Delhi High Court

Raj Rani vs Sardar Mohinder Singh & Anr. on 1 June, 2011

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment reserved on : 30.05.2011
                        Judgment delivered on : 01.06.2011



+            R.S.A.No. 77/2010 & CM No. 7047/2010

RAJ RANI                                       ...........Appellant
                        Through:    Mr. D.K. Rustagi, Mr. B.S.
                                    Bagga and Mr. N.S. Bhati,
                                    Advocates.

                  Versus

SARDAR MOHINDER SINGH & ANR.                    ..........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.

1 The present appeal has impugned the judgment and decree

dated 1.2.2010, which has reversed the finding of the trial judge

dated 13.7.2009. Vide judgment and decree dated 1.2.2010, the

suit of the plaintiff Raj Rani seeking possession and damages qua

the suit property i.e. property bearing no.5419, Ladoo Ghati,

Paharganj, New Delhi (as depicted in red and blue colour and

referred to as the suit property) had been decreed. The impugned

judgment had reversed this finding; suit had been dismissed.

2 Plaintiff claimed himself to be the owner of the aforenoted

suit property. He had let out the property comprising of one room

and a covered verandah (red portion) to late Ujagar Singh at a

monthly rate of `6.25. The deceased Ujagar Singh had thereafter

covered the open space with a tin shed and started his work as a

carpenter. He was residing there with his wife Mukhtiar Kaur and

daughter Kanwaljeet Kaur. Kanwaljeet Kaur was married to

defendant no.1. Defendant No. 1 joined the business of carpenter

and started residing with his in laws. Plaintiff terminated the

tenancy of Ujagar Singh vide notice dated 12.7.1980 to which the

reply dated 1.8.1980 was filed. On the termination of his tenancy

Ujagar Singh had become a statutory tenant. He expired on

8.1.1982; after his death his widow became tenant for her lifetime

as she was financially dependent upon her husband and was living

with him. The present defendants although living with Mukhtiar

Kaur had not acquired any right, title or interest in the suit

property. Plaintiff had filed an earlier eviction petition against

Mohinder Singh and the two daughters of Ujagar Singh under

Section 14 (1) (e) of the DRCA. Under wrong advise he had

impleaded the daughters of Mohinder Singh also as tenants; this

was under wrong legal advise. On an application under order 1

Rule 10(2) of the Code, the eviction petition had been permitted to

be withdrawn on the submission that present suit for possession

had been filed against the said defendants; the said eviction

petition was dismissed as withdrawn on 3.1.2005. Possession of

the defendants is illegal. They have no right or title to remain in

the suit property. Decree of possession has accordingly been

prayed for.

3 Defendants contested the suit. It was stated that there was a

no relationship of landlord and tenant between the parties; the

present suit is also barred on principle of resjudicata. On merits it

was stated that plaintiff was not the owner of the suit property.

4 The trial court vide order dated 3.1.2005 as framed

following issues :

1) Whether the suit is bad for misjoinder of necessary parties? OPD

2) Whether the suit is barred by the principles of resjudicata? OPD

3) Whether the plaintiff is entitled for decree of possession, as prayed for? OPP

4) Whether the plaintiff is entitled for damages, as prayed for? OPP

5) Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP.

6) Relief.

5 Oral and documentary evidence was led. All the issues were

decided in favour of the plaintiff. Suit of the plaintiff stood

decreed.

6 This judgment was reversed in appeal. The impugned

judgment was of the view that the suit was barred under Order 2

Rule 2; doctrine of resjudicata was also applicable.

7 This is the second appeal. It has been admitted and on

2.5.2011 the following substantial question of law was formulated.

"Whether the finding in the impugned judgment dated 01.02.2010 dismissing the suit of the plaintiff on the ground of res-judicata and on the bar as contained in Order 2 Rule of the Code of Civil Procedure was not a perverse finding? If so, its effect?"

