1. Only one point of law arises for our decision in this appeal. A few undisputed facts, which may be noted before the point of law is formulated, are these:
2. The respondent in this Court is the original applicant in the Court of Small Causes at Bombay and a plaintiff in the City Civil Court. Respondent filed his application under Section 41 of the Presidency Small Cause Courts Act, being ejectment Application No. 1149/E of 1958 on July 31, 1958. He-alleged that he had granted licence to the opponent-occupant and that licence was withdrawn but, in spite of a request to vacate, the occupant did not; and therefore the ejectment application.
3. The appellant as the opponent or occupant appeared before the Court of Small Causes and filed defences. His main defence was that he was a subtenant of the portion which was separated and given in his exclusive possession. There could, therefore, be no question of withdrawing or terminating the licence. After holding the trial in that application, the Court of Small Causes came to the conclusion by its order dated November 21, 1960, that the present appellant was a sub-tenant and not a licensee. Incidentally findings about the exclusive possession etc. were given. The result was that the ejectment application stood dismissed. The revision application filed by the respondent in the High Court was summarily dismissed.
4. Against this background the respondent as plaintiff filed two separate civil suits. Before that in December 1960, the appellant who was already held to be a sub-tenant filed an application, being BAN. No. 1722/SE of 1960 some time in December 1960 in the Court of Small Causes for fixing standard rent. That matter is still pending in appeal and need not be considered while the other facts are being taken into account.
5. On January 23, 1961, the respondent filed his First Civil Suit No. 389 of 1961 for recovery of arrears of compensation or damages amounting to Rs. 6200.94. Again on June 14, 1961 he filed Civil Suit No. 2020 of 1961 for recovery of possession. In this second suit he again alleged that the defendant-appellant was his licensee and that licence was terminated. He, therefore, wanted the licensee to withdraw himself and claimed a decree for possession and mandatory injunction in that behalf.
6. These two suits, viz. one for compensation and the other for possession, were consolidated with the consent of the parties and were heard together. After the issues were framed, it appears that the parties agreed that only two issues be heard as preliminary issues. They were as follows:--
(1) Whether this Court has jurisdiction to try and dispose of this suit in view of the provisions of the Bombay Rent Act.
(2) 'Whether the suit is barred by res judicata by virtue of the decision of the Court of Small Causes at Bombay, in ejectment application No. 1149/B of 1958.
7. The advocates on both the sides also agreed that in respect of these issues no oral evidence would be led by the parties. In these circumstances, the learned Principal Judge of the City Civil Court at Bombay heard the suit on the aforesaid two preliminary issues. He came to the conclusion on the first issue that the City Civil Court had jurisdiction to entertain the suit. That conclusion is not being doubted in this appeal. On the second issue he came to the conclusion that the subject-matter before the Small Causes Court related to relationship of licensee and licensor between the defendant and the plaintiff and the same issue is being agitated again in the City Civil Court. In view of the decision of the Court of Small Causes it was not open to the plaintiff-respondent to reagitate the same question. In other words, the present suit of the plaintiff and his plea that the defendant was his licensee in occupation were barred by the principles of res judicata, if not, by the provisions of Section 11 of the Code of Civil Procedure. He, therefore, dismissed both the suits by a common judgment.
8. Against the dismissal of both the suits, the respondent in this Court tried to file a consolidated appeal in forma pauperis. Permission was refused to file appeal in forma pauperis. He, therefore, paid Court-fees only in respect of the claim in Civil Suit No. 2020/61. His First Appeal No. 601 of 1968 was therefore treated as an appeal only against the judgment and decree of the Civil Suit No. 2020 of 1961. This First Appeal was heard by a learned single Judge of this Court.
9. In respect of the sole question relating to res judicata argued before him, the learned Judge followed the earlier judgment of this Court in Ramchandra v. Janardan (1967) 70 Bom. L.R. 376. Following that judgment, he held that the subject-matter in earlier suit was different than the subject-matter in the subsequent suit and the issues were also not similar. He also held relying upon that judgment that the order of the Court of Small Causes passed under the provisions of Chapter VII of the Presidency Small Cause Courts Act and more particularly under Section 43, was not a final order but was an order which was subject to a regular suit being filed by the parties to get their title decided. Agreeing with the reported judgment referred to above, the learned Judge allowed the appeal and remanded the Civil Suit No. 2020/61 for being heard and disposed of according to law. Being aggrieved the original defendant occupant has filed this appeal. In view of the summary of facts given above, the only question that now survives for consideration is whether the present suit of the respondent-plaintiff is barred by the principles of res judicata or principles analogous to res judicata in view of the decision of the Court of Small Causes in ejectment Application No. 1149/B of 1958.
