[Cites 17, Cited by 0]
Madhya Pradesh High Court
Smt.Saraswati Bai (Deleted) And Anr. vs Shri Krishna Gour (Deleted) Through ... on 14 January, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:1561
1 SA-276-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
SECOND APPEAL No. 416 of 2004
SHRI KRISHAN GAUR (DELETED) THR. LRS. SACHIDANAND GAUR
AND ANOTHER
Versus
SMT. SARWATI BAI AND OTHERS
Appearance:
Shri Anmol Khedkar, Advocate for LRs of appelllant.
Shri Rohit Bansal, Advocate for respondent No.2.
SECOND APPEAL No. 276 of 2004
SMT. SARASWATI BAI (DELETED) AND ANOTHER
Versus
SHRI KRISHNA GOUR (DELETED) THROUGH LRS.
SACHIDANAND GAUR AND OTHERS
Appearance:
Shri Rohit Bansal, Advocate for appellant.
Shri Anmol Khedkar, Advocate for LRs of respondent No. 1.
Reserved on : 18/12/2025
Pronounced on: 14/01/2026
JUDGMENT
By this common judgement S.A. No.276/2004 shall also be
decided.
2. Both the second appeals have been filed against the judgement
and decree dated 5/3/2004 passed by VI Additional District Judge,
Gwalior in Civil Appeal No. 2A/2001, arising out of judgment and
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2 SA-276-2004
decree dated 25/9/2001 passed by VIII Civil Judge Class II, Gwalior in
Civil Suit No. 50A/98.
3. S.A. No. 416/2004 has been filed by the plaintiff/landlord
against the part of judgement and decree passed by the appellate Court
by which the decree awarded by the trial Court under section 12(1)(a),
12(1)(c) and 12(1)(o) of the M.P. Accommodation Control Act ( for
short "the Act") has been set aside, whereas S.A. No. 276/2004 has been
filed by the tenant against the impugned judgement and decree passed
by the appellate Court by which a decree of eviction under section 12(1)
(b) of the Act has been passed.
4. By order dated 7/2/2008, S.A. No. 416/2004 was admitted on
the following substantial questions of law:-
"(1) "Whether the first appellate court erred in law while
condoning the delay in payment of rent and ignored the
provisions of Section 13 of the M.P. Accommodation Control
Act while dismissing the suit under Section 12 (1) (a) of the
M.P. Accommodation Control Act?
(2) "Whether the first appellate court committed an error in
dismissing the suit under Section 12 (1) (o) of the M.P.
Accommodation Control Act?""
5. By order dated 7/2/2008, S.A. No. 276/2004 was admitted on
the following substantial questions of law:-
"(1) "Whether the courts below committed error in granting
the decree under Section 12 (1) (b) of the M.P.
Accommodation Control Act when it is an admitted fact that
the portion encroached and sub-letted by the appellants is not
the premises given on rent?"
(2) "Whether the courts below have acted illegally in
overlooking that the word "Accommodation" employed in
Section 12 (1) (b) of the M.P. Accommodation Control Act
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3 SA-276-2004
refers to an accommodation obtained on rent and will not
extend to an accommodation beyond the premises given on
rent by the landlord?""
6. IA No. 7074/2023 has been filed under Order 41 Rule 27, CPC
in S.A. No. 416/2004.
7. Counsel for appellant seeks permission of this Court to
withdraw this application.
