N V PANCHAPAGASAN Vs. K SWAMINATHAN

JUDGEMENT

(1.) The plaintiff in O. S. No. 1382 of 1962 on the file of the IV Assistant Judge, City Civil Court, Madras, is the petitioner in this Civil Revision petition. The property in dispute bears door No. 12, Doraiswami Road, Madras-17. In O. S. No. 1382 of 1962, the petitioner prayed for a decree in ejectment against the respondent herein on the ground that he was only a licensee and that the licence in his favour had also been duly terminated. In the course of that suit, the respondent herein put forth the claim that he was a lessee and that he was also entitled to the benefits of S. 9 of the Tamil Nadu City Tenant's Protection Act (hereinafter referred to as 'the Act'). Consistent with the claim so made, the respondent herein filed I. A. No. 2553 of 1962 claiming that he is entitled to purchase the site under S.9 of the Act for a value to be fixed by the Court. On 28-9-1964, the learned IV Assistant Judge, City Civil Court, Madras, negatived the claim of the respondent that he is a lessee in possession entitled to the benefits of the Act and accepting the case of the petitioner, granted a decree for recovery of possession against the respondent. Consequent to the finding arrived at in the suit, the application filed by the respondent under S.9 of the Act stood dismissed. Aggrieved by the decree granted in favour of the petitioner herein, in O. S. No. 1382 of 1962 and the dismissal of the application in I. A. No. 2553 of 1962 the respondent herein preferred an appeal in A. S. No. 324 of 1964 and C. M. A. No. 81 of 1964 respectively to the Additional Judge, City Civil Court, Madras. By judgment dated 24-3-1965, both the appeals were allowed on the finding that the transaction under which the respondent came into possession of the property was a lease and that he would be entitled to the benefits of S.9 of the Act and the suit as well as the application were remitted to the trial Court for fresh disposal in the light of the observations contained in the judgment. A direction was given that the minimum extent of land should first be determined and then the price thereof should be ascertained and the manner of payment of the price should also be indicated. Against the remit orders in A. S. No. 324 of 1964 and C. M. A No. 81 of 1964, the petitioner preferred C. M. A. No. 165 of 1965 and C. R. P. No. 1885 of 1965 respectively to this Court and by judgment dated 11-2-1971, the remit order was upheld on the view that the transaction was a lease and that the benefits of the provisions of the Act could be invoked by the respondent. When the matter went back, the respondent herein filed I. A. No. 12772 of 1971 for the appointment of a Commissioner to determine the minimum extent as well as the price. After holding an enquiry, it was reported by the Advocate-Commissioner that the entire extent under the occupation of the respondent, namely, 2,381 square feet would be necessary for his convenient enjoyment and that the price thereof has to be fixed at Rs. 18,000/- per ground taking into account the price during the period of three years prior to 15-3-1971, on which date the Commissioner was appointed, which date, according to the Commissioner, was the relevant date for the determination of the value. When the matter came up again before the Court for a consideration of the extent as well as the price, on 29-4-1972, the learned IV Assistant Judge, City Civil Court, Madras, accepted the conclusion of the Commissioner that the respondent requires the entire extent under his occupation, namely, 2,381 square feet for his convenient enjoyment. However, considering the basis for the fixation of the price adopted by the commissioner, the learned Judge found that three years immediately preceding the date of the order can only relate to the date 24-3-1965, when it was decided that the respondent was entitled to the benefits of that Act and that taking that into account, the value can be fixed at Rs. 10,000/- per ground and for the area of 2,381, square feet leased out to the respondent, he should pay Rs. 9,920/-. A direction was also given that the respondent should pay that amount within four months from 29-4-1972. The respondent deposited a sum of Rs. 10,050/- into Court on 26-8-1972. Against the fixation of the extent and the determination of the price so made, the petitioner herein preferred A. S. No. 230 of 1972 before the First Additional Judge, City Civil Court, Madras. By judgment dated 29-12-1973, the appeal was dismissed, confirming the order dated 29-4-1972 passed in I. A. No. 12772 of 1971 to the effect that the entire extent of 2,381 square feet would be required for the convenient enjoyment of the respondent and fixing the price thereof at Rs. 10,000/- per ground. Thereupon, the petitioner preferred C. R. P. No. 2954 of 1974 before this Court questioning the correctness of the determination of the extent of the land as well as its price. On 6-8-1975, Ramaprasada Rao, J., (as he then was) allowed the Civil Revision petition in part holding that the minimum extent of the land required by the respondent