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Newton Hickie and anr. Vs. Official Trustee of West Bengal - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 121 of 1951 (Suit No. 3396 of 1952)
Judge
Reported inAIR1954Cal506,58CWN819
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 21; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 16; ;Evidence Act, 1872 - Section 44
AppellantNewton Hickie and anr.
RespondentOfficial Trustee of West Bengal
Appellant AdvocateA.N. Roy and ;H.N. Ghosh, Advs.
Respondent AdvocateS.D. Banerjee and ;Asim Dutt, Advs.
DispositionAppeal dismissed
Cases ReferredRajwant Prasad v. Ram Ratan
Excerpt:
- chakravartti, c.j. 1. the only question argued in this appeal was a question of res judicata and, in the end, the only ground on which the bar of 'res judicata' was sought to be avoided was that the decision in the earlier suit was a decision of a court which was not competent to try the subsequent suit out of which the appeal had arisen. 2. the facts are not many and may be briefly stated. a two-storied building, known as 69, park street, is admittedly situated within the limits of the ordinary original civil jurisdiction of this court and in 1951, the appellants, who may be compendiously called the hickies, were admittedly in occupation of both the upper and lower flats as tenants. the premises belong to the trust estate n. b. elias and r. o. cohen and the trustee of the trust is the.....
Judgment:

Chakravartti, C.J.

1. The only question argued in this appeal was a question of res judicata and, in the end, the only ground on which the bar of 'res judicata' was sought to be avoided was that the decision in the earlier suit was a decision of a Court which was not competent to try the subsequent suit out of which the appeal had arisen.

2. The facts are not many and may be briefly stated. A two-storied building, known as 69, Park Street, is admittedly situated within the limits of the ordinary original civil jurisdiction of this Court and in 1951, the Appellants, who may be compendiously called the Hickies, were admittedly in occupation of both the upper and lower flats as tenants. The premises belong to the Trust Estate N. B. Elias and R. O. Cohen and the trustee of the trust is the Official Trustee of West Bengal. In 1951, the Official Trustee brought two suits for ejectment against the Appellants, one in respect of the upper flat and one in respect of the lower, on the basis that there were two several tenancies in respect of the two flats and that both the tenancies had been determined by notices to quit.

In both the suits, it was alleged that no rent had been paid since August, 1950, which, if established would exclude the Appellants from the benefit of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, except to the extent provided for in Section 14. According to the Official Trustee, the rent of the upper flat was Rs. 350/-per month and that of the lower flat Rs. 375/-per month and consequently he instituted the suits in the Court of the Chief Judge of the Calcutta Court of Small Causes under Section 16, Rent Control Act, read with Schedule B. The suit in respect of the upper flat was Suit No. 323 of 1951 and that in respect of the lower flat Suit No. 318 of 1951. Actually, the suits were heard first by the third and finally by the fourth Judge on transfer to them by the Chief Judge which he ordered in exercise of his powers under the Rent Control Act.

3. The Appellants filed written statements in both the suits which were couched in identical language but for a small addition in one of them. Except that they denied service of notice, they raised no direct issue of fact, but merely put forward a number of general defences in the broadest of terms. They pleaded that the suits were notmaintainable in the form adopted, put the plaintiff to proof of the Trust, denied the relationship of landlord and tenant, denying therewith that the Plaintiff had any right to sue or that any rent was due to him and finally denied that there was any cause of action. In Suit No. 313, they added that the notice was mala Me and illegal. '

4. The suits were heard together. In the course of them, the plaintiff Official Trustee made two applications under Section 14(3), Rent Control Act, by which he submitted that the defendants were not entitled to orders under Section 14(1), enabling them to deposit the arrears of rent and thereby avert ejectment. After certain adjournments, it was directed that the applications would be dealt with at the final hearing of the suits, along with all other issues, and after certain further adjournments, 8-12-1951 was fixed as the date of hearing. On that date, the lawyer for the defendants stated to the Court that he had no instructions, but seems nevertheless to have made an application for time.

The prayer was rejected and the cases were adjourned to the 10th December for orders. On the 10th December, the Court passed orders under Section 14(1) of the Act, directing the defendants to deposit Rs. 6138-8-6 pies and Rs. 5823-8 as in Suit No. 318 and Suit No. 323 respectively and to do so on the 15th day from the date of the order, as enjoined by Section 14(2). The cases were directed to be put up on the 3rd January, 1952 for orders. On the 3rd January, the defendants were absent and it also appeared that no deposit had been made by them. In those circumstances their defence against ejectment became liable to be struck out under the mandatory provisions of Section 14(4). The suits were accordingly decreed ex-parte with costs.

