S.P. Manoharan and S.P. Raveendran vs Zamila Beevi and 5 Others

S.S. Subramani, J.—Tenants in R.C.O.P.15 of 1992 on the file of District Munsif/Rent Controller, Thanjavur are the Revision Petitioners

herein. Landlords tiled an application for eviction on the ground that the tenants have defaulted in payment of rent, the rent being Rs. 450/-. It is

alleged in the eviction petition filed in the year 1992 that the tenant has committed wilful default from the month of September, 1990 and till eviction

petition was filed, no rent was paid.

In the counter statement, tenants denied having committed default in payment of rent. According to them, they have paid the rent in lump and

those amounts have not been given credit to and therefore, they are not liable to be dispossessed as wilful defaulters.

On 27.12.1992, due to the absence of tenants, an ex parte order of eviction was passed. An application was filed to have the same set aside

and the same was allowed. After restoring the eviction petition, again the tenants remained ex parte and on 12.12.1998 another order of eviction

was passed. An application was filed to have the same set aside and the same was also allowed by the Rent Controller. After restoring the eviction

petition for the second time, landlord filed an application in I.A.19 of 1997 u/s 11(4) of the Tamil Nadu Buildings (Lease & Rent Control) Act. By

that time, rent arrears had accumulated to more than Rs. 34,000/-. Notice of application was given to the tenants and the matter was being

adjourned from time to time. Finally, on 21.4.1997, Rent Controller directed the tenants to deposit the arrears of rent on or before 28.4.1997. It

has also directed that in case the order is not complied with, eviction petition will have to be allowed. The case was adjourned to 29.4.1997. Till

that date, no arrears of rent was paid. Consequently, eviction petition itself was allowed on the ground of default in payment of rent.

To set aside the order in I.A.19 of 1997, revision petitioners filed I.A.71 of 1997 alleging that he was not in station at the time when the case

was posted. After filing the said application, he also took the matter in appeal against the main order of eviction as RCA 12 of 1997. Before

appellate authority, landlords again filed an application in I.A.42 of 1997 u/s 11(4) of the Act. By that time, the rent arrears have arisen to more

than Rs. 42,000/-. In I.A.42 of 1997, the rent arrears was inclusive of the period for which I.A.19 of 1997 was filed. Since the tenant had

grievance that I.A.19 of 1997 was passed without hearing him, appellate authority thought it fit to hold an enquiry and finally came to the

conclusion that the tenant is liable to pay a sum of Rs. 46,110/- as rent arrears and the same was directed to be deposited on or before

16.9.1998. The amount was not paid and consequently, I.A.42 of 1997 in RCA 12 of 1997 was allowed. Further consequence was that RCA 12

of 1997 filed by revision petitioner was dismissed. The order is dated 4.9.1998. The same has become final.

While narrating facts, I said that I.A.71 of 1997 was filed by revision petitioners to set aside the orders in I.A.19 of 1997. The same was kept

pending while RCA 12 of 1997 was being heard. After disposal of R.C.A.12 of 1997, revision petitioners wanted I.A.71 of 1997 to be heard. On

16.10.1999, Rent Controller without assigning any reason allowed that application on condition that tenants should deposit a sum of Rs. 250/- to

set aside I.A.19 of 1997. Before Rent Controller, judgment in RCA 12 of 1997 and order in I.A.42 of 1997 were placed. In spite of the same,

Rent Controller thought to have the order in I.A.19 of 1997 set aside on condition. Against the order of the Rent Controller dated 16.10.1998,

Landlord filed an appeal in R.C.A.8 of 1998, challenging the legality of the order of Rent Controller. Appellate Authority found that the action of

tenants in further prosecuting I.A.19 of 1997 amounts to abuse of process of court and Rent Controller also has acted without jurisdiction in

restoring I.A.19 of 1997. Appellate Authority further found that when it has already passed order after enquiry regarding rent arrears for the same

and subsequent period, there is no scope for further enquiry in I.A.19 of 1997 and the same has really become infructuous. The appeal is allowed,

which is challenged in this Revision Petition.

Since caveat was entered by respondents, I heard the counsel on both sides at the admission stage itself.

