Sharad Manohar, J.
1. This litigation spells a second inning taken by the present appellant in connection with her insistence to occupy the suit premises, which right has been held as un-established by both the courts below.
2. The facts are simple :
The appellant is the original defendant. The suit premises are admittedly governed by the Rent Act. For the sake of convenience, the parties will be referred to hereafter as the 'plaintiff' and the 'defendant'. According to the plaintiff, the suit premises namely the two rooms in the house in question, are held by the plaintiff as a tenant. Further, according to the plaintiff, the two rooms are now in possession of the defendant by virtue of no right whatsoever and as such the defendant is a rank trespasser in respect of the premises. The defendant, on the other hand, had been contending, in the first place, that she was a sun-tenant licensee in respect of the suit premises. After the said plea has been finally rejected even by this Court in the earlier litigation, now she contends that she was a licensee in respect of the suit premises and that her licence was protected by the Rent Act. Both the Court below have negatived even this latter contention of the defendant and hence this Second Appeal.
3. Some more facts will clarify this position. According to the defendant, she had been in possession of the suit premises from the point of time even prior to 1968 as sub-tenant of the plaintiff. In the year 1972 she filed a Civil Suit (Civil Suit No. 1831 of 1972) for a declaration that she was a lawful sub-tenant of the present plaintiff in respect of the suit premises. She had also filed another suit earlier; but I will refer to that litigation a little later. In the said suit filed in the Small Causes Court, the trial Court held that the plaintiff in that suit had failed to prove that fact the she was a lawful sub-tenant. In fact the Court held that she was not residing in the suit premises upon payment of any consideration at all; rather it can be said that her plea that she had been paying consideration for residence in the suit premises was negatived by the Court, because according to the Court, she had failed to prove that fact. Her suit was, therefore, dismissed by the trial Court. The appeal filed against the same met with the same fate. The writ petition filed against the same was rejected by this Court in the year 1978.
In the meantime, the instant suit was filed by the present plaintiff in the year 1975 in the Court of the Civil Judge (Junior Division), Pune, for recovery of the suit premises from the defendant. The suit is filed purely on title with the contention that the defendant has no right, title and interest in the suit premises. In this suit the defendant once again came out with a case that she was a sub-tenant in respect of the suit premises. In the alternative, she also contended that she was a licensee in respect of the suit premises. This suit was decided by the trial Court on 30th September, 1982. By this time, this Court has already finally negatived the defendant's plea that she was a lawful sub-tenant in respect of the suit premises. Hence the defendant's contention that she was a lawful sub-tenant in respect of the suit premises could not be persisted with by the defendant. However, taking advantage of the fact that the Rent Act was amended on 1-2-1973, the defendant now came out with a plea that if she was not a lawful sub-tenant of the suit premises, in any event she was a protected licensee in respect of the same and, as such, was entitled to protection of the Rent Act.
4. The trial Court held that the plaintiff's present plea about sub-tenancy was barred by the principle of res judicata vis-a-vis both the aspects of her contention. It was held that the contention of sub-tenancy was barred by res judicata and the plea of protected licensee was also barred by res judicata though only constructively. But the trial Court also went into the question as to whether the defendant had established by her evidence that she was a protected licensee within the meaning of the Bombay Rent Act. For that purpose, the trial Court examined the evidence and came to the conclusion that no evidence whatsoever was led by the defendant except her bare word that she had been paying rent or compensation to the plaintiff as consideration for occupation of the premises. It was thus clear that not only on the ground of operation of res judicata but also on merits, after examination of the evidence, the trial Court held that the plea of the status of protected licensee set-up by the defendant had to be negatived. In this view of the matter, the plaintiff's suit on title was decreed by the trial Court.
5. The appeal filed by the defendant has been summarily rejected by the learned Joint Judge, though with quite an elaborate speaking order. The learned Joint Judge has held that it was not possible for the defendant to wriggle out of the operation of the principle of res judicata when in the earlier litigation it was finally held that the defendant was not a sub-tenant in respect of the suit premises. It appears that it is mainly on this ground that the appeal has been summarily rejected by the learned Joint Judge.
6. In the second appeal, it was strenuously argued on behalf of the appellant that the conclusion relating to res judicata cannot be sustained. For the reasons, which will be presently mentioned. I do not find it necessary to decide the said question relating to res judicata because, to my mind, the final order passed by both the courts below is capable of being sustained on the basis of certain factual position. All the same, I will presently indicate my prima facie opinion as regards the plea of res judicata.
7. In this case the trial Court has examined the entire evidence and has held that the defendant had been residing of the suit premises as the plaintiff's maid-servant. The evidence led by the plaintiff in this behalf is accepted by the trial Court and the defendant's bare contention has been rejected. But that apart, the trial Court has also held that beyond her bare word, no evidence is led by the defendant to prove that any rent or compensation was being paid by the defendant to the plaintiff as consideration for the right to occupy the suit premises.