5. Against the decrees, the Hickies then preferred two appeals to the Chief Judge and another Judge of the Calcutta Court of Small Causes under Section 32(6) (ii) of the Rent Control Act. The grounds taken were certain alleged irregularities of procedure and the alleged incorrectness of the findings that the appellants were defaulters and that the notices to quit were legal notices and their service had been proved. At the hearing, it appears only to have been argued that the appellants had been prejudiced by the refusal of certain adjournments and that the decrees could not lawfully be passed without formally striking out the defence against ejectment.

The Court repelled those contentions and dismissed the appeals. The Hickies then moved this Court in revision, taking only the ground actually urged in the appeals, together with an additional ground that the appellate Court was wrong in stating that they had not filed certified copies of the judgments appealed from. On those applications two Rules were issued. At the hearing of the Rules, the complaint against the refusal of adjournments was repeated and the only other point urged was that because in the rent receipts granted by the Official Trustee, the names N. B. Elias and R. O. Cohen appeared in the description of the Trust Estate, it ought to have been held that they were the landlords entitled to sue and not the Official Trustee.

This Court rejected the contentions and discharged the Rules, describing the revision petitions as 'entirely without substance'. The appeals to the Court of Small Causes were Appeals Nos. 157 and 158 of 1952 decided on the 24th April, 1952 and the revision cases in this 'Court were -- 'Civil Rules Nos. 1351 and 1352 of 1952, D/- 7-8-1952 (Cal) (A)'.

6. It appears that on 18-8-1952, the Official Trustee obtained possession of three rooms on the first floor of the premises in execution of the decree passed in Suit No. 323 of 1951.

7. Thereafter, on 22-8-1952, the Hickies brought in this Court the suit out of which the present appeal arises. They now admitted that they were tenants under the defendant Official Trustee, but averred for the first time that their tenancy in respect of the two flats of 69, Park Street was 'one indivisible tenancy', carrying a rent of Rs. 725/- per month and they denied that there were two several tenancies, carrying respectively rents of Rs. 350/- and Rs. 375/-.

As the jurisdiction conferred by the Rent Control Act on the Chief Judge of the Court of Small Causes or a Judge nominated by him to try suits for ejectment was limited to tenancies carrying rents upto Rs. 500/- per month, the Hickies pleaded that the ejectment decrees passed by the Fourth Judge of the Court of Small Causes were 'without, any jurisdiction, authority and competency' and were nullities and that so were the orders passed by the Small Causes Court on appeal and those passed by this Court in revision.

They accordingly prayed for a declaration that they were tenants in respect of premises No. 69, Park Street, a further declaration that the decrees passed in Suits Nos. 318 and 323 of 1951 in the Court of Small Causes, the orders passed in Appeals Nos. 157 and 158 of 1952 in the same Court and the orders passed by this Court in -- 'Civil Rules Nos. 1351 and 1352 of 1952 (Cal) (A)' were all invalid and void and not binding on them, an injunction restraining the defendant Official Trustee from executing the decress, an order for recovery of possession of the three rooms on the first floor and leave under Order 2, Rule 2, Civil P. C.

8. By his written statement, the Official Trustee denied the allegations of the plaintiffs and stated that the tenancy in respect of the upper flat had commenced in 1937 and that in respect of the lower flat in 1939 and that since then, there had always been two separate tenancies, carrying separate rents which had been separately enhanced from time to time. He accordingly contended that the Court of Small Causes was the only Court competent under the law to try the ejectment suits in as much as the rent in the case of each of the flats was less than Rs. 500/- per month.

He pointed out that the plaintiffs had never suggested in the course of the suits that the two flats formed parts of one tenancy and never raised any question as to the jurisdiction of the Court of Small Causes to try them and he pleaded further that the present suit was barred by the rule of res judicata or principles analogous thereto.

9. The suit came up for hearing before G. K. Mitter, J. who took up the question as to whether it was barred by 'res judicata' as a preliminary issue. The learned Judge answered the issue in the affirmative. He held that on the facts set out in the plaints of Suits Nos. 318 and 323 of 1951, the Court of Small Causes clearly had jurisdiction to try them. If the case of the Hickies was that there were no two several tenancies but only one tenancy, carrying a rent of over Rs. 500/- and that therefore the Court of Small Causes had no jurisdiction to entertain an ejectment suit in respect of it, they might and ought to have raised the plea in bar of the jurisdiction of the Court. Not having done so, they were not entitled to raise the question in the present suit.

The learned Judge held further that the fact that the Court of Small Causes was not a Court competent to try the present suit would not exclude the bar of 'res judicata', because for ejectment suits in respect of tenancies carrying rents of less than Rs. 500/- per month, the Court of Small Causes was a Court of exclusive jurisdiction and accordingly the principle laid down in the decision of the Supreme Court in -- 'Raj Lakshmi Dasi v. Banamali Sen', : [1953]4SCR154 (B) and the decisions of the Privy Council on which it was founded, would apply. It is the correctness of that decision which is challenged in the present appeal.

