Indra Bala Dutta vs Baneswar Pal

P.K. Banerjee, J.—This appeal is at the instance of the Plaintiff-Appellant arising out of a judgment and decree passed by S.K. Mukherjee, Additional Sub-Judge, Bankura, affirming the decision of the learned Munsif arising out of a suit for eviction of the Respondent from the disputed premises under the provision of the West Bengal Premises Tenancy Act. The case of the Plaintiff is that the Respondent was a monthly tenant in respect of the suit premises at a monthly rental of Rs. 8 payable according to Bengali calendar month. The Respondent defaulted in payment of rent from Chaitra 1359 B.S. to Bhadra 1365 B.S. and from Aswin 1368 B.S. to Chaitra 1368 B.S. and that the Appellant also required the suit premises for his own use and occupation. The tenancy was determined by notice to quit u/s 13(6) of the West Bengal Premises Tenancy Act read with Section 106 of the Transfer of Property Act. The Respondent not having vacated, the present suit was filed. The Respondent contested the suit by filing a written statement. He contended that his tenancy was not governed by the West Bengal Premises Tenancy Act but was governed by the Non-Agricultural Tenancy Act. He stated that he rented the vacant land only and that when the tenancy was created there was no structure on the said land. The structure, which stood on the disputed land when the suit was instituted, was built by the tenant Defendant and as such, the Plaintiff is not entitled to evict him under the provision of the West Bengal Non-Agricultural Tenancy Act. It is further stated that he being a tenant under the West Bengal Non-Agricultural Tenancy Act and having in occupation for more than 12 years by building structure thereon, he acquired status of a permanent tenant and as such, he was not liable to be evicted. It is further stated that after the enactment of the West Bengal Estates Acquisition Act the rent receiving interests of the Appellants vested in the State of West Bengal and as such, the Appellant has no locus standi to bring this suit for recovery of rent.

Prior to the above suit, the Appellant brought another suit being T.S. No. 102 of 1953 and the Appellant got a decree in the trial Court as well as in the First Appeal Court, but the Appellant lost in the Second Appeal before this Hon''ble Court. The Hon''ble High Court held that the notice was insufficient and invalid and accordingly, the suit on the basis of that notice could not be entertained. This Hon''ble High Court set aside the judgment and decree of the trial Court as well as the First Appellate Court on the ground that it was not maintainable. Pursuant to that decision of the Hon''ble High Court, the Appellant has brought the present suit after services of another notice as directed.

Mr. P.N. Mitter on behalf of the Appellant has contended that both the Courts are wrong in holding that the Respondent is a non-agricultural tenant and is not evitable on the ground that this point is no longer open, in view of the fact in the earlier suit, there is a finding as against the Defendant that he is not a tenant of the land but of the premises. It is argued by Mr. Mitter that the finding in the earlier suit is binding on the parties and cannot be re-agitated in the subsequent suit.

Mr. Ranjit Kumar Banerjee on behalf of the Respondent contended that in the earlier suit which succeeded in this Court, the finding of the Court below was non-existent and there was no decision on the issue, inasmuch as the High Court made it clear that it was unnecessary to enter into the details as to whether the subject-matter of the dispute would be governed by the Rent Control Act, the Transfer of Property Act or the Non-Agricultural Tenancy Act.

