JUDGMENT <NAME>, J.

1. This is a tax case appeal by the erstwhile partners of <ORG>, against the order of <ORG>, revising the order of the Appellate Assistant Commissioner and also the order of assessment of the Joint Commercial Tax Officer, Tondiarpet, withdrawing the exemption granted with respect to certain turnover for the assessment year 1969-70.

2. For the assessment year 1969-70, the appellants, manufacturers and dealers in M.S. rounds, were assessed on a total and taxable turnover of Rs. 35,91,555.70 and Rs. 5,26,237.20 respectively by the Joint Commercial Tax Officer, Tondiarpet, by his order dated 19th May, 1975 and he has exempted to the tune of Rs. 30,65,318.59 relating to sale of M.S. rounds rerolled out of local purchases of scrap. The taxable turnover of Rs. 5,26,237.20 related to sales of M.S. rounds amounting to Rs. 5,23,375.20 and Rs. 2,862 related to sales of machinery. The assessee filed an appeal before the Appellate Assistant Commissioner disputing the assessment made on the above two items. The Appellate Assistant Commissioner by his order dated 29th August, 1975 confirmed the assessment made at Rs. 2,862 towards the sales of machinery and out of the disputed turnover of Rs. 5,23,375.20 he gave relief to a turnover of Rs. 4,51,000. <ORG> by exercising its power under section 34 of the Tamil Nadu General Sales Tax Act, 1959, after notice to the erstwhile partners of the appellant since the partnership had since stood dissolved and after hearing the submissions made by the partners of the assessee, revised the orders of the assessing officer and the Appellate Assistant Commissioner and determined the taxable turnover at Rs. 35,01,984. <ORG> have come to the conclusion that the sales of M.S. rounds, manufactured out of local purchases of iron scrap, are also liable to tax though the iron scrap suffered tax earlier in view of the decision of <ORG> reported in <NAME> case [1976] 37 STC 319. The present appeal is against the order dated 30th June, 1978 of <ORG> by the erstwhile partners of the firm, the appellants.

3. In the appeal it is contended that the decision reported in <NAME> case is not applicable to the case on hand and the case of the appellants falls under section 14(iv)(c) of the Central Sales Tax Act, 1956 read with corresponding item 4(c) of the Second Schedule to the Tamil Nadu General Sales Tax Act, 1959. But the said contention was given up in the course of the argument. However, the learned counsel submitted that the assessment was made, granting exemption with respect to certain portions of turnover, as per the then prevailing decision of <ORG> and the revision has been made by <ORG> just on the basis of the subsequent decision of <ORG>. The learned counsel submitted that (1) <ORG> has exceeded its jurisdiction in revising the assessment beyond the period of limitation prescribed under section 16 of the Act; (2) that <ORG>, under the guise of revision, cannot pass an original order of assessment; (3) that <ORG>, in exercise of power of revision, cannot determine the taxable turnover in excess of the figure arrived at by the assessing officer; and (4) that <ORG> cannot set aside simultaneously under section 34 of the Act the order of the Joint' Commercial Tax Officer as well as the order of the Appellate Assistant Commissioner. For the first two submissions, the learned counsel relied on <CITATION>  26 STC 176 (Mad.). For the third submission he relied on <CITATION>  40 STC 228 (Mad.) and for the last submission he relied on <CITATION> .

4. The learned Government Pleader submitted that the period of limitation under section 16 of the Tamil Nadu General Sales Tax Act will not apply to a revision under section 34 of the Act and both are independent sections governed by restrictions mentioned therein as held in <CITATION>  44 STC 446 (Mad.) and <ORG> (P.) <CITATION>  57 STC 74 (Mad.). Further the learned Government Pleader submitted that the facts relating to <CITATION>  26 STC 176 (Mad.) are distinguishable as held in the later decision reported in <CITATION>  31 STC 330 (Mad.). Further it is submitted that it is not a case of original assessment by <ORG> but a case of bringing to tax certain turnover to which exemption was granted wrongly. Under the power of revision the Board can reassess the previous turnover, for which the learned Government Pleader relied on <CITATION> . As regards the third submission, the learned Government Pleader submitted that it is not a case of actual revision of the Appellate Assistant Commissioner alone but the order of the assessing officer also and therefore, <CITATION>  40 STC 228 (Mad.) is not applicable to this case, which arose under the Pondicherry General Sales Tax Act. Further there is no substance in the last ground and that the proposal was to revise the order of the assessing officer as well as the appellate authority, and therefore, it cannot be contended that only one of the orders alone can be revised.

5. The learned counsel for the appellants mainly relied on <CITATION>  26 STC 176 (Mad.) which in turn relied on a decision of <ORG> in <CITATION>  16 STC 875. Section 16 of the Act gives power to the assessing officer to bring to tax the turnover which escaped original assessment and that power can be exercised by the assessing officer within a period of five years from the expiry of the year to which the tax relates. Under section 34 of the Act as it then stood, <ORG> can revise the order of any taxing authority subordinate to it like the assessing officer, Appellate Assistant Commissioner and Deputy Commissioner within a period of four years from the date of the order sought to be revised (now raised to five years). <CITATION>  26 STC 176 (Mad.) the assessee was reassessed on the basis of discovery of materials subsequent to the original assessment and his taxable turnover was redetermind with an addition of Rs. 11,052. On appeal the Appellate Assistant Commissioner, deleted the additional assessment of Rs. 11,052. Subsequently, on a revision, the <ORG>, rejecting the claim of the assessee that the proceedings by the <ORG> were barred by the limitation of five years, passed an original order of assessment refixing the taxable turnover. In that case, this Court held that :

"in passing an original order of assessment the <ORG> exceeded its powers under section 34 and that the order was also passed beyond time. Therefore, the order was unenforceable in law."

