Andhra HC (Pre-Telangana)
Tangella Sesham Raju And Ors. vs Apsrtc And Ors. on 6 September, 2002
Equivalent citations: 2002(6)ALT710
JUDGMENT D.S.R. Varma, J.
1. The original allottees of the stalls by the A.P. State Road Transport Corporation filed the present L.P.As. aggrieved by the common judgment of the learned Single Judge of this Court dated 10-4-1996 in A.S. Nos. 1502,1165, 1166,1787,2708 of 1989 and Tr.A.S. Nos. 463/1993 and 1509 and 1510 of 1995.
2. Since all the appeals are filed against the above said common judgment and also since the subject matter, and the A.P.S.R.T.C. is common, they are being disposed of by this common judgment.
3. Since some suits were filed by the allottees seeking permanent injunction and some other suits were filed by A.P.S.R.T.C. seeking damages for use and occupation against the same allottees and also since all the suits were disposed of by a common judgment and decree, for the sake of convenience broadly the parties will be referred to as "allottees" and "the Corporation".
4. The brief facts leading to the filing of the present appeals are as follows:-
The appellants in these L.P.As. were originally allotted stalls by the Corporation under an agreement for a period of three years, for doing the business, mentioned in the lease agreements pursuant to the tender notifications issued in the years 1977 and 1978 on different dates. After the expiry of the stipulated period, the Corporation extended the period for another term of three years on enhanced rents. Again when the extended period also came to an end, the allottees sought for extension. But as the rents that were being paid by the allottees were felt to be on the lower side, the Corporation refused to extend time and when the Corporation was taking steps for their dispossession, the allottees filed the suits in O.S. Nos. 600 to 606 of 1983 on the file of the District Munsif Court, Tenali for permanent injunction and they obtained temporary injunction by order dt. 7-10-1983. Challenging the said interim injunction, the Corporation preferred C.M.As. before the lower appellate court and since the C.M.As. were dismissed, it preferred C.R.Ps. before this Court and the C.R.Ps. also ended in dismissal. Thus the interim injunction obtained bv the plaintiffs became absolute. Later all the suits in O.S. Nos. 600 to 606 of 1983 were transferred to Sub Court Tenali and re-numbered as O.S. Nos. 150 to 156 of 1988.
5. While so, the Corporation issued tender notification for allotment of stalls on 6-2-1984, which is marked as Ex.A-12. Pursuant to the said tender notification, many bidders participated including the allottees. In that bid, some of the bidders offered highest bid amount and since the bid amount offered by the allottees/plaintiffs is very low, the same was not accepted. But the Corporation could not allot the stalls to the highest bidders in view of the interim injunction obtained by the allottees. As a result, the original allottees neither paid the amount offered by the highest bidders, nor vacated the stalls. Therefore, the Corporation claiming the difference amount i.e., the difference between the amounts offered by the highest bidders and the amounts that were being paid by the allottees, filed suits in O.S. Nos. 43 to 48 of 1986 claiming difference in rents that are being offered by allottees and the rents fetched in the auction as damages for use and occupation.
6. The trial court clubbed both the batches i.e., O.S. Nos. 150 to 156 of 1988 and O.S. Nos. 43 to 48 of 1986, tried together and passed a common judgment and decree.
7. Basing on the pleadings and written statements, the trial court framed the issues viz., (1) Whether the allottees are entitled for permanent injunction;
(2) Whether the court fee paid is correct;
(3) Whether the allottees are tenants holding over or tenants at sufferance;
(4) Whether the allottees are lessees or licensees and (5) Whether the Corporation is entitled for damages.
8. In two suits i.e., in O.S. Nos. 152 and 154 of 1988, the trial court framed an issue "Whether the suits are premature or not", apart from the other issues mentioned above.
9. In support of the case of the allottees, P.Ws. 1 to 5 were examined and Exs.A-1 to A-13 were marked and on behalf of the Corporation, D.W.I was examined and Exs.B-1 to B -47 were marked.
10. Basing on the entire evidence, both oral and documentary, the trial court held that the allottees/plaintiffs in O.S. Nos. 150 to 156 of 1988, are lessees but not licensees and accordingly granted decree for permanent injunction. Further the trial court answered all the issues in favour of the allottees while dismissing the suits filed by the Corporation in O.S. Nos. 43 to 48 of 1986 for damages.