The moot question therefore is whether the finding of the earlier suit is binding and cannot be re-agitated in the present suit. Mr. Mitter on behalf of the Appellant has referred to Mt. Bhukhin v. Emperor AIR 1948 Nag. 348 and Sarashibala Seal Vs. Atasi Kanta Ganguly and Others , in support of his contention and argued that unless the finding of the fact in the earlier Court which holds that the notice is bad as it is not for eviction of a tenant from a premises but from a land, the notice has not determined the tenancy of the premises. In the case of Sarashibala v. Atasi Kanta his Lordship held that where an adverse finding is expressly challenged by the Defendant in appeal but the Appellate Court allows the appeal on another ground and dismiss the suit in consequence, the finding, does not subsist. Accordingly, whereon an appeal by the Defendant in which he expressly challenges the finding on the merits, the decree of the Court below is set aside and the suit dismissed on the sole ground that the Plaintiff had no locus standi to maintain the suit in the capacity in which he had brought it, but the Appellate Court does not deal with the merits and leave the question as to whether the Plaintiff is entitled to maintain a like suit in any other capacity open, the finding does not nevertheless subsist so as to operate as res judicata in a subsequent suit brought by the Plaintiff in another capacity. The Court trying the second suit is fully entitled to come to its own finding on the matter upon the evidence before it. This case, however, in my opinion, is clearly distinguishable in the facts of the present case. In my opinion, the High Court made it clear that this Court was not deciding the question whether the subject-matter of the suit is governed by the Rent Control Act or the Transfer of Property Act or by the West Bengal Non-Agricultural Tenancy Act. It further appears to me that Mt. Bhukhin v. Emperor (Supra) also does not apply in view of the specific finding of this Court. In the earlier suit these points were not decided. In my opinion, the Nagpur High Court''s judgment also does not answer the question raised in this case, but on the other hand, the decisions of the Judicial Committee in Sheosagar Singh v. Sitaram Singh L.R. 24 IndAp 50 (59) and Parsotam Gir v. Narbada Gir L.R. 26 IndAp 175, relied upon by Mr. Ranjit Kumar Banerjee, make it clear that if a point is left open, such decree cannot constitute res judicata either under the general law or u/s 13 of Act XIV of 1882, not being a final decision of the suit. In Sheosagar Singh v. Sitaram Singh L.R. 24 IndAp 50 (59), the Judicial Committee held as follows:

The judgment of the lower Court was superseded by the judgment of the Court of Appeal. And the only thing finally decided by the Court of Appeal was that, in a suit constituted as the suit of 1885 was, no decision ought to have been pronounced on the merits.

The same principle was reiterated in the case Parsotam Gir v. Narbada Gir L.R. 26 IndAp 175 and Sheodan Singh Vs. Smt. Daryao Kunwar, . The Supreme Court in the said case held in para. 13 as follows:

Re. (iv). This brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the Appellant therein had not taken steps to print the records. It is, therefore, urged that the two appeals arising out of suits Nos. 77 and 91 had not been heard and finally decided by the High Court and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of the Plaintiff''s appearance, or on the ground of non-joinder of parties or mis-joinder of parties or multifarious ness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the Plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the Plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-fee on a plaint which was under-valued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the Appellant and his father. It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decree of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merits, the result of the High Court''s decision is to confirm the decision on the issue of the title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial Court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances, though the order of the High Court itself may not be on the merits of the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore, it must be held that by dismissing the appeal arising out of suits Nos. 77 and 91, the High Court heard and finally decided the matter for it confirmed the judgment of the trial Court on the issue of title arising between the parties and the decision of the trial Court being on the merits the High Court''s decision confirming the decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial Court decides the matter on merits, but the appeal Court dismisses the appeal on some preliminary ground thus confirming the decision of the trial Court on the merits. It is well-settled that where a decree on the merits is appealed from the decision of the trial Court loses its character of finality and what was once res judicata again becomes res sub judice and it is the decree of the Appeal Court which will then be res judicata. But, if the contention of the Appellant was to be accepted and it is held that if the Appeal Court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming in toto the trial Court''s decision given on merits, the Appeal Court''s decree cannot be res judicata, the result would be that even though the decision of the trial Court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot, therefore, accept the contention that even though the trial Court may have decided the matter on the merit, there can be no res judicata if the appeal Court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the Appeal Court is confirmation of the decision of the trial Court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do, to destroy the effect of a decision given by the trial Court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are, therefore, on opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground of dismissal of the appeal.

It appears to me that the cause of action of the earlier suit was different from the cause of action of the later suit and as such, in the later suit the finding of the earlier Court, which was set aside, though relied upon for the coming of the decision of the later suit, cannot be said to be binding in view of the fact that the question was left open by the Hon''ble Court.

In that circumstances, therefore, it is impossible for me to hold that the Court below was wrong in going into the question whether the tenancy is governed by the West Bengal Premises Tenancy Act or under the West Bengal Non-Agricultural Tenancy Act and in view of the fact that this question was left open by this Hon''ble Court, this is the only point raised by Mr. Mitter at the hearing of the appeal and this point must fail.

The appeal must, therefore, stand dismissed.

There will be no order as to costs.

Leave under Clause 15 of the Letters Patent prayed for is refused.