10. On behalf of the appellants, it was contended by Mr. Roy that the decisions in Suits Nos. 318 and 323 of 1951 could not operate as res judicata so as to bar the present suit because, first, those decisions involved no decision as to the jurisdiction of the Court of Small Causes and, secondly, because the Court of Small Causes was not a Court competent to try the present suit. He added that even if the question of jurisdiction had been impliedly or in effect decided in the earlier suits, he was entitled under Section 44, Evidence Act, to show that the decisions were not decisions of a Court competent in fact to give them.

11. Before dealing with these grounds, it will be convenient to refer to the provision of law under which the earlier suits were instituted in the Court of Small Causes. Previously, all suits for the ejectment of tenants from premises, situated within the limits of the ordinary original civil jurisdiction of the High Court had to be brought in the High Court and the Calcutta Court of Small Causes had no jurisdiction to entertain such suits. That Court could only make an order for possession under Section 43 of the Presidency Small Cause Courts Act in respect of properties of which the annual value did not exceed two thousand rupees, but persons aggrieved by such an order could bring a suit in the High Court to establish their rights. Now, however, Section 16 of the Rent Control Act of 1950 provides as follows:

'Notwithstanding anything contained in any other law, a suit by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed, shall lie to the Courts, as set out in Schedule B, and no other Court shall be competent to entertain or try such suit.'

12. Schedule B provides that in the case of premises situated wholly within the ordinary original civil jurisdiction of the High Court, the appropriate Court for suits for ejectment against tenants shall be, where the monthly rent exceeds Rs. 500/-, the High Court and in all other cases, the Chief Judge of the Calcutta Court of Small Causes who shall be entitled to transfer the suit for trial to another Judge of the same Court. Since the premises in question in the present case are situated wholly within the original jurisdiction of this Court and since, according to the Official Trustee, there were two tenancies carrying rents of Rs. 350/- and Rs. 375/- per month respectively, suits for ejectment in respect of such tenancies could be brought only before the Chief Judge of the Court of Small Causes.

13. Regarded plainly and without reference to the technicalities of the law, the position which the appellants are asking the Court to accept in the present suit is an extraordinary one. Two ejectment suits were brought against them on the basis that there were two tenancies and they werebrought in a Court, and in fact the only Court, competent to try them in view of the rents whichthe tenancies were said to carry. The appellantsdid not say a word as to there being only one tenancy and not two and did not contend either that there could be no ejectment suits in respect of tenancies which did not exist or that there being only one tenancy for the two flats, carrying a rent of over Rs. 500/- per month, no suit for their ejectment from the premises could be entertained by the Court of Small Causes. Instead, they raised various other points and invited the Court to decide them.

The Court decreed the suits against them and even when they appealed or, still later, when they moved this Court in revision, they made no mention at all of there being a single tenancy and raised no question whatever as to the jurisdiction of the Small Causes Court. After having gone through the whole course of the ejectment suits in three successive Courts without objecting at any stage to the respondent's case of two tenancies or to the jurisdiction of the Court of Small Causes, they have now brought a suit on their own account in which they have raised such objections for the first time and are contending that in spite of the decisions' in the previous suits, they are entitled to raise and agitate them.

What they are saying is that the Court of Small Causes could not have tried the present suit and therefore whatever the decision of that Court in the earlier suits might be, it is no obstacle in their way. If the appellant's contention be correct, a person can agitate the same question in any number of successive suits by merely adding to his case or changing the form of the relief prayed for, but if the law allows such a strange form of liberty, the same must be conceded. The position has to be examined.

14. The ground on which the appellants seek to avoid the previous decrees is that the Court of Small Causes had no jurisdiction to pass them. The answer with which the respondent seeks to meet that contention, apart from his defence on the merits, is that the question is concluded by the previous decisions in favour of jurisdiction and is no longer open to the appellants or triable by any Court. The question of the jurisdiction of the Court of Small Causes to pass the ejectment decrees is thus a matter directly and substantially in issue in the present suit. If it was also directly and substantially in issue in the former suits, whether expressly or constructively, and was decided, the respondent's plea in bar must prevail, subject to the Court of Small Causes being competent to try the present suit, if that qualification applies.

15. I am entirely unable to accept the first contention of Mr. Roy that the question of jurisdiction was not decided in the former suits. It was certainly not decided directly and in express terms, but to constitute the bar of res judicata, an explicit decision is not necessary. If an adjudi-cation on a matter is necessarily involved in a decision, it is, for purposes of res judicata, decided. I do not consider it necessary to cite decisions in support of that proposition which is founded on the general principle of res judicata and lias been affirmed and re-affirmed in a multitude of cases, beginning with the decision of the Judicial Committee in the old case of -- 'Soorjomonee Dayee v. Suddanund Mohapatter', IA Sup Vol. 212 (PC) (C).