8. The I.A. is, accordingly, dismissed as withdrawn.
9. Facts necessary for disposal of present appeals, in short, are
that the plaintiff filed a suit for eviction as well as recovery of arrears of
rent on the ground that plaintiff is owner/landlord of the suit house and
defendant is a tenant on a monthly tenancy of Rs.25/-. The tenancy is
verbal starting from first day of every month and comes to an end on last
day of that month. It was the case of plaintiff that portion marked as "A"
in the plaint map was let-out to defendant, whereas the portion marked
as "B" has been encroached upon by the defendant, who had installed a
tin-shed on the open land which was removed by the Municipal
Corporation. However, again on 12/3/1994, defendant reinstalled the
tin-shed without permission of plaintiff as well as the Municipal
Corporation and has also constructed a platform in front of the same. It
was further pleaded that defendant is in habit of not making payment of
rent on time and whenever the rent was demanded, she always picked up
a quarrel. On 1/10/1993, son of defendant Prakash paid Rs.300/-
towards arrears of rent. A notice dated 26/12/1996 was issued to
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defendant which was received by her on 1/1/1997. In spite of that, she
did not pay the arrears of rent and thus she is in arrears of rent from
1/10/1993. It was further pleaded that son of plaintiff is also committing
theft of electricity by taking direct connection from the main line.
MPEB had also punished him, still he is creating nuisance by
committing theft of electricity. Defendant has illegally sublet the
premises to one Roopram Kahar and has got a separate electricity
connection in the name of Roopram Kahar with the help of her son who
is an employee of Madhya Pradesh Electricity Board. It was further
pleaded that defendant and her family members as well as her son
Prakash are always ready to pick up quarrel and in respect of that, police
report was lodged on multiple occasions and son of defendant had also
submitted a written apology in the police station but they are still
creating nuisance and accordingly, it was claimed that the cause of
action arose on on 26/12/1996 when a registered notice was issued
which was received by the defendant on 1/1/1997 and in spite of that she
has not paid the arrears of rent and has not handed over the vacant
possession of suit premises. Thus, a suit was filed for eviction as well as
for recovery of Rs.900/- and delivery of possession.
10. Defendant filed her written statement and claimed that entire
property which is in possession of tenant was let-out to her. The elder
brother of her deceased husband namely late Sohanlal was Karta
Khandan of family and rent receipts were also being issued in his name.
Late Sohanlal and the husband of defendant have expired. Thereafter
NEUTRAL CITATION NO. 2026:MPHC-GWL:1561
5 SA-276-2004
defendant and members of her joint family are in possession being
tenants. The other family members of defendant are also necessary party
and therefore the suit suffers from non-joinder of necessary party. The
portion "B" as shown in the plaint map was originally let out to the
defendant. It was denied that defendant has forcibly encroached upon
the part of land which has been shown as "B" in the plaint map. The
allegations that construction was removed by the Municipal
Corporation and thereafter defendant has once again encroached upon
the additional land thereby raising construction over it was also denied.
It was denied that defendant is in habit of not making payment of rent in
time. It was denied that on 1/10/1993, son of defendant had paid
Rs.300/- towards arrears of rent. In fact, son of defendant had paid the
advance rent on behalf of entire joint family. The issuance of notice
dated 26/12/1996 was admitted, however, it was pointed out that
defendant had given a reply on correct basis. It was denied that son of
defendant is in habit of committing theft of electricity. The punishment
of son of defendant by the MPEB was also denied. The fact of subletting
of the suit premises to one Roopram Kahar was also denied. It was also
denied that her son had transferred the electricity connection in the name
of Roop Ram Kahar. It was denied that defendants are always ready to
pick up quarrel and it was also denied that they have tendered a written
apology to police. It was denied that defendant is in arrears of rent for a
period of three years. In special plea, it was claimed that on 5/5/1988 an
amount of Rs. 50, on 5/2/1991, an amount of Rs.500/-, on 25/9/1991 an
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6 SA-276-2004
amount of Rs.2000/-, on 25/3/1992 and 28/5/1992 an amount of Rs.500
each and on 1/10/1993 an amount of Rs.300/- was deposited by way of
rent. Thus it was claimed that plaintiff has already received the rent from
May 1988 till February 2001 i.e. 154 months and, therefore, the
allegation that defendant is a defaulter in depositing the rent is false. In
fact, plaintiff himself is of troublesome nature and wants to increase the
rent. It was also claimed that plaintiff is not the owner of the property in
dispute.
