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Brajendra Kumar Roy Chowdhury and ors. Vs. Sarajendra Nath Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.416
AppellantBrajendra Kumar Roy Chowdhury and ors.
RespondentSarajendra Nath Saha and ors.
Cases ReferredMadhusudan Shaha Mundul v. Brae
Excerpt:
res judicata - landlord and tenant--ex parte decree as to rate of rent, whether res judicata on question of rate of rent annually payable. - .....filed the defendants denied liability but did not take any explicit objection to the rate of rent alleged. it further appears that after decree the decretal amount was realised in execution proceedings from the judgment-debtors.4. the question for our determination in this appeal then is, whether in the circumstances we have set out the previous decree operates so as to render the question of the rate of rent annually payable res judicata between the parties.5. on this question many decisions of this court have been cited, and we are not prepared to say that they can all readily be reconciled. but for the purposes of our decision it is sufficient to say that we are unable to draw any distinction of substance between the present case and the case of madhusuden shaha mwndul v. brae.....
Judgment:

1. This appeal arises out of a suit for arrears of rent of a certain Sikmi Taluk. The plaintiffs who are the respondents before us claimed rent at the rate of Rs. 13-14 11 1/2 gandas, while the defendants-appellants contended that the rent annually payable is Rs. 4-0-3 2/3gandas.

2. Both Courts have found that the true rent is Rs. 4-0 3/4 gandas, but differing from the Court of first instance the learned Subordinate Judge has held that the decision in a previous rent suit between the parties operate as res judicata and has, therefore, decreed the claim of the plaintiffs-landlords in full.

3. The previous rent suit was for the arrears of the years 1312--1314 and of the first 3 kists of the year 1315. In the plaint and also in the account annexed to the plaint the rate of rent was alleged to be Rs. 13-14-ll 1/2 gandas and on this footing a sum of Rs. 52-2-13-2-2 was claimed as the rent due. The defendants, who were recent purchasers of the Sikmi, filed a written statement but subsequently failed to appear, with the result that the claim was decreed in full ex parte. In the written statement filed the defendants denied liability but did not take any explicit objection to the rate of rent alleged. It further appears that after decree the decretal amount was realised in execution proceedings from the judgment-debtors.

4. The question for our determination in this appeal then is, whether in the circumstances we have set out the previous decree operates so as to render the question of the rate of rent annually payable res judicata between the parties.

5. On this question many decisions of this Court have been cited, and we are not prepared to say that they can all readily be reconciled. But for the purposes of our decision it is sufficient to say that we are unable to draw any distinction of substance between the present case and the case of Madhusuden Shaha Mwndul v. Brae 16 C. 300 (F.B.); 8 Ind. Dec. (N.S.) 197, decided by the Full Court on the 27tb of February 1889 and reported as Madhusudan Shaha Mundul v. Brae 16 C. 300 (F.B.); 8 Ind. Dec. (N.S.) 197. There, as here, there was in the plaint a statement of the alleged rate of rent, but there, as here, there was no prayer for a declaration as to the rate of rent as part of the substantive relief claimed.

6. We, therefore, hold that the prior ex parte decree does not operate as res judicata, and on this view we set aside the decree of the Subordinate Judge and restore the decree of the Munsif. This appeal is accordingly decreed with costs both in this Court and in the Court of first appeal.


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