reproduction.

gpur;rpid 2 Kjnyw;g[ tHf;F vz; 400-74y; jhf;fyhd ,ilf;fhy kD vz; 1505-75y; gpwe;j Mizia M;l;nrgiz bra;J. nky;KiwaPL bra;ag;gl;L ghprPyidf;fhf

cr;r ePjpkd;wj;jpy; epYitapy; cs;sJ vd;gJ Mtz hPjpahf bjspthf;fg;gl;Ls;sJ/ me;j jPh;g;gpy; ngr;rpKj;J Mrhhpapd; mDgtj;jpy; bjd;tly; 47 mo jhd;

cs;sJ vd;Wk; 57 mo ,lj;ij mDgtpj;jjhf brhy;tjid Vw;f ,ayhJ vd;Wk; tHf;Ff;F gpd;dPL Mf;fpukpg;g[ bra;ag;;gl;Ls;sJ bjspthf Kot[

bra;a;g;gl;oUe;jhYk;.

Thus even the Court which held in favour of the respondent has in no uncertain terms, found that Petchimuthu Asari was in possession of only

47 feet east-west and the claim that it was 57 feet and not 47 feet could not be accepted and the extra feet was an encroachment after the

judgment in the suit by the revision petitioner.

The discussion above would clearly show that the claim by the respondent that the lease was in respect of 58 feet 6 inches and not 47 feet

north-south is false. The lower Court in deciding the application for amendment has observed that it is only a clerical mistake that was responsible

for giving the wrong measurements. This finding, in my view, cannot at all be accepted and has been reached on a total misconception and

misappreciation of the materials on record. It has been squarely raised in the counter of the revision petitioner about the earlier claim made by the

respondent''s father and the rejection of the claim for amendment, which had become final. The lower Court has also clearly overlooked that the

extra length was only by way of encroachment after the suit. When a particular question had become final, the Court has absolutely no power to

set at naught the effect of the earlier finding. This is a case where Section 115 of the CPC has to be invoked and the error committed by the lower

Court rectified. The lower court had no jurisdiction to reopen something that had become final. A decree cannot add or subtract any relief, except

what has been provided in the judgment. Amendment of decree cannot be granted as the principles of res judicata are clearly applicable. Exercise

of powers under Sections 152 and 151 of the CPC contemplates only mistake of ministerial action and not passing effective judicial orders after

the judgment, decree or order. Court becomes functus officio after passing decree or order.

All the contentions raised on behalf of the respondent have to be rejected and accordingly rejected.

The further question will be with regard to the encroached portion. It is incumbent on the respondent to surrender possession of the

encroached portion to the plaintiff.

Consequently, the civil revision petition will stand allowed. The order of the lower Court is set aside. The application in I.A.No.1505/75 is

dismissed. However, there will be no order as to costs. The connected civil miscellaneous petition C.M.P.No.9501/2002 is closed.