Abdul Aziz vs Vth Additional District Judge,Kanpur Nagar & Ors.

S.U. Khan, J.—These three writ petitions arise out of the same judgment passed by J.S.C.C. Kanpur Nagar in S.C.C. Suit No. 454 of 1979 decreed on 2481987. All the three sets of the petitioners filed separate revisions which were dismissed by common judgment dated 30111988 by VAdditional District Judge, Kanpur Nagar.

Smt. Munni Begum, landlady is contestingrespondent in all the writ petitions. She purchased the house containing the portion in dispute i.e. second floor accommodation from its previous owner landlord Hussain Bux in the year 1969. After serving notice of terminating the tenancy and demanding arrears of rent on Rahim Bux, petitioner in third writ petition, Munni Begum filed suit against Rahim Bux alone for ejectment and recovery of arrears of rent (S.C.C. Suit No. 454 of 1979). The notice dated 19101978 was served upon Rahim Bux on 21101978. Landlady claimed that rate of rent was Rs. 70/ per month. The grounds of ejectment pleaded in the plaint were the arrears of rent and subletting. Rahim Bux pleaded that initially he and Abdul Aziz, petitioner in the first writ petition were tenants of the accommodation in dispute i.e. second floor accommodation at the rate of Rs. 35/ each (i.e. Rs. 70/ per month in total) that rent was paid by both of them separately but receipts were issued only in the name of Rahim Bux showing the rate of rent as Rs. 70/. It was further pleaded that in the year 1972 with the consent of the landlord Rahim Bux shifted on the ground floor which had fallen vacant and portion vacated by him was occupied as tenant by Chhanga and Abul Hasan, petitioners in second writ petition, at the rent of Rs. 17.50 per month each even though rent receipts continued to be issued in favour of Rahim Bux at the rate of Rs. 70/ per month. It is interesting to note that Chhanga is son of Rahim Bux himself. Abdul Aziz and Abul Hasan also appear to be very close relatives of Rahim Bux. Lateron in the suit Chhanga, Abul Hasan and Abdul Aziz were also impleaded as defendants.

The trial Court/Additional J.S.C.C., Kanpur held that in fact Rahim Bux alone was the tenant of the second floor and he was admittedly not occupying the accommodation in dispute (i.e. second floor of the house) hence subletting by him to defendants 2 to 4 stood proved and that Rahim Bux was also in arrears of rent. The trial Court in recording the findings of subletting placed reliance upon the facts that even after 1972 rent receipts were issued only in the name of Rahim Bux and in the assessment records of the Nagar Nigam defendants 2 to 4 were never shown as occupants. The trial Court ultimately decreed the suit on 2481987. Against the aforesaid judgment and decree three revisions were filed. The revision of Abdul Aziz was registered as S.C.C. Revision No. 115 of 1987 and that of Chhanga as S.C.C. Revision No. 117 of 1987 and that of Rahim Bux as S.C.C. Revision No. 124 of 1987. VAdditional District Judge, Kanpur Nagar through common judgment and order dated 30111988 dismissed all the revisions and confirmed the findings of the trial Court.

I have heard learned Counsel for the parties in all the three writ petitions.

The main point which has been argued by learned Counsel for the petitioner is that prior to filing of the suit giving rise to the instant writ petition, landlady Munni Begum had filed a release application under Section 21 of U.P. Act No. 13 of 1972 and the Prescribed Authority while dismissing the release application held that there was no subletting hence the said findings operate as res judicata.

The release application filed by landlady under Section 21 of U.P. Act No. 13 of 1972 was registered as rent Case No. 87 of 1978 and was decided by Munsif, Hawali/Prescribed Authority, Kanpur through judgment and order dated 531983. Copy of the said judgment is Annexure 6 to the third writ petition. In the said release application, ejectment was sought from ground floor and second floor accommodation. In the said release application it was specifically pleaded that Rahim Bux had sublet the second floor accommodation to respondent Nos. 2 and 3 i.e. 2 of the 3 petitioners in I and II writ petitions. Rahim Bux and respondent Nos. 2 and 3 of the said release application took exactly similar pleas in the said release application as were later on taken in the suitgiving rise to the instant writ petition. Respondents 2 and 3 of the said release application got themselves impleaded in the release application as in the initial/original release application they were not made party. The Prescribed Authority in its judgment held that on the basis of evidence it was established without any dispute that respondents 2 and 3 were in occupation of the second floor accommodation as tenants and not as sub tenants of respondent No. 1. Thereafter the Prescribed Authority held that the need was not bona fide and balance of comparative hardship also lay in favour of the tenant, consequently release application was rejected. No appeal appears to have been filed against the said judgment of the Prescribed Authority.

