Dhani Ram vs Narinder Singh

Arun Kumar Goel, Judge.

Heard learned counsel for the parties. For the reasons set out in this application (CMP No. 88/97) it is allowed and the order dated 7.11.1997

is hereby recalled thereby appeal (CIA 12/97) is ordered to be restored to its original number.

CMP (C) No. 88/97 stands disposed of.

C. I. A. No. 12/1997

Heard learned counsel for the parties Admit

With the consent of learned counsel for the parties this appeal has been taken up for final hearing and after hearing both of them it is being finally

disposed of Facts which are not in dispute need to be briefly referred of :

Respondent Narinder Singh (hereinafter referred to as the Landlord) filed suit for ejectment against Appellant Dhani Ram (hereinafter referred to

as the tentant) for his ejectment from the premises in question on the ground of arrears of rent. This claim was based by the landlord on title

derived by him by means of sale deed executed by the admitted owner Rasal Singh in his favour as far back as on 1151978. It is further not in

dispute that this sale deed is duly registered under the Registration Act of the State.

Learned counsel for the parties were further not at Variance that the landlord preferred the above said ejectment proceedings on the ground of

arrears of rent on 1.9.1981. During the pendency of these proceedings at the instance of landlord interim order under Section 12(4) of the Jammu

and Kashmir Houses and Shops Rent Control Act, 1966, (hereinafter referred to as 'the Act1) came to be passed. Directions were issued to the

tenant for depositing the rent in terms of this Section which admittedly he failed. Since the defence of the tenant had also been struck during the

course of trial, as such the ejectment order came to be passed in favour of the landlord and against the tenant, which when questioned in appeal

was upheld by appellate court so far it related to ejectment. But case was remanded back to the trial court for framing issues and deciding the case

thereafter.

It may also be noticed here that tenant had also filed a writ petition against the order

of appellate authority which was dismissed in default for appearance on his behalf.

It has been stated at the Bar that from 1982 onwards no action has been taken by the trial court after the order was passed by the first appellate

authority.

One Madan Singh had also filed a suit for declaration for declaring the scale deed in favour of the landlord by Rasal Singh being null and void. This

suit was decreed by the trial court and in an appeal filed by the landlord it came to be dismissed. Second appeal is pending in this suit.

In the aforesaid background tenant filed a suit wherein he made a prayer for setting aside the decree passed by the trial court in suit titled as

Narinder Singh Vs. Dhani Ram. This suit came to be contested and resisted by the landlord and the trial court after framing the issues finally

dismissed the same, hence this appeal.

Shri Kotwal, learned counsel appearing for the tenant, has urged that when a reference is made to the language of Section 12(4) of the Act, it is

clearly directly as such even if rent was not deposited by his client no order of ejectment could be passed. In addition to this, it was also urged that

in the face of suit filed by Madan Singh referred to supra landlord had no right to execute the decree and finally rent being not legally claimable

being time barred as such the right to ask for an order under Section 12(4) of the Act was not available to the landlord. On these basis Shri

Kotwal urged for allowing the appeal and consequently for decreeing the suit of the tenantappellant in the present appeal.

All these pleas have been controverted by Shri Sharma who submitted that the decree so far ejectment for arrears of rent under Section 12(4) of

the Act is concerned it has become conclusive and binding between the parties. Both the parties were before the trial court and the said court had

the jurisdiction to have passed the order, as such those findings operate as resjudicata interparties and cannot be questioned in any proceedings

between them much less in the suit out of which the present appeal has arisen. Regarding the pendency of the suit filed by Narinder Singh landlord

it was urged by Shri Sharma that as on date there is no decree in favour of said person and even if there was a decree still in the face of provisions

of Section 116 of the Evidence Act a tenant is precluded from questioning the title of the landlord. At the same time it was pointed out that by

raising this argument landlord is neither conceding the plea of the tenant nor be meant to say that there is any could on his title.

