1. This Civil Revision has been filed by Bhoop Singh, defendant in Suit No. 1123 of 1967, on the file of Shri Jagdish Chandra, Judge, Small Cause Court, Delhi against the judgment and decree of the learned judge dated 1st May, 1968, decreeing the said suit for Rs.200/- against him.
2. The respondent herein, Bhori Lalm filed the aforesaid suit against the petitioner herein for recovery of Rs.200/- made up of Rs.80/- on account of arrears of rent for 8 months @ Rs.10/- per month for the period 1st March, 1967, to 31st October, 1967, and Rs.120/- on account of damages at the rate of Rs.15/- per month for 8 months, viz., form 10th, March, 1967, to 10th November, 1967. The respondent alleged in his plaint that the petitioner herein was his tenant in respect of one room on the first floor of his house at a monthly rent of Rs.10/-, and that the petitioner had also been using illegally the roof on the first floor which was not in his tenancy for which the aforesaid damages had been claimed.
3. The petitioner (defendant) resisted the suit, and pleaded in his written statement that the Court had no jurisdiction to try this suit on the ground that the claim in the plaint regarding damages or compensation for the alleged wrongful use and occupation of the roof was barred by the provision of the Small Cause Courts Act. He also pleaded that the suit was bad for mis-joinder of causes of action for the reason that the causes of action, namely, arrears of rent and compensation, were included in the suit. He further pleader that the claim for recovery of damages on account of the alleged wrongful use and occupation of the roof was barred by the principle of rest judicata in as much as Bhori Lal had previously instituted a Suit No. 716 of 1967, against him for damages for alleged illegal use and occupation of the roof for the period 1st September, 1966 to 28th February, 1967, and the said suit was dismissed by Shri H.M. Malik, Additional Judge, small Cause Court, Delhi on 21st April, 1967. On the merits, the petitioner (defendant) pleaded that he was in occupation of the whole of the first floor which was comprised of a room, a tin shed in front of the room, and a small terrace in front of the room, as a tenant for the last 30 years, and the rent for the whole of the said accommodation was Rs. 10/- per month. He denied that he was in illegal and unauthorised occupation of the roof in question, and pleaded that he was not liable for any damages. As regards the arrears of rent, he pleaded that he sent a money order for Rs.70/- to the respondent (plaintiff) on account of the arrears of rent for the period from 10th March, 1967, to 10th October, 1967, which was then due, but the respondent (plaintiff) refused to accept the same. He prayed that the suit may be dismissed with costs.
4. On the aforesaid pleadings of the parties, the learned judge of the Small Cause Court framed the following points for determination :-
1. Whether this Courts has no jurisdiction to try the claim in respect of compensation for wrongful use and occupation of the roof in question ?
2. Whether the suit is bad for misguide of causes of action ?
3. Whether the claim for compensation is barred by rest judicata ?
4. Whether the roof in question is an intergral part of the demised premises of the defendant ?
5. To what amount of compensation if any, is the plaintiff entitled ?
5. By his judgment dated 1st May, 1968, the learned Trial Judge held on point No.1 that the Court had jurisdiction to try the claim in respect of compensation for wrongful use and occupation of the roof. As regards point No.2, he stated in his judgment that no arguments were addressed on that point by the learned counsel for the petitioner (defendant), and that he, thereforee, decided the point against the petitioner (defendant). On point No.3, he held that the previous suit being for a different period, there was no question of the present suit being barred by rest judicata. On point No.4, he held that the version of the respondent (plaintiff) was correct, and that the roof of the first floor excepting the portion in front of the room let out to the petitioner (defendant) was not included in the tenancy premises of the petitioner (defendant). In view of his finding on point No.4, he held on point No.5 that the petitioner (defendant) had been proved to be in wrongful possession of the roof in question, and that he was bound to pay compensation for the same to the respondent (plaintiff) in the sum of Rs.120/- for 8 months at the rate of Rs.15/- per month for the period from 10th March, 1967, to 10th November, 1967. In the result, the learned trial Judge passed a decree for Rs.200/- in favor of respondent (plaintiff) and against the petitioner (defendant). It is against the said judgment and decree that the present Civil Revision has been filed under Section 25 of the Provincial Small Cause Courts Act, and also under Section 115 of the Code of Civil Procedure.
