V.V. Bedarkar, J.
1. The appellant is the landlord, or to put it in correct term, 'the owner', of the premises of one room given to the respondent. The case of the appellant-plaintiff is that the respondent-defendant is a licensee and the case of the respondent-defendant is that he is a tenant of the said premises at a monthly rent of Rs. 65/-. The appellant's case was that the respondent happened to be an uncle of his son's wife. He was residing in a Boarding House and, therefore, at the instance of his brother, who happened to be the father-in-law of the son of the appellant, the respondent was permitted to reside in the disputed premises as a licensee without recovering any rent from him.
2. Before me the following facts are not disputed-(1) that the respondent was staying in a Boarding House; (2) that just at the time of giving the disputed premises for his residence the respondent had recently married; (3) that prior to that the respondent was residing in a Boarding House and was also taking his meals there; (4) that the respondent happens to be the uncle of the son's wife of the appellant; and (5) that the brother of the respondent was also staying in Ahmedabad and the said brother was the father of the son's wife of the appellant.
3. It should be noted that prior to filing of the suit, being Civil Suit No. 1457 of 1973, in the City Civil Court at Ahmedabad, the appellant had filed Application No. 20 of 1971 in the Court of Small Causes at Ahmedabad under the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as 'the Act') for recovery of possession of the disputed premises on the basis of termination of the licence. As that application was dismissed, the aforesaid suit was filed.
4. The learned trial Judge dismissed the suit of the appellant-plaintiff, holding that the respondent-defendant was not a licence. The issue whether the plaintiff was entitled to mesne profits was answered in the negative as there was no question of any licence. A contention was raised before the learned trial Judge that the City Civil Court had no jurisdiction to try the suit, but that was negatived. However, it was held that the suit was barred under the principles of res judicata.
5. Mr. G. D. Bhatt, learned Advocate for the appellant, has canvassed before me the following two points for my consideration:
(1) The trial Court was in error in holding that the suit is barred by res judicata.
(2) The trial Court has committed an arror in deciding against the appellant in as much as the trial Court considered that the respondent was a tenant in spite of the deposition of the father-in-law of the son of the appellant who happened to be the brother of the respondent in an earlier application, i.e. Application No. 20 of 1971 filed in the Court of Small Causes at Ahmedbad, under the Act, which deposition was brought on record, because brother of the respondent who had filed an affidavit and he was also cross-examined was dead at the time when the proceedings in the City Civil Court started.
In view of these two contentions, it is urged that the judgment and decree of the trial Court be set aside and a decree in favour of the appellant be passed directing eviction of the respondent.
6. Now, so far as the question of res judicata is concerned, I will merely refer to the decision of the Bombay High Court (rendered by Chandrachud, J; as he then was) in Ramchandra Sheshgiri Kamath v. Janardan Vishwanath Hegde 70 Bombay Law Reporter 376. In that case also the plaintiff had filed an ejectment application under Section 41 of the Act for possession of certain premises from the defendant alleging that the defendant was in possession of the premises as a licensee and that the licence was withdrawn. The defendant contended that he Was in possession as the plaintiffs sub-tenant and was, therefore, entitled to the protection of the Rent Act. The Small Cause Court dismissed the application on the ground that the defendant was a sub-tenant of the plaintiff. Therefore, the plaintiff again filed a suit against the defendant in the City Civil Court for possession of the premises alleging that the defendant was his licensee and that the licence was duly determined. The defendant contended that the plaintiffs suit was barred by res judicata or on principles analogous to res Judicata by reason of the decision of the Court of Small Causes in the' ejectment application. Chandrachud, J. (as he then was) held that since the proceeding taken by the plaintiff under Section 41 of the Act was not a suit but was an application, Section II of the Code of Civil Procedure, 1908, did not apply, and therefore, the plaintiffs suit was not barred by res Judicata under that section; and that apart from the fact that the proceedings under Chapter VII of the Act are of a summary nature, the matter directly and substantially in issue in the two proceedings was different inasmuch as in the proceeding under Section 41 of the Act the issue was whether the plaintiff was entitled to possession on the ground that the licence of the defendant was withdrawn whereas in the suit the issue was whether the defendant was the plaintiffs licensee, and that, therefore, the suit was not barred even on principles analogous to res judicata.
