(1.) This is an appln by the owner of premises bearing municipal door No. 91 Mowbrays Road, Alwarpet, for the issue of a writ of 'certiorari' to quash the order of the Chief Judge of the Ct of Small Causes in H. R. A. No. 264 of 1948, dated 24-8-1948. That appeal arose out of an appln filed by the petnr before the Rent Controller, Madras, for eviction of the first resp from the premises on the ground that he had committed default in the payment of the rent for January 1947. One of the main pleas of the resp was that the appln was not maintainable because of the dismissal of a prior appln made by the petnr to the Rent Controller on 5-6-1947. On that date, neither the petnr nor her advocate was present when the appln was called, & therefore the petn was dismissed for default. The resp also raised other pleas on the merits. The Bent Controller by his order dated 29-1-1948, passed an order for eviction of the resp. He found that the resp committed default in payment of the rent for January 1947. He overruled the objection as to the maintainability of the appln because the prior appln had not-been judicially decided on the merits. There was an appeal by the resp to the Ct of Small Causes at Madras. The learned Chief Judge agreed with the Rent Controller on the merits that the resp had committed default in paying the rent for January. He, however, considered that the objection of the resp to the maintainability of the appln was well founded. Relying mainly upon the provisions of Sub-section (4) of Section 12 & Section 10 of the Act, he held that the present appln was barred by reason of the dismissal of the prior appln.
(2.) Section 10 of the Act runs thus :
(3.) Under the provisions of the C. P. C., when a suit is dismissed for the default of appearance of the pltf, a fresh suit on the same cause of action is barred. That is because of the specific provision of Order 9, Rule 9. This provision must be construed along with the provision made in Order 9 for setting aside dismissals for default of appearance. In the absence of a provision similar to the provision of Order 9, Rule 9, . C. P. C., there is no authority to compel us to hold that there is a general & universal rule . of procedure, according to which once a suit or a petn is dismissed for default of appearance of the pltf or the petnr a subsequent suit or petn shall not be entertained claiming the same relief & based on the same cause of action. On the other hand, the decision of the Calcutta H. C. in 'Shailabaladassee v. Gobar-dhadas Lalsaria', 62 Cal 15 : (AIR (22) 1935 Cal 212) lends support to the contrary view. In that case, a suit filed on the Original Side of that Ct was dismissed for non-prosecution under the provisions of B. 36 of Chap. X of the Rules on the Original, Side. It was held that in the absence of any rule forbidding the bringing of a fresh suit, the pltf whose suit had been so dismissed was at liberty to bring a fresh suit. Mr. P. Somasundaram, learned counsel for the resp, urged upon us that this decision was based upon the practice obtaining on the original side of the Calcutta H. C. which again was based on the practice of the S. C. in England. It is true, no doubt, that the learned Judges, in discussing the question & in referring to the authorities in England, advert to the practice obtaining in England & on the Original Side of that H. C. But the principle of that decision is not to be found in the rule of practice, but in the general rule that in the absence of any provision, either in the general adjectival law or in the rules of a Ct preventing a pltf from proceeding with a suit in the circumstances abovementioned, the later suit could not be held to be not maintainable. Just as Mr. Somasundaram pressed before us it appears that it was pressed before the learned Judges there, that the result of this decision would be that a pltf, if he so chooses, might use the procedure of the Ct as an instrument of oppression & that he might indulge in a succession of suits & thus harass his opponent. But the learned. Judges, while sympathising with the hardship of such a contingency, nevertheless came to the conclusion that the subsequent suit was maintainable in law. As the learned Judges there point out, we hasten also to point out that it is highly desirable that a rule corresponding to Order 9 Rule 9 & possibly provisions also corresponding to Order 9 Rules 8 & 13 should be made under Madras Act XV (15) of 1946, or as we pointed out on another occasion, some of the salutary rules of procedure contained in the C. P. C. might be made applicable to the procedure under Madras Act XV (15) of 1946.