N. Ecko Dry Cleaners vs Ram Kishan Ahuja
1983 Latest Caselaw 385 Del

JUDGMENT

G.C. Jain, J.

(1) Shri Ram Kishan Ahuja, respondent herein, brought a suit for recovery of Rs. 4,620.00 against the present appellants on the allegations that he was the owner of the premises bearing Municipal No. 37-A, Kamal Nagar, Delhi, having purchased the same from its previous owner, Shri Ram Jiwan Gupta and that the appellants were in occupation of two shops, measuring II' x 9', at a monthly rent of Rs. 132.00 and a sum of Rs. 4,620.00 was due to him from them towards rent for the period April 1, 1973 to February 29, 1976. The appellants resisted the suit and raised various pleas. It was pleaded, inter alia, that Ram Jiwan Gupta had let out the shop aid the hall on the back of it to the appellants on a monthly rent of Rs. 132.00 . The Subordinate Judge First Class, Delhi, vide his judgment dated April 10, 1980 held that the appellants were in occupation of the shop as well as the hall as tenants under the respondent on a monthly rent of Rs. 132.00 and that a sum of Rs. 4,620.00 as claimed by the respondent was due. He, consequently, decreed the suit of the respondent with costs.

(2) Feeling dissatisfied, the respondent filed an appeal before the Additional District Judge assailing the findings of the learned subordinate Judge regarding the extent of accommodation. The present appellants raised a preliminary objection that the suit of the respondent having been fully decreed the appeal was not competent. This objection found favor with the learned District Judge who dismissed the appeal on that ground by his judgment dated November 11, 1980.

(3) The respondent thereafter filed an application for eviction of the appellants alleging, inter alia, that the appellants were in occupation of two shops, which were converted into one shop, as tenants on a monthly rent of Rs. 132.00 . In those proceedings the appellants filed an application under Order 7 rule 11, read with Section 151 of the Code of Civil Procedure for rejecting the eviction petition. It was averred that the tenancy premises consisted of the shop and the hall in its back as had been held by the Civil Court earlier and the petition being for partial eviction was liable to be rejected. The learned Additional Rent Controller by her order dated April 16, 1983 held that the decision of the civil court had become final and in view of the said decision the eviction petition was only for partial eviction and was not maintainable. She consequently rejected the application. The respondent filed an appeal against the said order before the Rent Control Tribunal. The learned Tribunal held that the finding of the civil court regarding the extent of the tenancy premises was not res judicata because the appeal filed by the present respondent against the said finding had been dismissed being not maintainable. He consequently allowed the appeal and set aside the order of the Additional Controller.

(4) Feeling dissatisfied, the appellants-tenants have filed this second appeal under Section 39 of the Delhi Rent Control Act, 1958.

(5) Mr. M.S. Gujaral, learned counsel for the appellants, contended that the decision of the learned subordinate Judge in the previous litigation between the parties on the question of fact, namely, the extent of tenancy premises had become final and would operate as res judicata in these proceedings and consequently the finding of the learned Rent Control Tribunal was erroneous. On the other hand, Mr. Rajinder Datta, learned counsel for the respondent, contended that in the previous suit, the plaintiff, i.e., the present respondent, had claimed a sum of Rs. 4,620.00 only and his entire claim had been decreed. He had no right of appeal, still he filed an appeal. The appellants, however, raised an objection regarding the maintainability or" the appeal which found favor with the Additional District Judge. On the facts of the case, the said finding would not operate as res judicata.

(6) Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata. In order that a matter decided in a previous suit may operate as res judicata in a subsequent suit, inter alia, it must have been heard and finally decided by the Court in the former suit. A matter direct and substantially in is the cannot be said to have been heard and finally decided unless the finding on the issue was necessary to the determination to the suit. A finding on an issue cannot be said to be necessary to the decision of the suit unless the decision was based upon that finding and a decision cannot be said to have been based upon a finding unless an appeal can lie against that finding. The reason is that everything that should have the authority of res judicata is and ought to be subject to appeal and reciprocally an appeal is not admissible on any point not having the authority of res judicata.

(7) In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, (A.I.R. 1922 Privy Council 241), it was observed at page 243 as under :-

"THEIR Lordships do not. consider that this will be found an actual plea of res judicata, for the defendants.. having succeeded on the other plea, had no occasion to go further as to the finding against them:............"

(8) IN. Mst. Asa Bai v. Prabhulal and others, the Division Bench similarly observed at page 309

"BESIDES,a finding like this wherein the plaintiff's suit was dismissed could not operate as res judicata against the defendant because he would have no right of appeal from that, the ultimate judgment being in his favor."

(9) Similar view was taken by a Division Bench of the Calcutta High Court in Sm. Tarabai Mohata and others v. Union of Indict, . The relevant observations at page 229 read as under :-

"IN upholding the second contention we have also considered the objection of Mr. Pal that this objection is barred by principles of res judicata. We are however unable to accept this contention of Mr. Pal for the simple reason that his claim of bar of res judicata based as it is on the judgment of the learned Subordinate Judge dated April 16, 1952 in the earlier Misc. Cases under Section 47 of the Code of Civil Procedure cannot be entertained for the simple reason that the present appellants Who were the judgment-debtor's objectors in the said proceedings had succeeded and the learned subordinate Judge had found the execution itself to be not maintainable. Therefore in the facts no finding however adverse against the present appellants who were the successful parties in that litigation can operate as res judicata. Reference may be made in the case of Kumar Pasupati Nath Malia v. Sankariprosad, and Midnapur Zamindari Co. v. Naresh, 48 Ind. App. 49 =(A.I.R. 1922 P.C. 241)."

(10) Mr. Gujral in support of his contention relied upon the Rule laid down by the Supreme Court in Satyadhyan Ghosal and others v. Smt.DeorajinDebi and another, ). The relevant observations read as under :-

"THE principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or a question of law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again."

(11) The question involved in that case was quite different. The: Court was not examining the question whether of adverse finding against the successful party would operate as res judicata. The rule laid down was general in nature. It would not apply to an adverse finding against a successful party specially in a case where that party had filed an appeal and it was dismissed on an objection by the other party that it was not maintainable for the reason that the claim of the appellant had been fully decreed by the trial court. The learned counsel for the appellant has not brought to my notice any direct authority taking the view that an adverse finding against the successful party in these circumstances would operate as res judicata.

(12) For all these reasons, I find no merit in this appeal and dismiss the same.