would be of an extent of 48 feet on the road side with the north-south depth up to the limit of the bath-room shown in the sketch and a line from east to west in continuation thereof as indicated in the sketch which was made part of the record and that that extent should be sold by the petitioner to the respondent at the price fixed by the Courts below. The judgment so rendered is reported in Panchapakesan v. Swaminathan (1976) 1 Mad LJ 338. The respondent herein filed a Special Leave petition in S. L. P. No. 508 of 1976 before the Supreme Court seeking its interference to hold that the entire extent of 2,381 square feet was the minimum extent required for the convenient enjoyment of the respondent. However, by order dated 20-2-1976, the Supreme Court dismissed that application. Thereafter, the petitioner filed I. A. No. 1995 of 1977 in O. S. No. 1382 of 1962 for demarcation of the area as per the order of this Court in C. R. P. No. 2954 of 1974 and though it was opposed by the respondent, by an order dated 11-1-1979, the application was allowed and the area was demarcated as APQR. Thereupon, the petitioner filed E. P. No. 2733 of 1979 praying for delivery of possession of the area not subject to the provisions of the Act and by an order dated 16-7-1980, the respondent was directed to deliver to the petitioner possession of the area which the petitioner was not obliged to convey to the respondent and the petitioner also took delivery of that portion on 22-4-1982. Against that order for delivery of excess land, the respondent herein filed C. R. P. No. 2115 of 1980, which was dismissed by me on 26-9-1980. Against the order demarcating the area as directed by this Court in C. R. P. 2954 of 1974, the respondent herein preferred C. R. P. No. 2910 of 1974, and that was also dismissed by me on 10-4-1981. Despite these proceedings, the respondent did not succeed in obtaining a conveyance of the demarcated portion as per the order of this Court in C. R. P. No. 2954 of 1974. Therefore, the respondent filed I. A. No. 3952 of 1982 requesting the Court to direct the petitioner herein to execute a sale deed in his favour in respect of the extent demarcated as APQR. Meanwhile, on 5-2-1980, a Division Bench of this Court, interpreting the scope and applicability of S.9 of the Act, laid down that the Court must first decide the extent of the land necessary for the convenient enjoyment of the tenant and after having so determined the extend of the land, the Court shall proceed to fix the price of the land and this decision is reported in Arasan Chettiar v. Narasimhalu Naidu's Estate Trust (1980) 2 Mad LJ 303. Encouraged by this decision, the petitioner raised the objection that the final determination of the demarcated area was done in the course of I. A. No. 1995 of 1977 on 11-1-1979 and the market value has to be re-determined on the basis of the prevailing price in 1979 and that the deposit made by the respondent on the basis of the prior fixation of the price had no relevance. The learned IV Assistant Judge, City Civil Court, Madras, took the view that the relevant date for determining the price of land should be taken as 6-8-1975, when C. R. P. No. 2954 of 1974 was disposed of and therefore, there should be a re-determination of the price of the land in view of the decision in Arasan Chettiar v. Narasimhalu Naidu's Estate Trust (1980) 2 Mad LJ 303. A finding was also rendered to the effect that the earlier decision of this Court in Panchappakesan v. Swainathan (1976) 1 Mad LJ 338 will not operate as res judicata. On those conclusions, the application filed by the respondent herein was dismissed. Aggrieved by this, the respondent herein preferred an appeal in C. M. A. No. 238 of 1982 before the Second Additional Judge, City Civil Court, Madras. The petitioner herein filed a Memorandum of cross-objections contending that the material dates would be 20-2-1976, 10-4-1981 and 23-2-1982. The learned Second Additional Judge, City Civil Court, Madras, on a consideration of the scope and effect of the prior adjudications inter partes, found that all the questions relating to the extent of the land as well as its price had been conclusively settled and adjudicated upon by the decision of this Court in C. R. P. No. 2954 of 1974 and that the decision of the Division Bench in Arasan Chettiar v. Narasimbalu Naidu's Estate Trust (1980) 2 Mad LJ 303 would not affect the rights so determined. A finding was also given to the effect that the decision in C. R. P. No. 2954 of 1974 will operate as res judicata. Finally, the learned judge concluded that no ground had been made out for a re-assessment of the price of the land and that there is no necessity to substitute any other date as the relevant date for arriving at the value. In the result, the appeal was allowed and further steps were directed to be taken by the trial Court for the execution of a conveyance by the petitioner in favour of the respondent with respect to the land APQR marked in the Commissioner's plan Exhibit C-1. It is the correctness of this order that is challenged in this Civil Revision Petition.