6. Shri M.L. Sharam, learned Counsel for the petitioner, contended that the learned Additional Judge, Small Cause Court, ought to have held that the judgment in Suit No. 716 of 1967 operates as rest judicata as regards points Nos. 3 to 5 in the present suit. The said contention was based upon the following facts. The landlord, Bhori Lal, had filed a suit against the tenant Bhoop Singh for arrears of rent at Rs.10/- per month and for compensation of the terrace at Rs.15/- per month. The said suit was decreed ex parte on 3rd January, 1967. Bhoop Singh applied for setting aside the ex parte decree. While the application was pending Bhori Lal filed another suit No.716 of 1967, for arrears of rent and compensation (damages) at Rs.10/- and Rs.15/- per month respectively, for the subsequent period from 10th November, 1966, to 9th March, 1967. By a judgment (Exhibit D.1), dated 21st April, 1967, Shri H.K. Malik, Additional Judge, Small Cause Court, Delhi, held, inter alia, (1) that the judgment in the earlier suit did not operate as rest judicata as the application for setting aside the ex parte decree was pending, and the claim for damages in Suit No. 716 of 1967 was for a subsequent period, and (2) that the portion of the terrace in respect of which damages were claimed wad included in the tenancy, and Bhoop Singh was not, thereforee, a trespasser thereof. In the result, the learned Additional Judge, Small Cause Court, decreed the suit as regards arrears of rent and dismissed the suit as regards the claim for damages.
7. Thereafter, the Suit No. 1123 of 1967, out of which this Civil Revision has arisen, was filed by Bhori Lal against Bhoop Singh for arrears of rent at Rs. 10/- per month for the subsequent period 1st March, 1967, to 31st October, 1967, and for damages at the rate of Rs.15/- per month for the subsequent period from 10th March, 1967, to 10th November, 1967.
8. As stated earlier, the learned Additional Judge, Small Cause Court, held on point No.3 that the judgment (Ex. D.1) in the earlier Suit No.716 of 1967, was between the same parties and in respect of the same property, but it was for a different period and, thereforee, the judgment in the earlier suit could not be said to operate as rest judicata. As regards Point No. 4, he held that the version of the landlord Bhori Lal, was correct and the roof or terrace on the first floor, excepting the portion in front of the room let out to the tenant, Bhoop Singh, was not included in the tenancy premises of Bhoop Singh.
9. The point for determination is whether the judgment (Exhibit D.1) operates as rest judicata. In Govardhanam Appalacharyulu v. Govardhanam Rangacharyulu, Air 1957 Andh Pra 1002, the parities were hereditary archakes of a temple. They had to perform service in the temple in alternative months. One of them, namely, R, after performing service in a certain month, called upon the other archaka, A, to do the service during the succeeding month. A, however, refused to perform the service, and R, thereforee, continued to perform the service for about 91/2 months and claimed compensation from A. On a refusal by A to compensate him, R filed a suit for recovery of Rs. 475/- at the rate of Rs.50/- per month. The defense of A was negative and the suit was decreed at the rate of Rs.35/- a month. Even subsequently to that suit, A did not comply with the demand of R to render the service in the temple, with the result that R had to continue to do the service. After doing the service for a certain length of time, R filed a suit for recovering Rs.825/- as remuneration or compensation for that subsequent period on the same allegations as in the previous suit. The defense of A was the same as in the prior litigation. The courts below over-ruled the defense and decreed the suit at the rate of Rs.35/- per month on the ground that the judgment in the earlier suit constituted rest judicata. On second appeal, it was contended before the High Court that the judgment in the earlier suit could not operate as rest judicate as the two suits related to different periods. After a review of the case law, Chandra Reddy, J., observed in paragraph 15 as follows :-
'Thus, it is clear that, in judging whether the decision in a previous litigation operates as rest judicata or not, the test is whether it decided a general principle that is applicable to the later years also or whether it was peculiar or special to that particular year ; in other words, whether the considerations vary from year to year or such as would govern the subsequent years also. In the decision of that question, it is also irrelevant whether the previous judgment was erroneous either in law or on fact.'
