CORAMTHE HONOURABLE MR v. Sri Srinivasamurthy mandiramrep. By its Executive TrusteeNo.1

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:20-11-2006CORAMTHE HONOURABLE MR.JUSTICE S.ASHOK KUMAR C.R.P.PD.No.81 of 2006P.Gnanasoundari ... Petitioner/I DefendantVersusSri Srinivasamurthy mandiramrep. By its Executive TrusteeNo.1, Ellai Amman Koil Street,West MambalamChennai-600 033. ... Respondent/PlaintiffCivil Revision Petition filed under Article 227 of theConstitution of India against the order dated 8.12.2005 made inI.A.No.19340 of 2005 in O.S.No.9218 of 1995 on the file of V AssistantJudge, City Civil Court, madras. For Petitioner : Mr.S.SubbiahFor Respondent : Mr.K.Shakespeare ORDERAggrieved over the order dated 8.12.2005 made in I.A.No.19340 of2005 in O.S.No.9218 of 1995 on the file of V Assistant Judge, CityCivil Court, Madras this civil revision petition is filed.2.Brief facts of the case are as follows:Originally the petitioner's husband filed a suit in O.S.No.4771of 1984 for permanent injunction and declaration that he was entitledto purchase the property under Section 9 of the City TenantsProtection Act. Decree was granted only in respect of permanentinjunction. But, declaration sought for under Section 9 of the CityTenants Protection Act was negatived on the ground that the suit wasfiled by the landlord not for ejectment of the tenant and thereforeSection 9 of the City Tenants Protection Act cannot be invoked.Thereafter the petitioner's husband died on 23.10.1989. Therespondent/plaintiff filed O.S.No.9218 of 1995 for a declaration thatthe petitioner is a trespasser. Originally the said suit was filed https://hcservices.ecourts.gov.in/hcservices/ before the High Court and thereafter it was transferred to the CityCivil Court and renumbered as O.S.No.9218 of 1995, on 22.2.1995. On12.4.1996 the petitioner filed an application under Section 9 of theCity Tenants Protection Act. On 19.6.1996 the petitioner enteredappearance. Application filed by the petitioner, was returned on27.8.1996. Thereafter issues were framed and parties were examined.Arguments of both sides were also over. At this stage, the petitionerfiled an application in I.A.No.19340 of 2005 to reopen the case and todecide the same under Section 9 of the City Tenants Protection Act.3.The learned V Assistant Judge, City Civil Court, Chennai,dismissed the same on two grounds. Firstly, the application is notfiled within 30 days from the date of service of summons or from thedate of appearance in court. Secondly, the husband of the petitionerearlier filed a suit in O.S.No.4771 of 1984 for declaration and thatwas negatived as he is not entitled for declaration under the CityTenants Protection Act and therefore as per the earlier judgement theclaim now made by the wife is hit by the principles of res-judicata.4.Aggrieved over the said order this civil revision petition isfiled.5.Mr.S.Subbiah, the learned counsel appearing for the revisionpetitioner would contend that an application filed by her underSection 9 of the City Tenants Protection Act was neither returned nornumbered and it is simply kept pending. He would further contend thatthe judgement rendered in O.S.No.4771 of 1984 filed by the husband ofthe petitioner, would not operate as a res-judicata for the presentclaim of the petitioner because in the said judgement the prayer fordeclaration under the City Tenants Protection Act was negatived onlyon the ground that the suit is not filed by the landlord for ejectmentof the tenant.6.Section 9 of the City Tenants Protection Act reads as follows:"Application to Court for directing the landlordto sell land.--((1)(a)(i)) Any tenants who isentitled to compensation under Section 3 and againstwhom a suit in ejectment has been instituted orproceedings under Section 41 of the Presidency SmallCause Courts Act,1882 (Central Act XV of 1882), takenby the landlord may (within one month of the date ofthe publication of the (Chennai) city Tenants'Protection (Amendment)Act, 1979 in the Tamil naduGovernment Gazette or of the date with effect fromwhich this Act is extended to the municipal town,township or village in which the land is situate, orwithin ( one month) after the service on him ofsummons, apply to the court for an order that the https://hcservices.ecourts.gov.in/hcservices/ landlord shall be directed (to sell for a price to befixed by the Court, the whole or part of, the extentof land specified in the application."7.As per Section 9 of the City