Manohar Lal and anr. vs Om Parkash and ors.

D.V. Sehgal, J.

The petitioners are tenants in possession of 9 Bighas 13 Biswas of land comprising of Khasra No. 3433/3803/1 situate in the revenue estates of Bhatinda Patti Jhuti. Respondent Nos. 1 to 5 are its landlords. The said landlords filed a suit on 11.6.1975 (for short `the first suit'') wherein they claimed ejectment of the petitioners on the ground that they were in arrears of rent for Kharif 1971 to Rabi 1974 and a sum of Rs. 7504.85 was due from them. Besides the aforesaid ground, ejectment was also sought for nonexecution of Kabuliatnama by the petitioners as also on the ground that the landlords were small landowners and needed the land for their selfcultivation. Assistant Collector 1st Grade, respondent No. 6, who tried the suit granted a decree for Rs. 3266.66 in favour of the landlords and against the petitioners but dismissed the suit for ejectment on 11.10.1980. The landlords filed an appeal before the Collector, Bhatinda respondent No. 7, who vide order dated 18.6.1981 Annexure P.1 allowed the same and remanded the case to the Assistant Collector 1st Grade with a direction that he should take into account all the evidence on record and give a clear finding whether or not the petitioners were liable to ejectment on the different grounds mentioned in the plaint. The Assistant Collector 1st Grade once again dismissed the ejectment suit vide order dated 31.8.1981. So, another appeal was filed by the landlords before the Collector, which was allowed and the case was once again remanded to the Assistant Collector 1st Grade, who vide order dated 29.3.1982 Annexure P.2 granted a decree for ejectment of the petitioners from the land in dispute.

When the subjectmatter of the first suit was pending either before the Assistant Collector 1st Grade or before the Collector, Bhatinda, the landlords filed another suit for ejectment of the petitioners on 13.6.1980 (for short `the second suit''). Therein they made a grievance that the petitioners had not paid rent for Kharif 1976 to Rabi 1979 and a sum of Rs. 5550.34 was due from them. Their ejectment was sought on the ground of nonpayment of rent as also on other grounds including the one to the effect that the landlords are small landowners and needed the land for their selfcultivation. In the second suit, the Assistant Collector granted a decree in favour of the landlords for recovery of Rs. 5266.66 from the petitioners vide order dated 6.10.1981 Annexure P.6 but disallowed the prayer of the landlords for their ejectment. A copy of the order Annexure P.6 as also of the decree were produced by the petitioners before respondent No. 6 as Exs. DI and DJ, before the decree for ejectment was passed in the first suit by him vide his order dated 29.3.1982 Annexure P.2. The petitioner filed an appeal before respondent No. 7 against the order Annexure P.2 but the same was dismissed vide his order dated 3.8.1982 Annexure P.3. They then filed a revision petition but it also met the same fate and was dismissed by the Additional Commissioner respondent No. 8 vide order dated 18.3.1983 Annexure P.4. Their revision petition before the Financial Commissioner (Appeals) Punjab, respondent No. 9, was also dismissed vide order dated 7.5.1985 Annexure P.7. Through the present writ petition, they have sought the issuance of a writ of certiorari for quashing the orders Annexure P.2, P.3, P.4 and P.7.

Reply to the writ petition was filed by respondent Nos. 1 to 5 (the landlords). They defended the impugned orders.

I have heard the learned counsel for the parties. The contention raised on behalf of the petitioners is threefold which can be summarised thus:

(1) That it is proved on the record that the petitioners and before them their father had held the land as tenants continuously for a period of more than 12 years before the coming into force of the President''s Act, on 3.12.1953. Therefore, their tenancy was protected by subsection (2) of section 7A of the Pepsu Tenancy Agricultural Land Act, 1956 (for short `the Pepsu Act''), and they could not be ejected from the land on the ground that the landlords are small landowners by taking resort to the provisions of clause (b) of subsection (1) of section 7A of the Pepsu Act.