Indeed, Section 11, Civil P. C., although it requires the matter in issue to be 'heard and finally decided'in the former suit, itself recognises an implied decision. The section says in Explanation IV that any matter which might and ought to have been made a ground of defence or attack, shall be deemed to have been a matter directly and substantially in issue. It does not proceed to say in express terms that such a matter shall also be deemed to have been heard and finally decided, but unless such be its meaning, there could be no purpose in introducing the Explanation at all. A matter which is deemed to have been in issue only constructively, could not, in the very nature of things, have been actually heard and decided and if such hearing and decision were nevertheless essential for the purposes of 'res judicata', the Explanation would be perfectly meaningless.

It has accordingly been held, in cases too numerous to mention, that if the decree passed in the earlier suit be inconsistent with a plea which might and ought to have been raised but was not, then for the purposes of 'res judicata', it must be taken to have been finally decided by necessary implication. In -- 'Raja of Ramnad v. Velusami Tevar', AIR 1921 PC 23 (D), Lord Moulton, after referring to an earlier order for the execution of a decree, proceeded to observe as follows:

'To that order, the plea of limitation, if pleaded, would, according to the respondents' case, have been a complete answer and therefore it must be taken that a decision was against the respondents on the plea.'

The observation was made in an appeal arising out of an execution proceeding to which Section 11 did not apply in terms, but the principle was nevertheless stated. In most of the decisions of the Judicial Committee, their Lordships, after coming to the conclusion that a particular matter was constructively in issue in the prior suit, proceeded to hold that it was 'res judicata' without further discussion, but the words 'heard and finally decided' were specifically referred to and considered in -- 'Fateh Singh v. Jagannath Baksh' .

For a direct decision on the point, reference may be made to -- 'Sri Gopal v. Prithi Singh', 20 All 110 (FB) (F), affirmed by the Privy Council in -- 'Sri Gopal v. Prithi Singh', 29 Ind App 118 (PC) (G) and followed in -- 'Jamadar Singh v. Serazuddin Ahmad', 35 Cal 979 (H). At one time it was thought that the rule of constructive 'res judicata' did not apply to the question of jurisdiction, but the matter has now been set at rest by the decision of the Supreme Court in --'Mohan Lal v. Benoy Kishna' : [1953]4SCR377 (I).

16. In the present case, the appellants' objection to the jurisdiction of the Small Causes Court to pass the ejectment decrees is interlinked with their case on the merits. They say that the Small Causes Court had no jurisdiction to try the former suits, because there was but one tenancy for the entire premises, carrying a rent of Rs. 725/-per month, and accordingly no decree for ejectment from the subject matter of the tenancy or any part of it could be passed by the Small Causes Court.

Clearly, this was a matter which might and ought to have been made a ground of defence in the former suits. They were concerned in defending themselves against the particular suits in which decrees for ejectment were being asked for against them. If they pleaded that there were no two separate tenancies, as alleged, but only a single tenancy and succeeded in establishing that plea, the Court would have either returned the plaints to the respondent on the ground thatit had no jurisdiction to try a suit in respect of the tenancy concerned or perhaps dismissed the suits on the ground that they related to tenancies which had no existence.

In either event, the appellants would have defended themselves against the suits successfully. They did not take the plea of a single tenancy and the consequent want of jurisdiction in the Court. The suits were decreed. It must therefore be deemed to have been decided in one suit that there was a tenancy limited to the upper flat and in the other suit that there was a tenancy limited to the lower and that each tenancy bore the rent alleged which was below Rs. 500/- and that consequently the Court had jurisdiction to try the suits and pass the decrees. It must be remembered that the allegation in the case is not of a fundamental lack of jurisdiction but of a lack of jurisdiction arising out of the value of the subject-matter.

Since jurisdiction depended upon the amount of the rent carried by the tenancies which again depended upon there being two tenancies or one, it depended upon a question of fact which it was within the power of the Court to decide in order to determine the question of its own jurisdiction. In passing the decrees, the Court must be deemed, to have decided it against the contention of the appellants, since the decrees are inconsistent with that contention. The argument of Mr. Roy that the decisions in the former suits do not involve any decision on the question of there being one or two tenancies and on that of the Court's jurisdiction cannot therefore be accepted.

17. Mr. Roy attempted to argue, somewhat faintly, that the decrees in the former suits were ex parte decrees and therefore the decisions could at most operate as 'res judicata' on the questions directly decided. He sought to support his argument by reference to the decision of the House of Lords in -- 'New Brunswick Railway Co. v. British and French Trust Corporation', (1939) AC 1 (J). But the decrees were ex parte only in the sense that after filing their written statements and taking part in the proceedings for a considerable time, the appellants defaulted in appearance during the last stages.

