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Prem Das Chela Bhola Dass Vs. Joti Pershad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 290-D of 1962
Judge
Reported inAIR1971Delhi282
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 - Order 6, Rule 17
AppellantPrem Das Chela Bhola Dass
RespondentJoti Pershad
Appellant Advocate S.N. Chopra and; Madan Bhatia, Advs
Respondent Advocate R.M. Lal, Adv.
Cases ReferredPirgonda Hongonda Patil v. Kalgonda Shidgonda Patil
Excerpt:
.....in matters relating to custody of a minor child. - relying upon the judgment of the civil judge, meerut, that uma shankar shastri was the chela of mahant bhola das, the subordinate judge held that the appellant had failed to prove the issue. the subordinate judge in this case was concerned only with the question whether the respondent was a tenant under the appellant and that question was decided against the appellant for the reasons that the appellant had failed to prove the will of mahant bhola das and that it had been held by the civil judge, meerut, that uma shankar shastri and not the appellant was the chela and successor of mahant bhola das. to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good..........on november 11, 1939 and upon his death one uma shankar shastri filed a suit in the court of the civil judge meerut claiming succession to mahant bhola das. the appellant was on of the defendants in the said suit. the civil judge, meerut, gave a judgment on october 11, 1944 decreeing the suit and holding that uma shankar shastri was the gaddi nashin of mahant bhola das and repelling the appellant's claim to be such gaddi nashin. the appellant filed an appeal from the said judgment in the high court of allahabad. 3. without waiting for the result of the appeal, the appellant filed on suit on january 7,1947 against the respondent claiming the latter's ejectment. the two material issues in this suit were issues nos. 1 and 5. issue no. 1 was whether the respondent herein was a tenant of.....
Judgment:

1. The appellant has filed this appeal against the judgment dated June 6, 1962 of the Additional District Judge. Delhi, whereby the finding of the trial Court that the present suit filed by the appellant was barred under Section 11 of the Code of Civil Procedure by reason of the judment dated July 12, 1947, in Suit No. 17 of 1947, of the Subordinate Judge 1st Class, Delhi has been affirmed.

2. The house in dispute which is situate in Mohalla Dassan, Delhi, was leased out to the respondent with effect from December 18, 1935 by a registered deed of lease by Mahant Bhola Das who was the last Mahant in respect of the temple and Thakurdwara of Charan Dassi which had been founded by one Swami Rup Ram. The lease was for a period of 10 years with effect from December 19, 1935 and expiring on December 18, 1945. Mahant Bhola Das died on November 11, 1939 and upon his death one Uma Shankar Shastri filed a suit in the court of the Civil Judge Meerut claiming succession to Mahant Bhola Das. The appellant was on of the defendants in the said suit. the Civil Judge, Meerut, gave a judgment on October 11, 1944 decreeing the suit and holding that Uma Shankar Shastri was the Gaddi Nashin of Mahant Bhola Das and repelling the appellant's claim to be such Gaddi Nashin. The appellant filed an appeal from the said judgment in the High Court of Allahabad.

3. Without waiting for the result of the appeal, the appellant filed on suit on January 7,1947 against the respondent claiming the latter's ejectment. The two material Issues in this suit were Issues nos. 1 and 5. Issue No. 1 was whether the respondent herein was a tenant of the appellant herein and Issue No. 5 was as to the effect of the decision of Civil Judge Meerut in the aforesaid suit which had been filed by Uma Shankar Shastri against the present appellant. On the first Issue, the Subordinate Judge held that the appellant had not produced the alleged will of Mahant Bhola Das which had been alleged to have been filed in Allahabad High Court nor had be realised any rent from the respondent. Relying upon the judgment of the Civil Judge, Meerut, that Uma Shankar Shastri was the Chela of Mahant Bhola Das, the subordinate Judge held that the appellant had failed to prove the Issue. On Issue No. 5 the Subordinate Judge held that the said Uma Shankar Shastri had been declared as the Chela and Successor of Mahant Bhola Das and, and thereforee, the appellant could not be the landlord of the respondent and the appellant had, thereforee no locus standi to file the suit. The Subordinate Judge in this case was concerned only with the question whether the respondent was a tenant under the appellant and that question was decided against the appellant for the reasons that the appellant had failed to prove the will of Mahant Bhola Das and that it had been held by the Civil Judge, Meerut, that Uma Shankar Shastri and not the appellant was the Chela and successor of Mahant Bhola Das.

4. In so far as the suit out which the present appeal arises is concerned, the trial Court and the first Appellate Court have not gone into the question as to whether the appellant i the successor of Mahant Bhola Das or not because the suit has been disposed of merely on the preliminary issue as to whether it was barred by rest judicate. In the present suit which was also a suit for ejectment and damages for use and occupation, the appellant had stated, inter alia, that the appellant being the successor of Mahant Bhola Das was by operation of law entitled to eject the respondent. The claim in the suit is for Rs. 600/- for use and occupation and for ejectment of the respondent. The value of the suit for purposed of ejectment has been fixed at Rs. 100/- being one year's rental value. It is stated in the plaint that the cause of action for the present suit arose on August 2, 1954, which was the date when the High court of Allahabad allowed the appeal which had been filed by the appellant against the order of the Civil Judge, Meerut.