10. While filing the present appeal, the appellant has, however, taken another point which was not taken up before the learned single Judge in the First Appeal. A further bar of res judicata to the hearing of the appeal itself is now being pleaded. In the circumstances that developed because of the peculiar course this litigation has taken, the respondent-plaintiff failed in his attempt to challenge the decrees in both the suits in forma pauperis but could not succeed. Possibly his limited means did not permit him to pay Court-fees in respect of both the appeals and be made his choice and paid Court-fees only in respect of the appeal arising out of Civil Suit No. 2020/61.
11. The other Civil Suit No. 389/61 is not subjected to an appeal. Shri Kripalani, learned Counsel for the appellant, has obtained leave of this Court to take up this additional point of law regarding res judicata, as the decree in Civil Suit No. 389/61 has become final and operates as a bar to the hearing of the present appeal. Though this is an issue which did not arise in the suit as such, in view of the subsequent development of facts in this litigation and the specific permission obtained by the appellant by the order dated December 24, 1971, from this Court the second issue about res judicata will also have to be considered.
12. Large number of authorities were cited before us which dealt with the general principles on which the doctrine of res judicata is based as also the field of operation of that doctrine. It is being conceded in this suit that Section 11 of the Code of Civil Procedure will not bodily apply because the earlier proceeding was not a suit but was an application under Chapter VII of the Presidency Small Cause Courts Act. However, what is urged is that by the principles of res judicata or by the principles analogous to res judicata the trial and decision of the same issues in the subsequent suit will be barred. There is also no doubt that the operation of the principles of res judicata is not confined to the suit alone. It would therefore be permissible for the present appellant to raise the question of bar of res judicata and it will have to be decided only in view of the facts of the present litigation in relation to the law applicable to them.
13. Section 11 of the Code of Civil Procedure lays down that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The four requirements, therefore, are: That the matter in the previous suit and the subsequent suit must be more or less the same or must have been directly or substantially in issue in both these matters. The previous suit must be between the same parties which are Parties to the subsequent litigation or the parties to the subsequent litigation must be litigating under the same title. The Court must be competent to try the subsequent suit in which such issues have been raised and in the earlier suit the parties must have been heard and the matter in issue must have been finally decided by that Court.
14. In the light of these principles what is being argued before us is that what was in issue before the Court of Small Causes in the application under Section 41 was whether the present appellant was a licensee or a sub-tenant. It is not in doubt that the same parties are parties to the litigation in the City Civil Court. The case of the appellant is that the present suit in which claim for possession is based upon the same contract of licence involves a matter which was substantially the same which was before the Court of Small Causes. The issues were the same, viz. whether the appellant-tenant was a licensee or a sub-tenant. It is also urged that the Court of Small Causes was competent to hear and decide the dispute that was raised before it in the ejectment application. That dispute was heard and finally decided by that Court. In the circumstances though the present suit may lie in the City Civil Court the trial of that issue is now barred. This submission undoubtedly pre-supposes that the subject-matter was the same or the issues raised were same and similarly the prior order of the Court of Small Causes being final, the same could not be reagitated in the City Civil Court.
15. This appeal is principally filed to challenge the judgment of a learned Single Judge of this Court in Ramchandra v. Janardan. Before we consider that decision or the correctness thereof, we propose to examine in the first instance the provisions of the Presidency Small Cause Courts Act, Chapter VII and the nature of the remedy provided by those provisions. If the scheme of the Presidency Small Cause Courts Act is taken into account as that Act stood before the exhaustive amendment of 1963, it would be apparent that it consists as if of two parts. Sections 1 to 40 seem to form one part and Sections 41 to 49 contained in Chapter VII seem to form the other. Sections 39 and 40 have been deleted from the Act by the Bombay Amendment Act 44 of 1948. If we look to the provisions of Sections upto 38 it will be apparent that a remedy of suits is provided in respect of certain causes of action and a list of matters is included in Section 19 in respect of which the Court of Small Causes has to have no jurisdiction. Section 18 deals with the suit in which the Court of Small Causes has jurisdiction. Under that section, it is laid down that subject to the exceptions in Section 19, the Small Cause Court shall have jurisdiction to try all suits of a civil nature when the amount or value of the subject-matter does not exceed Its. 3000. Clauses (a), (b) and (c) which follow thereafter in that section lay down the conditions under which this jurisdiction is to be exercised. If we look to the provisions of Section 19 which enumerates the suits in which that Court is not to have jurisdiction, it will be apparent from Clauses (d) to (g) that no suit relating to immovable property is ordinarily within the cognizance of the Court of Small Causes. Purely money claim, falling within the pecuniary jurisdiction of the Court are triable by it but not a suit in which either recovery or other kind of right in relation to immovable property is involved. In our view the jurisdiction conferred on that Court in respect of matters covered by Section 18 is exclusive and the decisions of the Small Causes Court in the form of decrees or orders passed in suits are made final and conclusive. This is provided by Section 37 which is the first section in Chapter VI, which says save as otherwise provided by this Chapter or by any other enactment for the time being in force, every decree and order of the Small Cause Court in a suit shall be final and conclusive.