It is true that the District Court does not appear to have addressed itself to this aspect of the plaintiff's case. But since the Appeal Court has not examined this question and since I find that the examination of the question would finally put an end to this litigation under section 103 of the Civil Procedure Code, I myself examined the relevant part of the record and after hearing the learned Advocate for the appellant I am satisfied that beyond the bare word of the defendant that she had been paying a sum of Rs. 65/- per month to the plaintiff as rent for the premises, no evidence is led whatsoever by her to prove the said payment. If she has failed to prove this vital fact in issue, then it must follow that she cannot claim the status of a protected licensee under the Rent Act and even assuming that she was allowed by the plaintiff for some time to occupy the suit premises as a licensee, it would not help her in claiming any protection to her possession of the suit premises.
8. It was, however, strenuously argued by Mr. Nargolkar the learned Advocate for the appellant, that even according to the plaintiff the defendant had been in occupation of the premises from the year 1968. Contention was that the very fact that from the year 1968 till the year 1972 when the defendant filed her suit for declaration of sub-tenancy (Civil Suit No. 1831 of 1972), no grievance was made by the plaintiff as regards non-payment of rent, and further, the very fact that even from the year 1972 till the year 1975 when a notice dated 25-8-1975 was given by the plaintiff to the defendant, as stated by him in this evidence, no amount was claimed as rent or compensation must go a long way to prove that in fact the amount must have been paid by the defendant to the plaintiff as claimed by her.
9. As pointed out by Mrs. Bhagalia, in the first place, this contention is factually incorrect and this brings me to the earlier part of the litigation. Civil Suit No. 1831/72 filed by the defendant for declaration of her sub-tenancy was not the first suit filed by her. In fact she had filed Civil Suit No. 1259 of 1968 earlier in the Court of the Civil Judge (Junior Division), Pune for declaration that she was a sub-tenant of the suit premises. This means that she started claiming sub-tenancy immediately when the plaintiff started suffering her possession in the suit premises, or even assuming that the defendant's contention is accepted, when she was allowed to occupy the suit premises. The defendant's right to occupy plainly appears to have been denied by the plaintiff some time before the defendant filed her first suit in the Court of Civil Judge (Junior Division), Pune. Because she had been claiming the right of lawful sub-tenancy under the Rent Act, the Court had held that Court had no jurisdiction to entertain that suit and hence in that suit the plaint was ordered to be returned for presentation to the appropriate Court. This order was passed sometime in the year 1972 and this is how Civil Suit No. 1831 of 1972 came to be filed in the Court of Small Causes at Pune. This being the factual position, the very basis of the argument of Mr. Nargolkar on this point disappears.
10. But even otherwise, the argument of Mr. Nargolkar is untenable. It is the plaintiff's contention that the defendant was allowed to stay in the suit premises because she was the plaintiff's maid-servant. He has led evidence in support of the said contention which is examined by the trial Court and the Court has believed it. My attention was not invited to anything as to why this finding should be faulted. No reason whatsoever exists why the evidence led by the plaintiff in this behalf should not be accepted by the appeal Court if the trial Court which had the opportunity to watch the demeanour of the witnesses has accepted the same.
Once it is held that the defendant was allowed to stay in suit premises only because she was the plaintiff's maid-servant, the entire super structure of Mr. Nargolkar's argument crumbles.
11. The second contention that was urged was that it was not proved by the plaintiff as to when the defendant's possession became unlawful. According to Mr. Nargolkar, on his own showing the plaintiff has accepted the position that the defendant was in possession of the suit premises as a licensee till the year 1975. If this was the position, contends the learned Advocate, it is necessary for the plaintiff to prove as to from which date the occupation of the defendant as licensee becomes that of a trespasser and since this is not shown by the plaintiff, the plaintiff's suit must fail.
To my mind, the contention is wholly untenable. In the first place, it is not correct to say that the plaintiff has admitted the defendant to be the licensee at any time at all. In fact it was because the plaintiff was not admitting the defendant's right to occupy the suit premises that the defendant herself filed the suit in the year 1968 in the Regular Court and thereafter in the year 1972 filed the same in the Small Causes Court for declaration of her right to the premises, in possession. Moreover, if any notice was given in the year 1975 by the plaintiff and if the defendant was occupying the premises till that date as licensee, the licence stood terminated by the notice itself and at least from the date of the expiry of the notice, the possession of the defendant would become that of a trespasser. The contention need not be taken, therefore, very seriously.
12. The next contention which was seriously urged by the learned Advocate, in fact at the outset, was that the Appeal Court was not justified in dismissing the appeal summarily. Contention was that the Appeal Court should have examined the record and should have satisfied itself as to whether any evidence was led by the defendant for proving her status of protected licensee or not.
