IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2011
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.1268 of 2006
1.Mrs.Balammal
2.Mrs.L.Vijaya
3.Mrs.P.Shanthi ... Appellants
vs.
1.Mrs.Muthiyar Begum
2.Mr.M.A.Latheef ... Respondents
This second appeal is filed against the judgement and decree dated 10.10.2006 passed by the Subordinate Judge, Ranipet, Vellore District, in A.S.No.99 of 2005 confirming the judgement and decree dated 22.6.2005 passed by the District Munsif, Sholinghur, in O.S.No.270 of 2004.
For Appellants : Mr.K.Mohanamurali
For Respondents : Mr.S.Parthasarathy,Sr.counsel for
Mr.J.Ramakrishnan
JUDGMENT
This second appeal is filed by the defendants, inveighing the judgement and decree dated 10.10.2006 passed by the Subordinate Judge, Ranipet, Vellore District, in A.S.No.99 of 2005 confirming the judgement and decree dated 22.6.2005 passed by the District Munsif, Sholinghur, in O.S.No.270 of 2004, which was filed for delivery of possession and for mandatory injunction.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. The long and the short of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
(i) The respondents herein, as plaintiffs, filed the suit seeking the following reliefs:
“To pass judgement and decree in favour of the plaintiff:
a)directing the defendant to deliver vacant possession of the plaint schedule property to the plaintiffs; in default by them through process of Court;
b) to grant mandatory injunction directing the defendants to remove the superstructure built upon the plaint schedule vacant site; at their costs; and in default by them the same may be removed through process of Court;
c) directing the defendants to pay the cost of the suit to the plaintiff.”
(ii) Written statement was filed resisting the suit. Whereupon issues were framed by the trial Court.
(iii) During trial, on the plaintiffs’ side, the second plaintiff examined himself as P.W.1 along with P.W.2 and marked Exs.A1 to A9. On the defendants’ side, the second defendant examined herself as D.W.1 along with D.W.2 and marked Exs.B1 to B33.
(iv) Ultimately, the trial Court decreed the suit, as against which, the appeal was filed for nothing but to be dismissed by the appellate Court, confirming the judgement and decree of the trial Court.
4. Challenging and impugning the judgements and decrees of the Courts below, this second appeal has been filed on various grounds inter alia thus:
(i) The property was leased out originally for manufacturing purpose of the defendants and in such a case, after the initial expiry of the period of tenancy, as contemplated in the written agreement, it should have been taken that the tenancy was from year to year as per Section 116 of the Transfer of Property Act and it should not have been treated as tenancy from month to month. Accordingly, if viewed, as per Section 106 read with 116 of the Transfer of Property Act, the plaintiffs should have given notice granting six months’ time for vacating the premises, but on the other hand, Ex.A4 dated 25.7.1997 was issued granting only 15 days’ time.
(ii) The judgement and decree dated 16.2.2005 in O.S.No.164 of 1998 would operate as res-judicata for the present suit, but the said fact was not taken note of by the Courts below.
5. While admitting the second appeal, my learned predecessor framed the following substantial questions of law:
“1. Whether the judgment and decree in O.S.No.164 of 1998 dated 15.2.2004 acts as Res judicata for the present suit/
2. Whether the Courts below miserably failed rendering a finding for the notice marked as Ex.A-10 dated 31.3.2004, in regard to the mandatory requirement of the period of 6 months as contemplated under Section 106 of the Transfer of Property Act?
(3) Whether the interpretation of the Court below about Sections 111 and 116 of the Transfer of Property Act is sustainable in law?
6. However the substantial questions of law are reframed as under:
“1. Whether the judgement and decree in O.S.No.164 of 1998 dated 15.2.2004 would operate as Res judicata as against the present suit?
2. Whether the Courts below were wrong in holding that the notice Ex.A10 dated 31.3.2004 granting only 15 days was valid by treating the lease holding over was from month to month for non manufacturing purpose as per Section 106 read with Section 116 of the Transfer of Property Act?
3. Whether there is any perversity or illegality in the judgements and decrees of the Courts below?
7. Heard both.
8. Substantial Questions of law (i) to (iii): All these points are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one another.
9. The learned counsel for the appellants/defendants would submit that the earlier judgement and decree dated 16.2.2004 in O.S.No.164 of 1998 would operate as res-judicata for filing the present suit and accordingly, the Courts below should not have entertained the present suit.
10. The learned Senior counsel for the respondents/plaintiffs would submit that such an argument is neither here nor there, for the reason that the purport of the judgement dated 16.2.2004 itself is that the earlier termination notice issued terminating the tenancy was insufficient and thereby, the plaintiffs were given the liberty to issue fresh notice and file a fresh suit and in such a case, the fresh suit is not barred, in the facts and circumstances of this case. However, the findings in the earlier judgement to the effect that the lease was not for manufacturing purpose, but for business purpose would hold good and accordingly, the learned Senior counsel would pray for deciding the substantial questions of law in favour of the respondents/plaintiffs abnd for the dismissal of the second appeal.