11. The trial Court after framing issues and recording evidence
decreed the suit under sections 12(1)(a), 12(1)(b), 12(1)(c) and 12(1)(o)
of the Act.
12. Challenging the judgment and decree passed by the trial
Court, tenants preferred an appeal before VIII Additional District Judge,
Gwalior which was registered as Civil Appeal No.2A/2001. The
appellate Court, by judgment and decree dated 5/3/2004 held that
tenant/defendant is not liable to be evicted on the grounds as mentioned
in sections 12(1)(a), 12(1)(c) and 12(1)(o) of the Act, but affirmed the
decree under section 12(1)(b) of the Act.
13. Challenging the judgement and decree passed by the Courts
below, it is submitted by the counsel for appellant-landlord/plaintiff in
S.A. No. 416/2004 that the trial Court had wrongly condoned the delay
and had wrongly granted liberty to the defendant to pay the arrears of
rent by order dated 17/2/2000 and the delay in depositing the rent cannot
NEUTRAL CITATION NO. 2026:MPHC-GWL:1561
7 SA-276-2004
be condoned without assigning any reason and that too much after a long
period of default. Whereas it is submitted by counsel for appellant-
tenant/defendant in S.A. 276/2004 that once it was the case of
plaintiff/landlord that defendant has sublet a premises which was not let
out to him, then the suit for eviction in absence of a decree under section
12(1)(o) of the Act cannot be maintained on the ground of 12(1)(b). In
fact the landlord/owner should have filed a suit for possession of the
portion of property which was never let out to the tenant.
14. Heard, learned counsel for the parties.
S.A. No. 416 of 2004 .
15. From the record of the trial Court, it is clear that by order
dated 17/2/2000 the trial court passed the following order:-
17/2/2000
उभयप अिधव ागण उप0
घारा 13(2) थान वधान का िनराकरण कया जा रहा है ।
वाद ने वादप म दनांक 1/10/93 से भाडा 25/- माहवार से
बकाया है जबक ितवाद ने जवाबदावा म बकाया हाने के त य से इं कार
कया है । शपथप म वाद ने 1/10/93 से बाक भाडा होना बताया है ।
ितवाद ने शपथप म अ ैल 88 क जगह फरवर 2001 तक का भाडा वाद
को ा होने का उ लेख कया है । (अ प ) सा य के प म ऐसी कोई
रसीद भी पेश नह ं है (अ प ) क कराया दया जा चुका है ।
(अ प )फल व प थम या भाडा 1/10/93 से बाक होना पाया जाता है ।
अत: ितवाद बकाया कराया दावा दायर दनांक से (अ प ) 3 वष पूव
का एक माह मे (अ प ) म जमा करे ।आ दा माह का कराया हर माह क
15 तार ख तक जमा करे ।
NEUTRAL CITATION NO. 2026:MPHC-GWL:1561
8 SA-276-2004
करण दनांक 16.3.2000 को (अ प ) वाद (अ प )
सह /-
कमर इकबाल खान
ष म यवहार यायधीश वग 2 वािलयर
16. The trial Court specifically held that defendant is in arrears of
rent from 1/10/1993, but without assigning any reason for condonation
of delay passed a very cryptic order thereby granting permission to the
tenant to deposit the outstanding rent within a period of one month and
accordingly on 6/3/2000 an amount of Rs.1900/- was deposited by the
tenant by way of rent till August 2000.
17. Now the only question for consideration is as to whether an
application for extension of time to deposit the rent was maintainable
after inordinate delay or not.
18. The Supreme Court in the case of Ashok Kumar Mishra v.
Goverdhan Bhai, (2018) 12 SCC 533 has held as under:-
"9. It is obvious from the aforesaid provisions that the
tenant must during the pendency of the suit/appeal make
payment of rent within one month of the service of writ of
summons or notice of appeal or within such further time such
Court may allow in this behalf. Further, he must thereafter,
continue to deposit or pay rent by 15th of each succeeding
month till the decision of the suit, appeal or proceedings, as
the case may be.
