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Debabrata Mukherjee Vs. Kalyan Kumar Ray - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberF.A. No. 382 of 1982 with C.R. No. 4103 (F) of 1981
Judge
Reported inAIR1983Cal241,87CWN508
ActsPresidency Small Cause Courts Act, 1882 - Section 41; ;Code of Civil Procedure (CPC) , 1908 - Section 11; ;West Bengal Premises Tenancy Act, 1956 - Section 13 and 13(6)
AppellantDebabrata Mukherjee
RespondentKalyan Kumar Ray
Appellant AdvocateS.P. Roy Chowdhury, ;Kartick Kr. Bhattacharaya and ;Deba Prosad Mukherjee (II), Advs.
Respondent AdvocateA. Mitra and ;Ramendra Nath Dutta, Advs.
DispositionAppeal dismissed
Cases ReferredIftikar Ahmed v. Syed Meharban All
Excerpt:
- anil k. sen, j. 1. this is an appeal by the plaintiff and is directed against the judgment and decree dated november 24, 1981, passed by the learned judge, 2nd bench, city civil court, calcutta in title suit no. 999 of 1980. that was a suit under section 49 of the presidency small cause courts act, 1882 as adopted for the state of west bengal. by the judgment under appeal, the learned judge has dismissed the suit on a preliminary issue holding the suit to be barred by principles of res judicata and the only point raised now before us is how for the learned judge is right in his conclusion as such. it would be necessary to refer to the facts with reference to which such a plea was raised and those are set out shortly as fellows :2. the defendant-respondent kalyan kumar roy (hereinafter.....
Judgment:

Anil K. Sen, J.

1. This is an appeal by the plaintiff and is directed against the judgment and decree dated November 24, 1981, passed by the learned Judge, 2nd Bench, City Civil Court, Calcutta in Title Suit No. 999 of 1980. That was a suit under Section 49 of the Presidency Small Cause Courts Act, 1882 as adopted for the State of West Bengal. By the judgment under appeal, the learned Judge has dismissed the suit on a preliminary issue holding the suit to be barred by principles of res judicata and the only point raised now before us is how for the learned Judge is right in his conclusion as such. It would be necessary to refer to the facts with reference to which such a plea was raised and those are set out shortly as fellows :

2. The defendant-respondent Kalyan Kumar Roy (hereinafter referred to as the defendant) was admittedly the tenant in respect of the suit premises, being Suit No. 18 on the 3rd floor of premises No. 26, Chowringhee Road, Calcutta, under the Official Trustee of West Bengal as the Trustee to the Trust Murshidabad Estate (hereinafter referred to as the Official Trustee). In the year 1974, the Official Trustee instituted Ejectment Suit No. 1152 of 1974 against the defendant on two-fold grounds of default in payment of rent and wrongful subletting of the suit premises without the written consent of the landlord. In the plaint, the Official Trustee pleaded that the combined notice to quit and a notice of suit was duly served upon the defendant by registered post when such notice was accepted by one Mrs. P. Maitra for and on behalf of the defendant on February 12, 1974.

3. The defendant in contesting the suit denied all the material allegations including the allegation of default and subletting. The defendant also catefiori-cally denied service of the notice. In a proceeding under Section 17 (2) of the West Bengal, premises Tenancy Act, the defendant however, deposited all the arrears of rent in order to entitle him to claim relief under Section 17 (4) of the West Bengal premises Tenancy Act.

4. During the pendency of the afore-said suit for ejectment, the defendant, Kalyan Kumar Roy, in his turn instituted a proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882, against the present appellant Debabrata Mukherji for recovery of possession of the suit premises from him. He claimed that he had allowed the appellant to occupy the same as a licensee but even after termination of such licence, the appellant was refusing to vacate. This proceeding was registered as S.C.C. Suit No. 2406 of 1975 of the 4th Bench of the Court of Small Causes, Calcutta. The appellant appeared to contest the aforesaid proceeding on the plea that he was not a licensee but was a sub-tenant in exclusive possessior of the suit premises since August, 1962.

