Maintainability of the second suit filed after one year.

This Second Appeal by the first defendant is having its third round in this Court and that too on the intangible claim of a sub-tenant to maintain his possession of a premises in respect of which the owner has obtained an order for eviction against his tenant. The facts and proceedings in which the subtleties of of law and procedure have had their full play may be briefly set out. The appellant is the owner of a premises in the City. The second respondent herein was his tenant, and he initiated against him proceedings for eviction H. R. C. No. 3036 of 1955, under the Madras Buildings (Lease and Rent Control) Act, 1949. On 17th January, 1956, the owner secured the order for eviction and applied, under section 9 of the Madras Buildings (Lease and Rent Control) Act, 1949, to the City Civil Court, Madras, in execution, E.P. No. 592 of 1956, for the issue of a warrant for delivery of possession. The present first respondent obstructed delivery and this led to E.A. No. 382 of 1956 by the owner for removal of obstruction. On 16th July, 1956, an order was passed directing the removal of the obstruction, the Court granting time to the present 1st respondent, who will be hereafter referred to as the obstructor or sub-tenant according to the context to vacate the premises by 31st July, 1956. Thereupon, the obstructor instituted the suit O.S. No. 1236 of 1956 alleging that he was a direct tenant of the owner, that the tenancy was only of the site and not of the building, that he was entitled to the protection and privileges conferred by the City Tenants Protection Act, that the order for eviction had been obtained collusively and that in the circumstances, the order for eviction was not binding on him. Appropriate declaration and injunction were prayed for. On 30th January, 1957, this suit was dismissed, the trial Court finding that the obstructor was only a sub-tenant under the tenant and that the order of eviction was not a collusive order. The Court further found that the City Tenants Protection Act had no application to the premises in question, the lease being of land and superstructure. There was an appeal therefrom by the sub-tenant, A.S. No. 70 of 1957 City Civil Court, Madras, and the appellate Court differed from the Court of first instance and held that the obstructor was not a sub-tenant and that the proceedings for eviction had been instituted collusively. In the result, it has found that the eviction order was not binding on the obstructor. The matter was then brought up to this Court by the owner in Second Appeal, and this Court set aside the judgment of the lower appellate Court and remanded the matter for fresh disposal. On remand, the lower appellate Court agreed with the findings of the trial Court and confirmed the decree of dismissal of the suit. Against that decree, the subtenant came up in Second Appeal to this Court, S.A. No. 1323 of 1961. This Court, in Second Appeal, upheld the findings of the trial Court that the obstructor was not a direct tenant of the owner and that the lease was not of vacant land but of land with superstructure thereon. Observing that the question depended entirely on appreciation of evidence and that the findings of both the Courts below were findings of fact, this Court refused to interfere in Second Appeal. An attempt was made in Second Appeal to contend that by the repeal of the Madras Buildings (Lease and Rent Control) Act of 1949 and by reason of the provisions under the new Act, the Madras Buildings (Lease and Rent Control) Act, 1960, a new situation had arisen, and that the owner could not in the circumstances avail himself of the eviction order obtained under the old Act. It was contended that for the sub-tenant to be bound by an order for eviction under the Madras Buildings (Lease and Rent Control) Act, he must, under the new Act, be made a party to the proceedings. The obstructor was, however, not permitted to raise this new ground. It was pointed out that the plea tha