After hearing counsel on both sides, I feel that the order of the Appellate Authority is only to be confirmed, and the application filed by the

tenant to restore I.A.19 of 1997 is nothing but abuse of process of law and it is also barred by res judicata. Before considering the question of res

judicata or whether the application filed by tenant is abuse of process of Court, we have to consider the scope of Section 11(4) of the Act also

since learned counsel for revision petitioners submitted that his client is prepared to deposit the entire rent and they may be permitted to reside in

the building. Counsel for respondents seriously objected the said submission and argued that the request made by revision petitioner''s counsel is

without any bona fides. I find force in the contention of learned counsel for respondents. Before the Rent Controller, revision petitioners absented

themselves twice and an ex parte order of eviction was passed. It is true that it was set aside, but not on the ground that there is sufficient cause for

their absence. Rent Controller thought it fit that the tenants should be given a further opportunity and the order was set aside on terms. Landlords

also submitted to the said order.

Even before eviction petition was filed, Landlords issued notice intimating default and from 1990 onwards rent are in arrears. By that time

eviction petition was restored for the second time, nearly seven years have lapsed and tenants did not think of depositing even a paise towards rent

arrears. Landlords were compelled to file application u/s 11(4) of the Act. It was filed on 2.1.1997 and thereafter it was posted on 5.2.1997,

6.3.1997, 13.3.1997, 3.4.1997, 13.4.1997 and 21.4.1997. Revision Petitioners did not file any counter, even though they were warned thrice,

that no further time will be granted. It was thereafter Rent Controller passed an order to deposit the rent arrears. Having failed to comply with the

direction, consequent order of eviction was passed.

Against the main order of eviction, tenants have filed RCA 12 of 1997 and also obtained stay. Landlords were again compelled to file an

application u/s 11(4) of the Act in I.A.42 of 1997. Before the Appellate Authority, an enquiry was held as to the rent arrears and tenants were

directed to pay a sum of Rs. 46,110/-. Having failed to comply with the direction, RCA 12 of 1997 was dismissed. Immediately, tenants filed

I.A.32 of 1998 for stay before the appellate authority on the ground that they wanted to file revision before this Court. Appellate Authority granted

one month time. They did not file any revision but pursued application in I.A.71 of 1997 to set aside the order of Rent Controller in I.A.19 of

1997. From the above proceedings it is clear that from 1990 till 1999, not a pie was paid towards rent arrears and tenants are enjoying the

building and are also claiming immunity from eviction.

In a recent decision of Honourable Supreme Court which arises under Tamil Nadu Buildings (Lease and Rent Control) Act, reported in 1999

(6) S.C.C. 396 (Sankaran Pillai v. V.P. Venuguduswami) this question is considered in detail. After extracting relevant portion of the section, in

para 3 of the judgment, their Lordships hold thus,

A perusal of the aforesaid provisions show that where an application for eviction has been filed against a tenant on the ground of default in payment

of rent the tenant is required (i) to deposit all the arrears of rent due in respect of the building with the Controller or the Appellate Authority as the

case may be; (ii) the tenant is further required to pay or deposit the rent which may subsequently fall due in respect of the building until the

termination of the proceedings; (iii) the said deposit of rent is required to be paid or deposited within the time provided and in the manner

prescribed; and (iv) if the deposit of rent is not made, he Controller or the appellate authority, as the case '' be, shall, unless the tenant shows

sufficient cause to the contrary, stop all proceedings and pass an order, of eviction against the tenant, it is true that the Controller or the appellate

authority, as the case may be, if the tenant shows sufficient cause may permit the tenant to contest the application filed by the landlord for his

eviction. The question that is required to be seen is, what does the expression ""sufficient cause"" mean in subsection(4) of the Section 11 of the Act.

It is no doubt true that the expression ""Sufficient cause"" has to be liberally construed to do substantial justice between the parties. But the

expression ""sufficient cause"" necessarily implied an element of sincerity, bonafide and reasonableness. It has to be shown by the tenant who has not

deposited the rent within time, as directed by the Controller that non-deposit of the rent was beyond his control and there was no element of

negligence or inaction or lack of bona fides on his part in not depositing the rent within time.

(emphasis supplied)

In that case, tenant has even deposited the entire rent, but in spite of the same, Honourable Supreme Court held that he is liable to be evicted in

view of his conduct. Their Lordships have declared the law that ""sufficient cause"" u/s 11(4) means, cause beyond the control of the tenant and it

must be bona fide. Viewed in that aspect, can it be said that the present submission put forward by learned counsel is justified. We must

understand that revision petitioners are only offering the amount and not depositing the amount. I do not find any merit in the said submission and I

feel it is only another attempt to get time.

Further question that arises for consideration is whether the order of the appellate authority is liable to be interfered with u/s 25 of the Tamil

Nadu Buildings (Lease and Rent Control) Act?

