Patna High Court
Prabhu Halwai And Ors. vs Fulchand Khandelwal And Anr. on 7 September, 1967
Equivalent citations: AIR1969PAT16, AIR 1969 PATNA 16
JUDGMENT
1. The appellants, who are full brothers, are tenants of a building owned by the respondents. They were sued for eviction from a house and for arrears of rent by the respondents in September, 1959. The grounds of eviction, as given in the plaint, were two-fold, viz., (1) that the building was required for personal occupation of the landlords, and (2) that the defendants had defaulted in the payment of rent for more than two months. The rent of the building, according to the admitted case of the parties, was Rs. 15 per month originally. It was thereafter enhanced by the landlords to Rs. 51 per month. An application was made by the tenants before the House Controller. The House Controller, acting under the relevant provisions of Bihar Act III of 1947, determined the fair rent at Rs. 25 per month from the 11th September, 1954. This order was passed on the 25th May, 1957. There was an appeal against this order to the Deputy Commissioner who, by his order dated the 15th January, 1959, reduced the rent to Rs. 20 per month with effect from the same date, i. e., 11-9-1954. The courts below found that the tenants had defaulted, inasmuch as the deposit of Rs. 238 made by them on 1-8-1957 was invalid and, therefore, they granted a decree for eviction as also for arrears of rent The claim for eviction on the ground of personal occupation was, however, rejected. Then, the tenants i. e., the present appellants came up in Second Appeal No. 492 of 1962 to this court, and Ahmad J., who heard that appeal, confirmed the decree for arrears of rent but held that there was no default, inasmuch as Rs. 213, which was a part of Rs. 238 deposited subsequently with the House Controller, had been remitted in time towards the rent by a money-order to the respondents, because the tenancy was, according to the English calendar and not according to the Sambat Calendar, as contended by the landlords. His Lordship further held that on account of the tender or remittance of Rs. 213, there was no default up to the 19th June. 1957.
But, as it was contended on behalf of the landlords that there had been several defaults on the part of the tenants in payment of the rent between June, 1957 and the date of the suit, viz., 11-9-1959, his Lordship sent back the case to the Court below for further consideration in regard to the claim of eviction on the ground of the alleged defaults after the 19th June. 1957. The judgment and decree of the court of appeal below were, therefore, set aside. His Lordship, however, made it clear that the other findings given by that court were affirmed.
2. After this remand, the court of appeal below found that there had been defaults for more than two months even after 19-6-1957, and a decree for eviction was granted under Section 11(1)(d) of the said Act. The tenants have, therefore, preferred the present second appeal. Mr. Ramnandan Sahai Sinha, who appeared for the appellants, challenged the judgment and decree of the court below on two grounds, viz.. (1) the claim for eviction is not maintainable in absence of a notice under Section 106 of the Transfer of Property Act, and (2) there was really no default on the part of the tenant even after 19-6-1957, in view of the fact that the rent had been reduced to Rs. 20 per month by the Deputy Commissioner with effect from 11-9-1954.
3. In support of the first ground. Mr. Sinha relied on a Full Bench decision of this court in Niranjan Pa! v. Chaitanyalal Ghosh, AIR 1964 Pat 401 (FB). It was held in this case, firstly, that where the plaintiff-landlord, did not determine the tenancy by giving a notice under Section 106 of the Transfer of Property Act his action for eviction under Section 11 of Bihar Act III of 1947 is premature; secondly, that it was for the plaintiff-landlord to mention in his plaint the fact of determination of the lease as one of the facts constituting the cause of action, which he is required to give under Rule 1 of Order 7 of the Civil Procedure Code, and also to prove the fact; and, thirdly.
in a case where the plaintiff had not taken this plea in the plaint, the tenant can urge the ground that the claim for eviction was premature, even at the second appellate stage.
4. On behalf of the respondents. In order to overcome the effect of this decision, Mr. Sanyal submitted that, so far as the question of maintainability of the suit for eviction for any reason whatsoever is concerned, the decision of Ahmad J. in the earlier second appeal operates as constructive res judicata; and in support of this submission he relied on some decisions of this court and on Sub-section (2) of Section 105 of the Code of Civil Procedure. A Full Bench of this court considered, in Bandhu v. Rahman, AIR 1966 Fat 209 (FB) the effect of a remand order, after considering several earlier decisions, including Sunder Ahir v. Phuljharia, AIR 1957 Pat 534 and Lalbati V. Satchitanand. AIR 1960 Pat 418. The Lordships also considered Section 105 of the Code which reads thus:
"105. (i) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in Sub-section (i), where a party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
Their Lordships approved the following observations made in the aforesaid case of Sunder Ahir, AIR 1957 Pat 534 :--
"On a consideration of the above decisions, therefore, in my judgment, the guiding principles which can be extracted therefrom, are :--
(i) That if a Bench of the High Court remands a case to the lower Court under its inherent powers, the matters finally disposed of by the order of remand cannot, any of them, be re-opened, when the case comes back from the lower court butt if at the time of remand, no final decision is given on a point, though some observations only are made in respect of it, it is open to another Bench, a court of co-ordinate jurisdiction, when finally determining the case, to come to its own conclusions on it; and (ii) that even in a case decided by the first court of appeal other than a case decided by the High Court, if a judge on appeal decides certain points and remands the case, his decision is binding on his successor, before whom the case comes up again on appeal from the Judgment after remand, because such a court is a court of co-ordinate jurisdiction, and, therefore he cannot go behind the earlier final decision of his predecessor before remand.