In that case, subsequent to the appellant getting some partial relief in appeal, the <ORG> revised the original assessment by itself estimating the escaped turnover. The court held that the power of revision by the <ORG> is subject to the provisions of the Act and section 16 provides a limitation that the assessment should be revised within a period of five years subsequent to the order for which tax is levied, and therefore the revision of that assessment under section 34 of the Act is also subject to the restriction placed under section 16 of the Act. Thus it was held that the <ORG> of Revenue cannot revise any order by revision after expiry of five years subsequent to the order by which tax was revised under section 16 of the Act and it cannot take the role of the assessing authority, by embarking upon a probing enquiry. The <ORG> could consider only whether the order passed by the authority is illegal or improper or whether the proceedings are irregular, as laid down in <CITATION> which considered the Kerala General Sales Tax Act and Rules. Factually in this case, the original assessment was not revised under section 16 of the Act before the assessment was subject to revision by the <ORG> of Revenue. Moreover, there is no estimate made by the <ORG> of Revenue in the instant case unlike the cases cited above. This is a case of withdrawing the exemption by the <ORG> of Revenue with respect to a turnover which was wrongly given by the assessing officer. Here the turnover has been already determined by the assessing officer. The question that was to be decided was whether the exemption granted by the assessing officer with respect to certain turnover was legally correct. Therefore, the decision cited above will not apply to this case. In the decision reported in <CITATION>  31 STC 330 a Bench of this Court consisting of <NAME>, J., and <NAME>, J. [as pointed out already, <NAME>, J., was a party to the earlier decision in  26 STC 176 ( <CITATION> )], has held that the power of the original authority under section 16 and the power of the Deputy Commissioner under section 32 (which is analogous to section 34 ) of the Tamil Nadu General Sales Tax Act are independent powers and controlled by the respective sections. Therefore the limitation provided under section 16 of the Act cannot be applied in exercise of power by the Deputy Commissioner under section 32 of the Act. It is further held that the power of revision by the Deputy Commissioner is a separate and independent power and can be exercised to revise an order of assessment within a period prescribed under that section and it can also be revised by the assessing authority by correcting the mistake or bringing into tax the escaped turnover. The Bench also considered the decision reported in <CITATION>  26 STC 176 (Mad.) to which one of them was a party and pointed out that in that decision, the original assessment itself was revised under section 16 of the Act and that was again sought to be revised under section 34 and, therefore, the limitation applicable to section 16 was also made applicable to revision of that assessment under section 34 . Thus the Bench distinguished the decision reported in <CITATION>  26 STC 176 (Mad.).

6. The revisional order passed by <ORG> is within a period prescribed by that section. Therefore, the power of limitation prescribed under section 16 of the Act will not apply to the revision in the instant case. Further in the decision reported in <CITATION>  44 STC 446 (Mad.) while considering the scope of section 16 and 32 (the revision by the Deputy Commissioner is analogous to section 34 ) it is held as follows :

"..... the two sections are mutually exclusive and give different powers to different authorities. Therefore, if action could be taken under one section, it does not follow that action could not be taken under the other. Where it is possible to act under two provisions, the department may resort to the one instead of the other and it cannot be compelled to proceed under only one of the two provisions. Section 32 provides for the examination of the order passed by a subordinate authority under certain provisions set out therein. So long as the jurisdiction is exercised with respect to an order contemplated by the section, there would be no error in the exercise of jurisdiction."

In the decision reported in <ORG> (P.) <CITATION>  57 STC 74 (Mad.) it is held that under section 32 of the Tamil Nadu General Sales Tax Act the Deputy Commissioner is not confined to the examination of the order proposed to be revised and he can take information from outside the order for the purpose of effectively exercising his powers of revision and he can further peruse the record extraneous to the assessment. With respect to similar provision under the Bengal Financial (Sales Tax) Act, 1941 <ORG> held in <CITATION> that the power of revision can easily be equated with the power exercisable by the appellate authority in an appeal, and therefore, in exercise of revisional power, the Commissioner can reassess the turnover by roping escaped items of turnover and thereby enhance the gross turnover.

7. On a consideration of the above decisions, we are of the view that sections 16 and 34 of the Tamil Nadu General Sales Tax Act are independent and the limitation prescribed under section 16 will not be applicable to a revision under section 34 of the Act and in any event, in this case, since the original assessment was not revised under section 16 the limitation prescribed under section 16 will not be applicable to a revision under section 34 . Further we are of the view that section 34 gives wide power to reassess the turnover as in the case of the original assessing authority. But the facts of the case will clearly establish that it is not a case of reassessment but a case of bringing to tax by withdrawing certain exemptions granted by the assessing authority in respect of certain turnover. Therefore the first two submissions made by the learned counsel for the appellants have to fail and accordingly they are rejected.

8. The third submission is based on assumption that what was sought to be revised in only an order of the Appellate Assistant Commissioner. But here we find from the records that notice was given to the assessee by <ORG> proposing to revise both the orders of the assessing authority as well as that of the Appellate Assistant Commissioner. Therefore, the assessee cannot contend that the Board cannot take away the benefit granted by the assessing officer under the guise of revising the order the Appellate Assistant Commissioner. <CITATION>  40 STC 228 (Mad.) against an order of assessment passed by the Joint Commercial Tax Officer, Pondicherry, the assessee preferred an appeal to the Appellate Assistant Commissioner, Pondicherry, who reduced the taxable turnover. The <ORG> in exercise of power of revision, revised the order of the Appellate Assistant Commissioner and the assessing officer and thereby enhanced the turnover determined by the assessing officer. On appeal a Bench of this Court consisting of <NAME>, J. (as he then was), and <NAME>, J., while setting aside the order of the Appellate Assistant Commissioner, held that the <ORG> cannot redetermine the turnover to be in excess of the turnover determined by the assessing authority, because the appellate order was passed at the instance of the assessee and, therefore, the assessee cannot be placed in a worse position than what he would have been if he had not preferred the appeal, by modifying the order of the Appellate Assistant Commissioner to the prejudice of the assessee. Therefore, the said decision cannot have any assistance to the present case which arises under the Tamil Nadu General Sales Tax Act. Section 37 of the Pondicherry General Sales Tax Act cannot be equated to section 34 of the Tamil Nadu General Sales Tax Act. Hence, we are of the view that the third submission made by the learned counsel for the appellants has to be rejected and is accordingly rejected.

9. As regards the last contention, referring to section 34 of the Act the learned counsel for the appellants submitted that the word "or" used therein implies that <ORG> could revise either the order passed by the assessing officer or the order passed by the Appellate Assistant Commissioner and <ORG> cannot interfere both the orders at the same time since admittedly it is not a case where there is a merger of the original order with the order passed by the Appellate Assistant Commissioner. Section 34 of the Act (before amendment) runs as follows :

"34. Special powers of <ORG>. - (1) The <ORG> may, of its own motion, call for and examine an order passed or proceeding recorded by the appropriate authority under section 4A , section 12 , section 14 , section 15 or sub-section (1) or (2) of section 16 or an order passed by the Appellate Assistant Commissioner under sub-section (3) of section 31 or by the Deputy Commissioner under sub-section (1) of section 32 and may make such inquiry or cause such inquiry to be made and subject to the provisions of this Act may pass such order thereon as it thinks fit."

