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Kanta Devi and ors. Vs. Surinder Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 615 of 1977
Judge
Reported inAIR1978Delhi318
ActsCode of Civil Procedure (CPC), 1908 - Sections 11
AppellantKanta Devi and ors.
RespondentSurinder Kumar and anr.
Appellant Advocate M.R. Jain, Adv
Respondent Advocate Suraj Prakash Mahajan, Adv.
Cases ReferredSmt. Raj Lakshmi Dasi v. Banamali Sen
Excerpt:
.....to that decision - further, if first decision does not become final, then general principles of rest judicata could be applied - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon..........resisted the suit. one of the objections raised was that the suit was barred by principle of rest judicata. the trial court framed an issue and tried it as a preliminary issue. it was decided against the defendants. this revision is directed against this decision. 3. mr. m. r. jain, learned counsel for the petitioners, contends that explanationn viii of s. 11 of the civil p. c. bars the suit on principle of rest judicata. he also, in the alternative, contends that the suit is barred on analogous principles of rest judicata. 4. the delhi rent control act , 1958 was enacted to provide for the control of rents and evictions. the powers are to be exercised by the controller appointed under the act. chapter iii of the act controls the eviction of tenants. section 14 falls under this.....
Judgment:
ORDER

1. Surinder Kumar brought a suit for permanent injunction for restraining Kanta Devi and Bhoop Kaur, defendants Nos. 1 and 2 (hereinafter referred to as the 'landladies'), from dispossessing him from shop No. 3103-04, Bahadurgarh Road, Delhi. He claimed to be a tenant of the shop. He averred that the landladies in conspiracy with M/s. Dwarka Dass Somat Prashad (defendant No. 3) filed a petition for the plaintiff's eviction on the ground that defendant No. 3 was the tenant who had sublet, assigned or otherwise parted with the possession of the shop to the plaintiff without the consent in writing of the landladies. This petition was filed under cls. (a) and (b) of the proviso to sub-section (1) of S. 14 of the Delhi Rent Control Act. The Controller allowed this petition holding that the plaintiff was not a tenant of the landladies and ordered his eviction. The plaintiff unsuccessfully challenged this order before the Rent Control Tribunal and the High Court.

2. The defendants resisted the suit. One of the objections raised was that the suit was barred by principle of rest judicata. The trial court framed an issue and tried it as a preliminary issue. It was decided against the defendants. This revision is directed against this decision.

3. Mr. M. R. Jain, learned counsel for the petitioners, contends that Explanationn Viii of S. 11 of the Civil P. C. bars the suit on principle of rest judicata. He also, in the alternative, contends that the suit is barred on analogous principles of rest judicata.

4. The Delhi Rent Control Act , 1958 was enacted to provide for the control of rents and evictions. The powers are to be exercised by the Controller appointed under the Act. Chapter Iii of the Act controls the eviction of tenants. Section 14 falls under this Chapter. This section pre-supposes the relationship of landlord and tenant between the parties before any order of eviction can be passed. Where this relationship is in dispute the Controller has to incidentally decide it in order to decide the question of eviction, Sub-section (1) of S. 50 of the Act takes away the jurisdiction of the Civil Courts to decide questions which the Controller is empowered to decide under the Act. It is in these words:

'Save as otherwise expressly provided in this Act, no Civil Court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court or other authority.'

However, sub-s. (4) saves the jurisdiction of Civil Court to decide certain questions: It is in the following terms :

'Nothing in sub-s. (1) shall be construed as preventing a Civil Court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to person or persons who ore entitled to receive the rent of such premises.'

5. It is thus plain that subject to the provisions of sub-s. (4) of S. 50 the decision of the Controller on the question of eviction of a tenant, or on a matter which the Controller is empowered by or under the Act to decide, is final. Though the Controller has not been empowered to decide a question of title to property or any question as to the persons entitled to receive the rent, he can decide these questions incidentally. This, in fact, is necessary in order to determine questions of rents and evictions of tenants for which the Controller was empowered by the Act. The exclusive jurisdiction of the Controller, as is apparent from the scheme of the Act, is only to decide questions relating to rents, eviction of tenants and grant of possession to landlords.

6. Chapter Iiia of the Act provides for summary trial of applications by landlords for the recovery of possession of premises on the ground mentioned in clause (e) of the proviso to sub-s. (1) of S. 14, or under S. 14A. In respect of other cases the Controller is required to follow as far as may be the practice and procedure of a Court of Small Causes (Section 37(2)). Section 43 gives finality to orders of the Controller. But, as S. 50 shows, this finality attaches only to decision on the matters for which he has the exclusive jurisdiction. The Act does not give exclusive jurisdiction to the Controller to decide finally the relationship of landlord and tenant. Indeed it is not the case of Mr. Jain that the Controller has been given the exclusive jurisdiction to determine this question.

7. Section 11 of the Civil P. C. does not apply to the present proceedings. One of the ingredients of this section is that the decision, which can operate as a bar, should have been given in a former 'suit'. The decision of the Controller admittedly was not given in a 'suit'. This is not disputed before me. thereforee, Mr. Jain is not correct in contending that Explanationn Viii of S. 11 applies. Mr. Jain's contention that the Controller is a 'Court of Limited Jurisdiction' has no relevance. It is true that Explanationn Viii, which has been inserted by Act 104 of 1976, amends S. 11 by making the decisions of a 'Court of Limited jurisdiction competent to decide such issue' operate as rest judicata in a subsequent suit though the former Court had no jurisdiction to try the subsequent suit. But then, as already discussed, the section does not apply. It is no doubt true that where S. 11 of the Civil P. C. does not in terms apply, general principles of rest judicata can be applied. The general principles presuppose that the decision was given by a Court competent to decide it and finality attaches to that decision. If the first decision does not become final, the general principles of rest judicata cannot be applied.

8. When a Tribunal has exclusive jurisdiction to try a matter and its decision becomes final, the decision will be a bar to subsequent trial on the principle of rest judicata. But it would not be so if the Tribunal does not have the exclusive jurisdiction and its decision does not become final. The Supreme Court in Smt. Raj Lakshmi Dasi v. Banamali Sen, : [1953]4SCR154 , observed that when a plea of rest judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction though it might not have jurisdiction to hear the later suit. It was also held that a plea of rest judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction, like Revenue Courts, Land Acquisition Courts, Administration Courts, etc. But, as already stated, the Controller did not have the exclusive jurisdiction to decide the question of relationship of landlord and tenant between the parties.

9. The revision is, thereforee, dismissed. No order as to costs.

10. Revision dismissed.


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