The test, therefore, in such a case, to ascertain if a particular finding given by the Judge on appeal is a final decision or not is to find out, i{, by the order of remand, the Judge on appeal, has remanded the suit for determination of all the points at issue, or, it has determined some points in controversy, and remanded the suit for determination of the remaining points, which may include the question ot maintainability of the plaintiffs' suit itself, in which case the decree of the first Court has to be set aside, and, the suit remitted to the Court below for a fresh decision of the case according to law."
Their Lordships further observed that although Sunder Ahir's case, AIR 1957 Pat 534 was considering the power of the court of appeal below on the second occasion, there was no distinction in principle in respect of the power of the High Court in such an appeal, as will appear from the decision of a Division Bench of this court in the case of Lalbati AIR 1960 Pat 418. The aforesaid decisions do not, however, touch the question of res judicata; rather, they deal with the effect of the provision of Sub-section (2) of Section 105 of the Code. On that principle, in the instant case too, as there was no appeal against the judgment of Ahmad J., any finding contained therein cannot be questioned before us.
5. We have, therefore, to see what was decided by Ahmad J.; and it is clear from a perusal of the same that the only points decided by his Lordship were: (1) the tenancy was according to the English Calendar as distinguished from the Sam-bat calendar (2) the tenants in this case had not defaulted in payment of rent up to 19-6-1957, and (3) all the findings of the court below on other disputed questions were correct. But his Lordship sent the case on remand to the court of appeal below to decide whether the tenants had incurred any liability for eviction on account of defaults in payment of rent for two months or more subsequent to 19-6-57. A perusal of the judgment of the court of appeal below which was before his Lordship as well as that of his Lordship does not indicate that there was any decision about the maintainability of the claim for eviction, nor was there any observation in respect of that question. Hence, on the authority of the said Full Bench decision, this Bench is competent to consider the question of maintainability of the claim for eviction on account of the defaults by the tenants subsequent to 19-6-1957.
6. Mr. Sanyal, however, submitted that, by implication, Ahmad J. decided that the claim for eviction was maintainable, inasmuch as his Lordship allowed the appeal and sent the case back on remand for decision on the question of eviction. But the further consideration of the claim for eviction against the tenants itself included a decision on the maintainability of that claim on account of the absence of notice under Section 106 of the Transfer of Property Act; and, therefore, we do not agree with Mr. Sanyal.
7. Mr. Sanyal relied on a Full Bench decision of this Court in Baijnath Prasad v. Ramphal. AIR 1962 Pat 72 (FB) in support of his contention that the plea of non-maintainability of the claim for eviction now taken by Mr Sinha is barred by the principle? of res judicata, as the same was not raised before Ahmad J., and it would be deemed to have been decided in favour of the landlords by his Lordship In the case of Baijnath Prasad AIR 1962 Pat 72 (FB), aforesaid it was decided by the Full Bench that the doctrine of constructive res judicata applies to execution proceedings and that if a party takes an objection at a certain stage of a proceeding and does not take another objection which it might and ought to have taken at the same stage, it must be deemed that the court has adjudicated upon the other objection also and has held against it. In Satyadhyan v. Smt. Deorajin Debi. AIR 1960 SC 941, the Supreme Court said that, primarily, the principle of res judicata "applies as between past litigation and future litigation as embodied in Section 11 of the Code of Civil Procedure in relation to suits; apart from this section, this principle "applies also as between two stages in the same litigation to this extent that a court, whether the final court or a higher court having at an earlier stage decided the matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceeding." But in the earlier stage of the litigation "the decision must be final in the strict sense of the term." Section 11 does not, in terms, apply to the instant case, as the decision of Ahmad J. was given in the present litigation. It is manifest in the instant case that it would have been open to the parties to question the findings of Ahmad J. but for the bar contained in Section 105(2) of the Code: and, if this bar did not stand in the way of the aggrieved party, the decision ot his Lordship would not be final. Subsection (2) of Section 105 lays down that, in a case where an order of remand is appealable, if a party aggrieved by such an order does not appeal therefrom, he is precluded from disputing its correctness in a subsequent appeal from the decree in the suit. It will be noticed that this sub-section contains a special provision which is an exception to the pro-
