1. This second appeal has been filed by the defendant against the judgment and decree of the Additional District Judge, Ambala dt. 15th Dec. 1983.
2. Briefly the case of the plaintiffs is that they took a shop in dispute on rent from Kul Bhushan son of Dal Chand at the rate of Rs. 30/- per mensem on 16th Sept. 1971 and since then they had been in occupation thereof. They were working as tailors in the name of Vijay Tailors.
3. It is further pleaded that the plaintiffs, at the request of the defendant, started giving him work on contract basis who used to do the work at his own and returned the same in a day or two. Sometimes they allowed him to sit in the shop to do the job. Subsequently the defendant joined hands with Sushil Chand, younger brother of Kul Bhushan, and obtained fictitious receipts of tenancy from him. On the basis of those receipts he instituted a suit against the plaintiffs for permanent injunction restraining them from taking possession of the shop from him. In the suit it was held by the Court, vide judgment dt. 29th April, 1978, Exhibit A. 4, that the plaintiffs were tenants in the shop and the defendant had no concern with it. However, in view of the finding that he was in occupation, a decree was passed in his favour to the effect that he could not be dispossessed from the shop except in due course of law. That judgment, it is pleaded, operates as res judicata between the parties and the defendant again cannot take the plea that he was a tenant in the shop under Sushil Chand. Consequently, they filed a suit for mandatory injunction directing the defendant to deliver the vacant possession of the portion of the shop to them.
4. The suit was contested by the defendant. He, inter alia, pleaded that he had taken the shop on rent from Sushil Chand son of Sal Chand about six years ago and since then he had been in its possession. He controverted other allegations of the plaintiffs.
5. The trial Court did not give any decision whether the previous judgment operated as res judicata between the parties but held that the defendant was a licensee in the shop under the plaintiffs. In view of the said finding, it decreed the suit in favour of the plaintiffs. The defendant went up in appeal before the Additional District Judge, Ambala. The Appellate Court affirmed the judgment and decree of the trial Court on the ground that the earlier judgment between the parties operated as res judicata.
6. Mr. Sharma has vehemently argued that the earlier case was decreed in favour of the appellant and, therefore, he could not file an appeal against that. He submits that in that situation the finding of the Court that the appellant was not a tenant in the shop but a licensee under the respondents cannot operate as res judicata between the parties. In support of his contention he places reliance on M/s. N. Ecko Dry Cleaners v. Ram Kishan Ahuja, (1984) 1 Rent LR 601 (Delhi). He further argues that even if the finding regarding tenancy had been in favour of the appellant, the relief that could be granted to him would have been the same. In view of the aforesaid circumstances the adverse finding could not operate as res judicata between the parties. To fortify his argument he made reference to Arjun Singh v. Tara Das Ghosh, Air 1974 Pat 1(FB) and Smt. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126.
7. I have duly considered the argument but regret my inability to accept it. I have carefully gone through the judgment, Exhibit A. 4, wherein the Court held that the plaintiff (now defendant) was not the tenant in the shop but he was sitting in it for the last several years with the leave of the defendants (now plaintiffs). After recording that finding, the relief of injunction was granted. From the finding, it is clear that the Court came to the conclusion that the appellant was a licensee under the respondents in the shop and his plea that he was a tenant was rejected. Section 11 of the Civil P. C. (hereinafter referred to as the Code) provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in a former suit between the same parties has been heard and final decided by a Court. Explanation V provides that any relief claimed in the plaint which is not expressly granted by the decree, shall, for the purposes of the section, be deemed to have been refused. In the earlier case the relief was claimed by the appellant on the ground of tenancy but the Court came to the conclusion that he was not proved to be a tenant and thus the relief on that ground was denied to him. Therefore, the decision is covered by Explanation V. It is well settled that where final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point, each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operates as res judicata between the parties (see Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai, AIR 1963 SC 385).
8. Vithal Yeshwant Jathar's case (supra) was followed in Gangappa Gurupadappa Gugwad v. Rachawwa, Air 1971 SC 442. In that case in an earlier suit based on the will the Court decided after elaborately going into the question that the defendant acquired absolute right in the property left under the will and also that the suit was prematurely filed. It was observed by their Lordships that the decision on becoming final operates as regards both issues as res judicata between the parties in any subsequent suit filed on the basis of the will and the finding that the suit was prematurely filed did not make a decision on a preliminary issue so as to render the finding on the other issues mere obiter or surplusage. It was also observed that it was open to the Court not to decide all the issues which arose on the pleadings before it if it found that the plaint on the basis of it was barred by any law. If, however, final decision in any matter at issue between the parties was based by the Court on its decisions on more than one point--each of which by itself would be sufficient for the ultimate decision--the decision on each of those points operated as res judicata between the parties.
9. A similar matter came up before the Delhi High Court in Indraj v. Collector, Delhi, (1981) 83 Pun LR (D) 32: (AIR 1981 NOC 150). In that case the facts were that the appellants had been in possession of some land. An attempt was made by the Government to dispossess them from it. They instituted a civil suit against the officials and the Union of India for permanent injunction on the ground that they were tenants on the land and could not be dispossessed except in due course of law. The Court found that they were not tenants on the land but they could not be dispossessed by force but only in due course of law. Thereafter proceedings against them were taken under the Public Premises (Eviction of Unauthorised Occupants) Act on the ground that they were in unauthorised occupation of the land. They again took up the plea that they were tenants on the land but that plea was not accepted on the ground that it was barred by the finding in the previous civil suit between the parties. They were held to be in unauthorised occupation by the Estate Officer. An appeal by them was dismissed. They filed a writ petition which was also dismissed. They preferred a Letters Patent Appeal against the judgment of the learned single Judge wherein the question arose whether the decision of the civil Court operated res judicata between the parties or not. Following Gangappa Gurupadappa Gugwad's case (AIR 1971 SC 442) (supra) the learned Bench held that the decision of the Civil Court operated as res judicata between the parties. I am in respectful agreement with the above observations.
