The judgment emphasized the technical grounds on which the earlier suit for declaration was negatived and clarified that the right to file an application under Section 9 of the City Tenants Protection Act arises only when the landlord initiates eviction proceedings.

(Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 8.12.2005 made in I.A.No.19340 of 2005 in O.S.No.9218 of 1995 on the file of V Assistant Judge, City Civil Court, madras.)

Aggrieved over the order dated 8.12.2005 made in I.A.No.19340 of 2005 in O.S.No.9218 of 1995 on the file of V Assistant Judge, City Civil 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.4771 of 1984 for permanent injunction and declaration that he was entitled to purchase the property under Section 9 of the City Tenants Protection Act. Decree was granted only in respect of permanent injunction. But, declaration sought for under Section 9 of the City Tenants Protection Act was negatived on the ground that the suit was filed by the landlord not for ejectment of the tenant and therefore Section 9 of the City Tenants Protection Act cannot be invoked. Thereafter the petitioner's husband died on 23.10.1989. The respondent/plaintiff filed O.S.No.9218 of 1995 for a declaration that the petitioner is a trespasser. Originally the said suit was filed before the High Court and thereafter it was transferred to the City Civil Court and renumbered as O.S.No.9218 of 1995, on 22.2.1995. On 12.4.1996 the petitioner filed an application under Section 9 of the City Tenants Protection Act. On 19.6.1996 the petitioner entered appearance. Application filed by the petitioner, was returned on 27.8.1996. Thereafter issues were framed and parties were examined. Arguments of both sides were also over. At this stage, the petitioner filed an application in I.A.No.19340 of 2005 to reopen the case and to decide 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 not filed within 30 days from the date of service of summons or from the date of appearance in court. Secondly, the husband of the petitioner earlier filed a suit in O.S.No.4771 of 1984 for declaration and that was negatived as he is not entitled for declaration under the City Tenants Protection Act and therefore as per the earlier judgments the claim now made by the wife is hit by the principles of res-judicata.

4. Aggrieved over the said order this civil revision petition is filed.

5. Mr. S. Subbiah, the learned counsel appearing for the revision petitioner would contend that an application filed by her under Section 9 of the City Tenants Protection Act was neither returned nor numbered and it is simply kept pending. He would further contend that the judgment rendered in O.S.No.4771 of 1984 filed by the husband of the petitioner, would not operate as a res-judicata for the present claim of the petitioner because in the said judgment the prayer for declaration under the City Tenants Protection Act was negatived only on the ground that the suit is not filed by the landlord for ejectment of the tenant.

6. Section 9 of the City Tenants Protection Act reads as follows:

"Application to Court for directing the landlord to sell land.--((1)(a)(i)) Any tenants who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceedings under Section 41 of the Presidency Small Cause Courts Act, 1882 (Central Act XV of 1882), taken by the landlord may (within one month of the date of the publication of the (Chennai) city Tenants' Protection (Amendment) Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town, township or village in which the land is situate, or within (one month) after the service on him of summons, apply to the court for an order that the landlord shall be directed (to sell for a price to be fixed by the Court, the whole or part of, the extent of land specified in the application."

7. As per Section 9 of the City Tenants