8 On behalf of the appellant, it has been pointed out that the

judgment suffers from a perversity; attention has been drawn to

the issues framed in the first suit i.e. suit No.227/1990 as also the

issues framed in the second suit i.e. suit No. 187/2005 (present

suit). It is pointed out that the first suit was a suit for possession

and injunction seeking a demolition of the unauthorized

construction carried out on the terrace. The second suit was a suit

for recovery of the entire suit property; the pleadings in the first

and second suit are diametrically opposed; there was no question

of the applicability of the doctrine of resjudicata. It is pointed out

that no objection under Order 2 Rule 2 of the Code had also been

raised in the courts below; it was the Court itself which had drawn

a finding that the second suit i.e. suit No. 187/2005 is barred on

the principle of Order 2 Rule 2 of the Code even though this was

the never contention of the defendant. The judgment suffers from

a perversity; it is liable to be set aside.

9      None has appeared for the respondent.

10     The prayer made in the first suit i.e. suit No. 227/1990 was

for decree of possession of the „chapper‟ and „khokha‟ (blue

portion) of the suit premises i.e. house No. house No. 5419, Ladoo

Ghati, Paharganj, New Delhi; damages were also claimed. There

were 11 issues framed in the first suit. They inter alia reads as

follow:-

1. Whether the plaintiff is the owner/landlord of property no. 5419, Laddo Ghati, Paharganj, New Delhi? OPP

2. Whether the defendants have unauthorisedly, illegally constructed a kachha chhapper on the terrace. If so, to what effect? OPP

3. At what rate and to what amount the plaintiff is entitled as damages for use and occupation? OPP

4. Whether the defendant along with Mukhtiar Kaur is tenant in the disputed premises? It so, to what effect? OPD

5. To what amount plaintiff is entitled for damages caused to the property? OPP

6. Whether the suit is bad for mis-joinder of parties? OPD

7. Whether the suit is bad to non-joinder of Mukhtiar Kars as a party in the suit? OPD

8. Whether the civil court has no jurisdiction to try the suit? OPD

9. Whether the suit of the plaintiff is barred by time? OPD

10. Whether the suit is properly valued for the purposes of court fee and jurisdiction.

11. Relief.

11 The prayer made in the present suit seeks possession of the

portions shown in red and blue in the site plan forming a part of

property No. 5419, Ladoo Ghati, Paharganj, New Delhi as also for

damages. The portion show in red comprises of one room and a

verandah in front of the said room; the blue portion comprises of

the „terrace‟ and „chapper‟ made therein. In this suit, there were

six issues. They read as follow:-

1. Whether the suit is bad for misjoinder of necessary parties? OPD

2. Whether the suit is barred by the principles of resjudicata? OPD

3. Whether the plaintiff is entitled for decree of possession as prayed for?

OPP.

4. Whether the plaintiff is entitled for damages, as prayed for? OPP

5. Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP

6. Relief.

12 A perusal of the two suits and the pleadings contained

therein show that the two suits are distinct and different from one

another. In the first suit, the plaintiff had sought a decree of

possession only for the „khokha‟ and „chapper‟ on the terrace of

the disputed premises; the cause of action had arisen in favour of

the plaintiff and against the defendants when the defendants had

illegally and unlawfully possessed the suit premises and

unauthorizedly made construction thereupon; contention of the

plaintiff was that only one room and a verandah had been let out

to Ujagar Singh (father of defendant No. 2 and father in law of

defendant No. 1). After his death, his wife Mukhtiar Kaur had

become the statutory tenant; defendants had unauthorizedly

raised construction on the terrace; for this the first suit had been

filed. The judgment in the first suit had been delivered on

28.10.1996. Issue no. 2 had been decided against the plaintiff; the

court was of the view that the defendant has not unauthorizedly or

illegally constructed the „chapper‟ therein; the plaintiff was held

not entitled to any damages qua the suit property. While disposing

of issue no 4 the court was of the view that there was no need to

return any finding as to whether the defendants (Mahinder Singh

and Amarjeet Kaur) are tenants in the suit property or not.

13 The present suit had been disposed of on 13.07.2009. Issue

no. 2 was decided in favour of the defendant; doctrine of

resjudicata was held applicable.

14 The doctrine of resjudicata is contained in Section 11 of the

Code of Civil Procedure (hereinafter referred to as the „Code‟).