11. Aggrieved by the findings of the trial court the Corporation preferred some first appeals before the lower appellate court and some appeals before this Court, challenging the common judgment of the trial court. Since the subject matter is common, the appeals preferred by the Corporation before the lower appellate court were transferred to this Court and all of them were disposed of by the impugned common judgment of the learned Single Judge.
12. Here it is to be noted that the Corporation did not file appeals against all the suits, in which it is a party either as respondent or as plaintiff. It preferred some first appeals against the common judgment, in which it is respondent i.e., in O.S. Nos. 150,152 and 153 of 1988 and further it preferred some appeals against the common judgment, in which it is the plaintiff i.e., in O.S. Nos. 43,44,45,47 and 48 of 1986.
13. The learned Single Judge of this Court by the impugned common judgment, on reconsideration of the terms and conditions of the agreement entered into between the allottees and the Corporation under Ex.B-1, and also considering various judgments of the Supreme Court apart from taking into account the evidence available on record, both oral and documentary, held that the intention of the parties under the agreement is only to create a licence to run the business in the stalls under the supervision and control of the Corporation and it is not lease. He further held that the words 'rent' and 'lease' have loosely been used and actually no interest is created over the property in favour of the allottees. Finally he held that the allottees have no right to occupy the premises beyond the period of contract and also they have no right to file the suit for permanent injunction. Holding so, the learned Single Judge decreed the suits filed by the Corporation for damages in O.S. Nos. 43, 44, 45, 47 and 48 of 1986 and dismissed the suits filed by the allottees for permanent injunction in O.S. Nos. 150,152 and 153 of 1988.
14. It is significant to note that the learned Single Judge in the impugned order recorded that appeals filed against judgment and decree in O.S. Nos. 46/1986 and O.S. Nos. 151,154,155 and 156 of 1988 could not be located.
15. Again as stated above, aggrieved by the common judgment of the Single Judge, the allottees i.e., the plaintiffs in O.S. Nos. 150,152, 154 and 155 of 1988 filed the present L.P.As.
16. The suits filed by the allottees of the stalls against the Corporation; the corresponding suits filed by the Corporation against the allottees; appeals preferred by the Corporation against the common judgment, in which it is plaintiff and in which it is respondent and the consequential L.P.As. preferred by the allottees are shown in the following table, for better understanding:-
Suits filed by the allottees/ Plaintiffs against APSRTC for permanent injunction Suits filed by APSRTC against the allottees indamages Appeals filed by APSRTC aggrieved by the judgment of the trial court, in the suits in which it is plaintiff i.e., appeals against the suits in column Appeals filed by APSRTC aggrieved by the judgment of the trial court in the suits in which it is respondent i.e., appeal against the suits in column 1.
LP.As. filed by the allottees aggrieved by the judgment of the single Judge, in the first appeals preferred by APSRTC from the suits in which it is plaintiff i.e., L.P.As. filed by the allottees aggrieved by the judgment of the single Judge, in the first appeals preferred by APSRTC from the suits in which it is defendant i.e., from col. 1 (1) (2) (3) (4) (5) (6) OS.No.150/ 1988 O.S.NO. 44/1986 A.S-No. 1787/1989 Tr.A.S.No.1509/ 1995 L.P.A.No. 67 / 1997 L.P.A.No.65/ 1997 O.S.No.151/1988 O.S-No. 152/1988 OS.No. 45/1986 O-S-No. 47/1986 A.S.No.1502/1989 A.S.No.2708/1989 Tr.A.S.No.463/ 1993 L.P.A.No. 66/ J997 L.P.A-No. 68 of 1997 O.S.No.1 53/1988 O-S.No. 46/1986 _ Tr.A.S.No.1510/ 1995 O.S.No.154/1988 O.S. No.43/1%6 A.S.No.1166/1989 L.P.A.No. 64 / __ O.S.NO.155/1988 O-S.No. 48/1986 A.S.No.ll65/199
-
L.P.A.Nu. 69 /
-O.S.No.156/1988
-
-
-
-
17. The learned counsel for the appellants in the L.P.As. contended that the learned Single Judge erred in coming to the conclusion that the appellants are licensees and not lessees. In support of this contention he referred to various clauses in the agreements entered into between the appellants and the respondent-Corporation.