At the stage of filing their defence and even at the stage of the respondent's application under Section 14 (3), Rent Control Act, they were before the Court and they did raise all such pleas as they considered to be open to them. In those circumstances, the principle laid down in -- 'The New Brunswick Railway Co.'s case (J)' is excluded by the reasons which the Supreme Court gave in repelling an identical contention based on the same case in -- ' : [1953]4SCR154 (B)'.

Besides, it is well settled in this country that even if a decree be ex parte, it will operate as res judicata in respect of all grounds of defence against the actual claim in the suit as also all matters inconsistent with such claim which might & ought to have been raised. The question whether there were two several tenancies or only one and whether the Court of Small Causes had jurisdiction to try a suit for ejectment against the appellants in respect of the premises in question was not merely incidental or ancillary to the respondent's claim in the previous suits but went to the ver;; root of his claim for ejectment, as brought. In my view, it is impossible for the appellants to avoid the effect of the decisions on that question on the ground that they were absent when the decree was actually passed.

18. The next and the main contention of Mr. Roy was that even granting that the nature ofthe appellant's tenancy and the question of the Court's jurisdiction were decided in the previous suits, the decisions could not still operate as res judicata inasmuch as the Court of Small Causes was not competent to try the present suit. It cannot be disputed that the Court of Small Causes is not competent to try a declaratory suit and that the only special jurisdiction conferred by the Rent Control Act on the Chief Judge or a Judge of his Court selected by him is to try suits for ejectment in respect of tenancies, carrying rent up to a certain limit.

The present suit is a suit of a declaratory character and the declarations asked for include declarations regarding certain orders not only of the Appellate Bench of the Small Causes Court, but also of this Court. Mr. Roy contended that the present suit could not possibly have been tried by the Court of Small Causes and that therefore by reason of the express provisions of Section 11 of the Code of Civil Procedure, no bar of 'res judicata' was created by the decisions in the previous suits.

19. The above argument was advanced before the learned trial Judge as well, but he repelled it by holding that in respect of the previous suits, the Court of Small Causes was a Court of an exclusive jurisdiction and therefore the principle that in order that a prior decision might operate as res judicata, the Court which gave it must have been competent to try the subsequent suit also, would not apply in the present case.

The learned Judge relied on the decision of the Supreme Court in -- ' : [1953]4SCR154 (B)', where it was held that Courts of exclusive jurisdiction like Revenue Courts, Land Acquisition Courts and Administration Courts were not entitled to try regular suits and therefore when a decision of such a Court was set up as constituting an estoppel by record, it was the general principles of 'res judicata' and not the specific provisions of Section 11 of the Code which were to be regarded.

Those principles only required that the Court trying the previous case had jurisdiction to try it, but not also that it was competent to try the subsequent suit as well, which was a limitation engrafted on the general principles by the Code. The learned Judge applied that rule to the case before him and held that on the facts pleaded before it, the Court of Small Causes had jurisdiction to try the suits and decide whether the appellants were tenants under the respondent and what the terms of the tenancy were. The decisions would therefore operate as 'res judicata' and preclude the appellants from prosecuting the present suit.

20. The learned Standing Counsel who appeared on behalf of the respondent submitted that in applying the principle of the decision in -- ' : [1953]4SCR154 (B)' the learned trial Judge had been right. He referred to the provisions of Section 16 of the Rent Control Act and pointed out that according to that provision, read with Schedule B, ejectment suits in respect of tenancies carrying a monthly rent of Rs. 500/- or less were to be tried by the Court of Small Causes and it had been expressly provided that 'no other Court shall be competent to entertain or try such suit.' The Court of Small Causes had thus been made a Court of exclusive jurisdiction in respect of the class of suits specified.

I may point out a further indication that the Court created for the trial of such suits is a very special kind of Court. The jurisdiction to try such suits has not been conferred on the Court of Small Causes as such, but only on the Chief Judge of the Court who is to try them as a Court of the District Judge and on the Judge to whom the Chief Judge may transfer a suit, who is to try it as a Court of a Subordinate Judge.

21. It appears to me that if the decision of the case turns on the rule of res judicata, the principle of the decision in -- 'Raj Lakshmi Dasi v. Banamali Sen (B)' (ante) and the Privy Council decisions on which it is founded can be properly applied to the present case, although it would involve a slight extension. If the inability of a special Court to try a regular suit takes its decisions out of the provisions of Section 11 of the Code and makes the general principles of res judicata applicable, the same reason would seem to attract the general principles to decisions of the Small Causes Court in ejectment suits under the Rent Control Act.