In that view, the learned Judge held that in the instant case before him the rule as to the liability of A to compensation R for the services rendered by the latter was the same in both the suits and, thereforee, the judgment in the earlier suit was rest judicata in the later suit between the parties.
10. Shri Balmukand Gupta, learned Counsel for the respondent Bhori Lal, draw my attention to the decision in Bishambher Das v. Habibur Rahman, 1966 All Lj 748. In that case Bishambhar Dayal and Durgeswar Dayal Seth, JJ., held that 'a decree in a suit awarding mesne profits up to the date of the suit cannot be rest judicata upon the question of mesne profits for another period in a subsequent suit between the same parties.' In that case. B filed a suit fore recovery of mesne profits for a certain period at Rs.40/- per month. The suit was contested by the defendant, H, inter alia, upon the ground that B was not the owner of the property and in any case the mesne profits claimed were excessive. Subsequently, B filed another suit for mesne profits of a subsequent period again claiming mesne profits at the rate of Rs.40/- per month. The second suit happened to be decided earlier, and mesne profits were decreed in that suit at Rs.40/- per month. The said decision was not appealed against and became final. Subsequently the first suit was decreed at a rate lesser than Rs.40/- per month. In appeal by B to the Court of the district Judge, it was contended that the second suit having been decided for mesne profits at the rate of Rs.40/- per month, the decision had become rest judicata and the first suit also should have been decreed at the same rate. The learned District Judge held that the suit related to a period subsequent to the period involved in the appeal before him and, thereforee the decision in the second suit could not operate as rest judicata. On second appeal, the learned Judges held as already stated above. The learned Judges explained the legal position as follows :-
'Mesne profits of any particular property do not depend either on contract or upon any one particular factor. They depend upon varied circumstances, the condition of the property at a particular time, the surrounding circumstances during the period for which mesne profits are assessed and the market conditions during that period and other circumstances which are not within the control of any of the parties. Thus, the amount of mesne profits which can be decreed for a particular period entirely depend upon proof of circumstances prevailing over that period and, thereforee, the decisions in one suit relating to the amount of mesne profit payable for a particular period can never operate as rest judicata for the rate of mesne profits payable during another period which was not in question in that suit.' The said decision thus deals with a case of mesne profits which depend upon circumstances which might not be the same in the two periods in the two suits. The said decision does not lay down any principles inconsistent with the principle mentioned in the case of Govardhanam Appalacharyulu, Air 1957 And 1002
11. In the present case, admittedly the earlier Suit No.716 of 1967, was between the same parties and in respect of the same property. The main question in the Suit, No. 716, as well as in the present suit, was and is whether the portion of the terrace (roof) on the first floor was included within the tenancy premises of Bhoop Singh, and Bhoop Singh was in wrongful possession of the same. As already stated, Shri H.K. Malik held in the earlier suit that it was included in the tenancy premises. That finding or decision clearly operates as rest judicata on the principle mentioned in the case of Govardhanam Appalacharyulu Air 1957 And 1002. Also, the question whether the portion of the terrace (roof in dispute). Was included in the tenancy premises of Bhoop Singh depends upon the contract between the parties and for any two periods for which two suits may be filed, the question would be the same dependent upon the same contract between the parties. thereforee, the decision in one suit on the said question would be rest judicata if the same question is raised in the second suit. It follows that the view taken by the learned Additional Judge, Small Cause Court, that the judgment in the similar Suit No. 716 of 1967, does not operate as rest judicata as it related to a different period was not correct, and it was to be held that the said judgment operates as rest judicata so far as points Nos. 3 and 4 are concerned. In other words, it has to be held that the portion of the roof or terrace in question was included in the tenancy premises of Bhoop Singh. In that view, point No.5 does not arise for consideration. It follows that the landlord Bhori Lal was entitled only to the sum of Rs. 120/- as damages or compensation.
12. For the above reasons, the Civil Revision is allowed, and the decree of the learned Additional Judge. Small Cause Court, is modified by substituting the sum of Rs. 80/- for the sum of Rs.200/-. In the circumstances, the parties are directed to bear their own costs throughout.
13. Revision allowed