VENKATASUBBIAH Vs. VADUVAMBAL

JUDGEMENT

(1.) THIS petition by the landlord is directed against an order of the Fifth Assistant Judge of the City Civil Court, Madras. He had filed a suit O.S. No. 359 of 1960 for ejectment and to recover arrears of rent. The defendant filed an application under Section 9 of the Madras City Tenants Protection Act, 1921. Both the suit and the application were dismissed. The dismissal of the suit was rested on the ground of want of notice under Section 11. The application under Section 9 was dismissed because, in the view of the Court of the Explanation to Section 9, the plaintiff as a trustee had no power to execute a sale in favour of the defendant except for. necessity. In taking that view, the Court below purported to follow Sivananda Gramani v. Mohammed Ismail (1959) 1 M.L.J. 263.The landlord subsequently brought O.S. No. 2907 of 1963 for ejectment and for recovery of arrears. The tenant taking advantage of this, filed over again an application under Section 9. Pending that suit, the Court below heard the application and allowed it. In doing so, it was of opinion that the previous order on the earlier application under Section 9 did not operate as res judicata. It also noted that the view expressed in Sivananda Gramani v. Mohammed Ismail (1959) 1 M.L.J. 263, no longer held the field in view of Sundareswarar Devastanam v. Marimuthu I.L.R. . The aggrieved landlord is before this Court in revision.

(2.) IT has been held in Vedachala Naicker v. Doraiswami Mudaliar , that having regard to the scheme of the Act, the application under Section 9 is independent of the suit and can be prosecuted even if the suit is withdrawn. Section 9-A provides for an appeal from an order under Section 9. The very question as to whether the plaintiff in his capacity as a trustee of the institution, which is a Bajana Madam, is entitled to sell is raised over again as between the very parties. IT seems to me that merely because the view on which the previous order on the earlier application under Section 9 was based no longer holds the field because Sundareswarar Devasthanam v. Marimuthu I.L.R. takes a different view, it does not follow that it set the matter at large as between the parties. The doctrine of res judicata covers an adjudication both on factual as well as legal matters. That a different view of the law has been subsequently taken will not affect the applicability of the doctrine. I am inclined, therefore, to think that the Court below is not right in its view that the previous order did not: operate as a bar to an order on the subsequent application.