Ramesh
Chandra Vs. Shiv Charan Dass & Ors [1990] INSC 297 (21 September 1990)
Sahai,
R.M. (J) Sahai, R.M. (J) Kania, M.H.
CITATION:
1991 AIR 264 1990 SCR Supl. (2) 97 1990 SCC Supl. 633 1990 SCALE (2)738
ACT:
Code
of Civil Procedure, 1908: Section 11-- Res Judica- ta--Finding recorded in
appeal in one suit--Whether operates as Res judicata in latter suit.
HEAD NOTE:
The
Appellant's father purchased the house of respondent Nos. 1 and 2 with
condition of repurchase by the sellers after five years. He permitted the
respondents to remain in possession but got a rent note executed by Respondent
No.3, the first cousin of Respondent No.1. After the expiry of 5 years when the
house was not repurchased by the respondents, the appellant's father
(plaintiff) instituted a suit for arrears of rent and ejectment against
Respondent Nos. 1, 2 and 3 (Defendant Nos. 2, 3 and 1) claiming that defendant
No. 1 was in arrears of rent and defendant Nos. 2 and 3 were his sub-tenants.
The Trial Court decreed the suit for ar- rears of rent against defendant No. 1
but dismissed the suit for ejectment against defendant Nos. 2 and 3 holding
that they were not sub-tenants. Defendant No. 1 filed an appeal against the
decree for arrears of rent. The Appellate Court dismissed the appeal with an
observation that though the rent note was executed by Defendant No. 1, the
possession of Defendant Nos. 2 and 3 was on behalf of Defendant No. 1 since
they were closely related. Relying on these observa- tions the plaintiff filed
a second suit against the defend- ants with a change that defendant Nos. 2 and
3 were licen- sees of defendant No.1. The Trial Court decreed the suit for
arrears of rent against defendant No. 1 and for ejectment against defendant
Nos. 2 and 3. Both defendant No. 1 sepa- rately and defendant Nos. 2 and 3
jointly filed two appeals which were dismissed.
Separate
appeals were filed in the High Court which dismissed the appeal of defendant
No. 1 and allowed the appeal of defendant Nos. 2 and 3 holding that the
findings recorded in appeal arising out of earlier suit that they were
licensees did not operate as res judicata. Accordingly the High Court dismissed
the suit for ejectment against defendant Nos. 2 and 3. Hence this appeal.
Dismissing
the appeal, this Court, 98
HELD:
One of the tests to ascertain if a finding oper- ates as res judicata is if the
party aggrieved could chal- lenge it. Since the dismissal of appeal or the
appellate decree was not against defendants Nos. 2 and 3 they could not
challenge it by way of appeal. Even assuming that de- fendant No. 1 could
challenge the finding that liability of rent was of defendant Nos. 2 and 3 as
they were in posses- sion he did not file any written statement in the Trial
Court raising any dispute between him.. self and defendants Nos. 2 and 3. There
was thus no occasion for the appellate court to make the observation when there
was neither plead- ing nor evidence. Therefore, from either point of view the
finding could not operate against defendants Nos. 2 and 3 as res judicata. [100E-G]
Keshardeo Chamria v. Radha Kissen Chamria, [1953] S.C.R. 154; held in
applicable.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2840 of 1982.
From
the Judgment and Order dated 5.12. 1979 of the Allahabad High Court in Second Appeal No. 82 of 1972.
R.K. Garg
and H.K.Puri for the Appellant.
Satish
Chandra, Pramod Swarup and A.K. Srivastava for the Respondents.
The
Judgment of the Court was delivered by R.M. SAHAI, J. In this appeal by grant
of special leave, directed against judgment of the Allahabad High Court in
second appeal arising out of a suit for arrears of rent and ejectment, the
question is if the High Court committed any error of law in allowing the second
appeal on the ground that the two courts below had erroneously held that
finding recorded in an appeal, filed by one of the defendants who was sued as
tenant in an earlier suit, could not operate as res judicata between plaintiff
and respondents who were defendants nos. 2 and 3 in that suit.