Tenants Protection Act, when thelandlord files a petition for ejectment, then only right comes to thetenant to file an application to purchase the property and on filingsuch application the court may decide whether the tenant has got rightto purchase the property and also to ascertain how much land isrequired for sale at the acceptable price. Admittedly, the suit wasnot filed by the landlord for ejectment, but by the tenant forpermanent injunction and declaration. The judgement was rendered inO.S.No.4771 of 1984 holding that the plaintiff (husband of thepetitioner) is not entitled for declaration simply on the technicalground that the suit was not filed by the landlord. 8.Mr.Shekspeare, the learned counsel appearing for the respondentwould contend that though the petitioner had entered appearance on19.6.1996, she has filed the application on 27.8.1996, with a delay ofmore than 30 days and therefore, the application could not beconsidered. His further contention is that for the last 9 years, thepetitioner has not cared to pursue the application and thus, it istime barred and hit by latches in filing the application.9.Heard the rival contentions of the both sides. As far as thedelay in re-presentation is concerned, normally delay in re-presentation is condoned by all the courts. Even if there is any delayin re-presentation of the application, the learned Judge ought to havepassed an order as to whether the delay is condoned or not.Unfortunately in this case, the learned Judge has not passed any ordereither returning the application filed by the petitioner, or orderingto number it.10.Considering the nature of the application whereby the partyprays a relief only under Section 9 of the City Tenants ProtectionAct, it should be tried as preliminary issue and then an order must bepassed. Unfortunately in this case as already stated the applicationwas kept idle without either being returned or being numbered. It istrue that the application was filed with a delay in re-presentation ofthe same. The application was presented on 12.4.1996 within the timeas required under Section 9 of the City Tenants Protection Act. Whatthe Act requires for filing of the application is within 30 days fromthe date receipt of summons. As far as the date of filing of thisapplication is concerned, it is 12.4.1996. Therefore there is nodispute that the application was filed in time. But in re-presentationthere was a delay. https://hcservices.ecourts.gov.in/hcservices/

11.The reasoning given by the learned judge for dismissing theapplication is that by the judgement rendered in the earlier suitfiled by the husband of the petitioner in O.S.No.4771 of 1984 forpermanent injunction and for declaration, the relief of declarationwas negatived, since the suit was not filed by the landlord andtherefore the first defendant in the present suit in O.S.No.9218 of1995 cannot raise the same issue as it is hit by the principles ofres-judicata.12.It is not disputed that the petitioner is none other than thewife of the plaintiff in O.S.No.4771 of 1984 filed for declarationunder Section 9 of the Madras City Tenant Protection Act. The suit wasnegatived on the sole technical ground that it was not a suit filed bythe landlord against tenant for ejectment. Since the earlier prayersought for by the husband was negatived only on the technical groundthat the suit was not filed for ejectment by the landlord, now thejudgment cannot operate against the present claim of thepetitioner,who seeks protection under the City Tenants Protection Act,when the suit is filed by the landlord. 13.Therefore, the reasons given by the learned V AssistantJudge, City Civil Court,Chennai, are not sustainable and this civilrevision petition is allowed. No costs. The learned V Assistant Judgeis directed to dispose of the petition filed by the petitioner underSection 9 of the City Tenants Protection as a preliminary issue andthen proceed with the trial of the case. Consequently the connectedC.M.P.No.829 of 2006 is closed.14.The learned Vth Assistant Judge, City Civil Court, Chennaishall pass order in the said application without being influenced byany observation made by this Court in this petition. VK Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To:1 The V Assistant Judge,City Civil Court, Chennai.2 The Section Officer,V.R.Section, High Court,Madras+1 C.C. to M/S.A.V.ARUN,Advocate SR.No.56482 +1 C.C. to MR.K.SHAKESPEARE, Advocate SR.No.56464KG (CO)TES (08/12/2006)C.R.P.PD.No.81 of 2006