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Kaumudi Mohan Guha Raja Vs. Paresh Nath Mitra and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 705 of 1978
Judge
Reported inAIR1982Cal120,85CWN675
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13 and 17(3); ;Code of Civil Procedure (CPC) , 1908 - Section 11 - Order 14, Rule 5
AppellantKaumudi Mohan Guha Raja
RespondentParesh Nath Mitra and anr.
Appellant AdvocateP.K. Sengupta, ;H.N. Halder and ;T.N. Banerjee, Advs.
Respondent AdvocateMalay Kr. Basu and ;Bimal Jotsna Chatterjee, Advs.
DispositionAppeal allowed
Excerpt:
- .....of the common decisions cited by both the parties i am of the view that once the learned munsif accepted the written statement of the defendant no. 2 appellant it was open for the appellant to contest the suit on all the points raised by him in his written statement. it is significant to note that the condition regarding payment of cost which was the only condition imposed on the appellant for acceptance of his written statement was complied by him and not objected to by the other side, the plaintiff. in fact, the plaintiff withdrew the amount deposited by the appellant. he, having acquiesced by acceptance of the written statement, cannot at a subsequent stage object to the prayer made by the defendant no. 2 appellant for framing an additional issue or for adducing evidence in.....
Judgment:

Jyotirmoyee Nag, J.

1. This appeal is from the judgment and decree passed by the learned Additional District Judge at Alipore in Title Appeal No. 775 of 1977 affirming the judgment and decree passed by the learned Munsif, 1st Additional Court at Alipore in Title Suit No. 35 of 1976. The suit was filed, by the plaintiff respondent for ejectment of the defendant No. 1 on the ground of default and reasonable requirement of the owner. The defendant No. 2 was also made a party inasmuch as it was the case of the plaintiff that the defendant No. 1 had assigned his tenancy to the defendant No. 2, the present appellant. The defendant No. 1 was the tenant in respect of the 'entire ground floor flat of premises No. 2/D, Bawali Mandal Road, P. S. Tollygunge at a monthly rental of Rs. 126/- payable according to English Calendar month. The defendant No. 1 defaulted in payment of rent since Jan, 1971. The plaintiff respondent's further case is that the defendant No. 1 without the consent of the landlord plaintiff assigned his right jn the said tenancy in respect of the suit property to his brother-in-law defendant No. 2 who is tha present appellant, before this Court Apart from the ground of default, the plaintiff respondent prayed for eviction on the ground of reasonable requirement for his own use and occupation and for the use and occupation of his family members and, in particular, for accommodating his daughter who is qualified as a doctor for the purpose of providing a chamber for practising as a doctor and also for providing a drawing room for himself and for accommodation of his other daughters whenever they come to live with him. Notices were served upon both the defendants Nos. 1 and 2 (vide Exts. 2 and 2/a). As the defendant No. 1 did not vacate the suit premises the plaintiff respondent filed the suit being Title Suit No. 35 of 1976. The defendant No. 1 appeared and contested the suit on filing a written statement but the defendant No. 2 did not appear in spite of notice being served upon him. The defendant No. 2 entered appearance at the time when the plaintiff respondent filed the petition under Section 17 (3) of the West Bengal Premises Tenancy Act and the same was heard and allowed and filed a petition giving explanation for not coming to court in time together with written statement. On 13-6-1975 the learned Munsif passed the following order.

'Plaintiff present, Defendants 1 and 2 file haziras. Plaintiff filed objection against the petition to show cause to defendant No. 2. Copy served and objected to. Heard both sides. Considered. The causes shown by the defendant No. 2 are not accepted. However as a matter of indulgence defendant No. 2 will be allowed to contest and his written statement will be accepted if he pays cost of Rs. 100 by 14-7-1975. To 14-7-1975 for payment of cost (vide order-sheet)'.

On 14-7-1975 a sum of Rs. 100 was deposited by the defendant No. 2 as per order dated 13-6-1975 and the learned Munsif passed the following order.

'Let the written statement of defendant No. 2 be accepted. To 1-9-1975 for framing further issues, if any'.