10. Section 13(2) of the Act requires the tenant to pay such
reasonable provisional rent as may be fixed by the court in
case of a dispute or doubt about the amount that must be paid
by the tenant. As stated above, the amount in this case is Rs
150 per month. It is pointed out on behalf of the appellants
that for the period from January 2001 to May 2011, when the
second appeal was pending, the tenant did not deposit the
monthly rent as required by Sections 13(1) and 13(2) of the
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9 SA-276-2004
Act i.e. the rent at monthly intervals. We have perused the
chart of payment of rent and we find that for the period from
9-8-2000 to 12-5-2011, the tenant paid rent on only three
occasions i.e. Rs 2000 on 9-8-2000, Rs 2000 on 9-12-2000
and Rs 500 on 12-2-2001. Thereafter, on 12-5-2011 the tenant
deposited a sum of Rs 31,250 i.e. the amount of default rent
of 125 months from January 2001 to May 2011. This in our
view, amounts to an implicit admission of the fact that no rent
was paid on the days it was due during this period.
11. The learned counsel for the respondent tenants
vehemently argued that the respondents who are the legal
representatives of the original tenant were not aware of the
default. It is not possible to accept this contention since they
were clearly aware of the fact that they were living in
tenanted premises and were bound to pay rent. In any case we
find that even if the impleadment of legal representatives on
6-7-2009 there are defaults for a period of two years
thereafter.
12. In the circumstances, we find no merit in the contention
that the respondents had paid rent regularly. The learned
counsel for the respondents also contended that the
respondents are willing to pay arrears of rent now before this
Court and this Court may condone such delay. The learned
counsel for the respondents relied on Section 13(5) of the Act
which reads as follows:
"13. (5) If a tenant makes deposit or payment as
required by sub-section (1) or sub-section (2), no decree
or order shall be made by the Court for the recovery of
possession of the accommodation on the ground of
default in the payment of rent by the tenant, but the
Court may allow such cost as it may deem fit to the
landlord."
13. We are of the view that on a plain reading, this
provision protects a tenant from eviction if a tenant makes
deposit/payment as required by Section 13(1) or 13(2) of the
Act. In other words, if the tenant has complied with the
provisions of Sections 13(1) and 13(2) in the matter of
making payment, he is protected from eviction. It must be
remembered that the provisions of Section 13 of the Act shied
a tenant from eviction if the tenant regularly pay rent after the
suit is filed.
14. Accordingly, it provides a locus poenitentiae to the
tenant. Section 13(5) of the Act reiterates the protection by
stating that if the tenant makes payment post-suit in
accordance with the provisions of Sections 13(1) and 13(2) of
the Act, he shall not be liable for eviction. This section does
not confer the power on the court to condone the defaults in
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payment of rent after the suit is filed. It is, therefore, not
possible for us to accept this contention. In the circumstances,
the impugned judgment [Ashok Kumar Mishra v. Gowardhan
Bhai, Second Appeal No. 167 of 1995, decided on 14-12-
2011 (Chh)] of the High Court is set aside."
19. The Supreme Court in the case of Sayeda Akhtar v. Abdul
Ahad, (2003) 7 SCC 52 has held as under:-
"5. Section 13 of the M.P. Accommodation Control
Act, 1961 reads as under:
"13. (1) On a suit or proceeding being instituted by the
landlord on any of the grounds referred to in Section 12,
the tenant shall, within one month of the service of the
writ of summons on him or within such further time as
the court may, on an application made to it, allow in this
behalf, deposit in the court to pay to the landlord an
amount calculated at the rate of rent at which it was paid,
for the period for which the tenant may have made
default including the period subsequent thereto up to the
end of the month previous to that in which the deposit or
payment is made and shall thereafter continue to deposit
or pay, month by month, by the 15th of each succeeding
month a sum equivalent to the rent at that rate.
