Ajmer Singh vs Prabhu Dayal And Ors.
1970 Latest Caselaw 234 Del

JUDGMENT

P.S. Safeer, J.

(1) The contentions raised for sustaining this appeal under S.100 of the C P.C are two-fold.

(2) In the first instance it is urged that the order dated the 9th Septemter, 1966 psssed by the Additional Rent Controller under S.45 of Act 59 of 1958 was operative as res-judicata and it was not open to the civil courts to determine that the appellant was not a tenant of respondent No. 1.

(3) The second contention is that the learned Additional, District Judge whose decision dated the 18th May, 1967 is sought to be impugned through this appeal had not considered valuable documentary evidence comprised in Exhibits D/2, D/3, D/8 and D/9 and had not dealt with the evidence produced by the plaintiff (respondent No. 1 to this appeal). It is urged that for that reason also the impugned decision is contrary to law.

(4) The learned counsel for the appellant based himself on the observations made by the Supreme Court in Shrimatt RajLakshmiDasi and others v. Banamali Sen at page 40 and in Duryao and others v. State of U. P. Paras 9, 10 and 11. On being reminded of Gulab Chand Chhotalal Parikh v. State of Gujatat, the learned counsel placed reliance on the observations contained in para 33 and in the rest of the judgment. The submission is that even if it be taken that the statutory provisions of S. 11 of the C. P. C. remain restricted in their application to a subsequent civil suit the doctrine of res judicata as such as a matter of public policy will apply wherever a conclusive decision between the parties is available debarring a subsequent retrial of the same matter.

(5) In Shrimati Raj Lakshmi Dasi and others case it was observed that a plea of res judicataon general principles could be successfully taken in respect of judgments of courts of exclusive jurisdictionlike Revenue Courts, Land Acquisition Courts, Administration Courts etc. The Supreme Court in concerned itself with the rule of res judicata in its applicability on the basis of public policy in case of decisions which the courts may make in exercise of their jurisdiction under Articles 32 and 226 of the Constitution of India. Inparagraph 10 of its judgment, the court approved the observations made by Sir William B. Hale in the leading case: Duthces of Kingston, 2 Smith Lead cases 13th Edition at pages 644 and 645 where it was said. "from the variety of cases relativeto judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court fora different purpose."

The application of the doctrine of res judicata is often invoked on the principle that there must be an end to litigation. There are, however several limitations under which the doctrine works and the prerequisite is that the court or tribunal which may have made the former decision must be of competent jurisdiction. The decisions sought to be invoked as res judicata must be the final decisions prevailing between the parties on the question to which the bar is sought to be applied In Gulabchand Chhotalal Parikh's case, Reghubar Dayal, J, dealt in detail with the rule of res judicata while delivering the majority judgment and in paragraph 50 reproduced the observations contained in 1916 P. C 78. The Supreme Court noticed that even in the texts of ancient Hindu Law it had been incorporated that if a person though defeated at law may sue again he may be answered that he was defeated formerly. That was called the plea of former judgment.

(6) The public policy emphasised is for the purpose of achieving finality in the litigation to save a litigant from harassment second time.

(7) The question which really arises is as to whether there is any such decision in this case which will operate as res judicata so as to lead to the conclusion that the present respondent No. 1 could not have sought the relief through his suit filed on the 14th May, 1965 on the basis that the present appellant was a trespasser and was not his tenant It is significant that the order dated the 9th September, 1966 passed by the Additional Rent Controller under S. 45 of Act 59 of 1958 does contain a finding that the appellant was a tenant. An appeal was filed against that decision under S. 38 of Act 59 of 1958. After allowing civil Misc 1157 of 1970, I have before me the judgment of the Rent Control Tribunal passed under Section 38 of the Act, on the 14th March, 1967. By the doctrine of merger The order passed by the Additional Rent Conroller must be taken to have merged in the judgment passed under S. 38 referred to above. Mr. Aggarwal appearing for the appellant contends that it is the dismissal of the appeal under S. 38 which is consequential in its effect in as much as it amounts to confirmation of the findings recorded by the Additional Rent Controller. I am of the view that the findings which prevail between the parties are those which are confined to the judgment dated the 14th March, 1967 made by the Rent Control Tribunal under S. 38 of Act 59 of 1958 Section 43 of the said Act makes that order final.