16. Having thus provided for the types of suits which shall be entertained by that Court and having also provided that the decrees and orders in those suits shall be conclusive and final, the Legislature has added Chapter VII which is in the nature of an exception or proviso to Section 19. Thus suits relating to recovery of immovable property have been excluded from the jurisdiction of the Small Clauses Court under Section 19. A further exception has been carved out and one kind of matter relating to recovery of possession is made triable under Chapter VII. The remedy provided by this Chapter is not a suit but it is described by the Legislature as the summons against person occupying property without leave. The section itself describes the person who is entitled to make an application under this Chapter as an applicant and the person against whom recovery of possession is claimed as an occupant. If a person is in possession of any immovable property situated within the local limits of the jurisdiction of the Court of Small Causes and of which the annual value at a rack rent does not exceed Rs. 3000 and the possession of that person is either as tenant or with permission, the applicant is entitled to apply for recovery of possession on the ground that the tenancy has been terminated or the permission has been withdrawn. In other words, in cases where there is a relationship of landlord and tenant or licensee and licensor, the landlord or licensor is entitled to apply for a summons to recover possession after the tenancy is terminated or permission is withdrawn. The occupation of the occupant thus becomes an occupation without leave. Against such a person a speedy and summary remedy by way of an application is permitted.
17. Section 42 deals with service of summons upon the occupant. Under Section 43, which is the next section in order, it is provided that if the occupant does not appear at the time, appointed and show cause to the contrary the applicant shall, if the Small Causes Court is satisfied that he is entitled to apply under Section 41, be entitled to an order addressed to a bailiff of the Court directing him to give possession of the property to the applicant on such day as the Court thinks fit to name in such order. An explanation has been added to this section which says that if the occupant proves that the tenancy was created or permission granted by virtue of a title which determined previous to the date of the application, he shall be deemed to have shown cause within the meaning of this section. It is no more in doubt that this explanation is more illustrative of the ground in which causes could be shown and this is not the only ground on which valid cause will be accepted. The effect therefore is that the Court must be satisfied that the applicant has a right to claim possession and the occupant has not shown cause which is valid as a defence. In these circumstances immediate order of delivery of possession has to be addressed to the bailiff of the Court.
18. Undoubtedly before such an order is passed a hearing takes place as the proceedings under this Chapter are also regulated by the provisions of the Civil Procedure Code. This is provided by Section 48. Section 44 is again a section which merely enables the bailiff to hand over possession and enacts a bar to proceeding's against Judge or Officer of the Court against the orders passed or executed. Section 45 takes cognizance of some technical errors or defects in the procedure and says that if the applicant was entitled to possession then mere error in proceedings would not have the effect of deeming him to be a trespasser. However, the occupant will be entitled to sue him for compensation.
19. Hereafter follow as. 46 to 49 which enable the occupant to resort to certain remedies while the application is still pending or even after its disposal or execution. A concept of deeming trespass has been introduced in Section 46 which first declares that an applicant who has no right to apply for possession on the date he applied gets no protection, if he obtains possession of any property under this Chapter against a person who is aggrieved by the application and who is entitled to file a suit for damages for the act of trespass. Having introduced this concept of deeming trespasser, the occupant is given a right under Section 47 to obtain stay of the proceedings before the Court of Small Clauses by complying with the conditions mentioned in that section. If the occupant binds himself with two sureties in a bond for such amount as the Small Causes Court thinks reasonable having regard to the value of the property and the probable costs of the suit, which is described in the further provisions of that Chapter, to institute without delay a suit in the High Court or a City Civil Court for compensation for trespass and to pay all costs of such suit in case he does not prosecute it or in ease judgment therein is given for the applicant, the Court of Small Causes is obliged to stay all such proceedings until that suit is disposed of. If the occupant is successful in that suit and obtains a decree against the applicant such decree shall supersede any order made under Section 43. We have already pointed out that Section 48 merely deals with the regulation of proceedings before the Small Causes Court.