5. Having taken such a defence in the said proceeding, the appellant, filed an application under Order 1, Rule. 10 (2) of the Code of Civil Procedure for being added as a party defendant in the suit of the Official Trustee, being Ejectment Suit No. 1152 of 19741. In this application the appellant alleged that he is a necessary party in the suit as he is in exclusive possession of the suit premises since August. 1962 by virtue of a sub-tenancy created in his favour by the defendant. His prayer was allowed. He then filed a written statement claiming himself to be a sub-tenant under the defendant since August, 1963. The defend-ant in his turn filed a rejoinder disputing such a claim put forward by the appellant, the added defendant to that suit. As a next step the appellant moved an application under Section 10 read with Section 191 of the Code of Civil Procedure in the proceeding, under Section 41 of the presidency Small Cause Courts Act, for stay of the said procceding on the ground that the very issue involved in the said proeeeding was then awaiting decision on adjudication in Ejectment Suit No. 1152 of 1974, of the Official Trustee. The learned Judge An the Court of Small Causes allowed the said application taking the view that the issue on the point of subletting raised in the Ejectment Suit once decidedwould constitute res judicata between the parties.

6. In the ejectment suit several issues were raised. Though the present appellant had filed a written statement, he did not ultimately appear to contest the said suit. The suit was contested by the defendant/respondent Kalyan Kumar Roy. The learned Judge in considering the material issue with regard to notice held that when the defendant in his evidence had denied receipt of the notice the presumption arising out of the postal acknowledgment stood rebutted. He, therefore, held that though the notice marked Ext la was otherwise legal, valid and sufficient, the plaintiff had failed to prove service thereof on the defendant. Consequently he held the suit to be not maintainable in view of the provisions of Section 13 (6) of the West Bengal Premises Tenancy Act. Assuming, however, the suit to be otherwise maintainable, he proceeded to decide the other two issues. On the issue as, two default he held that the defendant was entitled to relief under Section 17 (4) of the Act. On the point of suble ting on consideration of the evidence led by the parties the learned Judge found that the plaintiff had failed to prove that the suit premises had been suble and further held that the added defendant (the appellant now before us was not a subtenant under the defendant. After recording the findings as such, the learned Judge concluded: 'In view of the findings as above, the plaintiff is not entitled to a decree for ejectment' The suit was accordingly dismissed.

7. The proceeding under Section 41 of the Presidency Small Cause Courts Act then came up for hearing and the learned Judge decided the very same issue once more by going into the merits of the appellant's claim that he was in occupation of the suit premises as a sub-tenant since August, 1962. On consideration of the evidence led before him, he overruled the claim of the appellant and held. 'Upon a consideration of all the materials on record both oral and documentary as also from the surrounding circumstances and attending probabilities, of the ease I hold and find that the applicant has been able to prove that the occupant came to occupy the suit premises under his leave and licence and the said licence having been re-yoked he is entitled to recover possession.' In view of his decision on themerits the learned Judge did not consider the further plea raised before him by the present defendant that the decision in the Ejectment Suit would constitute res judicata on the issue as to whether the present appellant is a subtenant or a licensee. The learned Judge accordingly allowed the application under Sec. 41 of the Presidency Small Cause Courts Act and made an order for possession.

8. When that order for possession was put into execution, Debabrata Mu-kherji, the appellant now before us (hereinafter referred to as the plaintiff) instituted the suit out of which the present appeal arises. He prayed for a declaration that he is a tenant under the defendant in respect of the suit premises and for permanent injunction restraining the defendant from executing the said order for possession. In contesting this suit the defendant not only contested the claim on its merits but raised a further plea that the suit is barred by principles of res judicata in view of the earlier two decisions between the parties. A preliminary issue was accordingly, raised based on the said plea and this court directed the learned trial Judge, to decide, the said issue as a preliminary issue. By the judgment now under appeal the learned trial Judge decided the said issue against the plaintiff and dismissed the suit. In doing so, he however, held that the plaintiff's claim would not the barred by the judgment and decree passed, in Ejectment Suit No. 1152 of 1974 but then it would be so barred by the decision in the S.C.C. Suit No. 2408 of 1975. According to the learned Judge the present plaintiff was neither a necessary nor a proper party in Ejectment Suit No. 1152 of 1074 and, as such, the findings recorded therein would not operate as res judicata against-him in any subsequent suit or proceeding. But at the same time, he held that in view of the added explanation VIII to Section 11 of the Code of Civil procedure, the deci-sion of the Small Causes Court, though it is a court of limited jurisdiction, would operate as res judicata and, as such, the issue raised must be held to have been concluded between the par-ties and against the plaintiff by the decision in the Small Case Court Suit. Feeling aggrieved the plaintiff has now preferred the presents appeal.

