S.A.No.470 of 2006:
This second appeal has been filed against the judgment and decree, dated 29.7.2005, made in A.S.No.379 of 2004, on the file of the Vth Additional City Civil Court, Chennai, confirming the judgment and decree, dated 14.2.2003, made in O.S.No.3708 of 1995, on the file of the VIth Assistant City Civil Court, Chennai.
S.A.No.471 of 2006:
This second appeal has been filed against the judgment and decree, dated 29.7.2005, made in A.S.No.380 of 2004, on the file of the Vth Additional City Civil Court, Chennai, confirming the judgment and decree, dated 14.2.2003, made in O.S.No.8680 of 1993, on the file of the VIth Assistant city Civil Court, Chennai.
This second appeal has been filed against the judgment and decree, dated 29.7.2005, made in A.S.No.379 of 2004, on the file of the Vth Additional City Civil Court, Chennai, confirming the judgment and decree, dated 14.2.2003, made in O.S.No.3708 of 1995, on the file of the VIth Assistant City Civil Court, Chennai.
2. The plaintiff in the suit, in O.S.No.3708 of 1995, is the appellant in the present second appeal. The defendants in the said suit, are the respondents herein.
3. The suit, in O.S.No.3708 of 1995, had been filed by the plaintiff/appellant, praying for a decree declaring that the sale deed, dated 31.8.1994, bearing document No.28/95, and the sale deed, dated 29.3.1995, bearing document No.967/95, are null and void, and for a permanent injunction against the defendants in the said suit, who are the respondents in the present second appeal, from interfering with the peaceful possession and enjoyment of the suit schedule mentioned property, and for costs.
4. The suit property was belonging to the defendant's father, A.P.N.Abdul Gafoor. On his death, the suit property, bearing new Door No.17, Ranganathan Street, T.Nagar, Chennai, had devolved upon his son, A.N.A.Haja Mohideen. The plaintiff is occupying a portion of the suit property, having an extent of 283.5 sq.ft., facing Ranganathan Street. The superstructure in the said property, under the occupation of the plaintiff, had been purchased by the plaintiff from one Thommy, after it had changed several hands, for a sum of Rs.3,100/-, on 4.9.1968.
5. It had also been stated that the plaintiff had invested several lakhs of rupees in the property in question and has been running a fancy store therein. The rental amounts for the land, under the occupation of the plaintiff, had been paid to the land owner, regularly. The electricity charges and the tax due to the Corporation of Chennai had been paid, without any default. Even though the plaintiff is protected, under Section 9 of the City Tenants Protection Act, 1921, the defendants are trying to alienate the suit property. In such circumstances, the plaintiff had filed the suit, in O.S.No.3708 of 1995.
6. In the written statement filed on behalf of the defendants, the averments and allegations made in the plaint had been denied. It had been stated that the superstructure in the suit property belongs to the first defendant. The sale deed said to have executed by Thommy, in favour of the plaintiff, is a sham and nominal document. Since, it is an unregistered instrument, it cannot be considered to be an admissible evidence. The first defendant had sold the suit property, under a registered sale deed, in favour of the defendants 2 to 6, who are the bona fide purchasers of the property. Therefore, the plaintiff cannot seek for a decree, for declaration and for permanent injunction, against the defendants. Hence, the suit is liable to be dismissed, as devoid of merits.
7. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration:
"1. Whether the plaintiff is entitled for the declaration that the sale deed, dated 28/95, dated 31.8.1994, executed by the first defendant in favour of the second defendant is null and void as prayed for?
2. Whether the plaintiff is entitled for declaration that the sale deed dated 29.3.1995 executed in favour of the third and sixth defendants is null and void with regard to the suit property as prayed for by the plaintiff?
3. Whether the plaintiff is entitled for the permanent injunction against the defendants as prayed for?"
8. In view of the oral, as well as the documentary evidence available on record, the trial court had dismissed the suit, by its common judgment and decree, dated 14.2.2003, made in the suits, in O.S.No.8680 of 1993 and O.S.No.3708 of 1995.
9. The trial court had found that there was no dispute, with regard to the fact that the first defendant is the owner of the land in the suit property and that the plaintiff was only a tenant in the portion, which was under his occupation. The trial Court had also found that the plaintiff had been duly informed about the sale of the suit property, in favour of the defendants 2 to 6. In view of the pendency of the civil revision petition, in C.R.P.No.3203 of 2000, relating to the eviction proceedings, and in view of the fact that the suit property had been sold to the defendants 2 to 6, by way of two sale deeds, marked as Exhibits B.11 and B.12, the trial court had come to the conclusion that the relief, sought for by the plaintiff in the suit, cannot be granted. As such, the trial court had dismissed the suit filed by the plaintiff, by its common judgment and decree, dated 14.2.2003.
