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Sreemati Chowdhury Maheswari Dei Vs. Gaurhari Maity - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal767,91Ind.Cas.380
AppellantSreemati Chowdhury Maheswari Dei
RespondentGaurhari Maity
Cases ReferredBir Chandra Manikya v. Haris Chandra Das
Excerpt:
civil procedure code (act v of 1908), section 11 - landlord and tenant--ex parte decree for rent, whether operates as res judicata as to rate of rent. - .....of rent. the main question which arises for decision is what is the effect of certain ex parte rent-decrees obtained by the plaintiff against a tenant who held the land before the defendant purchased the tenancy in execution of a decree for rent obtained by the plaintiff, the landlord against the previous tenant. the facts as stated by the plaintiff appear to be these. one annapurna held the lands in suit as a raiyat with right of occupancy under the plaintiff at a rent of rs. 10-6 annas per year for 8 bighas and odd of land. that annapurna sold the holding to one bhagirath in the year 1906, but annapurpa continued to be the recorded tenant at the time when a suit for arrears of rent as brought and decreed ex parte against her in 1908. this decree, it appears, was for rent for a.....
Judgment:

1. This is an appeal by the plaintiff and arises out of a suit brought for recovery of arrears of rent. The main question which arises for decision is what is the effect of certain ex parte rent-decrees obtained by the plaintiff against a tenant who held the land before the defendant purchased the tenancy in execution of a decree for rent obtained by the plaintiff, the landlord against the previous tenant. The facts as stated by the plaintiff appear to be these. One Annapurna held the lands in suit as a raiyat with right of occupancy under the plaintiff at a rent of Rs. 10-6 annas per year for 8 bighas and odd of Land. That Annapurna sold the holding to one Bhagirath in the year 1906, but Annapurpa continued to be the recorded tenant at the time when a suit for arrears of rent as brought and decreed ex parte against her in 1908. This decree, it appears, was for rent for a number of years and the rate of rent claimed was Rs. 10-6 annas a year. This decree was satisfied. On the 30th August 1911 the plaintiff obtained another decree for rent for a number of years against Annapurna at the same rate of rent and put the holding to sale advertising the same as bearing a rental of Rs. 10-6 annas a year. The holding was sold on the 15th December 1911 and the present defendant purchased the same and obtained the usual sale-certificate. In the sale-certificate the rent of the holding was stated to be Rs. 10-6 annas a year. The plaintiff then brought the present suit for rent for the years 1322 to 1325, claiming rent at the rate of Rs. 10-6 annas per annum for the same area.

2. The defence of the defendant was that the rent payable for the holding was Rs. 5-1 annas year and not Rs. 10-6 annas as claimed by the plaintiff.

3. The plaintiff amongst other evidence relied upon the ex parte decree passed in the year 1908 and also the decree passed in the year 1911 in execution of which the defendant purchased the holding. The defendant, on the other hand, relied upon an entry in the Record of Rights published in the year 1917, in which the rent was recorded at the rate of Rs. 5-1, anna. Defendant further contended that the ex parte decrees relied upon by the plaintiff were not admissible in evidence, at any rate they were not binding against him as res judicata.