20. The next important section which completes the scheme of summary eviction is Section 49 which lays down that order for the recovery of possession of any immovable property under this Chapter shall be no bar to the institution of a suit in the High Court for trying the title thereto. We have thus under the Presidency Small Cause Courts Act two distinct types of proceedings contemplated, viz. suits and applications. So far as the suits are concerned the decrees and orders passed by that Court are made final and conclusive. The suits which do not involve any claim or right to possession of any immovable property, are entirely money claims upto the pecuniary jurisdiction of that Court. A section similar to Section 37 is not to be found in Chapter VII dealing with the remedy of recovery of possession of immovable property. On a plain reading of this provision there is no doubt that this is a summary remedy available where the main cause of action is the determination of tenancy or withdrawal of licence or permission. Prima fade, therefore, Chapter VII contemplates limited types of disputes. The inquiry is also summary and no appeal has been provided.
21. We are conscious of the fact that the mere fact that a remedy is summary and no appeal is provided for, may not by itself be enough to show that the decision given by a particular Court or Tribunal could never have been intended to be final. When, however, a general scheme of remedies under an Act is being considered this would merely be a relevant factor to be borne in mind. We are dealing with the provisions of the Presidency Small Cause Courts Act, 1882, before its amendment in 1963 ass the present litigation relates to the period, before 1963. It is not being doubted that the occupant has a right to file a substantive suit and that right can be exercised by him either before an ejectment order has been passed while the application has been pending or even after the ejectment order has been made but possession has not been lost and also even after the loss of possession in pursuance of an order passed under Section 43.
22. What kind of a suit the occupant can file may now be considered, in order to decide the nature of this remedy available to a landlord or a licensor. The two sections which must be borne in mind are Sections 47 and 49 and they are as follows:
47. Stay of proceedings on occupant giving security to bring suit against applicant.--Whenever on an application being made under Section 41 the occupant binds himself, with two sureties, in a bond for such amount as the Small Cause Court thinks reasonable, having regard to the value of the property and the probable costs of. the suit next hereinafter mentioned, to institute without delay a suit in the High Court or the City Civil Court against the applicant for compensation for trespass and to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given for the applicant, the Small Cause Court shall stay the proceedings on such application until such suit is disposed of.
If the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order (if any) made under Section 43.
Nothing contained in Section 22 shall apply to suits under this section.
49. Recovery of possession no bar to suit to try title.--Recovery of the possession of any immoveable property under this Chapter shall be no bar to the institution of a suit in the High Court or City Civil Court for trying the title thereto.
23. Shri Kripalani, learned Counsel for the appellant, emphasises the last clause in Section 49 which says that the suit in the High Court or City Civil Court has got to be one for trying 'title thereto', and this expression means title to immovable property, the recovery of which has been claimed by the applicant or has been effected by him under the provisions of this Chapter.
24. By way of amplification to his argument he says that if the parties go to trial before a Court of Small Causes on an issue whether the occupant is a licensee or a sub-tenant, as has been alleged in this case, and the Court holds that the occupant was a licensee, a suit contemplated by Section 49 would not permit the occupant to reagitate the same question. Tie will have to agitate and show some title to the immovable property itself which is superior to the right which is already adjudicated upon. In the same manner if an applicant wants to file a suit, he cannot allege again before the City Civil Court that the occupant-defendant was his licensee and on that title alone he wants possession. If the decision of the Small Causes Court has gone against him he is precluded from reagitating that question. In the case of a licensee, as in the present case, after the conclusion of the trial before the Small Causes Court some other title to the immovable property could be the basis of a claim in the City Civil Court and not the same right to retain possession. We would try to examine how far such an argument can be logically accepted.
25. Taking a simple case of a licensor claiming possession from a licensee after withdrawing that licence, a situation will arise that the occupant receives a summons. So far as the Bombay Amendment to Section 47 is concerned, it would be open to the occupant to offer to bind himself as provided by that section before he enters defences and then proceed to file a suit in the City Civil Court or the High Court as the case may be. Can the occupant not show in a suit of this type that his title to possession is the subsisting contract of licence and as such he is claiming damages against the applicant who has filed an application under Section 41 on the ground of deemed trespass? The applicant has merely alleged a licence which is terminated or withdrawn, which has been described as a cause of action for claiming the summons for possession. In a given case the occupant may have many other grounds to urge but if he argues that his only ground was that the licence under which he had the right to possess the property was a subsisting licence, we see no reason why such a suit could not be filed by him in the City Civil Court or the High Court, as the case may be.