According to me, when the order in I.A.42 of 1997 in RCA 12 of 1997 has become final and also in view of the consequent order passed by

Appellate Authority, tenants are not entitled to pursue the matter before the Rent Controller for the very same purpose. It is a clear case of res

judicata and if tenant are allowed to prosecute the matter, the Court will only be encouraging revision petitioners to commit abuse of process of

Court.

What is the principle behind res judicata is considered in the decision reported in 1998 KLT 513 (M. Velikara Ex-servicemen''s Co-op

Society v. Rajamma). Learned Judge in that case held that the doctrine of res judicata is based on two theories but they are so inter linked and

they form the two sides of the same coin. Their Lordships further went on and said thus,

.... both these theories are so interlinked that they form the two sides of one and the same theory. On one side it is a norm of public policy and on

the other side a rule of private justice. The public policy is the general interest of the community in the determination of disputes and in the finality

and conclusiveness of judicial decisions. The private justice is based on the right of the individual to be ensconced from vexatious populations of

suits at the instance of the adversary whose superior opulence, resources and power, may unless clipped by estoppel, gravitate and weigh down

judicially declared rights. The House of Lords in (1939) I.A.C. 1 (New Brunswick Rail Co. v. British and French Trust Corporation Ltd.) said:-

The doctrine of estoppel (per res judicata) is one founded on considerations of justice and good sense. If an issue has been distinctly raised and

decided in an action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the

same parties or persons claiming under them.

(emphasis supplied)

In this case, Appellate Authority has already decided that the tenants are defaulters and they have been directed to deposit more than Rs.

42,000/- towards rent arrears before revision petitioners are allowed to proceed with the appeal. That order has become final. Even though they

wanted to file revision against that order, it is agreed that no attempt was made to file revision till date. Appellate Authority has taken into

consideration the entire period from 1990 till the date of order and has given credit to the amount alleged to have been paid to tenants. The subject

matter in I.A.19 of 1997 is also included within the period already adjudicated by the Appellate Authority. By permitting revision petitioners to

reopen I.A.19 of 1997, order of the Appellate Authority is being challenged indirectly before the Rent Controller. In spite of the fact that the order

of the Appellate Authority was brought to the notice of the Rent Controller, it allowed the application to have the order in I.A.19 of 1997 set aside

on terms. The order implies that the Rent Controller is going to reconsider the entire matter over again which has already concluded by the order in

appeal. I feel that the Rent Controller is only encouraging vexatious litigation. He has also no jurisdiction to reopen the matter once entire order has

become merged by dismissing the appeal in RCA 12 of 1997. In fact, the order of eviction passed by the Rent Controller has now merged in

appeal in RCA 12 of 1997. Once there is concluded order of eviction, can the order in I.A.19 of 1997 be restored? It is a clear case of res

judicata.

Principle of res judicata is based on-public policy and the same question is not liable to be reagitated. In a recent decision of Honourable

Supreme Court reported in K.K. Modi Vs. K.N. Modi and Others, it is held thus.

The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p.344) explains the phrase ""abuse of the process

of the Court"" thus:-

This term connotes, that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper

use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the

process of litigation.... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the

relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.

One of the examples cited as an abuse of the process of the Court is relitigation. It is an abuse of the process of the Court and contrary to

justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or

may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the Court. A

proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amounts to an abuse of

the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court especially where the

proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and

the court from being wasted.

In paragraph 46 of the same Judgment, their Lordships said that to reagitate the matter which has already became final, will amount to permitting

conduct of vexatious litigation and even in case where res judicata is not strictly applicable, Court is duty-bound to see that its machinery is not

used to adjudicate matters which has become final.

Appellate Authority has held that I.A.19 of 1997 has really become infructuous and the same is not liable to be set aside. The said finding can

never be said as incorrect. An argument was taken by learned counsel for revision petitioners that the order in I.A.19 of 1997 is only an

interlocutory order and merely because they preferred an appeal against the main order in RCA 12 of 1997, that will not prevent them from

reagitating the interlocutory application. I do not find any merit in the said submission. The order in RCA 12 of 1997 taken along with order in

I.A.42 of 1997 concludes the rights of the parties.

The revision petition is without any merit and as rightly contended by learned counsel for respondents, the present attempt is only to continue in

possession of the building without payment of rent. In the result, the revision petition is dismissed with Costs. Consequently, C.M.P. No. 15747 of

1999 is also dismissed.