4. The Court of first instance decreed the suit of the plaintiff and held that the rent payable was Rs. 10-6 annas a year. There was an appeal against that decree by the defendant and the Court below remanded the case for a fresh trial specially on the ground that the statement in the sale-certificate did not operate as an estoppel against the defendant. The learned Munsif after this remand came to the same conclusion as he had arrived at before and gave a decree to the plaintiff at the rate claimed. Against this decree the defendant again appealed and the lower Appellate Court has reversed the decree made by the Munsif and given a decree at the rate of Rs. 5-1 anna as alleged by the defendant. The lower Appellate Court pointed out that the entry in the sale-certificate, as has already been held, was not conclusive against the defendant. The learned Subordinate Judge further held that the ex parte decrees did not operate as res judicata, nor did they furnish any evidence as to the rate of rent payable by the defendant. Against this decree the plaintiff preferred this second appeal and the main question which I have already stated is as to the effect of the ex parte rent-decrees in the present case. It appears that there is a good deal of divergence of opinion in this Court as to the effect of ex parte-rent-decrees in a subsequent trial for the recovery of rent against the defendant or his successor-in-interest. It would serve no useful purpose to discuss the numerous cases in which the question arose and divergent views were entertained by the Court. The first case that I wish to refer to is the Full Bench case of Maharajah Beer Chunder Manick Bahadoor v. Ram Kishen Shaw 23 W.R. 128 : 14 B.L.R. 370, in which Sir Richard Couch in delivering the judgment of the Full Bench in a short judgment which he delivered, stated the law as follows: 'We are of opinion that the decree is admissible in evidence. The question of its value, when admitted, is to be determined by the lower Courts. The defendant has alleged that it was obtained fraudulently. It does not appear that he gave any evidence of this, and it will be for the Court to say whether there is any evidence in support of that allegation'. It should be pointed out that in that case the plaintiff claimed rent for the year 1279 and relied upon an ex parte decree obtained for the rent of 1278 and the question arose as to whether that decree was admissible in evidence in proof of the rate of rent payable by the defendant. This ex parte decree, it further appears, was not executed. This judgment of the Full Bench clearly laid down that an ex parte decree was admissible in proof of the, rate of rent payable by the defendant and that the value of the decree would depend upon the circumstances of the particular case. The binding effect of the decree would depend upon as to what it really decided. This Full Bench decision was relied upon by Sir Richard Garth in the case of Bir Chunder Manickya v. Hurish Chunder Dass 3 C. 383 : 1 C.L.R. 385 : 2 Ind. Jur. 913 : 1 Ind. Dec. (N.S.) 830, the same case which was remanded by this Court by their judgment in the Full Bench case to which I have already referred. The case came on before Mr. Justice Ainslie who was also a party to the Full Bench case and he held that the ex parte decree was of no value, because the question as to the rate of rent was decided-without entering into any discussion thereof. There was an appeal under Clause 15 of the Letters Patent, and Sir Richard Garth in delivering the judgment of the Appellate Court quoted the words of Sir Richard Couch to which I have already referred, and Sir Richard Garth stated the effect of the judgment of the Full Bench to be this: 'That anex parte decree is prima facie for purposes of evidence as good as any other decree, and as binding between the parties upon the matter decided by it. But, that if the defendant could show, as he said he was prepared to do, that the former decree was obtained by fraud, or that it was irregular, or contrary to natural justice, or the like'. The learned Chief Justice later on in the judgment stated the law in these words: 'The Judge pronounced the decree to be of no value as evidence, merely because it had not been contested by the defendant. In this we consider he was quite wrong: a decree obtained ex parte is in the absence of fraud or irregularity, as binding, for all purposes, as a decree of a contested suit. If it were not so, a defendant in a rent suit might, always by not appearing, and allowing the judgment to pass against him without resistance, prevent the plaintiff from ever obtaining a definite judgment as to what is the proper amount of rent due from him to his landlord.

5. If a defendant does not think it worthwhile to contest the suit but allows the plaintiff's evidence, and the judgment passed upon it, to go unquestioned, he has no right afterwards to dispute the correctness or the value of the judgment, merely because he chose to absent himself from the trial.

6. Of course if any fresh circumstances had arisen since the former decree was made, which would justify on the one hand an abatement, or on the other hand an enhancement, of the rent decreed in a former suit, the Court would be bound to take such circumstances into consideration.

7. Sir Richard Garth finally decided this case on the ground of res judicata and on the principle of the case of Nobo Doorga Dossee v. Foyzbux Choudhry 1 C. 202 : 24 W. R. 493 : 1 Ind. Dec. (N.S.) 129 and that case lays down that 'Even assuming that the judgment in the former suit were not binding between the parties as an actual estoppel, it would afford such cogent evidence between them upon the point, that the Judge in this suit (in the absence of some entirely fresh materials) would be perfectly right in acting upon it'.