7. It was faintly contended by Mr. K.V. Shelat, learned Advocate for the respondent, that in the instant case the Court of Small Causes at Ahmedabad clearly came to the conclusion that the respondent was net a licensee but a tenant and, therefore, that being a decision on an issue which is agitated again in the suit, it would be res judicata. If we refer to the facts of the case before the Bombay High Court, the decision of the Court of Small Causes was to the same effect. Even in spite of that, Chandrachud, J. observed that apart from the fact that the proceedings under Chapter VII of the Act are of a summary nature, the matter directly and substantially in issue in the two proceedings was different inasmuch as in the proceeding under Section 41 of the Act the issue was whether the plaintiff was entitled to possession on the whereas in the suit the issue was whether the defendant was the plaintiffs licensee, and that therefore, he considered the nature to be different.
8. Now, it was very emphatically urged before me by Mr. Shelat that the aforesaid decision of the Bombay High Court is not binding on this Court, and that I should differ from it in view of the decision of the Supreme Court in Gulabchand Chhotalal Parikh v. The State of Gujarat 67 Bombay Law Reporter 673, wherein the Supreme Court has' held that the provisions of Section II of the Code of Civil Procedure are not exhaustive with respect to an earlier decision operating as res judicata between the parties on the same matter in controversy in a subsequent regular suit and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. The Supreme Court specifically observed that it is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the substantial suit have the same subject-matter. The nature of the former proceeding is immaterial. Then it was held that the decisions on matters in controversy in writ proceedings under Articles 226 or 32 of the Constitution of India are not precluded from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties.
9. It was urged that in case of Ramchandra Kamath (Supra) Chandrachud, J. attempted to make a fine distinction between the proceedings of summary nature under the Act and the writ petitions. But it was submitted by Mr. Shelat that in writ-petitions also matters are decided on affidavits. No evidence is recorded and further there is no scope for getting a deponent cross-examined so as to test his veracity. It should not be overlooked that in a writ petition decision is given on the points where no evidence is necessary and where there is no question of disputed facts to be investigated, and if that would be so, the Court would direct the party to file a suit. The very fact that in writ petitions matters are decided on affidavits and documents produced before the Court not requiring investigation into disputed facts would show that the nature of those proceedings is also like the nature of summary proceedings. He, therefore, urged that the observations of Chandrschud, J. should not, therefore, be considered to be proper.
10. Chandrachud, J. in case of Ramchandra Kamath (Supra) has considered the distinction between the writ petitions and the proceedings before the Court of Small Causes and observed:.Noe I am prepared to assume for the purposes of argument that under the judgment of the Supreme Court in case of Gulabchand v. State of Gujarat Supra the fact that the previous proceeding in this case was of a summary nature would not make difference to the question whether the suit filed by the plaintiff would be barred by principles analogous to res judicata. But even if the nature of the prior proceedings be immaterial, it is still necessary that the previous decision should be on a matter which is now in controversy, for it is then alone, and not otherwise, that principles analogous to res judicata would apply.