26. The language of Section 49 quoted above says that the recovery of possession of immovable property under this Chapter shall be no bar to the institution of a suit in the High Court or a City Civil Court as the case may be for proving the title thereto. We see no reason for assuming that the title which is contemplated by this section is title to immovable property or in immovable property. The main grievance which an occupant makes under this Chapter is that his possession is being taken away and he has a right to retain that possession and remedy under the Chapter reserved in the occupant is a remedy against the loss of possession. We are, therefore, of the view that the expression ' title thereto' under Section 49 refers to the title to retain possession or maintain possession against a deemed trespass of the applicant. Rights and titles to immovable property as also recovery thereof were taken out of the jurisdiction of the Court of Small Causes under Section 19. The title of Section 19 is important. It debars a suit in respect of matters enumerated in that section. It is therefore clear that a suit for immovable property was not at all provided by the Act. By way of an exception a summary remedy of an application alone was provided for the purpose of recovery of possession of immovable property under limited circumstances. The subject-matter of Chapter VII being recovery of possession, it would logically follow that the 'title thereto' contemplated by Section 49 would be the title to retention or recovery of possession if it is already lost to the occupant under the provisions of this Chapter. Moreover is it to be supposed that the suits filed before the order of eviction and after the order of eviction would be of different types? Sections 46 to 49 must be read together as presenting an integrated scheme of making a remedy available to an occupant by way of a regular suit. Before entering defences if a suit were to be filed in which the only title claimed is the subsisting licence and therefore the want of a right to claim possession in the applicant, we fail to see why the same ground could not be the subject-matter of adjudication in a suit by the occupant simply because an order of eviction has been passed or simply because he has lost possession in execution thereof. In order to clear the doubt that the remedy which the occupant can follow is not affected even though possession is lost, Section 49 has been enacted to make the position very clear. Even if possession has been recovered by the applicant, the concept of deemed trespass is still available to the occupant to establish his title to the possession of immovable property and get the order under Section 43 super-ceded by a decree of the appropriate Court.
27. We get some support from the observations of the Full Bench decision of this Court in Dattatraya Krishna v. Jairam Ganesh : AIR1965Bom177 . It is true that the Full Bench was principally concerned in that case in dealing with the jurisdiction of the City Civil Court. They were called upon to consider whether a suit lies for declaration that the plaintiff is a tenant or sub-tenant of the defendant and for an injunction restraining the defendant from proceeding with or from obtaining an order for eviction of the plaintiff in the application made by the defendant under Section 41 of the Presidency Small Cause Courts Act, 1882, or from executing the order for eviction obtained by him in such application. While considering the scheme of Chapter VII of the Presidency Small Cause Courts Act it has been incidentally observed by the Full Bench as follows (p. 674):.The title in respect of which a suit may be filed under Section 47 or 49 may be a title or a right to possession or a title in the nature of ownership. The claim to possession in a suit between a landlord and a tenant can only be adjudicated upon by the special Court under Section 28 and the suit in regard to it must be filed under Section 28 in the Small Cause Court. A suit to establish any other title may, however, be filed either in the High Court or in the City Civil Court.
It would therefore appear that in the context of finding out exclusive jurisdiction of the Court of Small Causes under the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 under Sections 28 and 29-A, the Full Bench observed as above while considering the scheme of the provisions of Chapter VII.
28. Since a Court of exclusive jurisdiction was created under the Rent Act they point out in the above quotation that a suit to title can include a suit to right to possess or any other title and such a suit to establish that title can be filed in the High Court or a City Civil Court. We may point out that in Hari v. Dhondi (1905) 8 Bom. L.R. 96 a Division Bench of this Court was considering the nature of title that a plaintiff need prove for succeeding in obtaining a decree for possession. While considering the value of possession as a foundation for title to claim possession, the Division Bench observed as follows (p. 98) :.possession is prima facie proof of ownership; it is so, because it is,...'the sum of acts of ownership.' This obviously applies both to prior and to present possession.
29. We are thus of the view that a right to retain possession would constitute the title of a person whose possession is being threatened by an applicant under Section 41. In our view, therefore, the conclusion seems to be inescapable that the remedy under Chapter VII is a summary remedy where only a limited dispute is contemplated. Whether before or after the order for eviction is passed the occupant at any rate has a right to approach a regular civil Court, whether it is High Court or a City Civil Court as the case may be for obtaining a decree against the applicant, as the provisions of Section 47 itself provide that decree shall supersede the order made under Section 43, if any. The remedy under Chapter VII at any rate so far as the occupant is concerned, is subject to the filing of a regular suit. It is not a final remedy against the occupant. For the reasons detailed above, we are not able to accept the argument of Shri Kripalani that when the application under Section 41 comes to termination, the decision of the Small Causes Court on the issue of licence is final and conclusive and could not be readjudicated before a civil Court. If that alone constitutes title there is no objection to reagitate the issue at least so far as the occupant is concerned. In our view therefore the decision of the Court of Small Causes under Chapter VII is not intended to be final at all under the scheme of the sections we have discussed above. A further question which, therefore, arises is whether if a remedy which is not final against the opponent can it act as a final remedy concluding the rights of the applicant at least in respect of some of the points he raises in that application
30. The defence of res judicata which has been raised in this case is based upon a prior judgment of the Court of Small Causes in the ejectment application. Admittedly, therefore, that is an estoppel by record. Normally therefore it follows that to the extent that certain disputed issues or points are decided by a Court in a judgment the conclusion would be binding on both the sides. In other words estoppel must be usually mutual. In Halsbury's Laws of England, 3rd edn., Volume 15, para. 379, the view expressed is as follows:
The question of who may take advantage of an estoppel is governed by the rule that estoppels ought to be mutual. The only persons who can take advantage of an estoppel by record are those who, if the decision had been the other way, would have been bound by it, that is to say, in case of a judgment inter partes, the parties and their privies.