18. Secondly he contended that the trial court disposed of all the suits i.e., the suits filed by the appellants for permanent injunction and the suits filed by the Corporation for damages, by a common judgment and decree. Aggrieved by those findings, the corporation preferred appeals in some suits in which it is a plaintiff and in some suits in which it is respondent, but it failed to prefer appeals against the judgment and decree in some other suits and the learned Single Judge set aside the judgment and decree only in the appeals which have been preferred and decree of permanent injunction obtained by the lessees, in which appeals are not preferred, remained in tact though a common judgment was passed by the trial court in all the suits filed by the allottees as well as Corporation and the judgments and decrees passed by the trial court attained finality and they would operate as res judicata in the other appeals preferred by the Corporation.
19. He explained that the allottees originally preferred seven suits i.e., in O.S. Nos. 150 to 156 of 1988. But the Corporation filed only six corresponding suits in O.S. Nos. 43 to 48 of 1986 and it failed to file the suit against the plaintiff in O.S. No. 156/1988 for damages and thus the Corporation allowed that judgment and decree to become final.
20. Thirdly he contended that the stipulated period of contract expired in almost all the suits by 31-3-1983, but the Corporation accepted the rents without protest from the appellants till 30-10-1983 and this acceptance after the expiry of stipulated period amounts to deemed renewal in accordance with the original terms and, therefore, without giving proper notice, the appellants cannot be evicted and the Corporation is also not entitled for damages and thus the learned Single Judge erred in awarding damages.
21. Fourthly he submitted that the appellants are in possession of the schedule premises on the basis of the interim injunction obtained in their favour, which subsequently became absolute, and therefore the possession of the appellants cannot be termed as unlawful and hence no damages can be awarded.
22. Fifthly he submitted that when the tenders received by the Corporation have not become final and without any proof regarding quantum of damages, the learned Single Judge has awarded damages and this is liable to be set aside.
23. Sixthly he submitted that the stipulated period of contract is more than one year and since the document was not registered, it must be construed as a monthly tenancy and the contract of tenancy cannot be terminated without giving 15 days quit notice as contemplated under Section 106 of the Transfer of Property of Act and on this ground also the impugned judgment is liable to be set aside.
24. Lastly he contended that notices in Tr.A.S. Nos. 1509/1995 and 463/1993 were not served on the allottees after the appeals were transferred to this Court and, therefore, no one appeared on behalf of the allottees.
25. With the above submissions, he sought for setting aside the impugned judgment of the learned Single Judge. In support of the above contentions, he relied on various decisions and they will be referred to in the course of this judgment.
26. On the other hand, the learned Standing Counsel for A.P.S.R.T.C supporting the impugned judgment submitted that basing on the agreements entered into between the appellants and the Corporation, and inferring the intention of the parties thereto, the learned Single Judge rightly held that the appellants are licensees and not lessees. He further submitted that the learned Single Judge considering all the aspects, rightly decreed the suits filed by the Corporation for damages and dismissed the suits filed by the allottees. He further contended that since the other appeals are not located, the learned Single Judge passed orders in the appeals posted before him and, therefore, the contention of the counsel for the appellants on this aspect is not tenable. He finally submitted that there are no grounds to interfere with the impugned judgment and accordingly sought for dismissal of the appeals.
27. From the above the main question that falls for consideration is whether the appeals are hit by the principle of res judicata. If this is answered, the other contentions raised by the counsel for the allottees - appellants would become irrelevant. On this point, the learned counsel for the allottees, relied on a Division Bench judgment of this Court in K. Krishnan v. Tirumala Tirupati Devasthanams, (D.B.) and also on the decision of the Supreme Court in Sheodan Singh v. Daryao Kunwar, . On the same analogy, he relied on some more judgments, but however in view of the consideration of the above two cited judgments, consideration of other judgments would become redundant.