Observing this, Chandrachud, J. considered that the earlier application was only on the ground that the licence was withdrawn, and the substantive suit was on the ground that there was relationship of a licensor and licensee and not of landlord and tenant. He further considered that the matter which is directly and substantially in issue in the suit is whether the plaintiff is the licensor or the landlord of the defendant, which is a very much different matter from the one which was involved in the earlier proceeding and, therefore, he considered that the suit would not be barred by principles analogous to res judicata. So, he did not consider what would be the effect of the decision of the Supreme Court in case of Gulabchand (Supra) pertaining to writ petitions vis-avis separate suits on the facts before him. But he considered that the nature of the reliefs claimed and the matter directly and substantially in issue in the proceedings under the Act and in a regular suit would be very much different, and on this distinction he held that the earlier decision would not to res judicata. There was one more factor which weighed with Chandrachud, J; and which, to my mind, is quite justified, Chandrachud, J. considered that the Supreme Court was dealing with a matter of an entirely different nature and the provisions of Chapter VII of the Act were not before it. The argument before the Supreme Court was that a decision on a Writ petition under Article 226 of the Constitution of India cannot create the bar of res judicata and that an issue decided in the writ petition can be reagitated in a regular suit. It is while rejecting this argument that the Supreme Court held that the nature of the former proceeding is immaterial, that it is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit, etc. Then considering the provisions of Section 46 and 49 of the Act Chandrachud, J. considered that these provisions in terms contemplated a substantive suit and, therefore, the very statute under which the previous decision was recorded contemplated in a sense the removal of the possible bar of res judicata. This reasoning is quite justified because in order that a decision may be res judicata it must have a finality so far as these proceedings are concerned. A decision under the Act is not final. Right of a party to file a substantive suit is open. Even during the proceeding, if an occupant after issue of summons goes to the Court, gives sureties and makes a request to stay the proceedings to file a substantive suit, that is permitted under the provisions of Section 47 and 49 of the Act.
11. Mr. Shelat again raised one argument, which, apparently looking, is very attractive, and which was also raised before Chandrachud, J. He submitted that Section 49 of the Act is as follows:
49. Recovery of the possession of any immoveable property under this Chapter shall be no bar to the institution of a suit in the Ahmedabad City Civil Court for trying the title thereto.
It is his submission that the words 'Recovery of the possession of any immoveable property' would mean that if there is an order of recovery of possession, then a suit is not barred. If there is no order of recovery of the possession, then there is no scope for filing any suit, meaning thereby only an occupant who has been ordered to be dispossessed can file a substantive suit under the provisions of Section 49 of the Act. He also raised one attractive argument that this right has been given only to a person against whom a decree is passed. He referred to the provisions of Section 41, according to which, under the circumstances mentioned in the section when a person who wants possession may apply to the Small Cause Court. Section 43 of the Act provides that if the occupant does not appear, etc., the Court of Small Causes, if satisfied that the applicant is entitled to apply under Section 41 of the Act, may direct a Bailiff to give possession of the property to the applicant. Therefore, this is a summary procedure and affecting adversely to the right of the occupant who would claim tenancy right and, therefore, if in the proceeding of a summary nature order of recovery is passed, then Section 49 of the Act would come into operation. Explanation to Section 43 of the Act is that if the occupant proves that the tenancy was created or permission granted by virtue of a title which determined previous to the date of the application, he shall be deemed to have shown cause within the meaning of this section and, therefore, if this cause is shown, i.e. the occupant has appeared and the suit is dismissed on merits, Section 49 of the Act would not be applicable. Chandrachud, J., has in the aforesaid Bombay decision answered this argument holding that it would be strange that an unsuccessful occupant should bring a fresh suit to agitate what according to the learned Counsel was a matter which was directly and substantially in issue in a previous proceeding but that an unsuccessful applicant can be denied this right on principles analogous to res judicata. This was observed because if in an application under the Act dispute is raised by the parties that there is relationship of landlord and tenant or a licensor and licensee, and if the Court comes to the conclusion that there is relationship of a licensor and licensee and passes an order of eviction against the occupant on the application, then according to the argument advanced before Chandrachud, J., and here before me; would be that the occupant would have a right to agitate the same question by a regular suit and bar of res judicata would not come. This can never be the scheme of an enactment which should be equal and impartial to all the parties appearing before the Court. Therefore, Chandrachud, J. very rightly observed that Section 49 of the Act cannot be interpreted in such a way that it would deprive a person filing an application for eviction of his right to file a suit and would be available only to a person against whom order of recovery of possession is passed. Though Section 49 of the Act is couched in such terms, interpretation put by Chandrachud, J. is quite Justified. He specifically observed:.Whether it is the terms of Section 11 or the principle underlying it, then must be some reciprocity in the bar which arises by reason of the principle and it cannot be that the principle that a party should not be harassed twice over in respect of the same cause would apply to one party to the proceeding but not to the other. This, of course, is apart from my view that Sections 46 and 49 preserved the right of bringing a subsequent suit, in favour of the unsuccessful occupant as also in favour of the unsuccessful applicant.