In tax matters, there may be merger or may not be merger of the original order with the appellate order depending upon the facts of each case. In this case, admittedly, there is no merger as such. The decision relied on by the learned counsel for the appellants in <CITATION> related to a case arising under the U.P. (Temporary) Control of Rent and Eviction Act . In the case, the grounds of eviction provided in the Act, viz., material alteration of the building or alteration which was likely substantially to demolish the value of the accommodation came up for consideration. In that, the contention raised was that the word "or" must be treated as "and" and therefore both conditions must be satisfied for an order of eviction and it was not sufficient that one or the other conditions alone should be satisfied. Rejecting the above contention, <ORG> held :

"......... that a provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons such as, where a literal construction would reduce the provision to absurdity or prevent the manifest intention of the legislature from being carried out."

The above decision will not be applicable to this case since to interpret section 34 of the Tamil Nadu General Sales Tax Act, wherein the power of revision is given to revise the orders of various authorities, as contended by the petitioner, will reduce the provision to absurdity and therefore, it cannot be construed that the word "or" introduced in between prohibits revision of both orders of the assessing officer and the Appellate Assistant Commissioner. In fact, in the decision reported in <CITATION>  33 STC 170 (Mad.) with respect to a turnover of six lakhs rupees, the assessing authority accepted the claim of the assessee for exemption for a turnover of five lakhs of rupees and rejected the assessee's claim for the balance of Rs. 70,000 and odd. The assessee appealed against the rejection of the assessing authority to the appellate authority, viz., the Appellate Assistant Commissioner, with respect to Rs. 70,000 and odd for which exemption was denied by the assessing officer. The Appellate Assistant Commissioner allowed the appeal. Thereafter, <ORG>, in exercise of power of revision under section 34 of the Act, set aside the exemption granted to the assessee on the entire turnover of six lakhs and this order was within a period of four years from the date of the order of the Appellate Assistant Commissioner, but beyond the period of four years from the date of the assessment order. Since under section 34 of the Act, <ORG> can interfere with an order of assessment made by any authority within a period of four years from the date of the order, it was held that the <ORG> cannot revise the order of the assessing authority which was beyond the period of four years as prescribed under section 34 of the Act, in view of the fact that the theory of merger of the order of assessment with the appellate order is not applicable to this case. Therefore, this Court held that revision of the assessment order beyond the period prescribed under section 34 of the Act cannot be sustained, but it did not say that the <ORG> can interfere only with one order and therefore the order is not sustainable. It implies that this Court took the view in the said decision that the <ORG> can interfere with either the order of the Appellate Assistant Commissioner or the assessing officer or of both provided each of the order sought to be revised is within a period of limitation provided in that section. Though the said decision is not directly on the point raised that the <ORG> can interfere with only one order, i.e., either of the assessing authority or of the appellate authority, it indirectly implies that the <ORG> can interfere with both the orders. Admittedly, both the order of the Appellate Assistant Commissioner and the assessing officer are within the period of four years from the date of the order passed by <ORG>. We are, therefore, of opinion that the <ORG> can interfere with both the orders and that order cannot be challenged on the ground that the <ORG> can interfere only with any one of the orders, viz., the assessing officer or the Appellate Assistant Commissioner. Therefore, we reject the last contention also.

10. Lastly, the learned counsel for the appellants submitted that the revision was made by <ORG> because of the subsequent decision of <ORG> and the assessee having not collected tax, since no tax could be leviable as per the decision of our <ORG> then prevailing the assessee should not be burdened with it. If the appellants have not collected the tax from the vendees it is for the appellants to move the Government for waiver of tax, if they are so advised although the <ORG> has correctly revised the tax. This Court cannot interfere on the question of equity.

11. In the result, the tax case appeal is dismissed. No costs.

12. Appeal dismissed.


CASE NO.: Appeal (civil) 2253 of 1994 PETITIONER: <NAME> RESPONDENT: MICRONlX INDIA DATE OF JUDGMENT: 10/08/1994 BENCH: P.B. SAWANT & S.C. AGRAWAL JUDGMENT:

JUDGMENT 1994 SUPPL. (2) SCR 567 The Judgment of the Court was delivered by <NAME>, J. This appeal is directed against an interim order of <ORG> by which the appellant is injuncted from using the trade mark 'MICROTEL, the logo 'M' arid the carton for manufacturing and selling his products which consist of electrical and electronic apparatus, instruments, TV boosters and TV tuners.

2. We have heard the learned Counsel on both sides. We also examined the trade marks and logos as well as the cartons used by both the parties for selling their respective products. We also examined the relevant authorities oh the subject, cited by the learned counsel.

3. The undisputed facts are that both the respondent-plaintiff as well as the appellant - defendant manufacture and sell various electrical and electronic goods, cable TV, aerial boosters, solid state boosters etc. The appellant was one of the partners of the firm. viz., <ORG> along with the respondent- plaintiff. The firm was manufacturing and selling the said electrical arid electronic products, apparatus and instruments etc. since 21st September, 1977, The said firm had a registered trade mark, viz., '<ORG>ICRONIX' and logo T<ORG>' 'I' being shown in the well of '<ORG>' and both letters being in black and white. The trade mark also in black and white colours. The partnership was dissolved on I4th February, 1992 by a consent order filed in Suit No. 494 of 1991 instituted in <ORG>-Judge, Delhi. Under the terms of the compromise the said trade mark was allotted to the respondent-plaintiff. Thereafter, the appellant-defendant started his own business of manufacturing more or less the same products, in the name and style-of <ORG>.. <ORG> with the trade name '<ORG>'. He took simple <ORG> as his logo with the letter and back-ground designed completely differently. Both the logo '<ORG>' and the trade name '<ORG>' were in- colour, viz., blue and red respectively.

4. The respondent-plaintiff thereafter filed the present suit and sought for injunction against the use of the trade name '<ORG>; the logo '<ORG>' and the <ORG>. carton. The learned. Single Judge granted the injunction and <ORG> dismissed summarily the appeal filed against the same. Hence the present appeal by' special leave.

5. At this stage, we are concerned only with the question as to whether <ORG> was right in exercising us jurisdiction in granting interim injunction restraining the appellant from using his trade name, logo and the carton. Therefore, the finding recorded and the observations made herein have to be confined to the present proceedings. The suit is still pending and final conclusions will have to be arrived at after perusal of the evidence produce by both sides.