9. Mr. Roychowdhury appearing insupport of this appeal has strongly as-sailed the correctness of the view taken by the learned Judge. According to Mr. Roychowdhury the Court of Small Causes in a proceeding under Section 41 of the Presidency Small Cause Courts Act, is not required to adjudicate any claim of title as raised in the present suit and, as such, the decision rendered by such a court cannot conclude the issue on the question of title. Relyine on the terms of Section 11 of the Code, Mr. Roychowdhury contends that in order to operate as res judicata the court which rendered the earlier decision must be competent to try and decide the subsequent suit. Mr. Roychowdhury has further contended that in any event, the learned Judge overlooked the specific provision of Section 49 of the said Act which leaves the issue on the point of title open for independent adjudication in a suit notwithstanding the decision in the proceeding under Section 41 of the Act. Reliance is placed by Mr. Roy. chowdhury on an earlier decision of this court in the case of Surendra Chandra Majumdar v. Sm. panchi Bibi, (1949) 83 Cal. LJ 328 at p. 337. Reliance is also placed upon the decisions of the Bombay High Court in the cases of Ram Kishore Pandit v. Vijaybahadur Singh Jagtapsingh : AIR1964Bom85 and Rani Chandra v. Janardan, : AIR1969Bom111 and the decision of the Supreme Court in the case of Babulal Bhuramal v. Nandram Shivram AIR 1953 SC 677.

10. Mr. Mitter appearing on behalf of the defendant/respondent, has contested the point so raised by Mr. Roychowdhury. Relying on a decision of the Supr Feme Court in the case of Gulam Abbas V. State of U. P. : 1981CriLJ1835 Mr.Mitter contended, in support of the view taken by the learned Judge, that though the Small Causes Court was a court of limited jurisdiction yet it was necessary for the said court to adjudicate the material issue in order to dispose of the proceeding and therefore, the decision must be taken to be final and conclusive between the parties. Such a conclusion follows, according to Mr. Mitter, in view of general principles of res judicata since codified, into explanation VIII add-ed to Section of the Code.

11. On a careful consideration of the rival contentions put forward before us we are unable to accept the contention of Mr. Mitter or support the view taken by the learned Juged. Section 41 is inChapter VIII of the presidency SmallCause Courts Act, which provides for recovery of possession of immovable property. Section 41 contemplates recovery of possession principally from a person in occupation on leave and licence which has since been determined. Section 47, however, specifically provides for stay of such a proceeding if the occupant furnishes security and institutes an independent suit before the civil court of competent jurisdiction to establish his title to continue in possession of the suit property and Sub-section (4) of Section 47 provides that a decree in such 9 suit would supersede the order made in the proceeding. Section 49 then provides Recovery of possession of any immovable property shall be no bar to the institution of a suit in the High Court for trying the title thereto.' It is quite explicit on the provision of Chapter VII therefore, that the statute expressly contemplated that the decision on any issue on a point of title involved in an adjudication under Section 41 of that Act, would be merely incidental: such a decision is not meant to be so conclusive as to debar a suit before a competent court by the occupant based on the title so claimed. It has been rightly contended by Mr. Roychowdhury that as a right of appeal when provided by the statute cannot be barred by applying the principles of res judicata based on the judgment under appeal so also a suit within the purview of Section 47 or Section 49 of the Act cannot be so barred because of the specific mandate of the statute itself, it was pointed out as such by Chandrachud, J. (as his Lordship then was) in the case of Ram Chandra v. Janardan : AIR1969Bom111 , when he observed: 'The provisions contained in Sections 46, 47 and 49...... show that aproceeding under Chapter VII is in the nature of a summary enquiry and that the legislature itself contemplated that an order under Section 43 would be sub-ject to a decree passed in a regular suit' Same view was expressed by the Division Bench of the Bombay High Court in the case of Ram Kishore v. Vijayabahadur Singly : AIR1964Bom85 (suptra) when it was observed that but for the specific provisions of the Bomtey Rents, Hotel and Lodging House Rates Control Act, 1947, that would be the position. That view again has been approved by the Supreme Court in the case of Babulal Bhuramal : [1959]1SCR367 (supra). In this view we must up-hold the contention of Mr. Roychowdhury that the decision of the Small Cause Court in the proceeding under Section 41 of the Presidency Small Cause Courts Act, would not conclude the issue on the question of title claimed by the plaintiff as a tenant and his subsequent suit based on such a claim would not be barred either under Section 11 of the Code of Civil Procedure or under the general principles of res judicata. In this view it is not necessary for us to consider the other ground taken by Mr. Roychowdhury, viz., that on the terms of Section 11 of the Code itself the Court of Small Causes not being a court competent to adjudicate title between the parties, its decision on a question of title would not operate as res judicata in a subsequent suit over title before a competent court or decide it finally. The learned Judge, however, was carried by the explanation VIII added to Section 11 of the Code which merely incorporates the well settled general principle of res judicata independent of Section 11 but the said principle or the provision codifying it cannot override the specific provision made in Sections 47 and 49 of the Presidency Small Cause Courts Act. This aspect was unfortunately overlooked by the learned Judge, when: he held that the plaintiffs claim is barred, by the principles of res judicata in view of the decision in the Small Cause Court proceeding.

