Daya Chand Jain vs Rakesh Kumar
1995 Latest Caselaw 752 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner has filed this Revision Petition assailing the order dated 20.8.1991, hereinafter referred to as the impugned order, passed by Shri D.R. Jain, Sub Judge, First Class, Delhi. The Trial Court by the impugned order decided the preliminary issue in favor of the respondent, holding that the findings given by Sh. M.S. Rohilla, Sub Judge and Shri Prem Kumar Additional Rent Controller, that one Smt. Ram Kali alone was the tenant, would not operate as res judicata and it would be open to the respondent to raise the plea of his being a tenant.

(2) The revision petition raises an interesting question as to whether the rule of constructive resjudicata can be applied to an omission to raise a defense or plea, which was not available at the time of institution of the suit but became available during the pendency of the suit?

(3) That for a proper appreciation of the contentions raised in the Civil Revision Petition, the facts may be recapitulated :- (i) The petitioner is the landlord and one Smt. Asharfi Devi, widow of late Shri. Moti Lal, was a tenant in respect of a room on a ground floor and mezzanine over the garage in H. No. 4698, Sumer Building, Ansari Road, Darya Ganj, at a monthly rent of Rs. 12.00. (ii) Smt. Asharti Devi died issueless in February. 1980 leaving behind two sisters, namely Smt: Ram Kali and Smt. Nanhi Devi (iii) The petitioner filed a Suit No. 519/80 for possession against Smt. Ram Kali and the present respondent, Shri Rakesh Kumar, claiming that Smt. Asharfi Devi had died issueless and Smt. Ram Kali and the present respondent were unauthorised occupants. The suit was filed for possession and recovery of mesne profits. It was also the case of the petitioner that the tenancy of Smt. Asharfi Devi had been terminated vide a legal notice during her lifetime. Smt. Ram Kali and the present respondent contested the suit claiming that they were tenants in respect of the demised premises. Objections as to the non-joinder of all the legal heirs of Smt. Asharfi Devi and the suit being beyond pecuniary jurisdiction of the Court were raised. (iv) The suit was dismissed vide judgment dated 21.10.1992 of Shri M.S. Rohilla, Sub Judge. He held that the plaintiff i.e. petitioner herein, had failed to prove the notice of termination of tenancy. Accordingly the Law of general succession applied and all the legal representatives of late Smt. Asharfi Devi would inherit the tenancy rights. It was further held that as the second sister of Smt. Asharfi Devi namely Smt. Nanhi Devi had also died in January, 1982, the sister Smt. Ram Kali being a Class Ii heir had a right to succeed. Accordingly defendant No. 2 Smt. Ram Kali only became a tenant in the suit premises. The suit for possession was held as barred against her by virtue of Section 50 of the Delhi Rent Control Act. The learned Judge, however, held that though present respondent could not be stated to have any right in the premises in suit, but no decree could be passed against him, as he was not a trespasser. Even otherwise he was son of the daughter of the sister of defendant No. 2, who had been adjudged to be a tenant in the premises. The above suit had been contested by the present respondent claiming himself to be a Co-tenant with Smt. Ram Kali, on his own right.

(4) The petitioner in the event, filed an eviction petition against Smt. Ram Kali alone, who had been held to be a tenant in the above referred suit. As noticed earlier, Nanhi Devi had died after the institution of Suit No. 519/80 and during its pendency. Smt. Ram Kali also died during the pendency of the eviction petition on 28/29.8.1985. No legal representatives of Smt. Ram Kali were brought on record as it was held that the right to sue does not survive vide orders dated 8.8.1987, of the Additional Rent Controller. Smt. Ram Kali was held to be a statutory tenant, her tenancy having been validly terminated during her life time. Vide order dated 10.5.1991, it was further held that Smt. Ram Kali used to live alone and the legal representatives were neither living with her and nor were financially dependent upon her. The petition was dismissed as it was held that the right to sue does not survive. It may be noticed that earlier, vide order dated 11.8.1987, the learned Additional Rent Controller, Shri Prem Kumar had dismissed the objection of Smt. Ram Kali with regard to petition being bad for non-joinder of necessary parties namely the legal representatives of Smt. Nanhi Devi. It was held that findings given in the judgment of Shri M.S. Ruhilla, that only Smt. Ram Kali was the tenant was binding and operated as res judicata between the partics.

(5) That the petitioner thereupon filed the present suit against the respondent for possession of the suit premises and for recovery of damages. The respondent claimed that he had inherited the tenancy rights of Smt. Nanhi Devi after her death and had become a tenant by operation of Law and the Law of succession. He stepped into the shoes of Smt. Nanhi Devi.