There are two things which impress Us. Firstly, the appellant is not manufacturing any one product such as the boosters, which has been mainly taken into consideration by <ORG>. He is producing various electrical and electronic apparatus in many of which micro-chip technology is used. Even the boosters which he manufactures and sells are of two types, viz, transistorised boosters and Integrated Circuit boosters whereas the respondent- plaintiff manufacturers aerial boosters only of the first type. Thus micro-chip technology being the base of many of the products, the word 'micro' has much relevance in describing the products. Further, the word 'micro' being descriptive of the micro technology used for production of many electronic goods which dairy come to the market, no one Can claim monopoly over the use of the said word. Anyone producing any product with the use of micro chip technology would be justified in using the said word as a prefix to his trade name. What is further, those who are familiar with the use of electronic goods know fully well and are not only likely to be misguided or confused merely by, the prefix 'micro' in the trade name. Once, therefore, it is held that tie word 'micro' is a common or general name descriptive of the products which are sold or of the technology by which the products are manufactured, and the users of such products are, therefore, not likely to be misguided or confused by the said word, the only question which has to be prima facie decided at this stage is whether the words 'tel and 'nix' in the trade names of the appellant and the respondent are deceptive for the buyers and users and are likely to misguide or confuse them in purchasing one for the other. According to us, phonetically the words being totally dissimilar are not going to create any such confusion in the mind of the users. Secondly, even the visual impression of the said two trade names is indifferent. In the first instance, the respondent's trade name '<ORG>' is in black and white in slimmer letters and they are ensconces in designs of elongated triangles both above and below the said name. On the other hand, the appellant's trade name '<ORG>' is in thick bold letters in red colour without any design around. As regards the logo, the respondent's logo consists of the word 'M' in a slim letter with T sporting a dot on it and drawn in the well of 'M', Below the letter 'M' in small letters is written .the word '<ORG>' and all these letters and words are written in white in a black square in north-south direction. As against this, the appellant's logo is one letter, viz,. 'M' which is drawn in bold broad letter with its left leg slimmer than all other parts which are in thick broad brush. The letter has also white lines drawn across it which is in blue colour. There is no other letter nor is it set against any background. We are, therefore- unable to see how the visual effect of both the logos will be the same oh the mind of the buyers. This being the case, we are of the view that there is not even the remotest chance of the buyers and users being misguided Or Confused by the two trade names and logos. Same is the case with the carton which merely reproduces both trade names and the logos.

The learned counsel for the respondent-plaintiff contended that on the carton the same address, viz, "New Delhi-110020", has been given by the appellant. We are unable to understand how anybody can claim monopoly in the said address. He also tried to show us that there was a similarity in the words and letters in the two cartons inasmuch as the respondent- plaintiffs carton mentioned the words "MODEL TB-212 (in-door type)" while the appellant has also mentioned the words "MODEL MT-212 (Indoor Unit)". Hence, he submitted that there was a resemblance to the extent of the word "MODEL" and the figure "212".On a perusal, we do not find any such resemblance between the two descriptions. He then submitted that whereas the respondent-plaintiff had mentioned the words "Best for Colour Black and White TVs & FM Radio" with a black rectangular background of the word 'White' before the words "TVs and FM Radios", the appellant has also mentioned words "For Colour/Black & White TVs. and FM Radios". Again, we do not find that the manner in which the said words are written by both the parties on their respective Cartons are likely to misguide or confuse the buyers. This is apart from the fact that whereas the respondent-plaintiff's carton is in black and white the appellant's carton is fully in colour.

6. Hence we allow the appeal and set aside the impugned order of <ORG>. It is made clear that the observations made above are only for deciding whether the appellant should be restrained from using the trade mark, the logo and the carton, at this interim stage." <ORG> will not be precluded from coming to a different conclusion at the final hearing on perusing the entire evidence before it. The costs will be the costs in the cause.


-1- IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2015 BEFORE THE HON'BLE MR.JUSTICE B MANOHAR WRIT PETITION Nos.60638 - 641 OF 2014 & 636-638 OF 2015 (GM-CPC) BETWEEN: <ORG>. AN AUSTRALIAN PROPRIETARY LIMITED LIABILITY COMPANY WITH ITS REGISTERED OFFICE AT PETITIONE 1, 1ST FLOOR 281 BRUNSWICK STREET FITZROY VICTORIA AUSTRALIA HEREIN REPRESENTED BY CONSTITUTED ATTORNEY LT. COL. SHASHI CHAUDHRI ...PETITIONER (BY <NAME>, ADVOCATE) AND 1. M/S ARUNAGIRI COFFEE COMPANY HAVING ITS OFFICE AT: NO.53, FORT C STREET KALASIPALYAM BENGALURU - 560 002 REPRESENTED BY: RESPONDENT NO.3 - MR HARISH P J 2. M/S. ARUNAGIRI MOTORS HAVING ITS OFFICE AT: 45 HOSUR MAIN ROAD RUPENA AGRAHARA BOMMANAHALI -2- BENGALURU - 560 068 REPRESENTED BY: RESPONDENT NO.3 - MR HARISH P J 3. MR. HARISH P J AGED: MAJOR, FATHER'S NAME: UNKNOWN RESIDING AT: NO.53, FORT C STREET KALASIPALYAM BENGALURU - 560 002 4. MR. RATHEESH NAMBIAR AGED: MAJOR, FATHER'S NAME: UNKNOWN RESIDING AT:1112, NEXT TO KIMS MEDICAL COLLEGE 17TH CROSS, 2ND STAGE BANASHANKARI, BANGALORE - 560 070 ...RESPONDENTS (BY SRI. <NAME> REDDY, ADVOCATE FOR R1; R4 IS SERVED AND UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGTNED ORDER DTD. 20.12.2014 PASSED BY <ORG> BANGALORE IN O.S.NO.10073/2014 IA NO.1 TO 7 VIDE ANNEX-A TO THE PETITION IN SO FAR AS IT REJECTS THE PRAYER OF INTERIM INJUNCTION AND ETC., THESE WRIT PETITIONS ARE COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER

Petitioner is the plaintiff in O.S.No.10073/2014 on the file of <ORG>, Bangalore. Being aggrieved by the order dated 20th December 2014, rejecting the prayer for interim injunction, filed these writ petitions.

2. The advocate appearing for the petitioner filed a memo seeking leave of this <ORG> withdraw the writ petition with liberty to agitate the matter before the trial <ORG>. He requests this <ORG> to issue direction to the trial <ORG> to dispose of the application filed by the petitioner as expeditiously as possible.

3. The memo filed by the petitioner is placed on record.

4. Accordingly, writ petitions are dismissed as withdrawn with a direction to <ORG> to dispose of the application filed by the petitioner under Order 39 Rules 1 and 2 of <ORG>, as expeditiously as possible not later than 30 days from the date of receipt of a copy of this order.

