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Nobo Doorga Dossee and anr. Vs. Foyzbux Chowdhry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1876)ILR1Cal202
AppellantNobo Doorga Dossee and anr.
RespondentFoyzbux Chowdhry
Cases Referred and Rakhal Doss Singh v. Sreemutty Heera Motee Dossee
Excerpt:
res judicata - act viii of 1859, section 2-suit for rent--subsequent suit for abatement of rent. - .....she claims in this suit the precise measure of abatement, rs. 155, which she had claimed in the suit brought against her by the defendant. the defendant's answer is, 'this question which you now seek to raise, has already been decided between us in the former suit. you claimed the same abatement then as you do now. you attempted to establish it upon the same grounds. you went into the question, not as if the abatement were for one particular year, but for the whole remainder of your interest; and from the very nature of the question, you could not have gone into it upon any other basis.' nature of the question, you could not have gone into it upon any other basis.' the plaintiff's reply to this is--'no. your claim then was for the rent of one year only: my defence must necessarily.....
Judgment:

Richard Garth, C.J.

1. The plaintiff brings this suit for the purpose, as she says, of obtaining an abatement of her rent for the future; and she claims in this suit the precise measure of abatement, Rs. 155, which she had claimed in the suit brought against her by the defendant. The defendant's answer is, 'this question which you now seek to raise, has already been decided between us in the former suit. You claimed the same abatement then as you do now. You attempted to establish it upon the same grounds. You went into the question, not as if the abatement were for one particular year, but for the whole remainder of your interest; and from the very nature of the question, you could not have gone into it upon any other basis.' Nature of the question, you could not have gone into it upon any other basis.' The plaintiff's reply to this is--'no. Your claim then was for the rent of one year only: my defence must necessarily have been confined to that one year; and the result could not bind either of us for the future.' This contention raises a very nice point upon the doctrine of estoppel; as to which during the argument I confess that I personally have felt considerable difficulty.

2. There is no doubt as to what the law is upon the subject of estoppel. The difficult is, in applying that law to such a case as the present. Each year's rent is in itself a separate and entire cause of action. And if a suit be brought for a year's rent, a judgment obtained in that suit, whatever the defence might be, would seem only to extend to the subject-matter of the suit; and leave the landlord at liberty to bring another suit for the next year's rent, and the tentant at liberty to se up to that sit any defence she thought proper.

3. But it is said, on the other hand, that in the former suit between the defendant and the plaintiff, the entire question of what ought to be the permanent abatement or rent during the whole period of the lease, was substantially and necessarily tried and determined, and that they are neither of them at liberty to reopen that question. The principle upon which the abatement was made, the value of the land, the measurements, and other circumstances which form the materials upon which the Judge would estimate the amount of the was just and proper abatement, would be applicable to one year as well as to another, and what was just and proper abatement for the year 1871 would be an equally just and proper abatement in each succeeding year.

4. There certainly appears to be great weight in this reasoning, and there is no doubt that substantial justice will be done by adopting it.

5. Even assuming that the judgment in the former suit were not binding between the parties as an actual estopped, it would afford such cogent evidence between them upon the point, that the judge in the suit (in the absence of some entirely fresh materials) would be perfectly right in acting upon it; and we cannot doubt, that if we were to sent the case back to the lower Appellate Court with this intimation, the Judge would act upon it, as a matter of course; and the parties would only be put to additional expense to no purpose.

6. But happily, we are not without authority in this Court to guide us in coming to a conclusion. The case which were cited in argument by the defendant's pleader--Moohima Chunder mozoomdar v. Asradha Dassia 15 B.L.R. 251 and Rakhal Doss Singh v. Sreemutty Heera Motee Dossee 23 W.R. 282 seem very much in point; and we think that we ought to act upon them. In one of those cases, the suit was brought by a landlord for one year's rent. The answer was, the land is rent-free--and a decree was passed against the landlord upon that ground. Another suit was afterwards brought by the land-lord for another year's rent; and it was held, that as between the parties, it had been decided, that the land was rent-free; and that this decision was binding upon them not only for the one year, but for all future years.

7. In accordance with this, we hold that the question of abatement of rent has been determined in the former suit between these parties not only for one year 1870, but for all future years. The appeal will therefore be dismissed with costs.


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