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Chunder Coomar Mitter Vs. Sib Sundari Dassee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal631
AppellantChunder Coomar Mitter
RespondentSib Sundari Dassee
Excerpt:
res judicata - appeal--point decided by lower court, but not dealt with on appeal. - .....the munsif found that notice had been served; but as to the other points,--namely, whether the rent was enhanceable, and whether there were any grounds for enhancing it,--he found them against the plaintiff. for the purpose of proving that the rent was not enhanceable, the defendant relied upon a decree which was passed in a suit for enhancement brought by the same plaintiff against the same defendant in 1875. in that suit there were two issues: first, whether there was a proper notice of enhancement; and secondly, whether the rent was enhanceable. the munsif found that the service of notice was sufficient, but he also found that the rent could not be enhanced. upon these findings, there were two appeals to the subordinate judge--one by the plaintiff, upon the ground that the second.....
Judgment:

Richard Garth, C.J.

1. This is a suit for enhancement, and three questions have been raised by the defendant: first, that no notice of enhancement was served; secondly, that the rent was not enhanceable; and thirdly, that there were no grounds for enhancing it.

2. The Munsif found that notice had been served; but as to the other points,--namely, whether the rent was enhanceable, and whether there were any grounds for enhancing it,--he found them against the plaintiff. For the purpose of proving that the rent was not enhanceable, the defendant relied upon a decree which was passed in a suit for enhancement brought by the same plaintiff against the same defendant in 1875. In that suit there were two issues: first, whether there was a proper notice of enhancement; and secondly, whether the rent was enhanceable. The Munsif found that the service of notice was sufficient, but he also found that the rent could not be enhanced. Upon these findings, there were two appeals to the Subordinate Judge--one by the plaintiff, upon the ground that the second issue had been improperly found against him, and the other by the defendant, upon the ground that the notice was not sufficient. The last point was the only one which the Subordinate Judge thought it necessary to try. He found that the service of notice was not sufficient, and consequently that the suit was properly dismissed. He, therefore, thought it unnecessary to go into the other question; and although he dismissed the appeal of the plaintiff, he did not decide the question which it involved. He expressly says so. In this suit the Munsif does not say whether the decision in the former suit was a res judicata or not; but upon appeal to the District Judge, he considered that, as the decision of the Munsif in the former suit was not expressly overruled by the Appellate Court, it was res judicata in this suit, and prevented the plaintiff from contending here that the rent was enhanceable. But in this he was wrong. When the decision of a lower Court is appealed to a superior tribunal, and that tribunal for any reason does not think fit to decide the matter, it is left an open question. We have held so here over and over again; and it is not because in point of form the appeal in the first suit was dismissed, that the decision of the Munsif can be considered as confirmed.

3. The judgment of the District Judge in this point was erroneous. But then there is another issue which the District Judge has decided in favour of the defendant, which in this suit is fatal to the plaintiff. That issue was, whether there were any sufficient grounds in this suit for enhancing the rent? The Munsif found that issue against the plaintiff, and the lower Appellate Court agrees with him, so that even supposing the tenure to be enhanceable, the suit must stand dismissed; and it would be useless to send it back for retrial. It may be doubtful how far the District Judge means to decide upon other grounds, whether the rent was enhanceable. That is a matter with respect to which we say nothing, because we do not wish to prejudice the rights of either party in the future.

4. The appeal will be dismissed with costs.


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