SD/-

JUDGE <NAME>


IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11/02/2014 CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN APPLICATION No.2239 of 2013 in C.S.No.930 of 2010 <ORG> NO.861, ANNA ROAD, CHENNAI-2, REP.BY ITS TERRITORY MANAGER (RETAIL) VS R-1 T.ADITYA RAO S/O.T.GOPINATHA RAO, REP.BY HIS POWER AGENT, MRS.S.P.SUSHEELA KUMAR, NO.28, PYCROFTS GARDEN ROAD, CHENNAI-6. R-2 M/S. MRK AGENCIES 9/8AL, NUNGAMBAKAM HIGH ROAD CHENNAI 34 ORDER

APPLICATION No.2239 of 2013 in C.S.No.930 of 2010 <NAME> J The first respondent/plaintiff filed the above suit for recovery of vacant possession of the suit property from the defendants 1 and 2 and for recovery of a sum of Rs.53,78,400/- towards damages and for other reliefs.

2. The first defendant filed the above application to reject the plaint on the ground that the suit filed by the respondent/plaintiff is barred by law and is also barred by limitation.

3. It is submitted by the learned counsel for the applicant/first defendant that as per the averment in the plaint, the first respondent/plaintiff admitted that the tenancy between the applicant/first defendant and the respondent/plaintiff was determined by the issuance of notice dated 27.1.1983 and thereafter, the respondent/plaintiff filed O.S.No.2058 of 1984 before the VI Assistant City Civil <ORG>, Chennai, for eviction of the applicant from the suit property and in that suit, the applicant/first defendant filed I.A.No.13204 of 1984 under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921 for purchasing the suit property and thereafter, the suit was dismissed for non-prosecution by order dated 10.9.2003 and consequentially, I.A.No.13204 of 1984 filed by the first defendant was also dismissed for default. As the tenancy was terminated as early as on 27.1.1983 and the respondent/plaintiff filed the suit O.S.No.2058 of 1984 for recovery of possession and that was allowed to be dismissed for default, the present suit for recovery of possession and for damages is clearly barred by law under Order 2, Rule 2 of the CPC and also under Article 67 of the Limitation Act . He, therefore, contended that under Article 67 of the Limitation Act , as between the landlord and tenant, when the tenancy is determined, the suit for recovery of possession ought to have been filed within 12 years from the date of determination of tenancy and in this case, tenancy was terminated by issuance of notice dated 27.1.1983 and the suit was filed only on 12.2.2010 after a period of 27 years from the date of termination of tenancy and therefore, the present suit is barred under Article 67 of the Limitation Act . He also submitted that it is admitted that the respondent/plaintiff filed O.S.No.2058 of 1984 for eviction against the same defendants and that the suit was dismissed for default and therefore, the present suit, without obtaining leave of the <ORG> in the earlier suit, is not maintainable and is also barred under Order 2, Rule 2 of CPC and Order 23, Rule 1 of CPC.

4. The learned counsel relied upon the following judgments in support of his contention that the suit is barred by limitation by virtue of Article 67 of the Limitation Act .

(a) AIR 1987 SUPREME COURT 1823 in the matter of <CITATION> .

(b) 1975 LW (Mad) (Vol.89) 423 in the matter of <NAME> v. <NAME> and others.

(c) 2009 (2) CTC 819 in the matter of M.Gnanasambandam v. <NAME>

(d) 2013 (4) CTC 175 in the matter of <CITATION>

(e) (2007) 5 MLJ 187 (SC) in the matter of <CITATION>

5. He also relied upon the following judgment reported in (2002) 1 MLJ 487 in the matter of <ORG> and Others in support of his contention that without getting liberty while withdrawing the earlier suit, the second suit on the same subject matter and on the same cause of action, is not maintainable.

6. He also relied upon the judgment reported in (2008) 3 MLJ 821 in the matter of <NAME> and another Versus District Collector-cum-Accommodation Controller, Chennai and others in support of his contention that the suit is liable to be rejected as it amounts to re-litigation and abuse of process of <ORG> and having realised that Section 9 application filed by the application was allowed, the respondent/plaintiff allowed the suit to be dismissed for default and consequentially, the application filed under Section 9 was also dismissed and therefore, it is a clear case of re-litigation and abuse of process of <ORG>. He also relied upon the judgment reported in AIR 2003 SUPREME COURT 759 in the matter of <CITATION> in support of his contention that the allegation in the plaint alone has to be looked into for rejection of claim and having regard to the admission made by the respondent/plaintiff in this suit that the tenancy was determined by issuance of notice dated 27.1.1983 and the first defendant is occupying the property thereafter as a trespasser, the suit is liable to be dismissed as barred by limitation.

7. On the other hand, the learned counsel for the first respondent/plaintiff submitted that the law of limitation is a mixed question of fact and law, without framing any issue as to whether the suit is barred by limitation and without letting in evidence, the Court cannot reject the plaint and therefore, the rejection of the plaint sought for by the applicant/first defendant on the ground of limitation is not maintainable. He also submitted that even though the tenancy was determined by issuance of notice dated 27.1.1983, by virtue of the provisions of the Tamil Nadu City Tenants Protection Act, 1921, the applicant continues to be the tenant and in that capacity only, the applicant filed the application under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921 in I.A.No.13204 of 1984 in O.S.No.2058 of 1984 and, in that application, order was passed permitting the applicant/first defendant to purchase the portion in its occupation and the first respondent also agreed to sell the property to the applicant for a consideration of Rs.15,00,000/- per ground and thereafter, the applicant did not exercise the option and was sending erstwhile rent of Rs.600/- per month and therefore, in 2004, the respondent/plaintiff was advised not to proceed with the suit and therefore, he did not prosecute the suit and the suit was dismissed for default on 10.09.2004 and I.A.No.13204 of 1984 was also dismissed. Therefore, it is not a case where Article 67 of the Limitation Act will apply and when the tenant is entitled to continue in possession of the property as a statutory tenant, Article 67 cannot be made applicable and he relied upon the judgment reported in (2007) 12 <ORG> 27 in the matter of <CITATION> in support of his contention. He also submitted that the Hon'ble <ORG> in the judgment reported in  in the matter of <CITATION> , and (1985) 2 <ORG> 683 in the matter of <CITATION> , considered the scope of a statutory tenant under the provisions of Rent Control Act and held that even after the determination of tenancy as per the provisions of Transfer of Property Act , the tenant does not cease to be a trespasser and by virtue of protection under the Rent Control Act, he is entitled to continue in possession by paying the rent and his possession cannot be termed as unlawful or trespasser and therefore, viewed from that angle also, Article 67 cannot be made applicable to the facts of the case. He also relied upon the judgment reported in (2006) 5 <ORG> 658 in the matter of <ORG> vs. <ORG> and others in support of his contention that the suit cannot be dismissed as barred by law of limitation without proper pleading, framing of issue of limitation and taking of evidence. The question of limitation is a mixed question of law and fact and ex facie on reading of the plaint, suit cannot be held to be barred by limitation.

