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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
Hindustan Petroleum Corp. Ltd., Madras
Versus
K.M. Yakub (Died) by L.Rs. & Others
Second Appeal No. 982 of 1995 & Civil Miscellaneous Appeal No. 575 of 1995
Decided On :Decided On : 19-07-1996
CITY TENANTS PROTECTION ACT - SECTION 11 NOTICE - WAIVER - TENANT'S PHYSICAL POSSESSION - ESSENTIAL REQUIREMENT - RES JUDICATA - APPLICABILITY TO DIFFERENT STAGES OF SAME SUIT.
Fact of the Case:
Plaintiff filed a suit for recovery of the schedule properties from the defendants. The first defendant was the tenant and claimed the benefits of the City Tenants Protection Act. The trial court held that the first defendant had no possession and the same was sub-leased to the second defendant. The matter was taken in appeal and revision, and it was held that the first defendant had no possession and the second defendant was in exclusive possession of the property. A Special Leave Petition preferred before the Supreme Court was also without success. Thereafter, when the suit came for trial before the trial court, defendants put forward a contention that the suit was not maintainable since notice under Section 11 of the City Tenants Protection Act was not issued. The trial court held that there is waiver, and accordingly rejected the contention. The matter was taken in appeal before the lower appellate court, which also held that the first defendant had waived the right under Section 11 of the City Tenants Protection Act, but remanded the case to assess the value of the improvement, so that it could be paid to the tenant under Section 3 of the Act.
Finding of the Court:
The court held that the first defendant was not a tenant under the Act, as he did not have physical possession of the property. The court also held that the first defendant had waived the right to claim the benefits of Section 11 of the Act by filing an application under Section 9 of the Act, which is a provision for the purchase of the property by the tenant. The court further held that the finding in the Civil Revision Petition that the first defendant was not in possession was conclusive and could not be agitated again in the same suit, as the principle of res judicata applied to different stages of the same suit.
Issues: 1. Whether the first defendant was a tenant under the City Tenants Protection Act? 2. Whether the first defendant had waived the right to claim the benefits of Section 11 of the Act? 3. Whether the finding in the Civil Revision Petition that the first defendant was not in possession was conclusive and could be agitated again in the same suit?
Ratio Decidendi: 1. To be a tenant under the City Tenants Protection Act, physical possession of the property is an essential requirement. 2. The right to claim the benefits of Section 11 of the Act can be waived by the tenant, either expressly or impliedly. 3. The principle of res judicata applies to different stages of the same suit, and a finding in a previous stage of the suit is conclusive and cannot be agitated again in a subsequent stage.
Final Decision: The Second Appeal was dismissed with costs, and the Civil Miscellaneous Appeal was allowed with costs throughout. The judgment of the lower appellate court where-by it directed the trial court to fix the quantum of improvements under Section 3 of the Act was set aside.
1. In Second Appeal, defendants 1 and 2 are the appellants. In the Civil Miscellaneous Appeal, the legal representatives of the plaintiff are the appellants.
2. Reference to the parties in both these Appeals will be as in the suit.
3. Plaintiff-K.M. Yakub filed O.S. No. 1286 of 1978, on the file of Second Additional Sub Judge, Erode, for recovery of the schedule properties from the defendants. Plaintiff is the owner, and he leased out the same from 1953 onwards in favour of the first defendants predecessor and the lease continued by various renewals, upto 29-2-1976. Thereafter, there was no renewal. But the enactment ‘Caltex Oil Refining (India) Limited under the Caltex (Acquisition of Shares of Caltex Oil Refining (India) Limited and of the Undertakings in India of Caltex (India) Limited, 1977 came into force on 30-12-1976, whereby the total interest of Caltex (India) Limited vested in the Central Government. Thereafter, it became a Government-owned Company, called Caltex Oil Refining (India) Limited. The said Government Company was amalgamated with the first defendant-Company. The lease was admitted by the defendants also, and they claimed the benefits of City Tenants Protection Act. The first defendant filed I.A. 374 of 1979 under Section 9 of the City Tenants Protection Act. Evidence was taken. The trial court held that the first defendant has no possession, and the same was sub-leased to the second defendant. The matter was taken in C.M.A. 32 of 1983, without success. A revision was filed before this Court as C.R.P. No. 2100/1985. A learned Judge of this Court, as per order dated 24-9-1993, dismissed the Revision, holding that the first defendant has no possession, and the second defendant is in exclusive possession of the property. It held that when the first defendant had not physical possession, it cannot be a tenant, much less a tenant entitled to the benefits of City Tenants Protection Act. So holding, the Civil Revision Petition was dismissed. A Special Leave Petition preferred before the Supreme Court was also without success.
4. Thereafter, when the suit came for trial before the trial court, defendants put forward a contention that the suit was not maintainable since notice under Section 11 of the City Tenants Protection Act was not issued. The trial court held that there is waiver, and accordingly rejected the contention. The matter was taken in appeal before the lower appellate court as A.S. No. 63 of 1985. The lower appellate court also held that the first defendant has waived the right under Section 11 of the City Tenants Protection Act, but remanded the case to assess the value of the improvement, so that it could be paid to the tenant under Section 3 of the Act. It is against the said decree, Second Appeal No. 982 of 1995 is filed by the defendants. Against the order or remand, plaintiffs have preferred the Civil Miscellaneous Appeal.
5. The Second Appeal was originally dismissed by a learned Judge of this Court at the admission stage itself. Aggrieved by the dismissal, when the matter was taken before the Supreme Court as S.L.P. No. 27953 of 1995, the Supreme Court held that since a connected C.M.A. is pending, the dismissal at the admission stage itself was not proper, and it directed this Court to consider the question involved for consideration as expeditiously as possible and a status quo as to possession was directed to be maintained till the final disposal of the appeal by this Court.
6. After the direction of the Supreme Court, the Civil Miscellaneous Appeal was also posted along with the Second Appeal, so that both the appeals could be heard together.
7. According to the appellants, the following substantial questions of law set out in the Memorandum of Appeal arise for consideration in the Second Appeal:—
1) Whether the courts below were right in fixing the quantum of damages?
2) Whether the courts below had ample jurisdiction to decide the issues?
3) Whether the courts below were right
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