LexSURAJ RATAN THIRANI & ORS. versus THE AZAMABAD TEA CO. & ORS.
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1964 V. N. Vasudeva v. Kirorimal Luharlwala Hldayatullah J. 1964 January, 13 192 SUPREME COURT REPORTS truth of the plea that a large sum had been spent on repairs, an order to deposit the entire arrears of rent ought not to- have been made. It is quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancy could not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and the allegation about the ·special agreement has been held to be an after-thought and false. It is therefore diffici1\t to apply the ruling to the present circumstances. The appeal is wholly devoid of merit and it is dismissed with costs. By the consent of parties, a period of two months from the date of hearing (20-12-1963) was granted to the appellant to deposit the arrears of r~nt from 1st April, 1958, in the Court of the Rent Controller. Appeal dismissed .. SURAJ RATAN THIRANI & ORS. v. THE AZAMABAD TEA CO. & ORS. (B. P. SINHA, C.J., J. C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.) Code of Civil Procedure (Act V of 1908), O. IX, r. 9-Scope of- l·row11 Grants Act, s. 3-Lease by Government-Effect of-Applica .. bility of s. 41 of Transfer of Property Act (IV of 1882). The property covered by the Tea Estate was granted by the Govern· ment by way of lease in 1898 for 30 years. In 1913 it was purchased' by Azam Ali. When he died in 1917, he left behind 8 sons, 9 daughters and 3 widows. The name of Ismail, his el(iest son. was entered in the official records as next in succession. Ismail borrowed considerable sums from National Agency Co. Ltd., and for securing the same, depo·- sited the title deeds of the Tea Estate on the footing that he was its full owner. As the amonnt under the mortgage was not paid, a suitr was filed for realisation of the amount by sale of mortgage property .. o6 S.C.R. SUPREME COURT REPORTS 193 ·•rhe suit was decreed and in execution the property was auctioned and -saJe was confirmed in 1931 in favour of the decree·holder who sold the same to Azarnabad Tea Estate, the principal respondent in this case. The heirs of Azam Ali brought suit No. 58 of 1931 to set aside <the decree and sale in favour of the National Agency Co. Ltd.1 on -various grounds but ·that suit. was dismissed for default. - The suit out of which the present appeal has arisen was filed subse~ -quently. The plaintiffs.appellants who claimed title under purchasers for the heirs of Azam Ali .challenged the validity of the transactions by which the National Agency Co. Ltd. claimed to have purchased the ·entire 16 annas inlerest in the property at the court sale in pursuance .of a decree obtained by them against Ismail. The trial Court held 1hat the purchase made by the National Agency Co. Ltd. was valid and ex- tended to the entire interest in the property and hence the venders of .the plaintiffs had no title -to convey to them any interests in the pro- ;perty. The High Court in appeal disagreed with this finding but di"l- missed the appeal on other grounds except to the extent of an 8 pies share in the property. The appellants came to this Court on a ccrtifi- ·Cate of fitness granted by the High Court. The points raised before this Court were whether the High Court l\Vas right in holding that\ the present suit was barred by 0. IX, r. 9 on the :ground that when suit No. 58 of 1931 was dismissed in default, no ..action was taken to get it restored, this was raised by the respondent anJ whether in any event their claims to the 2 .as 13 odd gundas share of Ashfaq, son of Ismail, should not have been decreed. HELD (i) that the suit was substantially barred by 0. IX, r. 9. !he essential bundle of facts on which the plaintiffs based their title ;and their right to relief were identical in the two suits the property sought to be recovered in the two suits was the same. The title of the persons from whom the plaintiffs claimed title by purchase was based -0n the same facts. The additional allegation about possession in Octo- ·ber 1934 did not rea11y destroy the basic and substantial identity of the <auses of action in the two suits. The ban imposed by 0. IX, r. 9 does not create merely a personal bar or estoppel against the particular plaintiff suing on the sa1ne cause of action and does not ltave th
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