8. He also submitted that the earlier suit O.S.No.2058 of 1984 was dismissed for default as evidenced by Document No.12 and it was wrongly mentioned in the plaint that it was allowed to be dismissed as withdrawn. He, therefore, submitted that under Order 9, Rule 4, when a suit was allowed to be dismissed for default, either the plaintiff can file an application to set aside the dismissal and restore the suit or file a fresh suit subject to law of limitation and on the same cause of action and there is no need to apply for leave for filing a fresh suit. He, therefore, submitted that the respondent/plaintiff has chosen to file a fresh suit for recovery of possession and therefore, it cannot be stated that the suit is barred under Order 2, Rule 2 or Order 23 Rule 1 and 2 as leave was not obtained before the withdrawal of the suit so as to enable the plaintiff to file a fresh suit on the same cause of action. He, therefore, submitted that the application is liable to be dismissed.

9. Point for consideration is whether the suit is liable to be rejected as contended by the applicant?

10. It is settled law that the plaint has to be looked as a whole to consider whether the plaint is liable to be rejected either on the ground of limitation or on the other grounds as enumerated under Order 7 Rule 11 of CPC. It is also settled that law of limitation is a mixed question of law and fact and therefore, when the pleading in the plaint makes it clear that the suit is barred by limitation, the suit can be rejected on the ground of limitation and when there are allegations in the plaint which require a roving enquiry to give a finding whether the suit is barred by limitation and in that context, the <ORG> should not conduct a roving enquiry to find out whether the suit is barred by limitation. Bearing these principles in mind, we shall see whether the allegations made in the plaint make out a case that the suit is barred by limitation.

11. It is admitted that the agreement of lease dated 19.11.1963 was entered into between the respondent/plaintiff with the predecessor in title and the applicant/first defendant and the same was renewed for a further period of 5 years from 1.6.1973 to 31.5.1978, thereafter, by virtue of the passing of enactment of the ESSO (Acquisition of Undertakings in India) Act , 1974, the lessee was entitled to automatic renewal of the lease for the same period for which the earlier lease deed was entered into on the same terms and conditions and therefore, the lease period was extended upto 31.5.1983. But, earlier to 31.5.1983, termination notice was issued by the respondent on 27.1.1983 calling upon the applicant to deliver vacant possession on 31.5.1983. Thereafter, the applicant did not vacate the premises but continued to pay a sum of Rs.600/- as rent and that was treated as mesne profit by the respondent/plaintiff and in the year 1984, the respondent/plaintiff filed O.S.No.2058 of 1984 for eviction and in that suit, I.A.No.13204 of 1984 under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921 was filed by the applicant/first defendant to buy the leasehold property. Therefore, in these circumstances, it cannot be stated that the suit is barred by limitation under Article 67 of the Limitation Act on the ground that the tenancy was terminated by issuance of notice dated 27.1.1983 and the present suit was filed only on 12.2.2010 after more than 27 years.

12. In the Judgment reported in (2007) 5 MLJ 187 (SC) supra, <ORG> held that the averments made in the plaint as a whole have to be seen to find out whether Order VII, Rule 11 (d) is applicable. It is further stated that it is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

13. In the said judgment, <ORG> relied upon the judgment reported in AIR 2005 SC 2897 in the matter of <CITATION> ) by proposed LRs and others wherein <ORG> held that by the device of clever drafting of the plaint, the question of limitation cannot be camouflaged by making it appear as if the suit was within the period of limitation.

14. In the judgment reported in 2013 (4) CTC 175 in the matter of <CITATION> , the learned Judge of this Court followed the judgment of the Hon'ble Supreme Court reported in 2007 (5) MLJ 187 (SC) supra, wherein it is held that wordings, "any law" envisaged in Order VII, Rule 11 (d) includes law of limitation also and having regard to the facts of the case, held that the suit was barred by limitation.

15. In the Judgment reported in 2009 (2) CTC 819 in the matter of <ORG> v. <NAME>, the suit was rejected on the ground of barred by law and the suit was not rejected on the ground law of limitation.

16. The judgment reported in (2008) 3 MLJ 821 supra cannot be applied to the facts of the case and at this stage, it cannot be stated that the present suit amounts to re-litigation and abuse of process of <ORG>. The question of relitigation arises when an issue was decided in the earlier suit and a finding was rendered on that issue and thereafter, another suit cannot be filed on the same issue. In this case, no finding was given in the earlier suit and it was dismissed for default. Therefore, we will have to find out whether on the basis of the allegations made in the plaint, whether the suit is barred by limitation.

17. In the judgment reported in (1985) 2 Supreme Court Cases 683 supra, the character of a tenancy after the termination of tenancy, having regard to the Rent Control Legislation was discussed and <ORG> followed the earlier judgment reported in (1979) 4 SCC 214 supra held that the term "statutory tenant" as used in English Rent Act has been used by the Indian Courts to denote a tenant whose contractual tenancy has been terminated but who has become entitled to continue to remain in possession by virtue of the protection afforded to him by the statutes in question, namely, the various Rent Control Acts, prevailing in different States of India. The Delhi Rent Control Act does not make any distinction between a 'so-called statutory tenant' and a contractual tenant and the Act proceeds to treat both alike and to preserve and protect the status and rights of a tenant after determination of the contractual tenancy in the same way as that a contractual tenant. Mere determination of the contractual tenancy does not in any way bring about any change in the status of a tenant.

18. It is held that the termination of contractual tenancy does not bring any change in the status and position of the tenant unless there are contrary provisions in the statute. It is also held that the distinction between the contractual tenancy and statutory tenancy is completely obliterated by the Rent Control Legislation and though genetically the parentage of these two legal concepts is different, they are equated with each other and their incidents are the same.

19. In the judgment reported in (2007) 12 <ORG> Cases 27 in the matter of <CITATION> , it is held that Article 67 of the Limitation Act would not be attracted in a case where the tenant remains a statutory tenant.

20. As stated supra, it is the contention of the first respondent/plaintiff that though the tenancy was terminated by issuance of a notice dated 21.7.1983, admittedly, the tenant filed an Application under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921, claiming status of the tenant in the suit filed by the first respondent/plaintiff. Therefore, having regard to the definition of tenant under Section 2 (4) of the Tamil Nadu City Tenants Protection Act, 1921, even after the determination of tenancy, the applicant/first defendant continued to be the statutory tenant and therefore, the suit is not barred by limitation and Article 67 cannot be made applicable. Though such specific pleading was not made in the plaint, as now contended by the learned counsel for the first respondent/plaintiff, it is stated in the plaint that the applicant/first defendant was sending the amount which was paid earlier and he also filed an Application under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921 and that Application was allowed and he failed to purchase the property even though the same was offered by the first respondent/plaintiff. In my opinion, it requires enquiry and framing of issue whether in such context, the plaint can be rejected on the ground of limitation.