10. Aggrieved by the judgment and decree of the trial court, dated 14.2.2003, made in O.S.No.3708 of 1995, the plaintiff in the suit had filed an appeal, in A.S.No.379 of 2004, on the file of the Vth Additional City Civil Court, Chennai.
11. The first appellate court, by its common judgment and decree, dated 29.7.2005, had confirmed the judgment and decree of the trial court, dated 14.2.2003.
12. Against the judgment and decree, dated 29.7.2005, made in A.S.No.379 of 2004, the plaintiff in the suit, which was the appellant in the first appeal, had filed the present second appeal, raising the following questions, as substantial questions of law:
"a. Whether the Courts below are right in dismissing the suit without even framing issues with regard to protection claimed by the plaintiff under Section 9 of the City Tenants Protection Act?
b. Whether the Courts below are right in finding that the plaintiff is not entitled to protection under Section 9 of the City Tenants Protection Act?
c. Whether the Courts below are right in not appreciating any of the documents filed by the plaintiff?"
13. The learned senior counsel appearing for the appellant had submitted that the judgment and decree of the courts below are erroneous, incorrect and contrary to law. The courts below ought to have seen, that in the year, 1963, only the land in question had been leased out to the appellant's predecessors and the superstructure had been constructed by the appellant. The courts below ought to have seen that the appellant had spent several lakhs of rupees for putting up the superstructure and for the interior decoration of the suit premises, under the occupation and enjoyment of the appellant.
14. The learned senior counsel appearing for the appellant had submitted that the courts below ought to have noted the fact that the appellant had been paying the rental amounts, regularly, to the first respondent, who is the owner of the land in question.
15. The learned senior counsel appearing for the appellant had further submitted that the courts below ought to have properly appreciated the evidence available, under Exhibit A.42, the sale deed, executed by one Thommy, in favour of the appellant, in respect of the superstructure. Since, the appellant is protected under the provisions of the City Tenants Protection Act, 1921, he is entitled to have the benefits of the relevant provisions of the said Act. In such circumstances, the courts below ought to have granted the relief, as prayed for in the suit.
16. Per contra, the learned counsel appearing on behalf of the respondents had submitted that the respondents in the second appeal had filed R.C.O.P.No.3003 of 1993, on the file of the Rent Controller, XVI Small Causes Court, Chennai, against the appellant herein, for eviction, on the ground of denial of title.
17. The learned counsel appearing on behalf of the respondents had submitted that the respondents had filed a civil revision petition, in C.R.P.(NPD) No.3203 of 2000, on the file of the High Court of Judicature at Madras, against the judgment and decree, dated 19.4.2000, made in R.C.A.No.365 of 1995, on the file of the Rent Control Appellate Authority, VIIIth Small Causes Court, Chennai, confirming the order and decree, dated 25.1.1995, passed in R.C.O.P.No.3003 of 1993, on the file of the Rent Controller, XVI Small Causes Court, Chennai. By an order, dated 28.4.2004, made in C.R.P.No.3203 of 2000, this Court had held that the rent controller and the rent control appellate authority had not recorded proper findings that the denial of title by the first respondent therein is bona fide in nature. Accordingly, the civil revision petition had been allowed, with costs, setting aside the judgment and decree, dated 19.4.2000, made in R.C.A.No.365 of 1995, and ordering the eviction, on the ground of denial of title. The Supreme Court, by its order, dated 5.11.2004, made in the special leave petition (C) No.11483 of 2004, had confirmed the order passed by this court in the civil revision petition, in C.R.P.No.3203 of 2000, dated 28.4.2004. Thereafter, the review petition, in Review Petition (C) No.220 of 2005, filed by the appellant, before the Supreme Court, had also been dismissed. Since, the order of eviction passed against the appellant is final, execution proceedings had been initiated against the appellant, in E.P.No.294 of 2004. Pursuant to the execution proceedings, the appellant had vacated the suit property by delivering the possession of the same, on 31.5.2005.
18. In such circumstances, the learned counsel appearing on behalf of the respondent had submitted that it would not be open to this Court, while adjudicating the issues and the substantial questions of law, arising for its consideration in the present second appeal, to modify, alter or to interfere with, in any way, the decision of the supreme court, rendered in the special leave petition (C) No.11483 of 2004, dated 5.11.2004, confirming the order passed by this court, in the civil revision petition, in C.R.P.No.3203 of 2000, dated 28.4.2004, ordering the eviction of the appellant, from the suit property.
19. In reply, the learned senior counsel appearing for the appellant had submitted that the suit, in O.S.No.3708 of 1995, in respect of which the present second appeal had arisen, had been filed before the final order had been passed by the supreme court in the special leave petition (C) No.11483 of 2004, confirming the order passed by this Court in the civil revision petition, in C.R.P.No.3206 of 2000. Since, the issues arising for the consideration of this court, in the present second appeal and the issues that had been decided, in C.R.P.No.3203 of 2000, are not substantially the same, the principle of res judicata would not applicable. The issue in the rent control proceedings, in R.C.O.P.No.3003 of 1993, on the file of the Rent Controller, was whether the denial of title of the first respondent, by the appellant, in the present second appeal, is bona fide in nature. If such denial of title is bona fide in nature, it is for the civil court to decide the issue, independently, without adverting to the decision of this court in the civil revision petition, in C.R.P.No.3203 of 2000 and the decision of the supreme court in the special leave petition (C) No.11483 of 2004.
