* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 06.10.2010
+ RSA No.33/1996
ALL INDIA MOTOR UNION CONGRESS ......Appellant
Through: Mr.Atul Bandhu, Advocate
Versus
BHAI TRILOCHAN SINGH & ORS. .......Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal is directed against the impugned judgment and decree dated 17.10.1995 which had with a modification endorsed the finding of the Trial Judge dated 15.12.1982. Vide judgment and decree dated 15.12.1982 the suit of the plaintiff had been decreed for Rs.7,243.55/- against defendant no.7 alone; against the other defendants the suit had been dismissed. The impugned judgment had modified the decree; the suit of the plaintiff had been decreed for a sum of Rs.7,243.55 against the defendants no. 1 to 7.
2. Plaintiff Bhai Trilochan Singh had filed a suit for recovery of Rs.7243.55 as arrears of rent against nine defendants. Contention was that the plaintiff is the owner/landlord of the premises bearing No.16A/1, Delhi Ajmeri Gate Scheme, Asaf Ali Road, New Delhi. Harbhajan Singh the father of defendant no.1 and the husband of RSA No.33/1996 Page 1 of 6 defendant no.2 had taken a portion of the first floor of the said premises (1300 sq.feet) in terms of a registered lease deed at a monthly rental of Rs.410/- which was later on increased to Rs.450/- per month. This lease deed had been entered into between Bhai Sunder Dass and Harbhajan Singh. By a registered will dated 11.1.1962 Bhai Sunder Dass had bequeathed the suit property to Smt.Manjit Sabharwal. Vide registered sale deed dated 28.3.1972 Smt.Manjit Shbarwal sold this property to the plaintiff i.e. Bhai Trilochan Singh. Plaintiff is thus entitled to arrears of rent from the defendants.
3. A common written statement was filed by defendants no.1 to
6. Contention was that the defendant no.7 is a tenant of the suit premises and defendants no.1 to 6 have nothing to do with the same.
4. A separate written statement was filed by defendants no.7 to
9. In their written statement contention was that the premises had been taken for the purpose of defendant no.7 who was in occupation thereof as a tenant.
5. Trial Judge had framed five issues. They inter alia read as follows:
1. Whether plaintiff is owner-landlord of the premises in suit? OPP
2. Whether Shri Harbhajan Singh had taken the premises on rent at the rate of Rs.410/- p.m. and had executed the lease deed dated 16.6.54 in favour of Bhai Sunder Dass? OPP
3. Whether the defendant no.7 was the tenant in the premises since the inception of the tenancy or a new tenancy was created by Smt. Manjit Sabharwal in favour of defendant no.7 in August, 1964, w.e.f. 1.9.63? OPD
4.Whether the defendant no.8 and 9 have been unnecessarily impleaded? OPD
5. To what amount is the plaintiff entitled and from which of the defendant? OPP
6. Trial Judge held that vide registered sale deed Ex.P-3 plaintiff had become the owner of the suit property. Harbhajan Singh had RSA No.33/1996 Page 2 of 6 taken the premises on lease at a initial rental of Rs.410/- per month. A new tenancy had been created in favour of defendant no.7 in August, 1964. Decree of Rs.7,243.55/- had been passed in favour of the plaintiff and against the defendant no.7 alone.
7. The impugned judgment had endorsed the finding of the Trial Judge. It was only modified to the effect that the tenancy of defendant no.7 was created with effect from 1.9.1963; further the liability of the defendants no.1 to 7 is joint and several; they were all liable to pay the aforesaid amount of Rs.7,243.55/- to the plaintiff.
8. This is a second appeal. After its admission, the following substantial questions of law were formulated on 2.5.1996:
1. Whether the first appeal, allowed by the impugned judgment and decree, was barred by res judicata because the judgment and decree in connected suit No.159/1980 inter se the same parties was not challenged in appeal and had become final?
2. What is the effect of the first Appellate Court not taking into consideration the evidence on record e.g. Ext.DW1/A and statement of DW-1 in the present case?