(2.) The learned counsel for the petitioner contended relying upon Arasan Chettiar v. Narasimhalu Naidu's Estate Turst (1980) 2 Mad LJ 303 that the determination of the minimum extent of the land for convenient enjoyment has to be first done and only then, the Court will have jurisdiction to proceed to fix the price of the land and this method of dealing with an application under S.9 of the Act in the several stages indicated therein has also been approved of by the Supreme Court in New Theatres (Carnatic Talkies) Ltd., v. N. Vajrapani AIR 1984 SC 1 and, therefore, at the time when the Court passed the order in C. R. P. No. 2954 of 1974 determining both the extent of the land as well as its price, it had really no jurisdiction to fix the price and an erroneous decision of the Court thus rendered with reference to the fixation of the price without jurisdiction cannot be deemed to have finally determined that question so as to operate as res judicata. Support for this was sought to be drawn from the decision in Jai Singh Jairam Tyagi v. Mamanchand AIR 1980 SC 1201. In answer to this contention, the learned counsel for the respondent submitted that it is not as if the Court had no jurisdiction at all to decide the questions regarding the extent as well as the price, but that it had proceeded to exercise the jurisdiction, which it had, to adjudicate on those matters one after another, though by the same order, and that cannot be equated to a case of assumption of jurisdiction by a Court which it did not otherwise have and the exercise thereof, resulting in an erroneous decision, not operating as res judicata. The learned counsel also brought to the notice of the Court the decision in Sadhu Charan v. H. Naik AIR 1964 Orissa 121 to contend that the principle of res judicata cannot in any manner be affected by any subsequent decision rendered and, therefore, the petitioner cannot be heard to contend on the basis of the decision in Arasan Chettiar v. Narasimhalu Naidu's Estate Trust (980) 2 Mad LJ 303 that there was an exercise of jurisdiction by the Court while deciding the extent as well as the price, which it did not otherwise possess. Attention was also drawn by the learned counsel to Murugesa Achari v. Chandra Bai C. R. P. No. 1845 of 1966, dated 23-8-1968 to contend that though the drafting of S.9(1)(b) of the Act is not very happy, it would be impossible for a Court to construe the words, "the date of the order" as applying to an order to be passed by the Court fixing the price and determining the period within which the tenant must pay, as, this date would be unknown to the parties when they lead evidence and would also be strictly a date only in future. It was, therefore, contended that "the date of the order" can have relevance only to the order under S.9(1)(a) of the Act holding that the tenant is entitled to the benefits of S.9 of the Act and viewed in that manner, no exception could be taken to the order passed by this Court in C. R. P. No. 2954 of 1974 fixing the minimum extent of the land and its price as well, as on 24-3-1965, when it was first held that the respondent was entitled to claim the benefits of the Act.