***
(6) If a tenant fails to deposit or pay any amount as
required by this section, the court may order the defence
against eviction to be struck out and shall proceed with
the hearing of the suit."
6. A bare perusal of the aforementioned provision would
clearly go to show that although the court has the jurisdiction
to extend the time for depositing the rent both for the period
during which the tenant had defaulted as well as the period
subsequent thereto but an application is to be made therefor.
The provision requiring an application to be made is
indisputably necessary for the purpose of showing sufficient
cause as to why such deposit could not be made within the
time granted by the court. The court does not extend time or
condone the delay on mere sympathy. It will exercise its
discretion judicially and on a finding of existence of sufficient
cause.
7. In Nasiruddin v. Sita Ram Agarwal [(2003) 2 SCC 577]
this Court noticed the said provision as well as the decision
i n Shyamcharan Sharma v. Dharamdas [(1980) 2 SCC 151]
and observed that the court has been conferred the power to
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extend the time for deposit of rent but on an application made
to it."
20. Thus it is clear that whenever an application under section
13(2) of the Act is filed, then the trial Court is always expected to
consider the sufficiency of reasons for not depositing the rent in time
and application cannot be allowed simply by taking a sympathetic view.
If the order dated 17/2/2000 is considered, then it is clear that no
reasons, much less any sufficient reason was ever given by the trial
Court. Under these circumstances, it is clear that although the trial court
might have granted liberty to the defendant to pay the arrears of rent
within a period of one month, but the said order was not in accordance
with law, as well as, in accordance with the law laid down by Supreme
Court in the case of Sayeda Akhtar (Supra) .
21. Thus, it is held that although the trial Court by order dated
17/2/2000 might have permitted the defendant to deposit the entire
arrears of rent within a period of one month, but the said order cannot be
treated as deemed condonation of delay by the trial Court in depositing
the rent. Since admittedly defendant did not deposit the rent within a
period of two months from the date of receipt of notice and also
committed a continuous default in depositing the rent till 17/02/2000,
this Court is of considered opinion that the appellate Court committed
material illegality by holding that since the entire arrears of rent was
deposited by the tenant on 06/03/2000 in compliance of order dated
17/02/2000 and continued to do so regularly thereafter, therefore, no
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decree for eviction can be passed against him under section 12(1)(a) of
the Act. Accordingly, the judgment and decree passed by the appellate
Court so far as it relates to setting aside of decree under section 12(1)(a)
of the Act is, hereby, set aside and decree under section 12(1)(a) of the
Act is passed against the defendant.
22. If substantial questions of law which have been framed are
considered, then it is clear that findings given by the trial Court with
regard to subletting have not been disturbed. The only question which
has been framed is that when the tenant sublets a part of the property of
the owner which was never let out to him then whether it would fall
within the ground of 12(1)(b) of the Act or not?
23. S. 12(1)(b) of the Act reads as under:-
"12. Restriction on eviction of tenants. - (1)
Notwithstanding anything to the contrary contained in any
other law or contract, no suit shall be filed in any civil Court
against a tenant for his eviction from any accommodation
except on one or more of the following grounds only, namely:
(b) that the tenant has, whether before or after the
commencement of this Act, unlawfully sub-let, assigned or
otherwise parted with the possession of the whole or any part
of the accommodation for consideration or otherwise;"
24. Section 2A of the Act reads as under:-
(a) "accommodation" means any building or part of a
building, whether residential or nonresidential and includes,-
(i) any land which is not being used for agricultural
purposes;
(ii) garden, grounds, garages and out-houses, if any,
appurtenant to such building or part of the building;
(iii) any fittings affixed to such building or part of a
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building for the more beneficial enjoyment thereof;
(iv) any furniture supplied by the landlord for use in such
building or part of building;
25. From plain reading of the definition of word
"accommodation", it is clear that it would mean any building or part of a
building whether residential or non-residential and includes any land,
garden, ground, garages and outhouses, if any, appurtenant to such
building or part of the building and any fittings affixed to such building
or part of a building for the more beneficial enjoyment thereof as well as
any land which is not being used for agricultural purposes.