Regarding the first plea of pleading of Section 12 (4) of the Act and then holding it to be directory it was urged that in the present proceedings this

plea need not detain the court because the finding had become conclusive and binding between the parties.

Shri Kotwal in support of his contentions placed reliance on AIR 1985 Jammu and Kashmir 64, Sukhdev Raj and others vs. Harbans Lal and

others, and pointed out that the rent which was timebarred could not be recovered under the provisions of the Act and as such the court below has

fallen into an error in ordering ejectment of his client.

Here a few further facts particularly needs to be noticed.

Admittedly, sale deed was executed in favour of the landlord on 11.5.1978. Ejectment suit came to be filed on 1.9.1981, thus the claim of rent for

the period beyond three years prior to 1.9.1981 had become timebarred according to Shri Kotwal and, therefore, no order could be passed.

This question need not detain the court any further for two reasons. Firstly being that this chapter is closed when the order of ejectment was upheld

by the first appellate court and secondly even if some of the rent claimed was barred by limitation, rent for three years period to 1.9.1981 was well

within time though Mr. Kotwal did not concede this fact but at the same time he was unable to stretch this submission any further. In the face of this

position no benefit can be derived by the tenant from the observation made in the judgement of this court relied upon in support of this appeal.

other judgement relief upon by Shri Kotwal is AIR 1989 K. L. J. 163 : Bharat Bhushan Vs. Bansi Lai. Again a perusal of this judgement shows

that the question before the Court was whether the delay in deposit of rent can be condoned by the Court and while examining that question it had

taken the view that in case the Court is satisfied that the tenant acting deligently and in bonafide trying to comply with the direction of the court in

depositing the rent, the Court has the power to condone the delay in depositing the rent.

It is not the case of the tenant that he did make an attempt deligently and acting bonafide to deposit the arrears of rent under Section 12 (4) of the

Act. When questioned Shri Kotwal fairly stated that even today his client has not cared to deposit the rent. In the face of this factual position ratio

laid down in the case of Bharat Bhushan vs. Bansi Lal (supra) also does advance the case of the appellant/tenant.

Other judgement relied upon on behalf of the tenant was AIR 1990 Supreme Court 334 : Supreme Court Employees Welfare Association Vs.

Union of India and others. On the basis of observations made in this judgement Shri Kotwal urged that a decision on an abstract question of law

unrelated to the facts which give rise to a right cannot operate as a resjudicata.

So far this legal proposition is concerned, there can be hardly any dispute in that behalf. Now when the ratio of this judgement is applied to the

facts of the present case it is wholly inapplicable.

In the earlier ejectment proceedings initiated by the landlord against the tenant, the question directly and substantially involved was regarding the

relationship of landlord and the tenant, as well as of the tenant being in arrears of rent which was decided by the court of competent jurisdiction. By

no stretch of imagination it can be said that it was an abstract question of law muchless being unrelated to the facts of the case so as not to attract

the doctrine of rejudicata. This is a doctrine based on public policy to give finality to the judgement passed by the Courts of Law wit a view to cut

short frivolous litigation at the threshold.

In this very judgement when a reference is made to Para 28 it is clear that a decision which had become final, as in the present case it is binding on

the parties and it even cannot be reopened on the ground that it is violative of Article 14 of the Constitution of India. Relevant observations are in

the following terms:

The doctrine of res judicata is a universal doctrine laying down the parties. When a particular decision has become final and binding between the

parties, it cannot beset at naught on the ground that such a decision is violative of Art. 14. So far as the parties are concerned, they will always be

bound by the said decision.. In other words, either of the parties will not be permitted' to reopen the issue decided by such decision on the ground

that such decision violates the equality clause under the Constitution.

No other point was urged.

As a result of the aforesaid discussion there is no merit in this appeal which is dismissed with costs quantified at Rs. 2,000/. All interim orders are

vacated.