All India Motor Union Congress vs Bhai Trilochan Singh & Ors.
2010 Latest Caselaw 4699 Del

*      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

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

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

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

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

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.

OCTOBER 06, 2010 nandan/rb