26. It is an important fact that neither in section 12(1)(b) of the
Act nor in the definition of "accommodation" as provided under section
2A of the Act, the word "let-out" has been used. Therefore, the word
"accommodation", as mentioned in 12(1)(b) of the Act has to be read in
accordance with the definition of the said word as given in 2(a) of the
Act. Any garden, ground, garages and outhouses, if appurtenant to such
building or a part of the building, would also amount to accommodation.
27. In the present case, it is clear from the plaint map that
pleading of plaintiff is that the open place adjoining to the
accommodation which was not let-out to the defendant was encroached
upon by the defendant and a tin-shed was installed and a platform was
also constructed. Therefore, the open land which was illegally
encroached upon by the defendant was appurtenant to the
accommodation which was let out to her. Therefore, it is clear that if any
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14 SA-276-2004
garden, ground, garages and outhouses appurtenant to such building or
part of such building for the more beneficial enjoyment is encroached
upon, then whether it was actually let-out or not would not make a
difference. However, this Court would like to make a comment upon the
glaring mistake which has been committed by the trial Court. The trial
Court did not frame an issue as to whether the defendant/tenant has
taken possession of any portion of accommodation which is not included
in the accommodation let-out to her and the tenant has not vacated in
spite of a written notice by the landlord in that behalf. However, a
decree under section 12(1)(o) of the Act was passed by the trial Court,
but the same has been set aside by the appellate Court, therefore nothing
more is required to be observed by this Court. However, when parties
went to the trial Court knowing well about the nature of litigation, then
this court may not be in a position to grant a decree to the plaintiff on
the basis of encroachment of the accommodation which is not included
in the accommodation let out to her, but the said conduct of the tenant
can be taken into consideration to answer the substantial question of law
which has been framed.
28. Prakash Batham (DW1) has admitted in paragraph 7 of his
cross examination that earlier the electricity connection which was
installed in the disputed house was in his name and thereafter he got the
said electricity connection transferred in the name of Roopram Kahar.
Although he tried to deny that transfer of such electricity connection
was on the ground that he had sublet the suit premises, but in paragraph
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15 SA-276-2004
6 he has admitted that since he was transferred to Dabra and he has
shifted to Dabra along with his family members, therefore the electricity
connection was got transferred in the name of Roop Ram Kahar. It is not
the case of defendant that Roopram Kahar is the family member of
defendant. In paragraph 7, he has admitted that Roopram Kahar is
residing in the disputed house from the year 1956. Thus, it is clear that
defendant had not taken possession of such portion or portions of
accommodation which were not included in the suit premises.
29. It is the case of plaintiff that defendant has sublet the tin shed
to one Roopram Kahar, and the son of the defendant namely Prakash
(DW1) has also specifically admitted that he had got his electricity
connection transferred in the name of Roopram Kahar as he was
transferred to Dabra and had shifted to Dabra along with his family
members and bags and baggages. What was the need of getting the
electricity connection transferred in the name of Roopram Kahar if the
premises was not sublet to him ?. Therefore, the transfer of the
electricity connection in name of a stranger clearly indicates that the
premises was sublet by the defendant.