(2) That on the filing of the second suit by the landlords against the petitioners on 13.6.1980 claiming rent from the petitioners for Kharif 1976 to Rabi 1979, their first suit had been rendered infructuous for the reason that by filing the second suit the landlords had accepted them as tenants and the ground for their ejectment taken in the first suit had therefore become nonexistent. Their tenancy, therefore, continued in view of the provisions of section 116 of the Transfer of Property Act.

(3) That the landlords had failed to prove the grounds for their ejectment in the second suit which was dismissed vide order Annexure P. 6. Since the order Annexure P.6 had been passed on 6.10.1981 it operates as res judicata. The Assistant Collector vide subsequent order dated 29.3.1982 Annexure P.2 could not, therefore, order their ejectment on a ground which had been taken and had not been proved resulting in the dismissal of the second suit vide order Annexure P.6.

I have considered the above submissions of the learned counsel for the petitioners and keeping in view the contentions raised in defence by the learned counsel for the landlords, I find no force in this petition, which deserves to be dismissed.

As regards the first contention, all that be noticed is that respondent Nos. 6 to 9 in the impugned order have consistently held that it has not been proved on the record that the petitioners and before them their father was in occupation of the land in dispute as tenant before 1943 and as such they are not entitled to protection under subsection (2) of section 7A of the Pepsu Act. This finding by the authorities under the Pepsu Act is based on due appreciation of the evidence. The learned counsel for the petitioners tried to persuade me to reach at a different finding on reappreciation of the evidence particularly by taking into account the statement made by Om Parkash respondent No. 1 who is one of the landlords recorded by respondent No. 6. I am afraid, while exercising extraordinary jurisdiction under Article 226 of the Constitution I cannot reappreiciate the evidence. In dealing with a petition under Article 226 of the Constitution, this Court cannot exercise the jurisdiction of an appellate Court and cannot reexamine the evidence and disturb the finding of fact arrived at by an interior Court or a Tribunal in the absence of any error of law. I find support for this view from Natha Singh and others v. The Financial Commissioner, Taxation, Punjab, and others, A.I.R. 1976 S.C. 1053.

The second contention of the learned counsel for the petitioners is simply to be mentioned and rejected. The tenancy of the petitioners being governed by the Pepsu Act, when after institution of the first suit they once again defaulted in making the payment of rent that had become due from them from Kharif 1976 to Rabi 1979 the landlords had no remedy except to file another suit for their ejectment. The institution of the second suit could in no way render the first suit infructuous. The fact that for recovery of the rent for the aforesaid period and for complaining against their default in payment of the rent the landlords were forced to file the second suit, no added advantage can be afforded to the petitioners. The proceedings in the first suit were very much pending. On appeals filed by the landlords the proceedings in the first suit had been remanded twice by the Collector to the Assistant Collector respondent No. 6 who ultimately ordered ejectment of the petitioners vide order Annexure P.2. It was not a case where the landlords accepted the rent from the petitioners of their own volition outside the Court which may be construed as acceptance of the petitioners as tenants under the landlords. In fact while claiming recovery of rent their ejectment was simultaneously sought in the second suit also. Therefore, by no stretch of imagination can the institution of the second suit by the landlords be treated as rendering the first suit infructuous.

It is in fact, the third ground on which elaborated arguments were addressed by both the parties. The learned counsel for the petitioners contended that the copies of the judgment and the decree in the second suit whereby the claim of the landlords for their ejectment had been dismissed had been produced before respondent No. 6 as Exs. DI and DJ to which reference is made in his order Ex.P2. He contends that no doubt before respondent No. 6 no plea was taken that the order and the decree in the second suit operated as res judicata as the first suit was being decided by respondent No. 6 after the order Annexure P.6 but this point was taken in categoric terms before respondents Nos. 7, 8 and 9 and the same is dealt with in the impugned orders Annexures P.3, P.4 and P.7 respectively. He relied on Dattatraya Pandurang Gosavi and another v. Lakshman Mahadev Pohekar and others, A.I.R. 1932 Bombay 15, and The State of Punjab v. Bua Das Kaushal, A.I.R. 1971 S.C. 1676, to contend that the plea of res judicata even if not taken in trial Court can be raised in appeal. He further relied on Smt. Sumitra Kuer v. Bhagwant Narain Singh, A.I.R. 1939 Patna 19, and contended that since the judgment Annexure P. 6 was before respondent Nos. 7 to 9 they could decide the plea of the petitioners that the same operates as res judicata and their rejectment could not be ordered on the ground that the landlords are small landowners. He was also referred to a number of other judgments in support of the above two pleas but it is not necessary to refer to them in detail for the reasons recorded in the following paragraph.