(6) Out of the issues framed by the Court, the following are relevant for the purpose of this revision petition :- (i) (Issue No.4) Whether Smt. Ram Kali was a co-tenant in suit premises with Smt. Nanhi Devi and after the death of Smt. Nanhi Devi, the defendant became co-tenant and the suit is barred by Section 50 of the Delhi Rent Control Act? Opd (ii) (Issue No.5) Whether the suit is bad for non-joinder of other co-tenants as alleged in the written statement? Opd (iii) (Issue No.6) Whether the contention of defendant for and in the above two issues Nos. 4 & 5 are res judicata by judgment of the Court of Shri M.S. Rohilla, Sub Judge, Delhi and Additional Rent Controller, Shri Prem Kumar?

(7) The learned Sub Judge treated issue No. 6 as the preliminary issue and vide the impugned order held that the said pleas were not barred to the defendant by res judicata.

(8) The impugned order had been assailed by the petitioner on the following grounds:- (i) Nanhi Devi had died in January, 1982, during the pendency of the suit filed before Shri M.S. Rohilla, Sub Judge, First Class, Delhi. It was therefore, open to the respondent, who was a defendant then claiming to be a tenant in his own right, to raise the plea by amending written statement that he had also become a tenant by succession through Nanhi Devi. The respondent having failed to take this plea, which was open to him, was barred on the principle of constructive res judicata to take this plea in the present suit. In support of this. Counsel relied on titled State of U.P. v. Nawab Hussain and titled Forward Construction Co. & Others v. Prabhat Mandal (Regd.), Andheri & Others. (ii) The finding of fact recorded by Shri M.S. Rohilla, that the sole tenant was Mrs. Ram Kali, was binding on the respondent and operates as res judicata. Reliance was placed on 1987 (1) Rcr 93 titled Ramchandra Ganesh Kulkarni v. Laxman Mainkar, titled Shankarlal Kamani v. Kanneilal Periwala & Others; titled Gulabchand Chhatalal Parikh v. State of Gujarat and titled Junior Telecom Officer v. Union of India. Admitting but not assuming that the finding was erroneous nevertheless it was binding having become final. It operated as res judicata. Further reliance was placed on titled Maher Lal Goenkar v. Benoy Kishan Mukherje and Others', titled State of West Bengal v. Hemant Kumar Bhattacharjee & Others and titled S.C. Employees Welfare Association v Union of India. (iii) The doctrine of res judicata should be applied otherwise two inconsistent decrees would come into being. Reliance was placed on Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu (dead) by L.Rs. (iv) Assuming but not admitting, that the principle of constructive res judicata did not apply, the said decree would still be binding as a precedent. Counsel relied on titled Sadu Madho Das & Others v. Mukand Ram & Another and Katragadda China Anjaneyul & Another v. Kattragadda China Ramayya and Others (v) It was open to the respondent to appeal and challenge the judgment and decree passed by Shri M.S. Rohilla, if he was aggrieved by any finding in the judgment/decree, even if the suit was dismissed. Reliance was placed on titled Union of India v. Pearl Hosiery Mills and Others. It was therefore, open to the respondent to file an appeal and assail the finding that Smt. Ram Kali alone was tenant, even if, the suit was dismissed .

(9) The learned Counsel for the respondent refuted the above contentions of the petitioner as being devoid of merit. The learned Counsel for the respondent argued that late Smt. Asharfi Devi, a tenant, had died in the year 1979, leaving behind Smt. Ram Kali and Smt. Nanhi Devi, two sisters as legal heirs. The petitioner had filed a suit for possession against Smt. Ram Kali and present respondent claiming that Smt. Asharfi Devi had died issueless and Smt, Ram Kali and Shri Rakesh Kumar were unauthorised occupants. The petitioner despite objections having been taken in the written statement, did not make Smt. Nanhi Devi a party in the suit. The above suit had been contested by the present respondent in his own right, claiming himself to be a co-tenant. Counsel for the respondent pointed out that Smt. Nanhi Devi died in the year January, 1982, much after the filing of the Suit No. 519/80. The petitioner had, thereafter, filed an eviction petition against Smt. Ram Kali alone and did not implead the legal heirs of Smt. Nanhi Devi including the respondent as a party.

(10) The learned Counsel for the respondent further urged that in the suit before Shri M.S. Rohilla, Civil Judge, the respondent was claiming tenancy directly in his own right and the Court was only to decide whether the respondent was a tenant Along with Smt. Ram Kali after the death of Smt. Asharfi Devi. The rights of Smt. Nanhi Devi, who was also the successor of the tenancy right of Smt. Asharfi Devi were neither questioned nor was Smt. Nanhi Devi made a party in the suit. There had been no adjudication till date of the rights of Smt. Nanhi Devi. In the present suit, the respondent in defense was claiming himself to be a successor of Smt. Nanhi Devi which issue was neither adjudicated upon nor determined by any Court. The respondent rights as successor to Smt. Nanhi Devi arose after filling of the Suit No. 519/80. It was therefore, open to the present respondent to claim tenancy rights as a legal heir of Smt. Nanhi Devi who had inherited the tenancy rights.