30. Section 12(1)(o) of the Act reads as under:-
"(o) that the tenant has without the written permission of
the landlord also taken possession of such portion or portions
of accommodation which is not included in the
accommodation let to Him and which the tenant has not
vacated in spite of a written notice of the landlord in that
behalf;"
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16 SA-276-2004
31. In this case, as already pointed, a blunder mistake was
committed by the trial Court and in spite of specific pleadings by the
plaintiff, the trial Court did not frame any issue as to whether the
defendant has taken possession of property other than which was let out
to him or not? Therefore, the trial court could not have granted a decree
under section 12(1)(o) of the Act and thus the appellate Court has rightly
set aside the decree awarded by the trial Court under section 12(1)(o) of
the Act on the ground that in absence of any issue, decree for eviction
on the ground of section 12(1)(o) of the Act could not have been
granted, but so far as the contention of the counsel for the
defendant/appellant that in absence of any issue, he could not lead any
evidence is also not very convincing because there was a specific
pleading in paragraph 2 of the plaint and there was specific reply by the
defendant to the pleadings of encroachment, and it was the case of
defendant that he has not taken possession of any part of the property
which was not let out to her. Thus, when the parties have gone to the
trial Court knowing fully well about the nature of litigation, then even if
the trial Court could not have passed any decree on the ground of
section 12(1)(o) of the Act in absence of any issue, still contention of
defendant that she could not lead any evidence in absence of issue,
cannot be accepted.
32. Be that whatever it may be.
33. The Supreme Court in Swamy Atmananda v. Sri
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17 SA-276-2004
Ramakrishna Tapovanam , reported in (2005) 10 SCC 51 has held as
under:-
"38. This Court recently in Bhanu Kumar Jain v. Archana
Kumar [(2005) 1 SCC 787 : AIR 2005 SC 626] while
drawing a distinction between the principles of "res judicata"
and "issue estoppel" noticed the principle of cause of action
estoppel in the following terms: (SCC p. 798, paras 29-30 &
32)
"29. There is a distinction between 'issue estoppel'
and 'res judicata'. (See Thoday v. Thoday [(1964) 1 All
ER 341 : (1964) 2 WLR 371 (CA)] .)
30. Res judicata debars a court from exercising its
jurisdiction to determine the lis if it has attained finality
between the parties whereas the doctrine issue estoppel
is invoked against the party. If such an issue is decided
against him, he would be estopped from raising the same
in the latter proceeding. The doctrine of res judicata
creates a different kind of estoppel viz. estoppel by
accord.
***
32. The said dicta was followed
in Barber v. Staffordshire County Council [(1996) 2 All
ER 748 (CA)] . A cause of action estoppel arises where
in two different proceedings identical issues are raised,
in which event, the latter proceedings between the same
parties shall be dealt with similarly as was done in the
previous proceedings. In such an event the bar is
absolute in relation to all points decided save and except
allegation of fraud and collusion. [See C. (a
minor) v. Hackney London Borough Council [(1996) 1
All ER 973 : (1996) 1 WLR 789 (CA)] .]""
34. Under these circumstances, as already held, the substantial
questions of law framed in this case are academic in nature because the
tenant had asserted that he has not encroached upon any land and entire
suit property, i.e., including Tin Shed was let out to her and even
otherwise if substantial questions of law framed in S.A. No. 276/2004
are answered in favour of defendant/tenant, still decree under section
NEUTRAL CITATION NO. 2026:MPHC-GWL:1561
18 SA-276-2004
12(1)(a) of the Act will survive as this Court has already granted a
decree under section 12(1)(a) of the Act. It is suffice to mention here
that parties had gone to the trial knowing fully well about the rival case
and also led all the evidence not only in respect of issues only but also in
refutation of the pleadings of other party.
35. Accordingly, the first substantial question of law framed in
S.A. No. 416/2004 is answered in affirmative while the second one is
answered in negative and the substantial questions of law framed in S.A.
No.276/2004 are answered in negative.
36. As a consequence thereof, the judgment and decree passed by
the appellate Court so far as it relates to the non-grant of decree under
section 12(1)(a) of the Act is hereby set aside and so far it relates to
grant of decree on the ground of subletting under section 12(1)(b) of the
Act is is hereby affirmed.
37. S.A. No. 416/2004 is hereby allowed and S.A. No. 276/2004
is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
(and)