8. The Full Bench case as explaind by Sir Richard Garth laid down that the decree was admissible in evidence and would be binding only as to the question which it really decided in passing the decree. The determination of the question as to what was decided must depend upon the circumstances of each case and the value of the decree as evidence would depend upon that question. It would appear that the matter had been settled by the decision of the Full Bench and the subsequent judgment of Sir Richard Garth's explaining what the Full Bench had really decided. But unfortunately it was not so. The controversy again broke out and the question was referred to the Full Court in the case of Modhusudun Shaha Mundul v. Brae 16 C. 300 : 8 Ind. Dec. (N.S.) 197 in which the Referring Court divided the questions which were referred under four different heads. Firstly, whether an ex parte decree for arrears of rent operates so as to render the question of the rate of rent res judicata between the parties; secondly, whether it so operates, if the rate of rent alleged by the plaintiff is recited in the decree without any express declaration that the rate of rent so alleged has been proved; thirdly, whether it so operates, if the rate of rent alleged is expressly declare by the decree to have been proved; and, fourthly, whether an ex parte decree operates so as to render any question decided by the decree res judicata in the absence of proof that such decree was executed. Before I discuss the effect of the judgment of the Full Court, I should like to point out at the outset that the previous decrees relied on by the plaintiff as res judicata in that case were ex parte decrees made by the Deputy-Collectors and not by the Civil Courts. Those decrees were for very small sums not amounting even to one year's rent. The conflict of decisions to which reference was made was of decisions and decrees of Civil Courts. The Full Court after pointing out that. Sir Richard Garth in his final judgment of the case referred to the Full Bench had held that the decree was res judicata between the parties. It should be remembered that Sir Richard Garth was well aware that the Full Bench had only decided that the decree was admissible in evidence and its value would depend upon the circumstances of each case and his observations must be read as deciding the question as to the value to be attached to the ex parte decree relied upon in that case and not as a general proposition. The learned Chief Justice pointed out in that case that the defendant had failed to show that the decree was obtained by fraud, and further pointed out that the defendant brought forward only materials consisting of the evidence which the defendant might and could have brought forward if he had so pleased in the former suit and for which he offered no excuse for not producing on that occasion. As I have already stated four questions were referred to the Full Court, and in the order of reference it was pointed out that the third question did not, strictly speaking, arise in that case. Therefore, with all deference due to the learned Judges I should not be guilty of any disrespect, if I point out that any decision on that point would not be strictly a decision which would be binding as overruling the decision of the Full Bench, although as an expression of opinion by the Full Court, it is entitled to the respect which, is due to such pronouncement. The first question, it will appear, was limited to the question as to whether the decree, with regard to rate, of rent, was res judicata between the parties. The second question was, what was the effect of a recital in the decree as to the rate of rent in the absence of any decision on that point. In answering these questions the Full Court based their decision upon the ground that it is possible for the defendant in certain cases to show that the decree for the rent might have been supported on the ground that the decree for the rent claimed could have been made without determining the rate of rent payable, and thi3 appears clearly from the following passage: 'We think this argument well-founded. We think that, if at the hearing of such a suit, the plaintiff were to prove that the amount claimed by him as rent was actually due, although he did not establish the rate named by him in his plaint, he might nevertheless be entitled to a decree. That such a case might possibly arise is obvious. If it might, it follows that the statement of the rate of rent in the plaint is not necessarily an allegation so material that the determination of it in the affirmative is involved in the. Act of the Court in making a decree.' So far as the decrees which the Full Court had to consider, they were decrees, as I have stated, passed by a Deputy Collector, who had no jurisdiction to make any declaration as to the future rent payable and the decrees were not even for a year's rent. All that their Lordships pointed out was that neither a recital in the decree of the rate alleged by the plaintiff unless that question was decided, nor a declaration as to the rate of rent if no such declarations were prayed for in the plaint would operate so as to make the matter res judicata in the absence of a decision on the point. It appears, therefore, clear that all that the Full Court decided was that the decrees in these cases did not operate as res judicata as to any question which was not shewn to have been decided, The Full Bench laid down the same law. The broad, pro position laid down by Sir Richard Garth was that an ex parte decree is as much binding upon the party as any other decree is the mere absence of a party does not affect the binding force of such a decree. This is a proposition of law which was not dissented from by the Full Court and has been followed in subsequent cases alter the decision of the Full Court. Sir Lawrence Jenkins in the case of Mahommad Gowhar Ali v. Samir-ud-din Sheikh 22 Ind. Cas. 383 : 18 C.W.N. 33 by quoting the decision of the Judicial Committee in the case reported as Juggodumba Dossee v. Tarakant Bannerjee 6 C.L.R. 121 : Held. 212(P.C.) held that it is impossible to allow the appellant to take advantage of defendant's absence on that occasion to re-open any question which either was expressly decided or must be determined in a decree. The learned Chief Justice pointed out that these observations apply equally to a suit as to an appeal. In the very recent case of Shib Chandra v. Lakhi Priya Guha 85 Ind. Cas. 123 : 29 C.W.N. 233 : 40 C.L.J. 507 : (1925) A.L.R. (C.) 427 after considering numerous cases on the point Mr. Justice Suhrawardy and Mr. Justice Duval laid down as follows: 'It, therefore, follows that the decision in a previous suit for rent, whether ex parte or inter partes operates as res judicata in a subsequent suit for rent, even for a different period, if it decides any question which arises in the suit or if it omits to decide any question which ought to have been decided, if objections were taken by a party'. Although the question for determination in this suit arose in a different form, the principle applies equally to a suit for rent as is indicated in a passage I have quoted above. The result of these decisions seems to me that the decree even though it is ex parte is as good and as binding between the parties as a contested decree. It has been held repeatedly that an ex parte decree for rent is conclusive upon the question as to the existence of the relationship of landlord tenants between the parties at the time of the decree. See the case of Hiranmoy Kumar Saha v. Ramjan Ali Dewan 29 Ind. Cas. 694 : 20 C.W.N. 48 : 43 C. 170. This view is based on the same principle as was laid down in the Full Bench case above referred to.

