Delhi High Court
Brijendra Kumar & Ors. vs Om Prakash & Ors. on 10 August, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 10.08.2010
+ R.S.A.No. 295/2007
BRIJENDRA KUMAR & ORS. ...........Appellants
Through: Mr.Jai Gupta, Advocate.
Versus
OM PRAKASH & ORS. ..........Respondents
Through: Ms.Mugdha Pandey, Advocate
for Respondents no.1 & 2.
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. The substantial questions of law are formulated on page B of
appeal. Admittedly, there was a prior litigation inter se between
the parties. Plaintiff Brijendra Kumar had filed an eviction petition
against his tenant Om Prakash. On 3.3.2003, the court of the
Additional Rent Controller had returned a finding that Om Prakash
is not a tenant of the plaintiff Brijendra Kumar. This finding has
since attained a finality.
2. The present suit was a suit for permanent injunction filed by
the plaintiff Brijendra Kumar against Om Prakash seeking a
permanent injunction against him restraining him from replacing
the roof of the suit property or from putting any partition wall or
making any addition or alteration in the suit property. The suit
property is House no.T-147, Rajpura, Gurmandi, Delhi-7. A
preliminary issue had been framed by the trial judge. This was on
the applicability of the doctrine of resjudicata in view of the earlier
judgment inter se between the same parties i.e. judgment of the
Additional Rent Controller dated 3.3.2003 wherein the Additional
Rent Controller had held that there was no relationship of a
landlord and tenant between the parties. The eviction petition had
been dismissed.
3. The trial judge vide its judgment dated 6.7.2005 returned a
finding that the present suit is barred by resjudicata as the earlier
court i.e. the court of the ARC on 3.3.2003 had returned a finding
that there was no relationship of a landlord and tenant between the
parties. The reliefs sought in the present suit were all premised on
the pre-condition that there is a subsisting relationship of landlord
and tenant between the parties and that is why the landlord is
seeking an injunction against the tenant restraining him from
replacing the roof or from raising any partition wall or any addition
or alteration in the suit property. The court below had applied the
doctrine as contained in Section 11 of the Code of Civil Procedure
(hereinafter referred to as „the Code‟). Further the court had also
held that in view of Explanation VIII of Section 11 of the Code a
issue heard and finally decided by a court of limited jurisdiction
also operates as resjudicata in a subsequent suit even if the earlier
court is not competent to try the subsequent suit.
4. These findings of the first court had been upheld by the
judgment of Additional District Judge on 8.2.2007.
5. The questions of law formulated before this court are not
tenable. The Rent Controller while deciding the eviction petition on
3.3.2003 had decided it on the merits of the case after taking
evidence of the parties. It was not a dismissal on any technical
ground. The issue before the first court i.e. court of the Rent
Controller was as to whether the eviction petition was
maintainable; a positive finding had been returned that Om
Prakash was not a tenant of Brijendra Kumar. The prayers sought
for in the present suit as already aforenoted cannot be granted
until and unless it is established that Om Prakash is a tenant of
Brijendra Kumar; only on this pre-condition, Brijendra Kumar can
get a decree in the present suit. The first court i.e. the court of
ARC on 3.3.2003 has already held that there is no relationship of
landlord and tenant between the parties.
6. Explanation VIII of Section 11 of the Code reads as follows:
"Explanation VIII.-An issue heard and finally decided by a
Court of limited jurisdiction, competent to decide such issue,
shall operate as res judicata in as subsequent suit,
notwithstanding that such Court of limited jurisdiction was
not competent to try such subsequent suit or the suit in which
such issue has been subsequently raised."
It states that a judgment in a former suit will operate as
resjudicata if the court which has decided the suit was competent
to try the same notwithstanding that the former court did not have
jurisdiction to try the subsequent suit.
7. In AIR 1983 Bom.488 Prabhakar Atmaram Kale vs. Bharat
and Anr. it was held that the finding of a Rent Controller regarding
the relationship of landlord and tenant will operate as resjudicata
in a subsequent suit notwithstanding the fact that the Rent
Controller had no jurisdiction to try the subsequent suit.
8. Judgment relied upon by the counsel for the appellant
reported in AIR 1966 SC 1332 Sheodan Singh vs. Daryao Kunwar is
inapplicable. Explanation VIII of Section 11 of the Code had been
inserted into the Code only after the amendment of 1976; this
judgment is prior in time.
9. No question of law much less any substantial question of law
has arisen. Appeal is dismissed in limine.
INDERMEET KAUR, J.
AUGUST 10, 2010
rb