12. Though Mr. Royehowdhury succeeds in assailing the decision under ap-peal by successfully challenging the correctness of the only reason on which it rests, it is necessary for us to consider another point raised by Mr. Mitter before we can finally dispose of the appeal, According to Mr. Mitter the learned, trial Judge was not right in his view that the decision in the Ejectment Suit No. 1152 of 1974 brought by the Official Trustee would not operate as res Judicata in this suit. He contends that though the present parties were co-defendants in that suit, as the plaintiff there claimed ejectment, on the ground of subletting a Specific, issue was raised as to whether the present defendant had sublet, the, suit premises, to the present plaintiff, or not. In deciding, the said issue, the Court there specifically, foundthat the present plaintiff was not a sub-tenant under the present defendant.Since the decree of dismissal of the suitrests on such a finding that finding is not only conclusive as against the plaintiff of that suit but as between the co-defendants of that such, i. e., the parties to the present suit. According to Mr. Mitter the learned trial Judge erred in law in thinking that in a suit for eviction of a tenant governed by the provisions of the West Bengal Premises Tenancy Act, when one of the grounds for eviction is subletting the subtenant is not even a proper party if the sub-tenant was created after the Act and without the consent of the landlord. It has been pointed out by Mr. Mitter that the present plaintiff himself filed an application under Order 1 Rule 10 (2) of the Code and got himself added as a party defendant to that suit as a proper party and It is now open to him to say that he was not even a proper party to that suit so that the decision rendered therein would not bind him in any manner. The point thus raised by Mr. Mitter is of some importance and though it was overruled by the learned trial Judge it is necessary for us to consider how far the trial Judge was right in doing so. If we uphold the contention of Mr. Mitter and hold that the learned Judge was not right in his conclusion, then, in our view, the respondent is entitled to support the decree on a plea of res judicata based on the said decision in Ejectment Suit No. 1152 of 1974.

13. Mr. Roychowdhury appearing on behalf of the appellant was wise enough to anticipate such a contention. In meeting such a contention Mr. Roychowdhury has raised three points. He has first contended that on the terms of Section 13 (6) of the West Bengal premises Tenancy Act, the court has no jurisdiction to entertain the suit once it is found that such a notice had not been duly served by the landlord. In the ejeetmerit suit, according to Mr. Roychowdhury, when the learned Judge found that such a notice had not been served, he could not have proceeded to consider the other issues raised in the suit and though such other issues were raised and decided they are obiter decision not binding on the parties. Secondly, it has been contended by Mr. Roychowdhury that the present plaintiff was an added defendent in that suit and when the suit was ultimately dismissed he had no right of appeal against the finding on that particular issue as to whether he is a sub-tenant or not thoughthe finding might have been adverse to him. According to Mr. Roychowdhury such a finding not being appealable would not operate as res judicata in a subsequent suit. Thirdly, it has been contended by Mr. Roychowdhury that such a finding as between the co-defendants would not operate as res judicata,

14. On a careful consideration of the rival contentions put forward before us we are of the view that there is ' ample substance in the contention put forward by Mr. Mitter. We are unable to accept the view expressed by the learned trial Judge that in the ejectment, suit the present plaintiff was not even a proper party. That was a suit for eviction against the principal defendant on the ground of subletting. There is no dispute that subletting, if any, was in favour of the present plaintiff, Even if such subletting was without the consent of the landlord, a decree for eviction as against the principal defendant would bind the sub-tenant, Therefore, it cannot be said that he was in no way a proper party in whose presence the landlord can claim the decree for eviction. Moreover, it has been rightly pointed out by Mr. Mitter that the present plaintiff on his own got himself added as a party to that suit on an application under Order 1, Rule 10 (2) of the Code and had the Small Cause Court proceedings stayed on the ground that the specific issue involved therein awaits decision between the parties including himself in the ejectment suit. Hence, we are unable to sustain the view of the learned trial Judge that the present plaintiff was neither a necessary nor a proper party in the ejectment suit and, as such, the decision rendered therein would hot operate as res judicata against him.