31. If the provisions of Chapter VII inspite of an order of possession in favour of the applicant admittedly do not create a bar to the filing of a substantive suit by the applicant for defending- his title as provided by the scheme covered by Sections 46 to 49, will it be possible to say that this operation of res judicata will only favour the occupant against the applicant? In other words it will have to be decided by looking to the scheme of the provisions of Chapter VII and the nature of the remedy provided whether that remedy was such that the orders passed either for or against the parties to that application were intended to be final. If they were not, then it could not be said that either of the parties is finally bound by the result of that litigation. In our view, the operation of doctrine of res judicata being mutual or reciprocal it is obvious that the remedy under Chapter VII being a summary and speedy remedy was not supposed to dispose of the rights of the parties finally. If either of the parties so desired, a substantive suit was permitted and the order under Section 43, if any, was subjected to the final result of the litigation in the civil Court. This approach seems to gain support from the scheme of the Presidency Small Cause Courts Act which provides two distinct and separate remedies in two distinct and separate parts of the Act as they were. We have already pointed out that the remedy of a suit in respect of certain matters covered by the provisions of the Act is made final by the provisions of Section 37 of the Presidency Small Cause Courts Act. Though ordinarily disputes relating to the possession of immovable property were outside the purview of the Court of Small Causes, for a limited purpose of a speedy remedy by way of an exception, the Small Causes Court was authorised to deal with certain applications for possession. The placement of the remedy of recovery of possession in a separate Chapter which follows after Section 37, the nature of that remedy which is a speedy and summary remedy and the specific provisions of Sections 46 to 49 making the orders under Section 43 subject to a substantive suit satisfy us that the remedy of substantive suit based on title is available to both the applicant as well as the occupant. This is because the order under Chapter VII was never intended to be final. If this is to be the true meaning of the provisions of Chapter VII one of the important ingredients for construing a decision as res judicata under Section 11 of the Civil Procedure Code or the principles analogous thereto is obviously missing in the present case. One of the requirements of the principles of res judicata is that the previous matter must have been heard and finally decided by a Court. Where the decision is simply not final, but is expressly subjected to the filing of a subsequent suit, it is not possible to say that the order under Section 43 in favour of the present appellant could ever operate as res judicata.
32. The above conclusion to which we have arrived in respect of the nature of remedy in Chapter VII seems to' get some support from the fact that the Provincial Small Cause Courts Act, 1887, which is a comparable. Act for providing certain remedies in the mofussil area does not contain any Chapter like Chapter VII. In other words recovery of immovable property which is initially and substantially taken away from the jurisdiction of the Court of Small Causes under the Presidency Small Cause Courts Act is also taken away in the same manner from the jurisdiction of the Provincial Small Cause Courts Act by adding second schedule describing the suits excepted from its jurisdiction. Only money claims are, therefore, triable upto the pecuniary jurisdiction described by that Act, viz. Provincial Small Cause Courts Act.
33. Section 37 of the Presidency Small Cause Courts Act is similar to Section 27 of the Provincial Small Cause Courts Act. Section 37 mentions that save as otherwise provided by this Chapter (VI) or by any other enactment for the time being in force, every decree and order of the Small Causes Court in a suit shall be final and conclusive. The finality of the decrees or orders as contemplated by the Presidency Small Cause Courts Act is similar and identical with the finality that is given to the decrees and orders passed in suits under the Provincial Small Cause Courts Act. The exception made in the case of Presidency-towns by adding Chapter VII in the matter of recovery of possession of immovable property is not to be found in the Provincial Small Cause Courts Act. The scheme of the two Acts in this manner seems to lend some support to our conclusion that only a part of the litigation before the Court of Small Causes was intended to result in final decrees and orders and the remaining part was not so intended to result in final orders.