The Chief Judge of that Court functioning as a District Judge and a Judge of that Court functioning as a Subordinate Judge are special creatures of the Rent Control Act, exercising a specified jurisdiction and that jurisdiction alone. As such Judges, they can only try ejectment suits of the specified class and cannot try suits of any other kind. It would therefore seem that they are Courts of a peculiar type, not known to the ordinary judicial system of the country and brought into existence for the purpose of trying a single class of suits and they exercise an exclusive jurisdiction, both in the sense that they exercise no other jurisdiction and in the sense that the jurisdiction they exercise cannot be exercised by any other Court.

If so, the test of being competent to try a subsequent suit of another kind must be as inappropriate in their case as in the case of Revenue or Land Acquisition Courts and the rule in their case must be that if they were competent to give the decision set up as a bar, it should operate as 'res judicata' even if they were incompetent to try the subsequent suit.

22. It may seem strange that a decision of a Court entitled to try regular suits will not be 'res judicata' unless it was also competent to try the subsequent suit, but a decision of a Court not entitled to try regular suits at all will be so, although the subsequent suit could not obviously have been tried by it. But a reason for this distinction can be seen. The basis of the limitation engrafted by the Code was explained by the Judicial Committee in -- 'Misser Raghobardial v. Sheo Baksh Singh', 9 Ind App 197 (PC) (K) and again in -- 'Rajah Run Bahadur Singh v. Mt. Lachoo Koer', 12 Ind App 23 (PC) (L).

Their Lordships pointed out that in India there was a great number of Courts of varying grades, the qualifications of whose Judges differed greatly and that it was not proper that the lowest of the Courts should be allowed to determine finally the title to the greatest estate in the Indian Empire. By requiring that in order that a prior decision might bar a subsequent suit, the Court giving that decision should be a Court of concurrent jurisdiction with respect to the subsequent suit, both as regards the pecuniary limit and as regards the subject-matter, that evil or inconvenience was avoided. This solution, however, cannot apply in the case of Courts of an exclusive jurisdiction, because they cannot obviously have concurrent jurisdiction with respect to a subsequent suit, lying outside their special province.

Nor can there be any question of providing the better Court for the purposes of a final decisionin such cases. The Legislature having assigned a particular class of proceedings to the' exclusive jurisdiction of such Courts, it is they alone and not any other Court which can decide them and, therefore, whatever the quality of such Courts, the parties must be content with such decisions as they may give and once they have given a decision, it will bar a subsequent re-canvassing, of the matters decided, so long as they are matters within their special jurisdiction or matters necessarily involved in such matters.

23. The decision of the present case on the general principles of res judicata on the footing that the Court which decided the' previous suits was a Court of an exclusive jurisdiction may, however, be said to present one difficulty. Both the previous and the present proceedings are suits and since they are, it may be said that Section 11 of the Code is in terms attracted. No Court, says that section, shall try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit in a Court competent to try such subsequent suit.

'The condition as to the competency of the former Court to try the subsequent suit'

observed the Supreme Court in -- 'Raj Lalishmi Dasi v. Banamali Sen (B) (ante)',

'is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits alone.'

Their Lordships thus made an exception in the case of suits. Again, in construing Section 13 of the Code of 1882 which, in this regard, was in the same terms as the present Section 11, the Judicial Committee observed in the case of -- 'Gokul Mandar v. Pudmanund Singh', 29 Ind App 197 (PC) (M) that

'a decree in a previous suit cannot be pleadedas 'res judicata' in a subsequent suit unless theJudge by whom it was made had jurisdiction totry and decide not only the particular matter inissue, but also the subsequent suit itself inwhich the issue is subsequently raised.'

Their lordships added that the essence of theCode was to be exhaustive on the matters inrespect of which it declared the law and that itwas not the province of a Judge to go outside theletter of the enactment. Since that decision, ithas always been held that if a case came withinthe terms of Section 11, it would be governed entirelyby the provisions of that section and there couldbe no room for the application of any generalprinciples. Accordingly, it may be said that thepresent case falls within the express terms ofSection 11, since both the present and the previousproceedings are suits and therefore there can beno res judicata, since the Court of Small Causes.was not competent to try the present suit whichis a declaratory suit by the tenants.

24. In my opinion, that argument ought not to prevail. Were it to be accepted, and the mere fact that the present suit is a declaratory suit by the tenants were held sufficient to exclude the bar of res judicata, the decision in any ejectment suit tried by the Court of Small Causes might be set at naught and the dispute started over again by the institution of a declaratory suit in this Court, even though the former suit might be perfectly and unquestionably within the jurisdiction of the Small Causes Court and even though no fraud might be alleged.

A tenant would only have to ask for a declaration that the decree of the Small Causes Court was illegal and not binding on him which wouldat once avoid the bar of res judicata, since the Small Causes Court cannot try a declaratory suit or indeed any suit by a tenant. The law cannot be applied in a manner which will lead to so absurd a result, What the applicants have really put in issue in the present suit is the question whether there were two several tenancis or only one and what they are really aiming at is to obtain a fresh decision on that question in their favour.