10. Now, it is to be seen whether the appellant could file an appeal against the earlier judgment or not. It is well settled that a party against whom a finding is recorded has got a right of appeal even though the ultimate decision may be in his favour if the finding can operate as res judicata in a subsequent suit or proceeding. There is a catena of precedents to support the above observations. I shall, however, make reference to only two decisions, namely, Krishan Chandra Goldar v. Mohesh Chandra Saha (1905) 9 Cal WN 584, and United Provinces v. Mst. Atiqa Begum, 1940 FCR Woodroffe, J., while dealing with the matter observed as follows:
'It is for this reason that, apart from cases, of estoppel, only a party to the suit at the time the decree is made or his representatives or assigns when brought on record, or an auction-purchaser in appeal from an order passed in execution, may appeal as they alone can be affected by the decree or order. Again of such parties only those can appeal who are adversely affected by the decree. Usually, only the party against whom a decree is passed, i.e., the person ordinarily injuriously affected by the decree can appeal. For the same reason, the person against whom a suit has been dismissed, cannot usually appeal against the decree as he is not ordinarily affected, otherwise than beneficially, by it. But in some cases, a suit may be dismissed as against the defendants and yet the latter may have a right of appeal'.
The matter was also examined by the Federal Court in Mst. Atiqa Begum's case (supra), Varadachari, J. speaking for the Court held as follows '
'S. 96, Civil P. C. does not in terms say who is entitled to prefer an appeal. But according to the Code it is the 'decree' that has to be appealed against. The decisions have therefore laid it down as a matter of inference that a party adversely affected by the decree is the only person entitled to appeal. It was, however, realised that a rule so limited might cause hardship in some cases. An extension was therefore made by conceding a right of appeal to a party who might be bound by a finding in the judgment, though there was no decree against him '.
The view also finds support from Arjun Singh's case (AIR 1974 Pat 1) (FB) (supra) referred to by the learned counsel for the appellant. The question whether the appellant was a tenant under the respondents or not was directly and substantially in issue in the earlier suit and the finding recorded therein could operate as res judicata between the parties. It is true that the injunction was issued on the ground that he was in possession of the shop with the consent of the respondents but the relief on the basis of his claim had been declined. Therefore, in my view, he could file an appeal against that judgment and decree.
11. The cases referred to by Mr. Sharma are distinguishable. Ganga Bai's case (AIR 1974 SC 1126) (supra) has been noticed in Indraj's case (Air 1981 NOC 150) (Delhi) (supra) and distinguished. In Arjun Singh's case (AIR 1974 Pat 1) (FB) (supra), the Court gave finding against the plaintiff on the preliminary issues and simultaneously gave adverse findings on other issues against the defendants. In second appeal by the defendants it was held that as the findings did not operate as res judicata in a subsequent suit, therefore, the appeal was not maintainable. From the facts it is clear that the case is distinguishable. In M./s. N. Ecko Dry Cleaner's Case (1984) 1 Rent LR 601 (Delhi) (supra) the successful party had filed an appeal against an adverse finding on an issue. The other party raised an objection that the appeal was not maintainable for the reason that the claim of the appellant had been decreed by the trial Court. In a later litigation the defendants raised an objection that the adverse finding would operate as res judicata between the parties. In those circumstances it was held that the finding would not operate as res judicata. This case is also distinguishable. After taking into consideration all the aforesaid circumstances, I hold that the decision in the earlier suit between the parties that the appellant was not a tenant in the shop but a licensee under the respondents operates as res judicata between the parties.
12. Faced with that situation Mr. Sharma sought to argue that no issue was framed in the earlier case as to whether the plaintiff (now appellant) was a tenant in the shop and, therefore, the finding recorded by the Court did not operate as res judicata. I am not impressed with this submission as well. There was specific plea by the plaintiff (now appellant) in that case that he was a tenant of the shop under Sushil Chand and that he had no connection with the defendants. Both the parties led evidence on the point and the Court recorded its finding. It has been held in Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884, that where the parties went to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation of those of the other side, it could not be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiated the proceedings. Similar view was taken by a Division Bench of this Court to which I was a party in Ram Niwas v. Rakesh Kumar (1982) 84 Pun LR 9: (Air 1981 Punj & Har 397). Even if no specific issue was framed in that case, the finding on a matter which was directly and substantially in issue would, in my view, operate as res judicata between the parties. Consequently, I repel the contention of Mr. Sharma.
13. Mr. Sharma has next argued that the licence in favour of the appellant had not been revoked by the respondents and, therefore, they could not institute the suit. The argument relates to a question of fact but no such objection was taken by the defendant in the suit and no such point was raised before the Appellate Court. In this situation he cannot be allowed to raise the point in second appeal.
14. Lastly, Mr. Sharma has argued that the plaintiff respondents could file a suit for possession and the suit for injunction was not maintainable. He submits that the suit was liable to be dismissed on this ground. Even this objection was not taken by the defendant in the first appeal. He cannot be allow to raise this point in second appeal. However, the matter has been decided by this Court in Delhi Gate Service Private Ltd. v. M/s. Caltex (India) Ltd. New Delhi, AIR 1962 Punj 370. In that case also the suit for injunction was filed against the defendant stating that the defendant was a licensee. It was observed that in view of the terms in the agreement between the parties, there was no legal bar to the suit brought under S. 55 of the Specific Relief Act. Consequently I reject this submission of Mr. Sharma as well.
15. For the aforesaid reasons I do not find any merit in the appeal and dismiss the same with costs.
16. Appeal dismissed.