21. In the judgment reported in 2005 (7) SCC 510 in matter of <CITATION> ., it was observed in paragraphs 19 and 25, as follows :

19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

25. When the averments in the plaint are considered in the background of the principles set out in <CITATION> ., 2004 (3) SCC 137, the inevitable conclusion is that <ORG> was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and <ORG> was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case.

22. In the Judgment reported in (2006) 5 SCC 638 Ramesh B.Desai and others Vs. <NAME> and others, it is held as follows:-

"15.The principle underlying clause (d) of Order 7 Rule 11 is no different. We will refer here to a recent decision of this Court rendered in <CITATION> .,2005 (7) SCC 510 where it was held as under in para 10 of the report: (SCC p. 515) "10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."

16. It was emphasised in para 25 of the report that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 CPC. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by clause (d) of Order 7 Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence.....

19. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (<NAME> J.) in <ORG> v. <ORG> it was held: (<ORG> p. 661, para 8) "8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and <ORG>, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time."

This principle would be equally applicable to a company petition. Therefore, unless it becomes apparent from the reading of the company petition that the same is barred by limitation the petition cannot be rejected under Order 7 Rule 11(d) CPC"

23. In the judgment reported in 2008 (1) MLJ 1278 in the matter of <CITATION> , <ORG> reiterated the principle as follows:-

"To attract the provision or Order 7, Rule 11(d) of Code of Civil Procedure (5 of 1908), the averments in the plaint, without addition or subtraction, must show that the suit is barred by any law. Question of limitation is a mixed question of law and fact. Hence, the plaint cannot be rejected under Order 7, Rule 11(d) of C.P.C. on the ground that the suit is barred by limitation."

24. Therefore, having regard to the fact whether the applicant/first defendant has become a statutory tenant by virtue of provisions of the Tamil Nadu City Tenants Protection Act, 1921 and also the fact that the applicant/first defendant invoked Section 9 of the Tamil Nadu City Tenants Protection Act, 1921 to treat him as tenant and was also paying the rent of Rs.600/- even after the determination of tenancy and having regard to the definition of tenant under Section 2(4) of the Tamil Nadu City Tenants Protection Act, 1921, it cannot be decided at this stage without framing any issue as to whether the applicant/first defendant is in possession of the property as statutory tenant as alleged by it or a trespasser as alleged by the first respondent/plaintiff and whether Article 67 of the Limitation Act would apply to the facts of the case and all these are mixed question of fact and law, which cannot be decided while deciding the petition under Order 7 Rule 11(d) of <ORG> to reject the plaint on the ground of limitation.

25. Admittedly, the earlier suit in O.S.No.2058 of 1984 was allowed to be dismissed for default and therefore, under Order 9 Rule 4, option is given to the plaintiff either to file a fresh suit subject to law of limitation or to file an Application to set aside the dismissal and to restore the suit. Therefore, there is no need to obtain liberty before instituting a fresh suit in such circumstances. Therefore, the argument of the learned counsel for the applicant that the suit is barred by Order 2 Rule 2 or suit is not maintainable as no liberty was obtained for filing a fresh suit, cannot be entertained.

In the result, the Application is dismissed.