9. There is no reason why the same principles should not apply to the decision in an ex parte decree as to what was the rate of rent at which the decree was made. In a contested decree, express issues are raised on the pleadings of the parties or otherwise, but in an ex parte decree the Court must necessarily be taken to have decided questions which were necessary for supporting the decree made in the case and to that extent the decree must be taken to have decided such questions. When a previous ex parte decree for rent of a previous year, or years, is put in evidence, authorities show that it is admissible in evidence. The questions, therefore, in each case must arise as to what effect should be given to such a decree, and that question must be determined by the circumstances of each case. The Full Court pointed out that there may be a case in which a decree for rent may be explained to have been passed without determining what the rent payable for each year was. The ex parte decrees filed in the present case are, therefore, admissible in evidence.

10. Let us now examine the circumstances of this case and determine what really was decided in making these decrees. The plaintiff claimed rents for several years and the aggregate was arrived at by adding rent at the rate of Rs. 10-6 annas a year. The decree, therefore, in that case could not have been made unless the Court found that the rent payable for these years was at the rate of Rs. 10-6 annas a year and the calculation was made on that basis. The defendant in the present suit says that the rent was payable at the rate of Rs. 5-1 anna even in those years, as that was the rent payable by him in the year 1888, as appears from the Road-cess Return relied upon by the defendant. If the defendant did appear in those rent suits, he might have avoided the decree passed ex parte against him only by proving that the rent was not Rs. 10-6 annas each year as was claimed, but Rs. 5-1-anna per year as alleged by the defendant. This issue was not expressly raised, because the defendant did not appear. If he did appear, it would have been his duty, if he wanted to avoid the decree, to raise that issue and prove it; and he now seeks to prove it by evidence which would have been available to him then. According to the rules, which I have quoted, as laid down in the Full Bench case of Bir Chandra Manikya v. Haris Chandra Das 3 C. 383 : 1 C.L.R. 385 : 2 Ind. Jur. 913 : 1 Ind. Dec. (N.S.) 830 and subsequently laid down in the judgment of Sir Lawrence Jenkins, the defendant cannot improve his position by merely absenting himself at the time of the trial of the previous suit. In the present case the defendant did not establish that the decrees were obtained by fraud, nor did the defendant establish that the decrees were or could have been obtained, as was pointed out by the Full Court, without the determination of the question as to what the rent payable each year was. As I have already pointed out, the effect or the value of each ex parte decree must be determined with reference to the circumstances of each case. The present case, I have already indicated, is within, the rule laid down by the Full Bench and also recently laid down by Mr. Justice Suhrawardy and Mr. Justice Duval. The limitations pointed out in the judgment of the Full Court do not apply to the present case. The defendant in the present, case is trying to do now what he might and ought to have done when the previous ex parte decrees were passed. These decrees could not have been passed for the amounts decreed, if the defendant had appeared and proved, as he now intends to do, that the rent payable each year was at the reduced rate. I might point out that the lower Appellate Court has held that the ex parte decree of 1908 does mention the rate of rent. I may also point out that the decree for rent for a particularly specified period cannot and does not contain a declaration by implication what the future rent would be. It is always open to the defendant, as was pointed out by Sir Richard Garth, in the Full Bench decision, to show that there has been subsequent variation of the rent. In the absence of evidence of such variation, the Court of facts is entitled to, find that the amount of rent payable per year was the same at which the ex parte decree was passed. In the present case, all that the defendant stated was that the rent was all along payable at the rate of Rs. 5-1 anna and not at the rate of Rs. 10-6 annas. No variation of rent subsequent to the ex parte decree was set up, nor, as I have already stated, any attempt was made to show that the decrees were obtained by fraud; the entry in the Record of Rights is thus shown to be wrong. The result would be that in the absence of such evidence, the defendant will be bound to pay rent at the rate of Rs. 10-6 annas. It would be unnecessary, therefore, to send the case back for a determination of the question as to the rate of rent payable by the defendant. We, follow the course adopted in the case of Bir Chandra Manikya v. Haris Chandra Das 3 C. 383 : 1 C.L.R. 385 : 2 Ind. Jur. 913 : 1 Ind. Dec. (N.S.) 830.

11. The decree of the lower Appellate Court is set aside and that of the first Court is restored with costs in all Courts.


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