Surinder Mohan Rai vs Onkar Nath

J.V. Gupta, Acting C.J.—This order will also dispose of Civil Revision Nos. 2563 of 1985 and 2306 of 1988, as the question involved is common in all these cases.

Surinder Mohan Rai, the landlord, sought the ejectment of his tenant Onkar Nath from the three shops Nos. 3, 4 and 5, by filing an ejectment application giving rise to Civil Revision Petition No. 2562 of 1985. He filed another ejectment application for vacation of Shop No. 2 which given on rent subsequently in February, 1974, on a monthly rent of Rs. 225/-. The earlier three shops were given on rent at the rate of Rs 400/- per month vide rent notes, Exhibits, AW3/1 and AW 4/1. The ejectment was sought inter alia on the grounds of non payment of arrears of rent and the building having be-come unfit and unsafe for human habitation etc. One of the pleas taken on behalf of the tenant was that the petition was bad for partial ejectment. According to the tenant, the tenancy with respect to the four shops was one whereas the landlord was only claiming ejectment from three shops Nos. 3, 4 and 5 and, therefore, it was bad for partial ejectment. The learned Rent Controller negatived this plea of the landlord and passed the eviction order on the grounds takes in the ejectment application. In the appeal filed on behalf of the tenant, he brought on the record, by way of additional evidence, the Judgment of the civil Court between the parties. The landlord in order to seek possession of shop No. 2, had filed a civil suit on September 26, 1978, alleging that the tenant Onkar Nath had taken illegal possession thereof. The (sic)plea taken by the tenant defendant was that he was the tenant on the shop, in dispute, and, therefore, the ''question'' of illegal possession did not arise The tenant, as a defendant, also took the objection that the suit was bad for partial possession as the other three shops were not included in the shop. The trial Court decided the suit on the ground that the possession of the shop No. 2, was illegal. Issue with regard to partial possession was decided in favour of the plaintiff and against the defendant. In the appeal filed by the tenant against the said decree of the trial Court. the plaintiff''s suit was dismissed on the ground that shop No. 2 was given on rent to the tenant and his possession was not illegal. The finding given in paragraph 8 of the lower appellate Court''s Judgment, copy Annexure A reads that as a natural corollary to the firm finding recorded by this Court on Issue No. 3, Onkar Nath, defendant-appellant would be found to have been proved to be in possession of the shop in dispute, as a tenant. As observed earlier, the finding on issue of partial possession by the trial Court, was not contested in appeal. Ultimately in paragraph 12 of the Judgment, the learned Additional District Judge observed that in view of the findings recorded by this Court on issues Nos. 1 and 3 vide which Onkar Nath defendant appellant, has been held to be in possession of shop No. 2 as a tenant since February 1974 and the cumulative amount of all these four shops including shop No. 2 to be Rs. 625/- per month the cross objections preferred by the plaintiff-respondent would thus also be found to be of no avail and the same are dismissed. The appellate authority relying upon the said findings and observations of the learned Additional District Judge came to the conclusion that the ejectment application was liable to be dismissed on the ground that it suffered from partial ejectment as shop No. 2 was not included in the ejectment application. The merits of the ejectment application and the findings of Rent Controller were not gone into.

The learned counsel for the landlord petitioner submitted that the view taken by the appellate authority that the findings by the civil Court in, Exhibit A. 1, dated December (sic)0,1983, did operate as res judicata was erroneous According to the learned counsel, no such finding was necessary to decide the suit filed by the landlord. The only issue in that suit was as to whether the possession of the shop No. 2, by the tenant, was illegal or not. Thus, argued the learned counsel, any observations made in the Judgment besides this issues are of no consequence In support of the contention, the learned counsel relied upon Full Bench Judgment of this Court in Pritam Kaur Vs. State of Pepsu and Others, and Ragho Prasad Gupta Vs. Shri Krishna Poddar, .

On the other hand the learned counsel for the defendant-tenant submitted that the finding given by the civil Court that with respect to four shops, the tenancy was one, is binding upon the parties and that being so, the appellate authority rightly came to the conclusion that the ejectment application suffered from partial ejectment. In support of the contention, reliance was placed on Murli Prasad Vs. Parasnath Prasad and Others, and Lonankutty Vs. Thomman and Another, .

I have heard the learned counsel for the parties and have also gone through the case law cited at the bar and the relevant Judgment of the civil Court.

It could not be successfully argued on behalf of the tenant-respondent that the said Judgment of the civil Court passed in appeal operated as res judicata between the parties. The suit was filed by the landlord with respect to shop No. 2 on the ground that the tenant had occupied the same illegally though the defendant had taken the plea in the written statement that the suit suffered from partial possession because the other three shops had not been included, but this finding was given against the defendant and in favour of the plaintiff. As a matter of fact, the plaintiff could succeed in that suit only if he could show that the possession of shop No. 2 by the defendant No. 2, was illegal. Any other observation made by the Additional District Judge, in appeal, was of no consequence and could not operate as res judicata between the parties. It was held by the Full Bench of this Court in Pritam Kaur''s case (supra), as follows :--

"Before a decision can operate as res judicata it must be a decision of a Court having jurisdiction. Where a question between the parties was already decided by a competent Court, a decision inter part as by another Court on the matters settled by the former Court would be without jurisdiction and cannot operate as res judicata.

A mere opinion of the Court or a matter not necessary for the decision of the case and not arising out of the issue before it is an obiter dictum and cannot be said to be a decision on any issue and is, therefore, not res judicata "

In Ragho Prasad Gupta''s case (supra) also it was held by the Supreme Court that the expression of the opinion on questions not in issue does not operate as res judicata between the parties.

It could not be successfully assailed on behalf of the tenant-respondent that this finding was necessary to decree the plaintiff''s suit In any case, the relevant issue of partial possession was decided in favour of the plaintiff and against the defendant and, therefore, on the facts and circumstances of the case, it could not be held that the said Judgment of the civil Court in appeal operated as res judicata between the parties.

Consequently all the three revision petitions succeed and are allowed. The impugned orders are set aside. In Civil Revision Petition No. 2563 of 1985, the case is sent back to the appellate authority for deciding the appeal on merits in accordance with law. In Civil Revision Petition No. 2306 of 5988, the proceedings were stayed by the Rent Controller because of the pendency of the said revision petition in this Court. Now, the Rent Controller will proceed with the ejectment application in accordance with law. The parties are directed to appear before the authorities on July 18, 1990.