12. It should be noted that there is also judgment of the Madras High Court in Mir Hyder Ali Sahib v. Amirudin Sahib AIR 1929 Madras 69, to which my attention is drawn by Mr. G.D. Bhatt. In that case also contention before the Small Cause Court was that the occupants were not the tenants of the person who filed an application for eject-ment and that they were the tenants of somebody else. That application was dismissed holding that the occupants were not the tenants of the applicants. Thereafter the applicants filed regular suit. That suit was entertained and the Madars High Court specifically observed that such a suit would lie. After considering the provisions of Section 49 of the Act the Madras High Court observed that in the face of the provisions of that section, it is difficult to hold that the present suit should be considered as one: 'to alter or set aside a decision or order in any proceeding under Chapter 7 of the Act'. That was considered from the point of Limitation Act. But it was specifically considered that that was not a suit for setting aside the order of the Small Cause Court but to get a substantive relief in a substantive suit. In terms, the suit filed by an unsuccessful litigant in the Small Cause Court was considered maintainable under Section 49 of the Act.
13. In view of this, the question of bar of res judicata would not arise and, therefore, the finding of the learned trial Judge that there isbar on principles analogous to res judicata is not justified.
14. Then comes the question of merits. Now, on merits Mr. Bhatt strenuously urged before me that I should consider the deposition of a dead man. It is to be noted that the contention of the respondent in the proceedings under the Act as well as in this proceeding is that he was not on good terms with the deceased brother. This aspect is considered by the learned trial Judge because though the brother had a house, for six years the respondent had to stay in a Boarding House. It may be that the appellant considered the respondent to be a relative. It may also be that considering that a relative is without a house even after his marriage, in order to accommodate him he might have given the house to him. It would, however, be very difficult to consider that the house was given rent-free or merely as an obligation without charging any rent in a city of Ahmedabad in year 1969. It also should be noted that the appellant did not initiate any proceedings. It was the respondent-defendant who first of all gave notice to the appellant-plaintiff on 6-4-1973 through his Advocate making allegation that the landlord wanted the tenant to vacate the part of the premises in his possession and to go to a small room on the third floor (4th storey) in order to obtain more rent. He also claimed that earlier rent was Rs. 10/- per month, and because he was a new tenant, Rs. 35/- per month were being recovered from him, and now because the landlord wanted to recover more rent from other tenants, he wanted this tenant (respondent) to vacate the ground floor portion and to go to the third floor. Thereafter notice correspondence started and the appellant filed an application under the Act. During the deposition also the respondent has categorically stated all these aspects. The learned trial Judge has, therefore, rightly come to the conclusion that the respondent was not a licensee but was a tenant and the case of the appellant-plaintiff that the defendant was a licensee was not believed. From the circumstances of the case, I come to the conclusion that the finding of the learned trial judge is quite justified, and on this ground alone the appeal deserves to be dismissed.
On behalf of the respondent cross-objections are also filed to contest the jurisdiction of the Ahmedabad City Civil Court, but Mr. Shelat did not press these cross-objections.
15. In the result, the appeal and the cross-objections are dismissed with no order as to costs. Stay granted in respect of standard rent application is vacated.