28. The facts of the case in K. Krishnan's case(supra) reveal that the person in possession of the suit land filed a suit against T.T. Devasthanam seeking injunction from interfering with their possession. T.T. Devasthanam filed another suit in respect of the very same land for a declaration that it is "devadayam" granted for the support of the temple. Both the suits were clubbed and tried together and a common judgment was delivered dismissing the suit filed for permanent injunction and decreeing the suit filed by T.T. Devasthanam for declaration that the suit land is "devadayam". Aggrieved by the declaration that the suit land is "devadayam", the person in possession of land filed an appeal and he failed to file an appeal against the decree dismissing his suit for permanent injunction. Apart from other questions one of the questions that fell for consideration before the Division Bench, is whether the appeal filed by the plaintiff challenging the declaration that the suit land is "devadayam" is hit by res judicata. The Division Bench of this Court considering the judgments of Supreme Court as well as other High Courts, including that of Sheodan Singh's case2 held, that the appeal is hit by general principles of res judicata, inasmuch as he failed to file an appeal against the judgment and decree dismissing his suit for permanent injunction, since common issues were framed and the controversy revolved round the same issues. While coming to the above conclusion, the Division Bench of this Court at paragraph No. 27 held as under:-
What was the "matter in controversy" in both the suits in question? Undoubtedly, the controversy pertained to the nature of the suit land. The finding given is that it is an inam land granted by devadayam purpose to Kurathalwar temple and that appellants 2 to 5 herein are encroachers. Appellant No. l had no title and no evidence, whatever was brought on record by him to establish the title of his ancestors. Issue No. 3 in O.S. No. 4/1987 whether the plaintiff -Tirumala Tirupati Devasthanams is entitled to injunction as prayed for and issue Nos. 1 and 2 in O.S. No. 4 of 1987 - (i) whether the plaintiffs are entitled to perpetual injunction and (ii) whether the plaintiffs are entitled to a mandatory injunction as prayed for -practically cover the same ground. If this appeal is to be heard and decided on merits, there is likelihood of inconsistent decrees coming into existence since the very source of the title in both the suits as put forward by the appellants herein is identical and such a situation is precluded by the principle of res judicata. As observed by the Supreme Court, "one of the tests for deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. Venkateswara Prabhu v. Krishna Prabhu .
(Emphasis is ours)
29. Coming to the case on hand, the allottees filed seven suits in O.S. Nos. 150 to 156 of 1988. Against the allottees Who filed the above said suits, the Corporation filed six suits in O.S. Nos. 43 to 48 of 1986. The Corporation did not file any suit claiming damages against the allottee/plaintiff in O.S. No. 156/1986. The trial court clubbed all the suits including that of O.S. No. 156/1988, framed common issues and delivered common judgment decreeing the suits of the allottees for permanent injunction and dismissing all the suits filed by the Corporation for damages. Aggrieved by the said common judgment, the Corporation preferred appeals as shown in the above table. Conspicuously it failed to file an appeal against the judgment and decree in O.S. No. 156/1986. Since no appeal is preferred against the findings in O.S. No. 156/1988, the findings so far as that suit is concerned, have become final. Hence, as contended by the learned counsel for the allottees - appellants relying on the decision (cited 1 supra), the judgment and decree in O.S. No. 156/1988 will operate as res judicata.
30. Further the learned Single Judge in the impugned order recorded that "The appeals alleged to have arisen out of O.S. Nos. 46 of 1986, 151 of 1988,154 of 1988, 155 of 88 and 156 of 1988 were not posted before me for hearing and it was reported to me by the learned counsel of both the sides as also by the office that the alleged appeals could not be located."
31. From the above, the existing situation is, that the Corporation did not file appeals in all the cases to which it is party i.e., as either plaintiff or the defendant. In many cases in which it was defendant in the suits filed by the allottees for permanent injunction, no appeals were preferred and as a result, the common judgment and decree of the trial court became final. Even in the suits filed by the Corporation for damages i.e., for example as against the judgment and decree in O.S. No. 46/1986, it did not prefer any first appeal, meaning thereby it allowed the common judgment and decree so far as that suit is concerned, to become final. In other words, the net result is that the common judgment of the trial court in both the suits filed by the Corporation and the allottees had become final, since no appeals are filed by the Corporation. If that be the case, since the allottees and the Corporation are parties as either plaintiff or defendant in both the suits and the judgment and decree of the trial court being common, had attained finality in so far as some cases are concerned.