(11) In the light of the aforesaid submissions, let us consider the legal position. The foremost question that arises for consideration is whether the omission or failure to take a plea in defense, which was not available at the time of institution of the suit but became available during its pendency, would attract the bar of constructive res judicata as enshrined in Explanation Iv to Section 11 Civil Procedure Code .? The contention of the petitioner is that since Smt. Nanhi Devi died during the pendency of the suit, it was open to the respondent, to raise the plea by amending his written statement and claim that he had also become a tenant by succession through Smt. Nanhi Devi. Having failed to do so, the plea now sought to be taken in the present suit was barred by principle of constructive resjudicata. The submission of the Counsel for petitioner is not well founded. Explanation Iv to Section 11 Civil Procedure Code . would only apply to the omission of a party to take a plea in the plaint or defense in written statement, which was available to it at the time of filing of the suit. The principle of res-judicata cannot be extended to a subsequent event after filing of the suit. Reference in this connection is invited to Air (36) 1949 Madras 586 titled Kanamathareddi Seetamma v. Kanamathareddi Kotareddi. It was held that where the plaintiff acquired a fresh cause of action during the pendency of his suit, the plaintiff was not bound to rely on the new rights in the pending suit. The said rights gave a fresh cause of action and subsequent suit was not barred by res judicata. In a later decision in Mudunuri Subbaraju & Others v. State of Andhra Pradesh & Others, the Court relying on Kanamathareddi Kotareddi's (supra) held that "the principle of might and ought to have been raised as required under Explanation Iv to Section 11 must be held to be one with reference to the cause of action said to be available at the time when the Us commences and not at the time when the Us comes up for final hearing." The respondent in this case had contended that the petitioner had failed to raise the plea of declaration under Section 6 of the Land Acquisition Act being invalid, as being published beyond the three year statutory period. This plea though not available at the time of filing of writ petition was available when the writ petition had come up for final hearing. The petitioner then could have raised the plea but failed to do so and could not be permitted to raise this in the subsequent writ petition and was barred by principle of constructive resjudicata. The Court held that this ground was not available to the petitioner when the earlier writ petition was filed, it became available only on 23.9.1984, when the Amendment Act came into force and authorities were obliged to issue Section 6 declaration within three years of the draft Notification under Section 4. It was then open to the petitioner to have filed a fresh writ petition or raise a new ground with the permission of the Court, but the failure of the petitioner to do so, cannot be said to come within the mischief of Explanation Iv to Section 11 Civil Procedure Code . Applying the ratio of the aforesaid decisions, it is clear that the plea of respondent being barred by principle of constructive res judicata is without merit. The petitioner has cited State of U.P.'s case (supra) and Forward Construction Co. And Others' case (supra). In the decision reported in State of U.P.' s case (supra), the petitioner therein had challenged his dismissal from service on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and the action taken was malafide. This petition was dismissed. Thereafter, the petitioner filed a suit in which the order of dismissal was Challenged on the ground that his dismissal was by the Deputy Inspector General of Police, who was not competent to pass the order as he was appointed by the Inspector General of Police. The suit was dismissed applying the principle of constructive res judicata. The above case is clearly distinguishable as the plea sought to be raised was available to the petitioner at the time when the writ petition was filed. This case is therefore of no help to the petitioner. Similarily, in the decision reported in forward Construction Co. & Others case (supra), a writ petition had been filed, challenging the user of a plot reserved for a bus depot for Best (Bombay Electric Supply and Transport Undertaking) Additionally, the ground of misuser for commercial purposes was raised as the Best has proposed to construct a bus depot and use of spare area by giving it on rent. The petition was dismissed. Subsequently another writ petition was filed wherein, the validity of the permission granted under the Development Control Rules and change of user was questioned. The Court held that the second petition was barred by principle of constructive res judicata, holding that the adjudication was conclusive and final not only as to the actual matter determined but with respect of every other matter which the parties might and ought to have litigated and have it decided as incidental to or essentially connected with the subject matter of litigation. The decision does not advance the petitioner's case as the plea sought to be taken in the subsequent writ petition, was available at the time of the first writ petition.

(12) As regards the authorities relied on by the petitioner in support of grounds Nos. (ii) and (iii), there is no dispute with regard to the principles laid down by the said authorities, namely that if the conditions for application of Section 11 Civil Procedure Code are fulfillled, the decision operates as resjudicata and the finding even if, erroneous is binding on the parties. The situation in this case is, however, different since the conditions for application of constructive res judicata are not attracted, as discussed above.

(13) As regards the petitioner's contention in ground No. Iii, that doctrine of res judicata should be applied otherwise two inconsistent decrees would come about, the Apex Court, in the decision cited, had held that one of the test for applying the doctrine of res judicata is whether two inconsistent decrees would come about. The said observations are no help to the petitioner in the instant case, since the conditions and requirements for the application of principle of constructive resjudicata are not satisfied.

(14) Counsel for the petitioner had further relied on a decision in Sadu Madho Das and Other's case (supra) and Katragadda China Anjaneyul and Another's case (supra) in support of the proposition that the decision even if not res judicata would be binding as a precedent. In the Sadu Madho Das and Other's case, the Apex Court was considering the question of construction given to a material.