20. The learned senior counsel appearing on behalf of the appellant had relied on the decision of the Supreme Court in SHAKUNTLA DEVI Vs. KAMLA (2005 5 SCC 390), wherein, it had been held that a declaratory decree, delivered without jurisdiction or contrary to existing law, at the time the issue comes up for reconsideration, cannot operate as res judicata in a subsequent case between the same parties, unless it is protected by a special enactment.
21. The learned counsel appearing on behalf of the respondents had relied on the decision of the Supreme Court in U.P.SRTC Vs. STATE OF U.P. ((2005) 1 SCC 444), wherein, it had been held that the High Court cannot examine and redecide an issue already decided by the Supreme Court, in an earlier proceedings.
22. In view of the submissions made by the learned counsels for the appellant, as well as the respondents, and in view of the records available, it is clear that the issues arising for consideration in the present second appeal and the issues that had arisen, and had been adjudicated upon by this court, in the civil revision petition, in C.R.P.No.3203 of 2000, in its order, dated 28.4.2004, which had been confirmed by the supreme court, in special leave petition (C) No.11483 of 2004, are substantially the same. When the issue relating to the question of denial of title of the first respondent, by the appellant, had been considered and a final order had been passed, it would be binding on the parties to such proceedings. It is found that the parties in the present second appeal were also the parties in the civil revision petition, in C.R.P.No.3203 of 2000, filed before this court and in the special leave petition (C) No.11483 of 2004, filed before the supreme court. When the issues, in the earlier rent control proceedings and in the special leave petition before the Supreme Court are substantially the same, the principle of res judicata would be applicable to the present case in hand. Therefore, this court is not inclined to re-open the issue, which had already been decided, finally, in order to arrive at a different conclusion. In such circumstances, without going into the merits of the matter, the second appeal is dismissed. No costs.
S.A.No.471 of 2006:
This second appeal has been filed against the judgment and decree, dated 29.7.2005, made in A.S.No.380 of 2004, on the file of the Vth Additional City Civil Court, Chennai, confirming the judgment and decree, dated 14.2.2003, made in O.S.No.8680 of 1993, on the file of the VIth Assistant city Civil Court, Chennai.
2. The plaintiff in the suit, in O.S.No.8680 of 1993, is the appellant in the present second appeal. The defendants in the said suit are the respondents herein.
3. The suit, in O.S.No.8680 of 1993, had been filed praying for a decree of permanent injunction restraining the defendant and their servants from interfering with the peaceful possession and enjoyment of the suit property, by the plaintiff therein, which is the appellant in the present second appeal, except under the due process of law, and for a permanent injunction restraining the defendants in the said suit, who are the respondents in the present second appeal, from alienating the suit schedule mentioned property, to a third party except under the due process of law, and for costs.
4. The suit filed by the plaintiff had been dismissed by the judgment and decree of the trial court, dated 14.2.2003, made in O.S.No.8680 of 1993. The appeal filed by the plaintiff had also been dismissed by the first appellate Court, by its judgment and decree, dated 29.7.2005, made in A.S.No.380 of 2004. In such circumstances, the plaintiff in the suit, which was the appellant in the first appeal, had filed the present second appeal before this Court, raising the following questions, as substantial questions of law:
"a. Whether the Courts below are right in dismissing the suit without even framing issues with regard to protection claimed by the plaintiff under Section 9 of the City Tenants Protection Act?
b. Whether the Courts below are right in finding that the plaintiff is not entitled to protection under Section 9 of the City Tenants Protection Act?
c. Whether the Courts below are right in not appreciating any of the documents filed by the plaintiff?"
5. However, at this stage of the hearing of the second appeal, it had been brought to the notice of this Court, by the learned counsel appearing on behalf of the respondents that the appellant had already vacated the suit property and had delivered possession of the same, to the respondent, on 31.5.2005, pursuant to the proceedings, in E.P.No.294 of 2004.
6. The learned counsel appearing on behalf of the appellant had not refuted the statement made by the learned counsel for the respondents. In such circumstances, the second appeal stands dismissed, as infructuous. No costs.
2.9.2010 INDEX : YES/NO INTERNET : YES/NO lan To: 1. The Vth Additional City Civil Court, Chennai 2. The VIth Assistant City Civil Court, Chennai M.JAICHANDREN J., lan S.A.No.470 of 2006 and S.A.No.471 of 2006 2.9.2010