32. Even at the stage of L.P.As., no further information is forthcoming from the Corporation with regard to above matters. Therefore, the only inference that can be drawn is that no appeals have been filed against the above suits and hence it can be said that the findings in some suits have become final.
33. The test of res judicata has to be applied, as observed by the Division Bench, in order to see that no two inconsistent decrees should come from an identical issue. In the case on hand, the findings in O.S. No. 156/1988 granting permanent injunction has become final, since no appeal is filed. But the Corporation for the reasons best known to it filed appeals against other suits and it succeeded in the first appeals. This shows for the same cause of action, the plaintiff in O.S. No. 156/1988 is enjoying permanent injunction and the allottees -plaintiffs in other suits are forced to pay damages. We are of the further view that by virtue of the judgment of the learned Single Judge, in the batch of the appeals filed by the Corporation, the common judgment and decree of the trial court was reversed and in some other cases in which no appeals are preferred by the Corporation, the common judgment of the trial court had become final, leading thereby to divergent decrees and judgment. This is an incomprehensible situation and to avoid the same, principle of res judicata has to be applied and on this score the impugned judgment of the learned Single Judge is liable to be set aside.
34. One important aspect which was lost sight of by both the courts below is that the allottees filed the suits originally in the year 1983 in O.S. Nos. 600 to 606 of 1983 obtained interim injunction in their favour by order dated 7-10-1983 and challenging the said interim injunction, the Corporation filed C.M.A. before the lower appellate court and when the same was dismissed, it preferred revision before this court and the same also ended in dismissal. This shows that the interim injunction obtained by the allottees on 7-10-1983 has become absolute and their continuation in the Mulgies (shops) cannot be treated as illegal. But surprisingly the Corporation issued tender notification calling for tenders for allotment of stalls on 6-2-1984, which is marked as Ex.A-12 i.e., during the subsistence of the interim injunction in favour of the allottees. This is prima facie illegal. In pursuance of the notification many bidders participated, including the allottees. Some of the bidders offered higher bid amounts and the present allottees offered lesser amount. As already stated, claiming the difference amount, i.e., the difference between the amounts offered by the highest bidder and the amounts offered by the allottees, the Corporation filed suits for damages. In our view, the participation of the allottees pursuant to the above said notification is only out of compulsion and this cannot be construed as their concession to the illegal notification issued by the Corporation. When the very tender notification was issued illegally contrary to the interim/temporary injunction granted by competent court and confirmed by the High Court, the Corporation has no right to file suits for damages and on this score also, the impugned judgment of the learned Single Judge is liable to be set aside.
35. In view of our finding that the first appeals filed by the Corporation are hit by the principles of res judicata and also in view of the findings that the very tender notification was issued illegally and as such the Corporation cannot claim damages, the other contentions raised by the counsel for the allottees i.e., whether the allottees are licensees or lessees; whether any interest is created in the property; etc., need not be gone into and even if it is gone, it would only be a mere academic exercise
36. At this stage, the learned counsel for the allottees - appellants brought to the notice of this Court that pursuant the impugned judgment of the learned Single Judge, the allottees have vacated the stalls. This fact was not disputed by the Standing Counsel for the Corporation. Now what remains is, whether the Corporation can claim damages during the subsistence of the injunction granted by the Court. Since we have already pointed out that the very basis for claiming damages is unlawful, nothing remains.
37. For the foregoing reasons, in order to put an end to the unending litigation, we pass the order as under:-
The impugned common judgment and decree of the learned Single Judge is hereby set aside and the appeals filed by the respondent i.e., A.P.S.R.T.C. stand dismissed. However, since the allottees have already voluntarily vacated the premises, they are not entitled to any equities on the basis of the judgment and decree of the trial court in their favour for permanent injunction and the question of paying damages for use and occupation of the stalls does not arise, since their occupation cannot be treated as unlawful even after expiry of the lease, in the light of the interim injunctions granted by the courts.