On 10-12-1975 (vide order No. 85) upon a petition being filed on behalf of the plaintiff respondent for permitting him to withdraw the sum of Rs. 100/- deposited by the defendant No. 2 (present appellant), the learned Munsif granted the prayer of the plaintiff for withdrawal of the same and accepted the written statement of the present appellant (defendant No. 2). On 2-4-1976 (order No. 102) the petition filed by the defendant No. 2 appellant for allowing him to lead evidence on the point regarding his tenancy right was heard by the learned Munsif in presence of the learned Advocates of both sides. The defendant's petition dated 6-7-1976 for framing additional issues was also taken up along with his application for permission to lead evidence as stated above. The learned Munsif considered submissions on both sides and found that in view of the finding of his learned predecessor who found that there was no relationship of landlord and tenant between the plaintiff respondent and defendant No. 2, after hearing the learned advocates of both sides, on the issue whether there was any relationship of landlord and tenant between the respondent and the defendant No. 1 which was decided in favour of the respondent, this question could not be agitated again for framing fresh issue at the instance of defendant No. 2, the present appellant. As the finding of the court on an interlocutory matter is binding upon it at the subsequent stage and is, therefore, barred by the principles of res judicata and accordingly it was found that the defendant No. 1 was the tenant under the plaintiff, that finding was binding upon the defendant No. 2, the present appellant and accordingly the learned Munsif rejected the prayer of the defendant No. 2 appellant for framing an additional issue on the question that there was any relationship of landlord and tenant. On 11-1-1977 (vide order No. 110) the learned Munsif disposed of an application made on behalf of the defendant No. 2 on 4-1-1977 for adducing evidence. He rejected the prayer of the defendant No. 2 appellant on the ground that he was trying to set up a new defence by praying for permission to adduce evidence that he is not an assignee or a sub-tenant but that he has been in occupation of the suit premises on and from before 1956. Thus his prayer for adducing evidence that he was in occupation of the suit premises from Feb. 1956 was rejected. The learned Munsif however permitted the (defendant No. 2) appellant to cross-examine the plaintiff's witnesses on the question of assignment. The defendant appellant was debarred from challenging the plaintiff's case of reasonable requirement either by cross-examination or by leading evidence as well as also on the question that he had been residing in the suit premises from before 1956. The learned Munsif on a consideration of the evidence before him decreed the suit of the plaintiff respondent on the finding that the defendant No. 1 was a tenant under the plaintiff respondent and defendant No. 2 could not challenge that finding. He found that defendant No. 2 appellant could at best be regarded as a subtenant under the defendant No. 1 to which the plaintiff respondent had given no consent. He also found that the defendant No. 1 had left the premises in or after 1956 and her consent as landlord is necessary to validate the subtenancy of the defendant No. 2 if any, Against the judgment and decree of the learned Munsif, an appeal was preferred which was disposed of by the learned Additional District Judge at Alipore. He affirmed the finding of the learned Munsif and dismissed the appeal. This second appeal was admitted on the point, namely. whether the trial court was justified in debarring defendant No. 2 from raising an issue and giving evidence even though it accepted his written statement, it is submitted on behalf of the appellant by Mr. Sengupta that once the written statement of the appellent had been accepted by the court all the defence pleaded in the written statement would be available to the appellant (defendant No, 2) and, accordingly, he will be entitled to cross-examine the witnesses of the plaintiff and also to lead evidence on all the points raised by him in his written statement. As already referred to above, the appellant (defendant No. 2) was denied the opportunity of raising an additional issue as to whether there was relationship of landlord and tenant between the appellant (defendant No. 2) find the respondent and he was also debarred from cross-examining the plaintiff's witnesses on the question of relationship of landlord and tenant and also from adducing fresh evidence to support his defence that he was in occupation of the tenancy on and from before 1956. In this connection. Mr. Sengupta has pointed out to the provision of Order 9, Rule 7 of the Civil P. C. which runs as follows:

'Where the Court has adjourned the hearing of the suit ex parte, and defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.'

The learned Munsif had accepted the written statement filed by the defendant No. 2 appellant on condition of his paying cost of Rs. 100/- which was complied with by the defendant No. 2, hence it is argued by Mr. Sengupta that all the defence that was taken in his written statement was accepted thereby. Accordingly, to debar him from raising an additional issue on the question of relationship of landlord and tenant between the (defendant No. 2) appellant and respondent and also to debar him from adducing evidence on the points raised by him including the point that he was in occupation of the suit premises on and before 1956 was illegal and in violation of the provision of Order 9, Rule 7 of the Code. On the other hand, Mr. Basu appearing for the respondent has submitted that the condition precedent to the acceptance of written statement js the acceptance of cause shown by the appellant defendant. The cause shown by him was not accepted by the learned Munsif but his written statement was accepted as it would be clear from the order-sheet of the learned Munsif. The stress is on good cause being shown. As the cause being shown by him was considered to be unsatisfactory by the learned Munsif, it could not be said that he had accepted the same but he permitted him to file his written statement and only those points were open to him which were not earlier decided by the learned Munsif and Mr. Basu supports the orders dated 2-9-1976 and 11-1-1977. It is submitted by Mr. Basu that if the cause shown is accepted by the learned Munsif the written statement is accepted. But when the cause shown is not accepted and the acceptance of the written statement is only conditional, the defendant will only be permitted to cross-examine those witnesses who have not been cross-examined till the filing of his written statement on those points which have not been decided against him by the learned Munsif. The finding of the learned Munsif on the point decided by him previous to the filing of the written statement by the defendant No. 2 appellant namely the question of relationship of landlord and tenant between the plaintiff and the defendant will operate as res judicata and therefore, he cannot be permitted to reopen the same subsequently. In this connection, Mr. Basu has relied upon a decision reported in : [1960]3SCR590 . The question that came up before their Lordships of the Supreme Court in the case reported above is the scope and effect of Sections 11 and 105 of the Civil Procedure Code, The relevant portion is at page 943 para 7 which runs as follows ;