It has been brought to my notice by the learned counsel for the respondents that the petitioners had sought to take the plea of res judicata before the Assistant Collector 1st Grade, respondent No. 6, before the order Annexure P.2 was passed. They filed an application dated 24.3.1982 Annexure R.1 for amendment of their written statement so as to incorporate the plea that the order Annexure P.6 having been passed in the second suit the same operated as res judicata and the first suit was liable to be dismissed. This application was, however, disallowed by respondent No. 6 vide order dated 29.3.1982 Annexure R.2. The petitioners did not make any grievance either in appeal or in revision petitions before respondent Nos. 7 to 9 that their application for amendment (Annexure R.1) had been wrongly rejected by respondent No. 6 vide order Annexure R.2. In Medapati Surayya and others v. Tandapu Bala Gangadhara Ramakrishna Redi and others, A.I.R. 1984 Privy Council 3, it was held that the question of res judicata has to be specially pleaded. Where the said question has not been pleaded or argued in the trial Court or the High Court, the same could not be entertained for the first time in the Privy Council. The matter was examined by the Supreme Court in Syed Mohd. Salie Labbai and others v. Mohd. Hanifa and others, A.I.R. 1976 S.C. 1569, and it was held that the best method to decide the question of res judicata is first to determine the case of the parties as put forward in the respective pleadings of their previous suits and then to find out as to what had been decided by the judgments which operate as res judicata. Where the pleadings of the suits instituted by the parties have not at all been filed and reliance is placed upon the facts mentioned in the judgments themselves the recital of allegations in the judgments is no proof of the pleadings. It is not disputed that in the present case the petitioners did not file the copies of the pleadings of the second suit. Even their application to take a plea of res judicata on the strength of Annexure P.6 had been disallowed by respondent No. 6 vide order Annexure R.2 and they did not make any grievance against this order before the higher authorities. It is well known that the question whether or not an earlier judgment operates as res judicata in the proceedings resulting in a subsequent decision is not jurisdictional in nature. In fact, if a party chooses not to plead facts on the proof of which the plea of res judicata is defendant such a party is deemed to have waived off the said plea.

There is another face of the case which impela me to reject the contention. The learned counsel for the petitioner could not assail before me the finding recorded by respondents Nos. 6 to 9 in the impugned orders that the landlords are small landowners and as such the plea of ejectment of the petitioners on the ground adumbrated in clause (b) of subsection (1) of section 7A of the Pepsu Act is available to them. It is thus clear that through the impugned orders substantial justice has been done. The landlords have been afforded the relief to which they were entitled under the Pepsu Act. A writ of certiorari is justified if there is grave and flagrant violation of law which has caused miscarriage of justice. Mere mistakes of procedure by themselves are not subject to scrutiny under Article 226 of the Constitution. Even if it is shown that there is some infraction of procedure it is not necessary for the High Court in its jurisdiction to grant relief to the petitioners particularly when it comes to the conclusion that the orders of the Tribunals which have been impugned have afforded justice to the party which deserted it. I find support for this view from a Division Bench of this Court in Shri Balbir Singh Bedi and others v. The Bhaika Bagh Cooperative Society. Dialpur Bhaika, and others, 1979 P.L.J. 211.

As a result of the foregoing discussion, finding no merit in this writ petition, the same is dismissed but without any order as to costs.