15. The points raised by Mr. Roychowdhury deserve to be considered independently. So far as the first point raised by Mr. Roychowdhury is concerned, no doubt Section 13 (6) provides that no suit or proceeding for recovery of possession if any premises on any of the grounds mentioned in sub-section (1) of Section 13 except the grounds mentioned in clauses (j) and (k) shall be filed by the landlord unless he has given to the tenant a notice as prescribed therein. This sub-section puts an embargo on the landlord but not on the court. When a suit is filed without such a notice the court will refuse to entertain thesuit and would dismiss it on the ground that such a notice had not been given entitling the landlord to file a suit. Mr. Roychowdhury, however, relies upon an observation of P. N. Mookerji, J. in the case of S. C. Singha v. S. K. Srimani, (1964) 68 Cal WN 184 where he observed,

'There can be little doubt that so far as Section 13 (6) is concerned that section imposes a bar to the filing of a suit by the plaintiff if the suit be one as contemplated under the said section without service of a proper notice under the said statutory provision. It is, in essence, a point of jurisdiction or in other words the court has no jurisdiction to entertain the suit in the absence of such a notice.'

According to Mr. Roychowdhury this view has been approved by the Full Bench of this court in the case of Guru-das Biswas v. Charu Panna Seal : AIR1977Cal110 . Therefore, according to Mr. Roychowdhury, when in the ejectment suit the court decided the issue on the point of notice under Section 13 (6) in favour of the defendant necessarily it follows that the court ceased to have any further jurisdiction, to decide the other issues. Decisions rendered on those other issues, therefore, become obiter. That such a decision, would not operate as res judicata has been sought to be supported) by Mr. Roychowdhury on the basis of Privy Council decision in the case of Midnapore Zemindary Company v. M. N. Roy. (1921) 48 Ind APP 49: (AIR 1982. PC 241) and an earlier decision of this court in the case of Hiralal v. Mantulal (1944) 48 Cal WN 421: (AIR 1947 Cal 221). On a careful consideration of the legal position, we are, however, unable to accept the contention of Mr. Roychowdhury that a finding adverse to the plaintiff on the point of notice under Section 13 (6) of the West Bengal Premises Tenancy Act, would take away the Jurisdiction of the court from deciding other issues involved. As we have indicated hereinbefore on the terms of the provision itself it puts an embargo on the plaintiff so that if the plaintiff had failed to fillfil the requirement of it he would be non-suited but the court can non-suit him not only on that issue but even on merits if the merits are found against the plaintiff. We find no specific bar in the statute upon the court deciding all other issues alone with the issue on the point of such a notice in a suit for evic-tion governed by the provisions of the West Bengal Premises Tenancy Act. The observation of P. N. Mookerji, J. relied on by Mr. Roychowdhury should not be read bereft of its context. In that case the point under consideration by His Lordship was when a tenant's defence had been struck out under Section 17 (3) of the West Bengal Premises Tenancy Act, could such a tenant still challenge the validity of the notice. It is only in that context that His Lordship made the observation relied on by Mr. Roychowdhury and went on further to hold that the defence having been struck out the tenant will be placed merely in the position of one who had not defended the suit but even at the ex parte hearing it is necessary for the plaintiff to show that he has complied with all the requirements which entitled him to maintain the suit. He went on to observe further. 'The portion in regard to the notice under Section 13 (6) of the Act in this respect is in no way different from the position in regard to a notice to quit' In an earlier. Pull Bench in the case of Suraya Properties v. B. N. Sarkar : AIR1964Cal1 P. N. Mookerji. J., himself had pointed; out that Section 13 (6) merely restricts the right of suit by requiring the giving of a notice thereunder. In our view in a suit for eviction governed by the provisions of the W. B. Premises Tenancy Act, based on grounds not exempted by Section 13 (6) of the Act when the tenant-defendant raises a defence in-eluding a defence with regard to the invalidity or absence of a notice under Section 13 (6), it is open to the court to raise issues both on merits and on, the point of notice and base its decision on all the issues or on any one of them. If the court chooses to base its decision on all the issues found in favour of the tenant/defendant it cannot be said that because of the failure of the notice the decision on the merits would not be binding between the parties. This court in the case of Peary Mohun Mukerjee v. Ambica Charan Bandopadhya, (1897) ILR 24: Cal 900 was considering a similar question. There, an. earlier suit against the municipality was defended by the municipality both on merits as also on the ground of absence of notice under Section 368 of the Bengal Municipal Act, which is a provision comparable to Section 13 (6) of the West Bengal; Premises Tenancy. Act. Both the de-fences succeeded and the suit was dismissed. In a subsequent suit this court held that the decision on the merits would operate as res judicata. Therefore, the fact that no suit could be filed to be insufficient or not in accordance with law (sic). This view was subsequently followed by this court again in the case of Hafiz Md. v. Swarupchand, ILR (1941) 2 Cal 434; (AIR 1942 Cal 1).