34. The learned Counsel for the appellant Shri Kripalani cited number of judgments before us which dealt with two other topics. The first topic consisted of the question as to when one could say that the subject-matter before the prior Court was the same as before the subsequent suit and when it could be inferred that the same dispute arises which must be deemed to have been decided. The second part of this argument covered case law where issues which may not directly arise or may not have been framed in the suit but are decided as being necessary for the decision of the principal dispute may also constitute res judicata. 'We do not propose to examine that case law for the simple reason that even assuming that the question of licence as against the sub-tenancy was a common question before the Court of Small Causes as also the City Civil Court, since the decision itself is not intended to be final the common character of the questions does not seem to make any difference.
35. However, there is some thing to say in favour of Shri Kamat's argument that the subject-matter of the dispute before the Court of Small Causes and the City Civil Court could not be said to -be the same or identical. In fact he relied heavily upon the judgment of Mr. Justice Chandrachud, as he then was, in the case of Ramchandra v. Janardan. According to the learned Judge the remedy in Chapter VII by way of an application was essentially different from the remedy available to a party in a regular civil suit. That remedy was a speedy and summary remedy based upon the simple question contemplated by Section 41, viz. whether the alleged licence has been withdrawn or tenancy has been terminated. The Court was not concerned with the title of either of the parties but its decision was restricted to the simple question. In a subsequent suit based upon title the issue was whether the plaintiff has proved that there was a licence at all and whether on termination of that licence a right to recover possession has arisen in favour of the plaintiff. The learned single Judge concluded that the subject-matter before the earlier Court not being the same as before the subsequent Court, there could be no question of the operation of the principles of res judicata.
36. Shri Kripalani argued that it is an error to say that the issue before the earlier Court was not the same as before the subsequent Court. The only question before the Small Causes Court was whether there is a licence in favour of the occupant which licence has been validly withdrawn. The only defence raised was that there was no licence but there was a sub-tenancy. While hearing the application that was the only point which was being considered by the Court of Small Causes and it held that the relationship created by the alleged contract was not of a licensor and a licensee. Mr. Kripalani posed a question, as to what is being now pleaded by the plaintiff-respondent in the City Civil Court? He is alleging that the defendant is his licensee under the same contract and that licence has been terminated by him. In other words, according to him, the cause of action in both the suits is identical, though the earlier was an application and the subsequent may be a regular civil suit. We think that there is considerable force in the point of view placed before us by Mr. Kamat as supported by the learned single Judge of this Court, particularly in view of our earlier decision that the issue of title permitted to be raised in a suit under Section 49 could cover a title based upon a right of possession to the property and need not be a title in the immovable property itself.
37. Shri Kripalani also cited before us some cases to point out that the nature of the earlier remedy would not by itself be a matter of any significance. The writ petitions before the High Court are generally heard and disposed of on the basis of affidavits filed by the parties. It is therefore possible to describe them as matters disposed of summarily. Even then the Supreme Court held in Gulabchand v. State of Gujarat (1964) 67 Bom. L.R. 673. that the decision on an issue in a writ petition would constitute res judicata between the same parties in a subsequent litigation. Several other judgments to emphasise that point of view were cited before us. It is not possible to quarrel with the general proposition that the fact that the earlier remedy was a summary one may not itself be conclusive to hold that the decision therein could not constitute res judicata in a subsequent litigation.
38. However, we are mainly disposing of this matter on the footing that the order passed under Chapter VII by a Small Causes Court was not intended to be final at all under the very scheme of that Chapter and as such the question and the nature of that remedy becomes subordinate. In other words we are in respectful agreement with the conclusion of Mr. Justice Chandrachud in Earn-Chandra's case that Sections 46 and 47 of the Presidency Small Causes Courts Act, 1882, as they stood before the Presidency Small Cause Courts (Amendment) Act, 1963 reserves the right for bringing a subsequent suit in favour of the unsuccessful occupant as also in favour of the unsuccessful applicant.
39. We will now take into account the additional defence now raised before us on the principles of res judicata which has become available to the appellant because of a certain course of conduct of this litigation. We have already pointed out that, before the learned single Judge of this Court, the respondent filed only one appeal against the decision in Civil Suit No. 2020/61 and did not file appeal against the decision in Civil Suit No. 389/61. Whether this creates a bar of res judicata against a continuance of the First Appeal No. 601/68
40. When two suits involving a common question of law and fact are combined by the consent of the parties or order of Court, and are heard together and disposed of by a common judgment, what should be the consequence if an appeal is filed a against only one and not the other This is a question on which various High Courts in this country are divided. When that question was tried to be argued before the Supreme Court in the case of Sheodan Singh v. Daryao Kunwar : 3SCR300 their Lordships kept the matter open by observing that that question did not fall to be decided before them and therefore they did not propose to express any opinion as to which point of view is correct. The two views which are conflicting' seem to be there. Whenever suits are combined like this and are disposed of by a common judgment, technically there is a disposal of two suits resulting in two different decrees. An appeal is undoubtedly provided against a decree. While appealing against a decree it is as a requirement of technical Rules that a copy of judgment also must be produced in order to point out the reasons on which the decree is based. However, so far as the principle of res judicata incorporated in Section 11 of the Code of Civil Procedure is concerned, it is based upon finality of the decision and not of the decree.