11. A mere poring over and perusal of Ex.A8-the certified copy of the judgement dated 16.2.2004 in O.S.No.164 of 1998 would unambiguously and unequivocally highlight and spotlight the fact that in the earlier proceedings in O.S.No.164 of 1998, the same appellants/defendants herein raised certain pleas disputing the sufficiency of termination notice and at that time, the trial Court, after considering the pros and cons of the matter and also referring to the Supreme Court judgement clearly held that the tenancy holding over was only for the purpose of doing business and not for manufacturing purpose and in such a case, it would not lie in the mouth of the very same defendants, who are also the defendants in the present suit, to contend once again that the holding over of tenancy was for manufacturing purpose and not for ordinary business purpose.
12. I could see considerable force in the submission made by the learned Senior counsel for the respondents/plaintiffs that so far the finding of the trial Court in the previous proceedings in O.S.No.164 of 1998 is concerned, it is no more res-integra and it has to be taken as final.
13. At this juncture, I recollect and call up the following maxim:
“(i) Actus curiae neminem gravabit’ An act of the Court will prejudice no one.
(ii) (i) res judicata pro veritate accipitur – A matter adjudged is taken for truth. A matter decided or passed upon by a Court of competent jurisdiction is received as evidence of truth.
(ii) Nemo debet bis vexari pro una et eadem causa – No one ought to be twice troubled, if it appears to the court that it is for one and the same cause of action.
14. In the earlier proceedings, the trial Court clearly gave its finding that the tenancy holding over was not for manufacturing purpose and in such a case, as per Section 116 of the Transfer of Property Act, the holding over tenancy in this matter should be treated only as from month to month. Here, as per Ex.A10, 15 days’ notice under Section 106 of the Transfer of Property Act was given and accordingly, the tenancy was terminated and both the Courts below held it as valid, relating to which, no interference with the findings by the Courts below is warranted.
15. It is not the contention of the defendants that the present Ex.A10 falls short of 15 days’ termination notice, but their contention would be to the effect that six months’ time should have been given treating the tenancy as one for manufacturing purpose.
16. To the risk of repetition and pleonasm, but without being tautalogous, I would like to point out that earlier on this very same point, the then trial Court in extenso discussed with reference to the factual as well as legal aspects and rendered its judgement. Hence, at present, once again this Court cannot be called upon to decide the very same issue. If this Court, in the present proceedings holds that the tenancy should be treated as one for manufacturing purpose, then it would amount to making the plaintiffs to get bamboozled and beguiled, perplexed and puzzled because, the plaintiffs as a litigant in the previous proceedings were bound by the earlier direction of the Court. Strictly in accordance with the earlier direction of the Court, the plaintiffs issued the notice-Ex.A10. Once again, relating to the subsequent notice-Ex.A10, if the Court says that the finding and direction rendered in the earlier proceedings between the same parties for some reason is not valid then that would amount to travesty of justice, which should not be resorted to under any circumstance, by this Court.
17. I recollect the following maxim also:
‘Executio legis non habet injuriam’ Execution of the law cannot work an injury.
18. Here in view of the earlier findings in the judgement dated 16.2.2004 in O.S.No.164 of 1998 the plaintiffs acted upon further by issuing Ex.A4 and in such a case, I am of the considered view that this Court, based on some other facts, should not decide otherwise and put the plaintiffs in a quandary.
19. Accordingly, the substantial questions of law are decided as under:
Substantial question law (i) is answered to the effect that regarding the finding of the trial Court in the previous proceedings in O.S.No.164 of 1998 that the tenancy holding over was for non-manufacturing purpose would certainly operate as res-judicata in the present proceedings, but it would operate as a bar as against the present suit.
Substantial question of law (ii) is answered to the effect that Ex.A10-the termination notice dated 31.3.2004 is valid.
Substantial Question of law (iii) is answered to the effect that there is no perversity or illegality in the judgements and decrees of the Courts below
20. In the result, the second appeal stands dismissed,confirming the judgements and decrees of the Courts below. However, there is no order as to costs.
21. The leaned counsel for the appellants/defendants would make an extempore submission to the effect that a years’ time might be granted for vacating the premises by the defendants and handing over possession of the same to the plaintiffs, for which, the learned Senior counsel for the respondents/plaintiffs would submit that six months’ time could be granted. I am of the view that in the interest of justice nine months’ time could be granted, subject to payment of damages for use and occupation in pari materia with the monthly payments paid already. An affidavit of undertaking shall be filed by the appellants/defendants to that effect within three weeks from the date of receipt of a copy of this order.
Msk 27.01.2011 Index:Yes Internet:Yes Note to Office: Issue order on 31.1.2011 To 1.The the Subordinate Judge, Ranipet, Vellore District, 2.The District Munsif, Sholinghur. G.RAJASURIA,J. msk S.A.No.1268 of 2006 27.01.2011