The principle of resjudicata is based on giving a finality to judicial

decisions; bar contained in this principle is that same matter shall

not be adjudged again. The following conditions are essential

conditions for the applicability of this resjudicata under Section

11:-

1. That the parties are same or litigating under the same title.

2. That the matter directly and substantially in issue has been directly and substantially in issue in a former suit

3. That the matter in issue has been finally decided earlier.

4. That the matter in issue was decided by a court of competent jurisdiction.

15 If anyone or more conditions are not proved the principle of

resjudicata would not apply.

16 Applying the aforestated principle to the facts of the instant

case, it is noted:

(i) First suit was filed by the plaintiff against Mahinder Singh

and Amarjit Kaur; it was a suit for recovery of possession of the

„roof‟ and „chapper‟ (blue portion) where unauthorized

construction had been raised by the defendants. Contention of the

plaintiff was that the ground floor comprising of one room and a

verandah (red portion) had been let out to Ujagar Singh for a

residential purpose. After his death, his widow Mukhtiar Kaur had

become a statutory tenant; in June, 1989 the defendants who are

the daughter and son in law of Mukhtiar Kaur had raised

unauthorized construction in the red portion; present suit was

filed. This suit had been decided on 13.07.2009. The Court had

returned a fact finding that the defendants had not raised any

unauthorized construction in the blue portion. Finding on issue

No. 4 i.e. as to whether the defendants were tenants or not had

been left open. While disposing of issue no. 2, it was held that the

defendants are not unauthorized occupants of the suit property;

however their status as tenants remained undefined.

(ii) The second suit being Suit (No. 187/2005) was filed by the

plaintiff against Mahinder Singh and Amarjeet Kaur wherein her

contention was that after the death of Ujagar Singh, his widow

Mukhtiar Kaur had become a statutory tenant; her son in law and

daughter were unauthorized occupants of the suit premises which

included one room on the ground floor as also chapper and the

roof (i.e. the red portion and blue portion) illegally.

(iii) In the first suit possession of the red portion (where

unauthorized construction had been raised by the defendants) had

been claimed. Second suit was a suit for possession of the entire

suit property which included the red portion as also the blue

portion; contention being that even after the death of Mukhtiar

Kaur defendants continued occupying this red portion although

Mukhtiar Kaur was the only statutory tenant of Ujagar Singh and

after the death of Mukhtiar Kaur, the defendants had no authority

to remain in this red portion; blue portion was also under their

unauthorized occupation.

(iv) It is relevant to state that Mukhtiar Kaur had died on

04.04.2003. She was alive at the time when the first suit was filed

i.e. suit No 227/1990; that is why her right to remain as a

statutory tenant in the red portion (ground floor of the suit

premises) had been recognized and no claim had been made qua

this portion of the suit property. The second suit i.e. suit No.

187/2005 had been filed on 03.06.2005; by this time, Mukhtiar

Kaur had died. The cause of action in the second suit had become

distinct; cause of action being that after the death of Mukhtiar

Kaur, the red portion was also being illegally retained by the

defendants although they were unauthorized occupants as

Mukhtiar Kaur was the only statutory tenant of Ujagar Singh.

(v) Thus the matter in issue in the first and second suit was

substantially different. Parties litigating were undoubtedly the

same but the matter directly and substantially in issue in the

former and the second suit was distinct. This is clear from the

pleadings of the second suit. Doctrine of resjudicata was

misapplied.

17 This finding is a perversity. It is liable to be set aside.

18 Bar of Order 2 Rule 2 of the Code was never raised by the

defendants. It was also not examined before the first appellate

court not having been argued but it was suo moto taken up by the

Court while recording the impugned judgment.

19 Order 2 Rule 2 of the Code reads as under:-

"1. Frame of suit.-Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."

20 The scheme of this section is based on the principle that the

defendant may not be and should not be vexed twice for one or

the same cause of action. Admittedly when the first suit was filed,

there was no cause of action for seeking possession of the ground

floor of the suit premises (i.e. the red portion); Mukhtiar Kaur was

recognized as a statutory tenant and she was alive at the time of

filing of the first suit. Cause of action seeking eviction of the

defendants from the red portion arose only after the death of

Mukhtiar Kaur when the second suit was filed. Order 2 Rule 2 of

the Code has also been misapplied by the trial Court.

21 In view of the aforenoted discussion, both the substantial

questions of law are answered in favour of the appellant and