The question is whether the finding of Prescribed Authority to the effect that Rahim Bux was not the tenant of second floor accommodation operate as res judicata in the suit subsequently filed before J.S.C.C. on the ground of subletting as provided for under Section 20 (2) (e) of U.P. Act No. 13 of 1972. In M. P. S. Jaiswal and others v. D.N.B. Jeejeebhoy, AIR 1971 SC 2355, it has been held that question of fact, mixed question of law and fact and pure question of law decided in earlier proceedings operate as res judicata. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court, a party affected by the decision will not be precluded from challenging the validity of the order under the Rule of res judicata for a rule of procedure can not supersede the law of the land. Para 10 of the said authority is quoted below :

�It is true that in determining the application of the Rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression �the matter in issue� in Section 11, Code of Civil Procedure, means the right litigate between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the Rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the Rule of res judicata, for a Rule of procedure cannot superseds the law of the land.�

In the instant case the decision of the Prescribed Authority to the effect that Rahim Bux was not the tenant of the second floor was based upon assessment of evidence. Whether the said finding is correct or not cannot be seen if the same held to operate as res judicata.

In a suit for ejectment of tenant filed before J.S.C.C. or release application filed before Prescribed Authority under Section 21 of U.P. Act No. 13 of 1972, question of title and relationship of landlord and tenant is incidentally decided. Such decision may or may not be binding when the same issue is reagitated before regular Civil Court. However, such decision is binding in such subsequent proceeding where the said question is also incidentally involved. In an earlier decision 2003 (2) ARC 132, I have taken a similar view. In the said authority I placed reliance upon AIR 1999 SC 1823.

In AIR 2002 SC 136, a distinction between �title of the landlord� and �relationship of landlord and tenant� has been drawn. It has been held in para 8 �in as much as both trial Court as well as the first Appellate Court found that the relationship of `landlord and tenant'' did not exist between the plaintiffs and the defendant, further enquiry to the title of the parties, having regard to the nature of the suit and jurisdiction of the Court, was unwarranted.� In the said authority in para 17 thereof Supreme Court permitted the plaintiffs to file a suit for declaration of title and recovery of possession. It may be inferred from the said authority that finding with regard to title may not operate as res judicata but finding of relationship of landlord and tenant will operate as res judicata at least in proceedings other than suit before regular Civil Court. The result is that even though the findings of the Courts below to the effect that Abdul Aziz, Abul Hasan and Chhanga were not the tenants of the accommodation in dispute i.e. second floor accommodation but only subtenants of Rahim Bux based upon appraisal of evidence cannot be faulted on merit however on the principle of res judicata or analogous to res judicata these findings are liable to be ignored and setaside by virtue of the said doctrine. Even wrong findings operate as res judicata (see in this regard of G.G. Naidu (minor) and another v. T. Bodemma and others, AIR 1997 SC 808.

In Ganga Bai v. Chhabubai, AIR 1982 SC 20, suit for recovery of rent was decreed by J.S.C.C. The plea of defendant that he was not the tenant but the owner was negatived by the J.S.C.C. Thereafter the defendant filed a regular suit before Civil Court for declaration that she was and continued to be owner of the property in dispute. In the subsequent suit doctrine of res judicata was held to be not applicable by the Supreme Court even after taking into consideration explanation (VIII) added to Section 11 C.P.C. in 1976. Relevant portion of para 9 of the said authority is quoted below:

�It seems to us that when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular Civil Suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the Court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. It has long been held that a question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised.�

The said authority alongwith several other authorities has been discussed and followed in L.I.C. v. M/s. India Automobile and Company, AIR 1991 SC 884(Para 22). Opening sentence of Para 22 of the said authority is �the limited nature of the jurisdiction of a tribunal like the rent controller and the Court of Small Cause has been considered and number of cases by this Court as well as other Courts.�

Under U.P. Act No. 13 of 1972 various proceedings in between landlord and tenant may be initiated before the following three authorities/Courts :

(i) District Magistrate or his delegate (popularly known as Rent Control and Eviction Officer).

(ii) Prescribed Authority (this jurisdiction is exclusively conferred upon either Civil Judge (J.D.) previously known as Munsif) or Civil Judge (S.D.)).

(iii) Judge Small Causes Court.

In view of the above authorities, it is clear that the finding of title and relationship of landlord and tenant recorded by any of the aforesaid authorities/Courts is not binding upon the regular Civil Court. However the question to be decided in this petition is as to whether such finding recorded by any of these authorities/Courts is binding upon the other authority/Court or not. As far as such finding recorded by R.C. & E.O. is concerned, it need not be decided in the instant case, as it is not involved herein. However as far as applicability of doctrine of res judicata to such finding recorded by Prescribed Authority in the subsequent proceedings before J.S.C.C. for vice versa is concerned, it can safely be said that the said doctrine applies. Both powers are exercised by Civil Courts however not acting as regular Civil Court but only having limited jurisdiction while deciding such matters.

I therefore hold that the finding of absence of relationship of landlord and tenant in between Munni Begum and Rahim Bux regarding second floor accommodation recorded by Prescribed Authority earlier in proceedings under Section 21 of the Act, operate as res judicata in the suit giving rise to the instant writ petition. The Courts below were therefore precluded from deciding the said question on the basis of evidence. They should have taken the said findings as binding without deciding the question afresh on the basis of evidence.

The suit could not be decreed against Abdul Aziz, Abul Hasan and Chhanga on the ground of default as admittedly no notice was given to them.

Accordingly all the three petitions are allowed. Judgment and decree passed by both the Courts below are set aside.