9. Learned counsel for the appellant has submitted that in view of the judgment of the Supreme Court reported in AIR 1993 SC 1202 Premier Tyres Limited vs. Kerala State Road Transport Corporation in a case where two connected suits had been decided, and an appeal had been filed against the findings in one suit only and no appeal has been filed in the second case, the effect of non filing of appeal would be that such a decree has become final and such a finality can be taken away only in accordance with law. By applying the ratio of the aforestated proposition it is clear that in this case as well although the appeal had been filed in suit No.467/1979, yet no appeal had been filed against the findings given in suit No.159/1980; result being that the findings of suit RSA No.33/1996 Page 3 of 6 No.159/1980 had become final and binding and could not have been reopened by the first appellate court while deciding the same issue between the same parties in the appeal arising out of suit No.467/1979.
10. The perusal of record shows that two suits i.e. suit Nos.159/1980 and 467/1979 had been filed by the plaintiff Bhai Trilochan Singh against the same defendants. Suit No.159/1980 was a suit for recovery of Rs.15,750/- as arrears of rent; suit No.467/1979 was also a suit for recovery of arrears of rent of Rs.7243.55/-. They related to the same parties; issues involved were common; the only difference was that the rates of rent for different periods of time had been claimed vide the aforestated suits. It is also not in dispute that the two suits had been clubbed together and common evidence had been led. However, judgments were delivered separately in the two suits although on the same date. Both the judgments i.e. in suit Nos.159/1980 and 467/1979 were delivered on 15.12.1982. Admittedly, no appeal has been filed against the judgment and decree passed in suit No.159/1980. The findings in suit No.467/1979 alone have been assailed.
11. While disposing of suit No.159/1980 the court had held that Harbhajan Singh had taken the premises on rent from Bhai Sunder Dass; Manjit Sabharwal after inheriting the property by Will through her father-in-law Bhai Sunder Dass had accepted defendant no.7 in the property as a tenant and accepted the payment of rents in the year 1964; finding was to the effect that the suit premises in the beginning was taken by Harbhajan Singh but later on defendant no.7 was accepted as a tenant by the landlords; further that defendants no.1 to 6, defendants no.8 and 9 RSA No.33/1996 Page 4 of 6 had been mis-joined. Suit of the plaintiff had been decreed against defendant no.7 alone for a sum of Rs.15,750/- i.e. arrears of rent for a period with effect from 1.8.1973 to 30.6.1976
12. The judgment impugned herein has modified the findings given by the trial judge in suit No.467/1979. Defendants no.1 to 6 had also been held liable along with defendant no.7 for payment of arrears of rent; further that a new tenancy had not been created in favour of defendant no.7.
13. By applying the ratio of the judgment in Premier Tyres Limited (surpa) it is clear that the judgment rendered in suit No.159/1980 had attained a finality as no appeal had been filed against it. The findings of the said judgment could not have been reversed by the first appellate court in its impugned judgment while considering and adjudicating upon the same issues which already stood finally decided vide the judgment rendered in this suit i.e. in suit No.159/1980. The findings in suit No.159/1980 had attained a finality and were binding; they could not be re-agitated. As such the modification in the impugned judgment holding that defendants no.1 to 6 are also liable along with defendant no.7 is set aside; defendant no.7 had become a tenant of Manjit Sabharwal after she had become the owner of the property.
14. In the judgment of Premier Tyres Limited (surpa) in a similar scenario where the question for consideration was the effect of non-filing of an appeal in a connected suit which had been tried together; the Supreme Court had returned a finding as follows:
5. .... ..... it appears that where an appeal arising out of connected suits is dismissed on merits the other cannot be heard, and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non filing of appeal against a judgment or decree is that it become final. This finality can be taken away only in accordance with law. Same consequences RSA No.33/1996 Page 5 of 6 follows when a judgment or decree in a connected suit is not appealed from.
5. .... ..... .....
6. Thus the finality of finding recorded in the connected suit, due to non filing appeal, precluded the Court from proceeding with appeal in other suit. In any view of the matter the order of the High Court is not liable to interference.
15. This has answered the first substantial question of law. The second substantial question of law has not been pressed before this court.
16. Appeal is allowed and disposed of in the above terms.
INDERMEET KAUR, J.
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