(3.) No doubt, there had earlier been some confusion regarding the interpretation and scope of S.9 of the Act. But the several stages and the manner in which such an application under S.9 of the Act has to be dealt with by Courts have been clearly indicated in the decision of the Division Bench in Arasan Chettiar v. Narasimhalu Naidu's Estate Trust (1980) 2 Mad LJ 303. The first stage is to ascertain whether the application filed by a tenant under S.9 of the Act claiming benefits thereunder is maintainable. The second stage is reached after an affirmative decision in favour of the tenant is arrived at regarding the maintainability of the application claiming benefits under the Act as a tenant. At that stage, the Court must decide upon the minimum extent of the land necessary for the convenient enjoyment of the tenant and that can be only by an order of Court and that would be relevant date for the purpose of fixing the price mentioned in S.9(1)(b) of the Act. If such an order is challenged, "the date of the order" contemplated will be the date of the order of the appellate or revisional Court, as the case may be. Next comes the question of fixing the price of the land. Thereafter, the further stages, in which the application under S.9 of the Act, has to be dealt with, follow. This method of dealing with and disposing of the application under S.9 of the Act even according to the learned counsel for petitioner has been accepted by the Supreme Court also in New Theatres Carnatic Talkies Ltd., v. N. Vajrapani AIR 1984 SC 1. Thus, the several stages and steps have been clearly indicated in the decision of the Division Bench referred to above. In this case, from the narration, of the several prior proceedings that have taken place between the parties, it is seen that on 24-3-1965, the respondent was held entitled to claim the benefits of the Act and the minimum extent was finally fixed by this Court in C. R. P. No. 2954 of 1974 on 6-8-1975, when the price fixed by the Courts below was also affirmed by this Court. Though as per the decision of the Division Bench referred to above, it is necessary first to decide the minimum extent of the land and thereafter the price, yet, in this case, it is seen that the price as fixed by the trial Court had been accepted right through and there had been a variation in the extent in that the claim of the respondent was restricted to the portion APQR as against the entire extent of 2,381 sq. ft. stated by the respondent to be the minimum extend required for his convenient enjoyment. Undoubtedly, this Court had, while dealing with C. R. P. No. 2954 of 1974, the jurisdiction under S.9 of the Act for all or any of the purposes enumerated there-under. It may be that while dealing with the claim of the respondent this Court had not adhered at the time of disposing of C. R. P. No. 2954 of 1974 to the several stages pointed out in the decision in Arasan Chettiar v. Narasimhalu Naidu's Estate Trust (1980) 2 Mad LJ 303. But that would not render the decision given in C. R. P. No. 2954 of 1974, while it fixed the price as well as the minimum extent, as one lacking in jurisdiction. At best, it may be said that instead of exercising the jurisdiction with reference to the ascertainment of the minimum extent of the land and the price thereof in stages, it had proceeded to exercise the jurisdiction at the same time or at one stroke. But that is not the same as clutching at jurisdiction or assuming jurisdiction, which the Court did not have, so as to render the adjudication itself of no consequence or not to operate as res judicata. Clearly in this case, while exercising jurisdiction which the Court had for the purposes of considering an application under S.9 of the Act, the Court had considered not only the extent, but also the price. At best, it may amount to only a case of exercise of jurisdiction not in conformity with (1980) 2 Mad LJ 303, but not total lack of it. The decision in Jai Singh Jairam Tyagi v. Maman Chand AIR 1980 SC 1201 relied on by the learned counsel for the petitioner does not, in my view, assist him. In that case, it was argued that the decision of the executing Court declaring the decree to be a nullity operated as res judicata and reliance was placed upon the decision of the Supreme Court in Mathura Prasad Sarjoo Jaiswal v. Dossibai N. B. Jeejjebhoy AIR 1971 SC 2355. The Supreme Court repelled this contention stating that the executing Court, in the face of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no jurisdiction to execute the decree, which defect was subsequently, removed and that, therefore, it cannot be said that the earlier adjudication in execution proceedings operated as res judicata. This decision has no application to the present case, for, as pointed out earlier, the Court had the jurisdiction to deal with the application under S.9 of the Act and had also exercised such jurisdiction. It may be that the decision arrived at by the exercise of such jurisdiction was contrary to the decision of the subsequent Division Bench, but that is not a ground for holding that an erroneous decision was arrived at by an assumption of jurisdiction which the Court did not have. Under those circumstances, the decision of the Supreme Court in Jai Singh Jairam Tyagi v. Maman Chand AIR 1980 SC 1201 cannot advance the case of the petitioner. The decision in New Theatres Carnatick Talkies Ltd. v. N. Vajrapani AIR 1984 SC 1 also does not lend any support to the contention of the learned counsel for the petitioner. There also, an order had been passed under S.9 of the Act for the sale of the site holding that the tenant was entitled to purchase the site on payment of the full market value current on that date. A further direction was also given to the trial Court to appoint a Commissioner to fix the value of the site and after that order was so made and the matters were pending, the principal Act was amended. The pending proceedings had, therefore, to be subjected to the operation of the amended statute and the order originally passed for sale of the property on payment of the current market value had to be aborted necessitating the taking of fresh proceedings in order to give a disposal to the same. Such is not the situation in this case, and, therefore, there is no question of the fixation of the price being considered afresh.