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Govindoss Krishnadoss Vs. P. Manikyanayanim Varu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad378
AppellantGovindoss Krishnadoss
RespondentP. Manikyanayanim Varu and ors.
Cases ReferredIn Shyama Chanan Banerjee v. Mrinmayi Debi
Excerpt:
- .....question of landlord and tenant is res judicata between the parties. no doubt in the case of rent suits the decision as regards the rent for one year would be res judicata as regards the rent for any of the following years. exhibit i merely refers to the liability of the defendant to pay jodi. the contention that the defendants were not liable to pay jodi should have been put toward in the suits of 1904 and 1908, and that contention not having been put forward in these suits, id is not open now to the defendants to put forward the contention. i find this point in favour of the petitioner.2. as regards the next point which relates to road cess, mr. ramadoss very candidly concedes that the defendants are liable to pay road cess. i allow this petition with costs and the plaintiff will have.....
Judgment:

Devadoss, J.

1. This is an application to revise the decree of the District Munsif of Tirupati in Small Cause Suit No. 136 of 1921. The District Munsif dismissed the suit mainly on the ground that no jodi is claimable from the tenants. It is urged on behalf of the petitioner that the question whether the defendants are liable to pay jodi is res judicata by reason of two previous decisions, one in Original Suit No. 79 of 1904, Exhibit G and the other in Original Suit No. 439 of 1908, Exhibit G. In Exhibit G the question was specifically raised in issue 1 whether no jodi at all was payable. An additional issue was raised whether the defendants therein were not barred by res judicata from raising the plea that they were not liable to pay jodi to the plaintiff. The District Munsif held that the decision in the Original Suit No. 79 of 1904 was res judicata between the parties. It is now urged on the respondents' side that the defendants were ex parte and, therefore, the judgment is not binding on the ex parte defendants. The defendants placed reliance upon the decision of Madhusudan Sahah Mondul v. Brae (1889) 16 Cal. 300 in which it was held that in a rent suit if the defendants are ex parte the decision could not be res judicata in subsequent suits. When a question is specifically raised and decided, a decision on the question is res judicata between the parties in subsequent cases. The case in Madhusudun Shaha Mondul v. Brae (1889) 16 Cal. 300 was considered and distinguished in two cases of the Calcutta High Court reported as Raj Kumar Roy Chowdhury v. Alimuddi 17 C.W.N. 627 and Hara Chandra Bairagi v. Bepin Behary Das (1911) 13 C.L.J. 38. In Shyama Chanan Banerjee v. Mrinmayi Debi (1904) 37 Cal. 79 it was held that an ex parte decision could be res judicata between the parties in subsequent suit. The real question is whether a certain contention was raised or a contention should have been raised or could have been raised or not. If a contention which could have been raised was not raised by the defendants that would not take away the force of the judgment which decided the point against the defendants. In that view I think the decision in No. 439,of 1908, Exhibit G, is res judicata between the parties. It is argued by Mr. Ramadoss who appears for two of the respondents that Exhibit I which is a deed of gift by the landholders, exempts the defendants from paying jodi; and he contends that only the question of landlord and tenant is res judicata between the parties. No doubt in the case of rent suits the decision as regards the rent for one year would be res judicata as regards the rent for any of the following years. Exhibit I merely refers to the liability of the defendant to pay jodi. The contention that the defendants were not liable to pay jodi should have been put toward in the suits of 1904 and 1908, and that contention not having been put forward in these suits, id is not open now to the defendants to put forward the contention. I find this point in favour of the petitioner.

2. As regards the next point which relates to road cess, Mr. Ramadoss very candidly concedes that the defendants are liable to pay road cess. I allow this petition with costs and the plaintiff will have a decree for the suit amount with costs of the lower Court. Petitioner's Vakil admits that defendants Nos. 8 and 9 have paid road cess. So far as that amount is concerned they will be exonerated.


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