16. It is now well settled by the Supreme Court that 'if the final decision in any matter at issue between the parties is based by a court on its decision on more than one point -- each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res judicata between the parties.' (V. Yeshwant v. Shi-kandar Khan : [1963]2SCR285 reaffirmed in the case of Gangappa v. Rachawa. : [1971]2SCR691 ) considered from this aspect in the ejectment suit all the three issues, namely, (i) On the point of notice, (ii) on the point of default and (iii) on the point of subletting were found by the learned Judge against the plaintiff and as we have indicated hereinbefore the ultimate conclusion of the learned Judge was based on decision on all these points. Therefore, there is no reason why these decisions would not operate as res judicata between the parties -- so far as the position of co-defendant is concerned, we shall consider the same hereinafter. What remains to be considered are the two decisions relied on by Mr. Roychowdhury. In the case of Midnapore Zamindary Company, (1921) 48 Ind APP 49: (AIR 1922 PC 241), the defendant in a suit for possession raised a defence that he having occupancy right is not evictiable and that the suit was premature. The learned Subordinate Judge overruled the defence of occupancy right but dismissed the suit by upholding the plea that it was premature. That decision was upheld by the High Court and in a subsequent suit the Privy Council held that the finding with regard to the claim of occupancy right would not found an actual plea of res judicata when the suit was found to be premature. In our view it would not be correct to think that the finding on the claim of occupancy right in the earlier suit was held not to operate as res judicata only because on the other finding the suit was found to be premature. It is quite evident that the finding on the claim of occupancy right was ad-verse to that of the defendant thoughthe suit itself was dismissed and the dismissal was not based on such a finding. The real reason in our view why it was held not to operate as res judicata was because the material finding was against the defendant though the decree was in his favour and that the decree was not based on such a finding.

17. In the case of Hiralal v. Mantulal (1944) 48 Cal WN 421: (AIR 1947 Cal 221) this court held that when a notice under Section 80 of the Code of Civil Procedure is not given to a public servant and no averment that such notice has been given is made in the plaint of a suit the duty of the court is to dismiss the suit under Order 7 Rule 11 and any decision arrived at, in such a suit on the merits even though not objected to by the parties is not res judica a in a subsequent suit. This decision was upheld by the Privy Council on appeal vide AIR 1950 PC 80. But the effect of the decision had been considered by the Supreme Court in the case of Gangappa v. Rachawwa : [1971]2SCR691 . It had been rightly pointed out by the Supreme Court that on the specific terms of Section 80 of the Code, the plaintiff is not only to serve a notice but plead such service on the face of the plaint so that a plaint which does not contain necessary pleading in this regard is liable to be rejected under Order 7. Rule 11 of the Code. It was not a case where service of such a notice being duly pleaded an issue was raised based on challenge to the said fact of service or the validity of the notice. On the other hand, it was a case where on the face of the plaint in the absence of necessary averment the same was liable to be rejected so that the court is really not called upon to frame any issue or decide the same. This distinction was clearly brought out by the Supreme Court in the case of Gangappa v. Rachawwa when the Supreme Court observed 'But where the plaint on the face of it does not show that any relief envisaged under Section 80 of the Code is claimed it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under Section 80 was necessary. If the court decides the various issues raised on the pleadings it is difficult to see why the adjudication of the rights of the parties apart front the question as to the appli-cability of Section 80 of the Code and absence of notice thereunder should not operate as res judicata in a subsequent suit where the identical questions arise for determination between the same parties.'' In our view a dispute as to the applicability of Section 80 and the absence of notice thereunder and a dispute as to service of such notice or the validity thereof stands on no different footing having any material bearing on the point now under consideration. Therefore, if the decision on such an issue would operate as res judicata along with decision on merits as indicated by the Supreme Court, the only point of distinction in the case of Hiralal v. Mantulal was absence of such an averment in the plaint in view of the specific terms of Section 80 of the Code. Therefore, the said decision in our view is no authority to support a contention that in a case like the present one where the court decides an issue as to the validity of a notice on the basis whereof only the plaintiff can sue and the decision goes against the plaintiff the court is not entitled to decide the other issues involved and the decision on such other issues would not operate as res Iudicata though they may independently support the decree. The first point raised by Mr. Roychowdhury in answer to Mr. Mitter, therefore, must be overruled.