(8) I am supported in this view by the facts as well as the law contained in 24 Indian Appeals 50. There, the trial court had decided regarding the parentage of one Sita Ram. The Court of appsal dismissed the suit on the basis that the suit as laid was not maintainable. Dealing with the question of res-judicata it was held that the judgment of the court of appeal superseded that of the court of first instance and although the appellate court did not deal with the question of parentage of Sita Ram, It was the judgment made on appeal that prevailed between the parties. It was ruled that the finding of the trial court was no longer available for sustaining the plea of resjudicata when there was no such finding recorded in the final judgment which was that of the court of appeal.

(9) The Supreme Court dealing with the same question in Commissioner of Income Tax Bombay v, Messrs. Amritlal & B!togilal Co. observed in paragraph 10: "THEREcan be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appsllate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law, the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement; but the question is whether this principle can apply to the Income tax Officer's order granting registration to the respondent."

In the case before the Supreme Court a composite order had been passed by the Income-tax Officer granting registration to the respondent. The order granting registration was non appealable The Supreme Court, therefore, held that the order granting registration to the assessed-firm was an independent and separate order, it could be cancelled by the Commissioner under S.33-(B)(1) of the Income-tax Act.

(10) The counsel for the appellant has drawn my attention to the observations contained in Air 1958 SC86. Inparagraph 13 of the judgment, the observations made by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in 46 Indian Appeals 52 (AIR 1918 Privy Council 151) were reproduced with approval to the effect that whatever be the theory under other systems of law under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. I pointed out once again to the learned counsel that the doctrine of merger has to operate in a very peculiar manner and to an extremely significant extent. Such manner and extent would always be regulated by the nature and consequence of the jurisdiction exercised by the court of appeal. In this case Section 43 of Act 59 of 1958 makes it abundantly clear that the appellate order passed under S. 38 of the Act by the Rent Control Tribunal would become final. The effect of S. 43 would be that in case an appeal is taken to the High Court under S. 39 of the said Act then the order passed by the High Court would similarly be an order passed under the Act and final as for as the adjudication between the parties under the Act would be concerned.

(11) It would be very appropriate to notice that while disposing of Civil Appeal No. 539 of 1965 (State of Madras v. Madurai Mills Co. Ltd.) the Supreme Court on 4th October, 1966 in the course of its judgment noticed both the judgments made by it as mentioned above. Having noticed Air 1958 S. C. 86 and the observations contained in "BUTthe doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal on revision, there is a fusion or merger of two orders irrespective of the subject matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the do'.trine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction."

The scope of the doctrine of merger thus enunciated sheds ample light to disclose that if it is provided in a statute that the appellate courts judgment will be final and if in terms of such a provision the nature and scope of appellate jurisdiction stands determined than a fusion and the merger of the judgment of the court of inferior jurisdiction will necessarily take place when the appellate court makes its judgment.

(12) I am of the view that the doctrine of merger is this that the judgment of the court of first instance in a situation meeting the requirements stated above would completely merge itself into the judgment made by the court of appeal. The judgment of the court of appeal alone will remain referable for all purposes including that of invoking it for raising any plea like that of res judicata or of estoppel by judgment,

(13) I hold that the Additional Rent Controller's order merged itself into the judgment made under Section 38 by the Rent Control Tribunal.

(14) It is essential to notice that while considering the finding recorded by the Additional Rent Controller that the present appellant was a tenant, the Rent Control Tribunal said:- "THEquestion, whether the respondent is entitled to continue in possession as a tenant is subjudice between the parties in a civil court but as long as the respondent continues in possession of the premises, there is hardly any reason why he should not be allowed to enjoy the amenity which he had been enjoying for about a year to the knowledge of the appellant."

Again in another place the Rent Control Tribunal said:- "THEfact remains that he was enjoying the electricity supply for about a year without any objection from the appellant and as long as he is not dispossessed from the shop in due course of law he may be entitled to the enjoyment of the amenity."