The question of the jurisdiction of the Small Causes Court to try the former suits is only consequential. The substance of the position is that, on the merits of the case, the appellants have suffered adverse decrees in the previous litigation in three successive Courts and they have now brought a suit on their own account as plaintiffs, hoping to be able to avoid the bar of res judicata by the form of the suit.

25. It was argued at the Ear that the present suit was a combination of two suits, one in respect of the decree in suit No. 318 and another in respect of the decree in suit No. 323 and it was suggested that the two suits should be regarded separately for the purposes of res judicata. Reference was made to the class of decisions in which it had been held that a party could not avoid the bar of res judicata by merely adding causes of action in a subsequent suit and thereby taking such suit out of the jurisdiction of the Court which had tried the previous suit and also that if a portion of the claim in the subsequent suit was finally decided by a competent Court in a previous suit, the subsequent suit would be barred by res judicata to the extent of such portion, particularly when it was severable.

Those decisions rest ultimately on the view that 'suit', as contemplated by Section 11 of the Code, includes a part of a suit based on a distinct cause of action on which a separate suit could be brought. I do not however think that those decisions or the principle laid down in them can be of any assistance in the present case. Even if the appellants had brought two separate suits, one in respect of each of the decrees and even assuming that the suits were not of a declaratory character, the Court of Small Causes would still not be competent to try them, since that Court can try only ejectment suits and no suit at all brought by a tenant.

It is therefore not possible to bisect the suit and hold that the Small Causes Court would be competent to try either of the two parts and so the previous decrees bar the present suit in respect of both of them. If the appellants are debarred from agitating the questions they have raised in the present suit, it must be for some other reason.

26. In my view, the appellants are debarred, because the present case is governed by Section 44 of the Evidence Act and they cannot possibly make out any ground under that section as to the in-competency of the previous decrees. It is not even that they have brought a suit for a declaration of a single tenancy and that the respondent has set up the previous decrees under Section 40, Evidence Act, as having decided finally that there were two tenancies and as debarring the Court from re-trying the issue.

The appellants have asked directly for a declaration that the previous decrees are void and have not affected their status. Their first prayer is for a declaration that they are tenants in respect of the premises in question which means that in spite of the decrees in the previous suits directing their ejectment, their status as tenants is subsisting. In effect, it is a prayer for a declaration of the invalidity of the decrees.

Their second prayer asks for a declaration, specifically and severally, that the decree in Suit No. 318 of 1951 and the subsequent appellate and revi-sional orders and the decree in Suit No. 323 of 1951 and the subsequent appellate and revisional orders are invalid and inoperative and are not binding on them. They have not alleged fraud or collusion. They can therefore succeed in the suit only if they can establish that the decrees were passed by a Court not competent to pass them. Their learned counsel contended that his clients were entitled by the very terms of Section 44 to show that the previous decrees were not decrees of a competent Court, but in my opinion they cannot succeed even on that basis.

27. An interesting discussion took place at the Bar as to whether as regards the question of the competency of the former Court, Section 44 of the Evidence Act, must be read as subject to Section 11 of the Code or 'vice versa'. In my opinion, that approach to the question cannot lead to a solution of the problem in the present case. The reasons for holding that Section 44 is subject to Section 11 are strong because if it be not so, then even in a case where the question of the court's jurisdiction has been directly raised and directly decided in favour of jurisdiction upto the Court of the last resort, it would be open to a party to raise the question again, directly or collaterally in a subsequent suit and impugn the jurisdiction of the former Court.

The view that Section 11 governs Section 44 will not reduce the latter section to a nullity, because in a case where the jurisdiction of the former Court did not depend upon the determination of an issue of fact between the parties or the existence of a particular state of facts, it would be still open to a party to show under Section 44 an inherent and fundamental lack of jurisdiction. But even assuming that Section 44 of the Evidence Act is subject to Section 11 of the Code, reliance on the latter section would at once import the condition as to the former Court being competent to try the subsequent suit and therefore where, as in the present case, the subsequent suit could not have been tried by the former court and the bar of res judicata is sought to be avoided on that very ground, Section 11 would lead nowhere as against Section 44.

28. In my opinion, the present case falls to be judged by an altogether different principle. Section 44 of the Evidence Act has nothing to do with the competency of the former Court to try the subsequent suit. It is concerned only with the competency of the former Court to try the former suit and with such, competency of that Court as a fact. It follows that if the former suit, as framed, was within the jurisdiction of the Court which tried it, the decree passed therein is a decree of a Court competent to pass it such as it is. If a suit is subsequently brought for a declaration that the decree is void, having been passed by a Court not competent to try the suit in which the decree was passed, all that the plaintiff is entitled to show under Section 44 of the Evidence Act is that the former suit, as framed and laid and on the pleadings therein, was be-yond the jurisdiction of the Court.