18. So far as the second point raised by Roychowdhury is concerned, we are unable to accept his contention that the finding which was adverse to the present plaintiff in the earlier suit for eviction was not appealable. Mr. Roychow-dhury may be right that a finding adverse to a party would not be appealable if the decree is in his favour under certain circumstances but not always. It would not be so appealable if the finding is not the basis of the decree and would not otherwise be res iudicata between them. In the present case the Official Trustee put up a claim in the ejectment suit that the tenant ('respondent now before us) had sublet the premises without his consent and after the West Bengal premises Tenancy Act, 1956, came into force. In that suit the present appellant had got himself added as a co-defendant raising a plea supporting the plaintiff that the tenant had sublet the premises to him since Aug., 1962. Since no decree could be passed by the court in such a suit unless one of the grounds specified in Sub-section (1) ofSection 18 of the West Bengal Premises Tenancy Act including the ground of subletting had been made out the plaintiff could not have succeeded except upon establishment of one of the grounds. The Official Trustee adduced evidence in support of such a plea though the present appellant who was a co-defendant resiled and stood back when he did not contest the suit at the hearing. The court recorded a finding that he was not a sub-tenant under the tenant and on that ground the suit was dismissed. Though the finding was against the subtenant it was equally against the Official Trustee and constitute the basis for the decree. In that sense it is part of the decree itself and both the Official Trustee and the subtenant, that is the present appellant were affected thereby, Each of them was equally entitled to prefer an appeal. Though reliance is placed by Mr. Roychowdhury on the decision of the Supreme Court in the case of Gangabai v. Vijay Kumar, : [1974]3SCR882 , that decision in our view is of no help because there the finding which was adverse was not a necessary finding and had no impact on the decision of the suit. The present case falls more in line with the case of Gangappa v. Rachawwa, : [1971]2SCR691 .

19. So far as the third point raised by Mr. Roychowdhury is concerned, it is now well settled that an issue decided as between the co-defendants may as well operate as res judicata when three conditions as pointed out by the Privy Council in the case of Munni Bibi v. Triloki Nath, (1931) 58 Ind App 158: (AIR 1931 PC 114) are fulfilled, namely, (i) there arises a conflict of interest between the co-defendants, (ii) that it is necessary to decide that conflict in order to give the plaintiff appropriate relief and (iii) there is a decision of the question between the co-defendants. This principle has since been approved by the Supreme Court in the case of Iftikar Ahmed v. Syed Meharban All : [1974]3SCR464 . As all the three conditions are amply fulfilled the decision in the ejectment suit on the issue as to whether the present appellant who was a co-defendant along with the respondent before us in that suit, was a sub-tenant under the respondent would operate as res judicata it was necessary for the court to decide that issue in that suit in order to adjudicate the plaintiff'sclaim and constitute the basis of the dismissal of such a claim.

20. For reasons aforesaid, differing from the learned trial Judge, we would hold that the decision in the Ejectment Suit No. 1152 of 1974 on the question as to whether the present plaintiff was a sub-tenant tinder the present, defendant or not, would operate as res judicata to bar the claim in the present suit out of which this appeal arises. We, therefore, uphold the decree passed by the learned trial Judge though on a ground different from the one given by him. The appeal fails and is dismissed with costs.

21. Since the appeal stands disposed of, the Rule becomes infructuous and is discharged.

22. Leave under Article 133 read with Article 134A of the Constitution as prayed for, is refused.

23. Let operation of the order remain stayed for a period of three months from this date.

S.N. Sanyal, J.

24. I agree.


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