5. It cannot be disputed that the pleas which were raised by the appellant in the present suit are the same as were raised by him in the earlier suit because in this suit also he is claiming to be the landlord of the respondent on the ground that he is the successor of Mahant Bhola Das and was in possession of his Gaddi. Directly and substantially, thereforee, the issue in the present case would be whether there is any relationship of landlord and tenant between the appellant and the respondent or, in other words, whether the respondent is a tenant under the appellant. This identical issue was decided in the earlier suit filed by the appellant in Delhi and this suit or the trial of the aforesaid issue as to the relationship between the parties being that of landlord and tenant would be barred under Section 11 of the Code of Civil Procedure.

6. The only argument urged on behalf of the appellant is that the earlier suit had been decided more on issue No. 5 where the Subordinate Judge had held that the appellant had no locus standi to file that suit then on the ground that there was no relationship o landlord and tenant between the parties. In other words, the contention is that the decision of the earlier suit could have rested on the decision of Issue No, 5 and, thereforee, the decision of Issue No. 1 would not be rest judicata, reliance has been placed on the decision in : AIR1959Bom125 in re: Laxman Shivshankar v. Saraswati daughter of Chanbasappa, where a learned Single Judge of that Court had treated the earlier suit to have been decided more on the ground of being premature than on the ground of status. The learned Single Judge has observed :-

'Thought the issue whether C was joint with D as the time of his death in regard to suit property was directly and substantially in issue in the previous suit it could not be said that the decision thereon was a final decision so as to operate as rest judicata in the 1952 suit. It would not be proper to infer, merely from the fact that an issue has been numbered as issue number one and tried first from out of the several issues raised in the trial Court that it was necessarily the principal issue and that the decision on it was a final decision, nor could it be said from the position occupied by an issue that the party had invited the court to give its decision on that issue first. Having regard to the practice prevailing in this State, namely, that the trial courts in this State give their decision on all points in spite of the fact that the suit can be decided on a preliminary point, each case has got to be answered with reference to its own facts, and on of the tests which is to be applied for determining this question is to find out whether the Court, which adjudged the issue, considered the issue to be material and essential. Having regard to the facts of the present case, and having regard to the observations made by the Court in 1950 suit, the issue regarding heirship was one which was regarded by the determining Court as essential and which went to the root of the plaintiff's case, and the moment an adverse finding was reached on that issue, the suit became premature. Under the aforesaid circumstances, the previous litigation must be taken to have been decided more on the ground that the suit of S was premature, and, consequently, the issue regarding the status of C vis a vis the suit property was not finally decided and the same can be re-agitated by the plaintiff S over against'.

With respect to the leaned Judge, I find it difficult to accept the broad proposition laid down by him. Section 11 of the Code contains a prohibition not only against the trial of a suit subsequently filed but also of an issue which had been directly and substantially in issue between the same parties in an earlier suit. There are no degrees of importance of any issue. The principle of rest judicata is that if an issue has been tried in a suit it shall not be retried in a subsequently instituted suit. Another case on which reliance has been placed by the appellant is reported in in re : Jaljodhan Singh v. Kirpa Singh, which does not appear to me to have any bearing on the matter.

In that case there was no plea or issue and the Court remarked that 'the cryptic words of the executing Court, that this cannot be done in law, cannot be raised to the status of an adjudication on merits or one which was directly and substantially in issue within the contemplation of Section 11 ................................'. In the present case it cannot be doubted that the question as to the relationship of landlord and tenant which is raised in this suit was directly and substantially in issue in the earlier suit filed by the appellant in Delhi. It is needless to multiply authorities and it will be quite enough to refer to the decision reported in : [1963]2SCR285 in re : Vithal Yeshwant v. Shikandarkhan Makhtumkhan, where it has been observed that where the 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 resjudicata between the parties.

7. It is then argued that the Subordinate Judge in the earlier suit had merely decided the effect of the judment of the Civil Judge, Meerut. This judment to my mind was a piece of evidence in the case on the basis of which the Subordinate Judge in the earlier Delhi Suit had come to the conclusion that there was no relationship of landlord and tenant between the parties. It is as if the parties in the earlier Delhi suit had led evidence on the question whether the appellant was a Chela of Mahant Bhola Das and as such was entitled to sue for ejectment. In considering the applicability of Section 11 of the Code of Civil Procedure, the Court in the subsequent suit has to see the matter which was directly and substantially in issue between the parties and the earlier decision on that issue. From this point of view there cannot be any doubt that the matter directly and substantially in issue in the present suit is the same as was the matter directly and substantially in issue in the earlier Delhi suit, namely, whether the respondent was a tenant under the appellant. I have, thereforee, no hesitation in coming to the conclusion that the present suit is barred under Section 11 of the Code of Civil Procedure.

8. After filing the present appeal, the appellant filed an application, C.M. 2986 -D of 1964 for amendment of the plaint and by this application the appellant wants an opportunity to urge that Mahant Bhola Das had executed a will in his favor; that he is the legal representative of Mahant Bhola Das and was, thereforee, entitled to the possession of the property in question. The attempt, thereforee, is to convert the suit for eviction into a suit for possession. This application is strongly opposed. If this application is allowed, a valuable right to the respondent to plead limitation would be lost. In : [1957]1SCR438 in re: L.J. Leach and Co. has been observed that 'Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice'. To the same effect are the observations in the case reported in : [1957]1SCR595 in re: Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, where the observations of Batchelor, J. in (1909) 2nd 33 Bom 644 have been accepted, the observations being :-

'That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defense to the claim. The ultimate test thereforee still remains the same: can the amendment be allowed without injustice to the other side, or can it not?'

Applying these principles, I have no hesitation in dismissing the civil Miscellaneous petition.

9. In the result, the appeal is dismissed with costs.

10. Appeal dismissed.


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