Unfortunately
for appellant-equity may or may not be in his favour as his father too acted
shrewdly while purchasing house of daughter-in-law's father but law is
certainly not in his favour. How dispute arose between parties, who are closely
related, is quite interesting. Shiv Charan Das and Har Charan Das (respondents
nos. 1 99 and 3 in this appeal) are first cousins. Ravindra Kumar (respondent
no. 2) is son of Shiv Charan. His sister was married to son of Ganga Prasad who
purchased the only house of Shiv Charan and Ravindra Kumar with condition of repur-
chase by sellers after five years. He permitted them to remain in possession,
but got a rent note executed by Har Charan. Purpose of this became apparent
later as immediately after expiry of five years when the house was not repur-
chased Ganga Prasad (referred hereinafter as plaintiff) filed suit for ejectment
and arrears of rent against Har Charan, Shiv Charan and Ravindra (hereinafter
referred as defendants nos. 1, 2 and 3) claiming that defendant no. 1 was in
arrears of rent and defendant no. 2 and 3 were his sub-tenants. The suit was
contested by defendants nos. 2 and 3 only. The Trial Court decreed the suit for
arrears of rent against defendant no. 1. It was held that defendant no. 2 and 3
were not sub-tenants. Therefore suit for ejectment was dismissed. The plaintiff
submitted to this finding. Ag- grieved by the decree for arrears of rent
defendant no. 1 filed appeal which was dismissed. But the appellate court while
observing that any evidence led by defendant nos. 2 and 3 could not be read against
defendant no. 1 observed that it appeared that they being closely related to
defend- ant no. 1 were in possession on his behalf. This furnished occasion for
plaintiff to file second suit against three defendants with this change that
defendants nos. 2 and 3 were claimed to be licensees of defendant no. 1. The
Trial Court relying on earlier judgment decreed suit for arrears of rent
against defendant no. 1 and for ejectment against defendants nos.2 and 3 as
they were licensees. Both defend- ant no. 1 separately and defendants nos. 2
and 3 jointly filed two appeals but without any success. Both the sets
approached the High Court also by way of separate appeals.
The
appeal of defendant no. 1 came up for hearing earlier but it was dismissed.
The
appeal of defendant nos. 2 and 3 came up for hearing before another Hon'ble
Judge who allowed it and held that the finding recorded in appeal arising out
of earlier suit that they were licensees did not operate as res judicata and
the suit for ejectment was dismissed. It is the correctness of this finding
that has been assailed in this Court.
Although
long arguments were advanced but in our opinion the only question that arises
for consideration is if the finding recorded in the appeal filed by defendant
no. 1 in which it was held that defendants nos. 2 and 3 were in possession on
his behalf was binding on them in the subse- quent suit filed by the plaintiff.
In that suit issue no. 2 was if 100 defendant no. 2 and defendant no. 3 were
sub-tenants. And issue no. 5 was if they were liable to be ejected. The Trial
Court while discussing these two issues held that there was no question of
sub-tenancy of these persons as despite sale there was never a break in their
possession. It was further held that they were not sub-tenants nor they claimed
to be in possession through defendant no. 1. Therefore they were not liable to ejectment.
Against this finding plaintiff did not file any appeal. The finding therefore
between the plaintiff and defendants nos. 2 and 3 became final and binding. The
appeal was filed by defendant no. 1 as he was aggrieved by the decree of
arrears of rent. In that appeal it was observed that the evidence led by
defendant nos. 2 and 3 could not be read against him. But the Court while
dismissing his appeal and upholding the decree of Trial Court observed that
since they were close relations it appears that even though rent note was
executed by defendant no. 1 the possession of defendants nos. 2 and 3 was on
his behalf. This finding could not be taken advantage of by the plaintiff for
more than one reason. This observation was unnecessary as the appeal was
dismissed. One could under- stand if the appeal would have been allowed and the
liabili- ty for payment of rent would have been fastened on defendant no. 2 and
3 as they were in possession. But since appeal was dismissed the order of Trial
Court that liability to pay rent was of defendant no. 1 stood affirmed.
Therefore it was an observation which was not only off the mark but unneces- sary.
It could not accordingly operate as res judicata between defendant no. 1 and defendants
nos. 2 and 3 as much less between plaintiff and defendant nos. 2 and 3. One of
the tests to ascertain if a finding operates as res judicata is if the party
aggrieved could challenge it. Since the dismissal of appeal or the, appellate
decree was not against defendants nos. 2 and 3 they could not challenge it by
way of appeal. Even assuming that defendant no. 1 could chal- lenge the finding
that liability of rent was of defendants nos. 2 and 3 as they were in
possession he did not file any written statement in the Trial Court raising any
dispute between himself and defendants nos. 2 and 3. There was thus no occasion
for the appellate court to make the observation when there was neither pleading
nor evidence. Therefore, from either point of view the finding could not
operate against defendants Nos. 2 and 3 as res judicata. Reliance by the
appellant on Keshardeo Chamria v. Radha Kissen Chamria, [1953] SCR 154, is of
no assistance as it only lays down the binding effect of a decision in a
subsequent suit.
For
the reasons stated above this appeal fails and is dismissed. There shall be no
order as to costs.
T.N.A.
Appeal dis- missed.
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