'The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again, Primarily, it applies as between past litigation and future litigation. That a mattmer --whether on a question of fact or a question of law--has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a further suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Civil P. C. but even where Section 11 does not apply the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.

The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.'

'But an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken can be challenged in an appeal from the final decree or order.' It is this observation upon which Mr. Sengupta lays stress saying that in an appeal a question which was decided by the learned Munsif can be raised in appeal and decided as to whether debarring the appellant from raising an additional issue regarding the relationship of landlord and tenant between the parties in view of the earlier finding of the learned Munsif that there was no relationship of landlord and tenant between the defendant No. 1 and the respondent (sic). The other decision which has been relied upon by Mr. Basu is reported in : [1964]5SCR946 . That related to interpretation of Order 9, Rule 7 C. P. C. The provision of Order 9, Rule 7 C. P. C. comes into operation only where the court has adjourned the hearing of the suit ex parte. Obviously it assumes that there is to be a hearing on the date to which the suit stands adjourned. If the entirety of the hearing of the suit has been completed and the court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order 20, Rule 1, there is clearly no adjournment of the hearing of the suit, for there is nothing more to be heard in the suit. In such a case Order 9, Rule 7 could have no application and the matter would stand at the stage of Order 9, Rule 6 to be followed up by the passing of an ex parte decree making Rule 13 the only provision in Order 9 applicable. The portion relied upon by Mr. Basu is quoted below: (See pp. 1000 and 1001 of) : [1964]5SCR946 .

'Where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made On matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable.' : [1960]3SCR590 .

'There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo. or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under Order 9, Rule 7 Civil P. C. would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal was filed against the decree in the suit in which such application was made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to set the clock back does not attain finality. But though the same court is not finally bound by that order at later stages, so as to preclude its being reconsidered, and even if the rule of res judicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of Identical facts'.

The Order 9, Rule 7 is not of the kind which can operate as res judicata so as to bar the hearing on the merits of an application under Order 9 Rule 13 C. P, C. On a consideration of the common decisions cited by both the parties I am of the view that once the learned Munsif accepted the written statement of the defendant No. 2 appellant it was open for the appellant to contest the suit on all the points raised by him in his written statement. It is significant to note that the condition regarding payment of cost which was the only condition imposed on the appellant for acceptance of his written statement was complied by him and not objected to by the other side, the plaintiff. In fact, the plaintiff withdrew the amount deposited by the appellant. He, having acquiesced by acceptance of the written statement, cannot at a subsequent stage object to the prayer made by the defendant No. 2 appellant for framing an additional issue or for adducing evidence in support of his written statement. So far as the order No. 102 dated 2-9-1976 is concerned for framing an additional issue the plea taken by the respondent-plaintiff that he cannot be allowed to raise such an issue in view of the decision by the predecessor of the learned Munsif, that there was no relationship of landlord and tenant between the defendant No. 1 and the respondent as the same is binding on the defendant No. 2 appellant, the same being res judicata, I am inclined to hold, that that order dated 2-9-1976 is bad in law and liable to be set aside in view of the acceptance of the written statement by the learned Munsif. That will not operate as res judicata so far as defendant No. 2 is concerned. The hands of the clock are set back by acceptance of the written statement and the appellant-defendant will be deemed to be in the position in which he would be had he filed the written statement at the time he was supposed to do so. The submission made by Mr. Malay Bose that the acceptance of written statement is a conditional acceptance of the same and is limited to the acceptance of the cause shown does not appear to be very reasonable, in view of the fact that the only condition that is imposed upon the appellant (defendant No. 2) is the condition of payment of cost which he did within the time. Therefore, all the pleas taken by the (defendant No. 2) appellant and the defence as set out in the written statement would be available to him and the suit should have been tried from the very beginning, as though the defendant No. 2 had appeared by filing the written statement within time.

2. In the result, the impugned orders are set aside and the judgment and the decree passed by the appellate court are set aside and the case remanded back to the trial court to frame fresh issues and to try the suit from the stage of filing of the written statement according to the directions given above.

3. The appeal is allowed without costs.

4. No decree need be prepared. Let a copy of the judgment be sent down to the court below at once.


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