I do not wish to express any opinion about the validity of this contention, because it cannot be disputed that under the Civil Procedure Code this Court has jurisdiction even to examine the evidence on a question which has not been examined by the Court of the first appeal. After examining the record, I come to the conclusion that the relevant finding recorded by the trial Court, viz. that no payment was being made by the defendant as consideration for facility to stay in the suit premises is quite unassailable. I do not find any reason why the finding recorded by the trial Court to the effect that the defendant has not proved the payment of rent or compensation to the plaintiff should be disturbed. It is not as if that any document is produced by the defendant and that the same has not been considered by the trial Court. It was argued that it was a case of word against word and hence there is no reason as to why the plaintiff's word should be accepted to that of the defendant. This argument on the part of the learned Advocate loses sight of the fact that as per the law of evidence by which we are governed, that party will be the loser which fails to discharge the onus that falls upon him. In the instant case, the title of the plaintiff is not in dispute at all. The question as to whether the defendant has been paying rent to the plaintiff or not, is a fact which is pleaded and averred by the defendant herself and if she does not prove it, it is she who has to lose. Since the burden of proving that positive fact is upon her and since she has not led any evidence on that point acceptable to the Court, her contention that she had been paying her rent to the plaintiff must fail.
13. Incidently, I may refer here to the argument advanced by Mrs. Bhagalia namely that if not the general question of res judicata, at least the question as to whether the defendant had been paying any consideration to the plaintiff for her monthly occupation of the suit premises should be held to be barred by res judicata. Mrs. Bhagalia rightly pointed out that in the earlier litigation a Court of competent jurisdiction had finally held that the defendant had not proved the payment of any rent or any other consideration to the plaintiff as consideration for her right to occupy the suit premises. Even the learned trial Judge has referred to this aspect of the finding recorded by the earlier Court. Relying upon the finding recorded by the earlier Court. Mrs. Bhagalia contends that the issue as to whether the defendant did pay at any time in the past some rent or compensation to the plaintiff as consideration for her occupation of the suit premises, which issue was decided against the defendant in the earlier proceedings should be held to be barred by res judicata.
14. The argument no doubt is attractive. But there may be some difficulty about the acceptance of the argument. The difficulty arises out of the position that section 11 of the Civil Procedure Code, which no doubt governs the present suit, specifically lays down that a finding recorded by a competent Court in an earlier suit becomes res judicata in a subsequent suit only if the earlier Court deciding the issue had jurisdiction to try not only the issue but even the subsequent suit as a whole. In the present case, the Court of Small Causes which decided the earlier suit filed by the defendant could not have been able to decide or entertain the present suit, which is filed by the plaintiff against the defendant on title.
However, I do not wish to express any final opinion on this question because, to my mind, the appeal is capable of being decided on merits in favour of the plaintiff and hence it is not necessary to rely upon the technical plea of res judicata.
15. I may lastly refer to the basis upon which the appeal filed by the defendant was dismissed by the learned Joint Judge. The learned Judge has held, agreeing with the trial Court, that the plea of sub-tenancy was barred by res judicata and even the plea of licence was barred by the principle of constructive res judicata. The view appears to be that it was necessary for the present defendant to raise the plea of protected licensee before the earlier Court and if she has failed to raise that plea which would have protected her possession, she should be held to be precluded from raising that plea in the present proceeding.
I may state here that I am unable to agree with this view. The earlier suit was filed latest in the year 1972. The present amendment of the Rent Act came into force on 1-2-1973. The present defendant, therefore, had no cause of action to raise that question in that earlier suit. The cause of action to seek protection of the Rent Act even as a protected licensee arose in favour of the present defendant on 1-2-1973 assuming that she was a lawful licensee of the suit premises on that date. The entire suit, therefore, was and had to be decided on the averment made in the suit on the date of the suit. It is true that it would have been open for the defendant to have the plaint amended and to set up the said plea as additional plea by way of the amendment. But instead of doing so, it was also open for the defendant to file a separate suit on that cause of action as also to set up that defence in the present suit. No question of res judicata in respect of the said suit arising out the of Amended Rent Act could arise in such subsequent suit whether filed by the plaintiff or by the defendant.
This being the position, I do not think that the bar of res judicata would be available to the present plaintiff against the defendant in the present suit.
16. However, all these observations may not be strictly necessary for disposal of this appeal, because the appeal can be and has been disposed of by me on a narrow question as to whether the defendant has discharged the burden of proving her right to claim the status of a protected licensee or not. Since in the evidence led by her, she has not established her right to claim the status of a protected licensee, the appeal must fail.
The appeal is, therefore, dismissed with costs.