<NAME>


1 30.3.2011 C.O. 3630 of 2009 Mr. <NAME> ....for the petitioner Mr. <NAME> Mr. <NAME> Mr. <NAME> Mr. <NAME> ....for the opposite party This revisional application under Article 227 of the Constitution of India, presented before this <ORG> on November 24, 2010, is a classic example of how an occupier (the petitioner herein) of a flat has been fighting tooth and nail to remain in possession thereof despite having floundered in previous rounds of litigation. The petitioner instituted Title Suit No.76 of 1985 seeking a decree for declaration that he is a monthly tenant under the defendant no.1 (the opposite party herein) in respect of the flat (the suit property) as well as permanent injunction restraining the defendant no.1 from disturbing his peaceful possession and enjoyment of tenancy right in respect thereof. The suit was dismissed on January 31, 1989. The petitioner, feeling aggrieved thereby, preferred Title Appeal No.156 of 1989. The appeal was dismissed by judgment and decree dated January 11, 1990, and the judgment and decree of the trial <ORG> stood affirmed. A second appeal was preferred by him before this <ORG>, registered as S.A. No.523 of 1991. By judgment and order dated September 23, 2003, the second appeal was also dismissed. 2 Soon thereafter, the opposite party instituted a suit against the petitioner, being Title Suit No.102 of 2004, for recovery of possession of the selfsame suit property that was the subject matter of the earlier suit by and between the parties on the ground that the petitioner is a trespasser, as well as for damages. The suit filed by the opposite party was decreed on April 18, 2006. The petitioner, being the judgment-debtor, unsuccessfully carried the judgment and decree in appeal (Title Appeal No.102 of 2004). By judgment and order dated January 18, 2007, the appeal was dismissed, and the judgment and decree of the trial <ORG> stood affirmed. The opposite party thereafter put the decree into execution by initiating proceedings, registered as Title Execution Case No.13/2006. The petitioner did not sit idle all these years. In May, 2005, he had filed a review petition praying for review of the order dated September 23, 2003 whereby his second appeal was dismissed by this <ORG>. However, apart from filing the said application, he did not follow it up and the review application is still stated to be pending. The petitioner, after dismissal of Title Appeal No.102 of 2004, had also filed a second appeal before this <ORG>, registered as S.A. No.903 of 2007. However, the said appeal is yet to be admitted under Order XLI Rule 11 of the Code and, therefore, there is no question of stay. Without pressing either the application for review or the second appeal, the petitioner filed Misc. Case No.11 of 2007 against the opposite party under Order XXI Rules 97-101 of the Code read with Section 151 thereof. By 3 an order dated July 24, 2007, the Misc. Case was dismissed and no appeal having been filed thereagainst, the order attained finality. To give shape to his indomitable desire to procrastinate proceedings, the petitioner now applied under Section 47 of the Code read with Section 151 thereof in connection with Title Execution Case No.13/2006, giving rise to Misc. Case No.308 of 2008. It was claimed in the petition under Section 47 of the Code that the suit property had not been appropriately described in the schedule of the plaint and, therefore, the decree that was passed is not executable. The petition under Section 47 of the Code came up for consideration before the executing <ORG> on June 7, 2008. The petitioner prayed for adjournment, which was declined. An order was issued by the executing <ORG> directing execution of the writ of delivery of possession within June 30, 2008. On consideration of a separate petition filed by the opposite party, the <ORG> granted liberty to the bailiff to break open the padlock of the suit property, if necessary, for the purpose of execution of the decree. On June 13, 2008, at about 11.00 a.m., the writ of delivery of possession was executed and possession of the suit property was restored in favour of the opposite party. On the same day, the petitioner filed a revisional application before this <ORG>, being C.O. No.1913 of 2008. Upon ex-parte hearing, a learned Judge of this <ORG> was pleased to stay execution of the decree till June 20, 2008. 4 The executing <ORG> on being informed of the order passed by this <ORG> on June 13, 2008, a separate order was passed on June 16, 2008 recalling the writ. It is not in dispute that as a consequence thereof, the opposite party redelivered possession in favour of the petitioner. C.O. 1913 of 2008 thereafter came up for final hearing on May 14, 2009. The selfsame learned Judge who had stayed execution on June 13, 2008 was apprised of the history of the case. His Lordship by a detailed order of even date disposed of the revisional application with an observation that the petition under Section 47 of the Code filed by the petitioner ought to be disposed of within one month without granting any adjournment to any of the parties. It is noteworthy that while the opposite party was put in possession of the suit property upon dispossession of the petitioner in pursuance of execution of the writ for delivery of possession, the petitioner did not raise any grievance that the opposite party was given possession of a property which was not the suit property and/or that possession of the property that was redelivered to him in pursuance of the order of the executing <ORG> dated June 16, 2008, is not the suit property which was hitherto before being occupied by him. The executing <ORG> thereafter proceeded to consider the petition under Section 47 of the Code. The petitioner did not participate in the proceedings for reasons best known to him. Ultimately by an order dated June 25, 2009, the petition under Section 47 of the Code was rejected. This order is under challenge in the present revisional application. 5 I have heard Mr. <NAME>, learned advocate appearing for the petitioner and Mr. <NAME>, learned senior advocate for the opposite party. The narrative of facts, as aforesaid, is ample manifestation of the conduct of the petitioner as noticed at the commencement of this order. Mr. <NAME> is correct in his contention that being a licensee in respect of the suit property, as claimed by the opposite party, or a tenant as claimed by him, the petitioner ought to know which property is the subject matter of the two suits. Reliance placed by him on the decision of <ORG> reported in XXIII CWN 77 ( <CITATION> .) appears to be apt. It was ruled therein that the notices to quit, issued under the Transfer of Property Act , though not strictly accurate or consistent in the statements embodied in them may still be good and effective in law. The test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer but what they would mean to tenants presumably conversant with all those facts and circumstances. They are to be construed not with a desire to find faults in them which would render them defective, but to be construed ut res magis valeat quam pereat. Applying the principle here, it is too late in the day for the petitioner to voice a grievance that the suit property not having been properly described in the plaint, the decree is a nullity and not executable. In its decision reported in AIR 1970 SC 1475 ( <CITATION> ), the Supreme <ORG> was considering the 6 scope of objection under Section 47 of the Code in relation to the executability of a decree and it was laid down that only such a decree can be the subject- matter of objection which is a nullity, and not a decree that is erroneous either in law or on facts. Hon'ble <NAME>, J. (as His Lordship then was), speaking for himself and on behalf of Hon'ble <NAME> and Hon'ble <NAME>, JJ.

(as Their Lordships then were), laid down the law which runs thus:

"6. A court executing a decree cannot go behind the decree between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."

As noticed above, after suffering the appellate decree decree passed in Title Appeal No.102 of 2004, the petitioner did not leave any stone unturned to pursue all the remedies the Code provided to him, albeit unsuccessfully. With the dismissal of the first appeal, the remedy open to him was to take recourse to Section 100 of the Code. Although second appeal was filed, the petitioner did not risk taking steps for admission thereof under Order XLI Rule 11 of the Code, lest it is also dismissed. Like a drowning man latching on to the last straw, he did what was expected of him. The Section 47 petition was presented before the executing <ORG> after Misc Case No.11 of 2007 was dismissed, wherein a factual issue was raised in respect of improper description of the suit property. It was not the plea of the petitioner that the trial <ORG> lacked inherent jurisdiction to decide the contentious issues and, therefore, the decree passed by it was a nullity and thus not executable. It was open to the petitioner to set up a plea before the trial <ORG> as well as the superior <ORG>s that the suit property has been inappropriately described and, therefore, no decree for eviction could have been passed against him at the instance of the decree-holder/opposite party. Such contention does not appear to have been raised. That the suit property has not been appropriately described is of little consequence now. The executing <ORG> has rightly observed that reopening of this issue would amount to going behind the decree, which is impermissible in law.

In this connection, it would be pertinent to refer to a decision reported in AIR 1993 Orissa 251 ( <CITATION> ). Hon'ble <NAME>, C.J. (as His Lordship then was) while considering a somewhat similar plea, had the occasion to observe that the plea of the judgment-debtors in their petition under Section 47 of the Code that the property had vested in <ORG> was not really available on the principle of constructive res judicata. Relevant extract from the decision reads as under :

"*****This point was thus not taken not only before the trial <ORG>, but in the first appellate <ORG> as well as before this <ORG> in Civil Revision No.252 of 1974. To allow this point to be taken for the first time in the executing <ORG> could almost be a travesty of justice and would give a very long scope to judgment-debtors who after failing at all levels during trial put up pleas of non-executability which was very much available at the time of trial, which would be totally against larger interest of the society, because a litigation fought to the end at the trial stage would be set at naught by taking pleas available earlier and not taken either knowingly or even unknowingly. If constructive res judicata were not to be applied in such a case, very few decrees would attain finality and decrees would remain paper tigers, which cannot be allowed to happen."

I am convinced that the petitioner has been successful in prolonging litigation and thereby remaining in unlawful possession of the suit property. The decree that the opposite party has obtained cannot be allowed to be defeated at the execution stage by going behind the decree. There is no worthy reason to upset the order of the executing <ORG>.

The application stands dismissed. The petitioner shall bear costs of proceedings assessed at Rs. 50,000/-, to be paid to the opposite party within a month from date.

At this stage, a certificate is prayed for by Mr. <NAME> for leave to file appeal before <ORG>. I do not consider that any substantial question of law of general importance is involved deserving a certificate. The prayer stands refused.

Urgent photostat certified copy of the order, if applied for, be given to the parties at an early date.

(DIPANKAR DATTA, J.)