If he cannot establish such want of jurisdiction with respect to the particular suit, such as it was, nor prove collusion or fraud, the decree will stand, concluding the matters determined by it No question of the competency of the former Court to try the subsequent suit would arise insuch a case at all, nor any question as to whether the plaintiff in the former suit Should have, brought a different kind of suit. In the case before us, the appellants only asked for a declaration that the decrees passed in Suits Nos. 318 and 323 of 1951 were void and their status of tenants were unaffected by those void decrees for the reason that the Court of Small Causes was not competent to entertain the suits.

But the suits were suits for the ejectment of tenants from immoveable property situated within the limits of the original jurisdiction of this Court and they were suits in respect of tenancies said to carry rents of less than Rs. 500/- per month. The respondent's case as to there being two separate tenancies and as to the rent carried by them being below Rs. 500/- in each case, was not even challenged. There can thus be no question that the Court of Small Causes was competent to try the suits, as they were, and the decrees passed in the suits cannot be said to be decrees of a Court not competent to pass them.

I need not pause to consider what the position would be if the appellants had brought a suit for the establishment of a tenancy carrying a rent of Rs. 725/- per month and the respondent set up the previous decrees in bar of the suit or of the trial of an issue therein as to the nature of the tenancy.

But the appellants have brought a suit in which the relief they are themselves asking for is a declaration of nullity in respect of the previous decrees. It is a suit for setting aside the decrees. In such a suit asking for such relief, the only grounds of attack against the previous decree open to the appellants are those mentioned in Section 44 of the Evidence Act and the only question, since there is no allegation of fraud, is the competency of the former Court as respects the particular decrees impugned.

That question must be decided solely by reference to the frame of the previous suits and the pleadings therein and the competency of the Small Causes Courts to try these suits without any reference to its competency to try the present suit. On that question, the appellants have no case at all. If they have none, Section 44 of the Evidence Act can carry them no further and they have no grounds left on which they can challenge the decrees.

29. I may refer in this connection to the decision of the Judicial Committee in -- 'Rajwant Prasad v. Ram Ratan', AIR 1915 PC 99 (N), where their Lordships made certain observations which are very apposite. There, a preliminary decree passed in a mortgage suit was set aside on the ground of non-service of summons on some of the defendants and a fresh preliminary decree was passed. When the fresh preliminary decree was going to be made final, some of the judgment-debtors objected that they had been given no opportunity to appear when the fresh preliminary decree was passed and therefore, as against them, the fresh preliminary decree was inoperative and not binding.

The objection was overruled and a final decree was passed and the High Court affirmed that decision. Subsequently, the objecting judgment-debtors brought a suit for a declaration that the mortgage decree was not binding upon them. The High Court dismissed the suit on appeal in the view that the plaintiffs were estopped by the mortgage decree which had been finally confirmed. On further appeal to the Judicial Committee, their Lordships observed as follows:

'It is contended before their Lordships, however, that this matter cannot be dealt with as res judicata; that it is open to suitors in India, who have exhausted the remedies competent to them, and after a final decree has been obtained against them, to institute a fresh suit, or series of suits, the object of which is to declare that a decree, competently and with jurisdiction obtained therein, is not applicable to them, though they are named in the decree. Their Lordships have no sympathy with that procedure. It is radically incompetent.'

Proceeding to refer to the specific objections to the validity of the former decree, their Lordships observed that they must decline to make any pronouncement on them as

'the case under which these objections were brought forward was competently before the Court; it had jurisdiction to entertain them.'

They concluded as follows:

'This suit, in their Lordships' judgment, is equivalent to a suit for the rescission and destruction of a former decree of a competent Court. That rescission and destruction could be obtained on the ground of fraud 'practised on the Courts below'; but fraud has been eliminated from this case. Accordingly, these proceedings are, in their Lordships' judgment, a mere colour for fresh suit on matters already competently settled by law.'

30. In my opinion, though the facts of the case before their Lordships were not precisely the same, the position was fundamentally similar and the above observations apply to the present case with a peculiar force. Here too, there is no question of any fraud and here too the jurisdiction of the Small Causes Court to try the suits, as they were, is clear. Although their Lordships did not refer specifically to Section 44 of the Evidence Act, it is clear that they had in their mind the terms or the principle of that provision.

31. For the reasons given above, I am of opinion that the decisions in the previous suits do involve a decision that there were two several tenancies, that those decisions were validly given by a competent Court, that they bind the appellants so as to debar them from agitating the same questions again, as the learned trial Judge rightly held and that the appellants have not made out that the prior decrees are affected by any of the infirmities recognised by law. The appeal is accordingly dismissed with costs.

S.R. Das Gupta, J.

32. I agree.


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