41. A view has been taken by some of the High Courts that where one of the decrees becomes final, not having been appealed against, it operates as res judicata. The other point of view based upon the decision of the Punjab High Court of the year 1927 is that the decision and not the decree is the relevant matter to be considered for the purpose of res judicata. In Mt. Lachhmi v. Mt. Bhulli A.I.R  Lah. 289. it has been held:.res judicata is either estoppel by verdict or estoppel by judgment (or record), and there is no such thing as estoppel by 'decree'.... The determining factor is not the decree but the decision of the matter in controversy.
42. It has been farther observed:
where two suits having a common issue are by consent of parties or by order of the court, tried together the evidence being written in one record and both suits disposed of by a single judgment, it cannot be said that there have been two distinct and independent trials.
43. Though the question, whether the disposal of two suits by a common judgment can operate as res judicata when appeal is filed only against one, is expressly kept open by the Supreme Court as already pointed out above, the principle laid down by the Full Bench of the Lahore High Court seems to have been approved by the Supreme Court. In Narhari v. Shanker : 1SCR754 the decision reported in Mt. Lachhmi v. Jilt. Bhulli was approved by the Supreme Court when their Lordships observed (p. 420) :.As has been observed by Tek Chand J, in his learned judgment in--Mt. Lachhmi v. Mt. Bhulli, mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment.
This question was considered by the Full Bench consisting of five Judges of the Allahabad High Court in the case of Jai Narain v. Bulaqi Das : AIR1969All504 . In the leading judgment, review has been taken of the judgments of almost all the High Courts where one or the other view has been expressed. We need not repeat the same discussion because we are respectfully in agreement with the view of the Full Bench of the Allahabad High Court on the principal question as to what should operate as res judicata.
44. Since it is the decision which finally determines the rights of the parties that must operate as res judicata and not decrees which may at best decide the claims in certain suits for the time being, if the judgment itself is appealed against and is tried to be set aside, it is difficult to say that the disputed point between the parties has been heard and finally decided. In other words appeal against the common judgment puts the judgment as such in jeopardy and it, does not become final. The decree in the sister suit may become final and to the extent it affects the rights of parties, the party concerned may lose his claim. However, on the principal question in the litigation involved which is still subjected to challenge, it is the final decision which alone will bind the parties, for the purpose of the operation of principles of res judicata.
45. That being so in the present case the respondent had challenged the common judgment in the two suits Nos. 389/61 and 2020/61, though the decree in Civil Suit No. 389/61 may not be now vulnerable, the common judgment delivered in those suits was successfully challenged by the respondent in his appeal before the learned single Judge. We do not think that not filing an appeal in the sister suit No. 389/61 precludes the respondent from pursuing his remedy in this appeal by the operation of principles of res judicata.
46. This being our view on the two disputed questions of res judicata, the appeal fails and is dismissed. We, therefore, confirm the order of the learned single Judge that the suit in appeal must go back to the trial Court for further disposal according to law.
47. The respondent in this ease has appeared in person before the learned single Judge and also before us in the present appeal. We found that the question of law involved was complicated and an important one. We, therefore, requested Shri Kamat to assist the Court as arnicas curiae. We must note with thanks that his arguments were of substantial assistance.
48. Shri Kripalani at this stage wanted us to issue some direction in the matter of disposal of Rs. 18,000 of which Rs. 9,000 are directed to be withdrawn by the respondent on furnishing security. He also brought to our notice the detailed directions given by the learned single Judge in para. 15 of his judgment contained on p. 13 of the print. He has ultimately left it to the City Civil Court to hear the parties and to pass such further orders as are necessary in the interest of justice. We think that that was a proper direction to give and we also confirm that direction. No further order or additional direction seems to be necessary to guard the interest of both the parties.
49. Shri Kripalani also brought to our notice another interim order passed by this Court dated July 24, 1972 by which the parties are restrained from prosecuting the appeal in the Small Causes Court regarding' standard rent pending the dismissal of this Letters Patent Appeal. Since the suit itself is not yet heard on merits, we confirm that injunction and direct that till the disposal of the suit before the City Civil Court, the injunction still continues.
50. The costs in this appeal will be costs in the cause and will be in the discretion of the trial Court.