It is obvious that the judgment of the Rent Control Tribunal into which the order of the Additional Rent Controller merged and thin lost itself and which remains final in terms of Section 43 of Act 53 of 1958 does not record a finding that the present appellant was a tennat under respondent No. 1 to this appeal. Only such a finding in the ultimate decision could have, as a matter of law been invoked in order to set up the plea of res-judicata.

(15) The written statement was never amended, at any stage by the present appellant raising the plea of res judicata. No such plea is contained in the grounds of appeal on the basis of which the decree of the trial court was assailed before the First Appellate Court. Mr. Aggarwal conceded that it was for the first time while filing this Regular Second Appeal that the plea of res judicata was put forward. All thess years, at all stages it was open to the defendant who is the appellant before me to seek the amendment of his written statement. He is precluded by the rule of law laind down in A. I. R. 1958 S. C. 235 from seeking a decision in his favor on the basis of a plea which was never put forward by him.

(16) As I have held that only a finding recorded in the judgment of the Rent Control Tribunal could have been invoked for setting up the plea of res judicata and that there is no such finling it is not necessary for me to go further into the matter and to deal with the various contentions raised by the parties. It is hardly necessary to deal with the cases cited for and against the applicability of the doctrine of res judicata.

(17) The only other contention raised before me is that the court of First Appeal did not consider Exhibits D/2, D/3, D/8 and D/9 and did not deal with the evidence produced by respondent No. 1 to this appeal.

(18) EX. D/2 is the copy of a letter asking for the information regarding the names of the tenants and Ex. D/3 contains the reply thereto. The reply does not contain the name of Ajmer Singh. It does not contain the name of his alleged predecessor in interest. I fail to understand how these two documents sustain the argument that the appellant was a tenant under respondent No. 1.

(19) EX.D/8 is the statement dated the 19th May, 1966 made by respondent No. 1 to this appeal. In that statement it is stated:- "SHRIAjmer Singh is not my tenant. He has wrongfully occupied a portion of my house. I have filed suit for possession against him."

Ex. D/9 another statement of respondent No. 1, contains the assertion that Ajmer Singh, the present appellant had assumed possession of the shop without his permission. I am surprised at the submission made on behalf of the appellant that these documents in any way help him. The evidence adduced by respondent No. 1 was to the effect that the present appellant was never a tenant under him. By leading defense evidence the present appellant had tried to establish that he was a tenant. The First Appellate Court was well within its right in examining the arguments urged before it which brought to its notice the evidence adduced on behalf of the present appellant. I have considered the documentary as well as oral evidence adduced in this case. I do not accept the contention of the appellant's counsel that where the First Appellate Court does not consider any part of the evidence led at the trial, the High Court dealing with the matter in a regular second appeal has of necessity to remand the case. The High Court is concerned under S. 100 of the C. P. C. to find whether or not the impugned decision is contrary to law. Its jurisdiction is wide enough to deal with the case in every respect. In terms of S. 103 and 107 C. P C. and the law laid down in Air 1941 Federal Court 5 the hearing of an appeal according to the procedural law is in the nature of the rehearing of the suit itself. Having considered the documentary as well as oral evidence. I find that the defendants witnesses seriously contradicted each other as to whether in April, 1963, at the time when the alleged 'mahurat' ceremony was perormed any recitation was made from Shri Guru Granth Sahib or not. The evidence of Dw Lakha Singh is against that of Dw Sant Singh. Dw Purshotam Kumar has furnished evidence from the records mimtained in the office of the Chief Inspector of Shops containing the asssrtion in the appellant's application that he had started business in the disputed shop on the 10th October 1964. It was observed in that if the trial court has dealt with the entire evidence, the Appellate court may not resort to reapraisal of the same. I have, however, considered both documentray as well as oral evidence.

(20) I am of the view that the courts below had rightly come to the conclusion that the appellant had failed in establishing that he was a tenant in the premises in suit.

(21) The appeal is accordingly dismissed. There will be, however, no order as to costs.