vision contained in Sub-section (1) of Section 105, which provides that no appeal shall lie from any order unless such right is especially given by the Code, although any error, defect or irregularity in any interlocutory order, may be challenged in an appeal from the decree. But for this exception, an order of remand, even though final in certain respects, could have been challenged, In view of this exception, however, no court (other than a higher Court) can entertain any challenge to the correctness of any final decision in the order of remand made by the High Court, Such a provision must be construed strictly and, therefore, we are not prepared to read in Sub-section (2) of Section 105 a provision to the effect that an issue about which nothing is said In the order of remand cannot be agitated thereafter before the same judge when the case comes to him on appeal, for the second time, from the order or decree made after remand. In the instant case, as stated earlier, Ahmad J. did not decide the question of maintainability finally, inasmuch as he left it for the court of appeal below to decide whether a decree for eviction could ultimately be passed or not; and if the case had come up in appeal against the decree for eviction, his Lordship would have been competent to decide whether the claim for eviction was maintainable or not. Hence, this Bench, being a court of co-ordinate jurisdiction is also competent to entertain it. Thus, there is no merit in the contention of Mr. Sanyal and it must be rejected. It follows, therefore, that the claim for eviction in the instant case cannot lie on account of the admitted non-service on the tenants of a notice under Section 106 of the Transfer of Property Act, inasmuch as the claim is premature.
8. In support of the second ground, Mr. Sinha submitted that, in consequence of the reduction of rent by the appellate authority from Rs. 25 to Rs. 20 per month with effect from 11-9-1954, the amount already tendered by the tenants to the landlords in this case was sufficient to discharge the rent due and, therefore, the appellants did not default in the payment of rent for two months or more. Mr. Sinha, however, frankly conceded that if the rent had not been reduced by the appellate authority, the appellants should have been in arrears for more than two months. The question is whether the reduction of rent by the appellate authority with retrospective effect removed the liability incurred by the appellants at any time after June, 1957 and before the 15th January, 1959. In this connection, Sections 8(2) and 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) are relevant. Section 8(2) enacts:
"When the fair rent of a building has been determined or re-determined, any sum in excess or short of such fair rent paid, whether before or after the date appointed by the Controller under subsection (3), in respect of occupation for any period after such date shall, in case of excess, be refunded to the person by whom it was paid or at the option of such person be otherwise adjusted and, in case of shortage, be realised by the landlord as arrears of rent from the tenant:
Provided that if a building is let out subsequent to the determination or re-determination of fair rent, on a rent which is less than the fair rent, so determined or re-determined the landlord shall not be entitled at any time to realise the difference between the fair rent and the rent at which the tenant was admitted to occupation."
Section 11(1)(d) makes a tenant liable to eviction and enacts:
"Where the amount of two months' rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or, in the absence of such contract, by the last day of the month next following that for which the rent is payable or, by not having been validly remitted or deposited in accordance with Section 13;"
Mr. Sanyal submitted that once the appellants had incurred the liability to eviction, the same cannot be removed by the order of the appellate authority dated 15-1-1959, even though it was with retrospective effect. On the other hand, Mr. Sinha submitted that this liability was removed, inasmuch as the foundation for the liability to eviction was done away with by the order of the appellate authority reducing the rent with retrospective effect. Several decisioas were cited by Mr. Sanyal in support of his submission, viz., Francis Paul v. Fakir Ummerkutty, AIR 1953 Trav-Co. 70. In re. Navaneethammal, AIR 1951 Mad 343, Rama Subbiah v. C. J. Cole, AIR 1952 Mad 590 and Panduranga Rao v. Gopala Rao, AIR 1952 Mad 827. In the case of Francis Paul, AIR 1953 Trav-Co. 70 following the aforesaid Madras decision, a learned Single Judge of the Travancore-Cochin High Court took the view that the default in payment or tender of rent which is the cause of action for ordering eviction arises as on the date or dates when the payment or tender should have been made which precedes the application of the landlord. The order for eviction merely declares that cause of action arose on the particular date or dates and enables the landlord to have the benefit thereof. No substantive right accrues to the landlord on the date or on account of the order for eviction which only operates to enforce an already existing right.
Hence, the tenants' plea that, as the fair rent was fixed at a very much lower rate, there was an ample fund with the landlord by way of excess collected by him as rent and which could be adjusted towards the arrears of rent and, therefore, the order of eviction based on default in payment of rent could not be justified, is unsustainable. In the case of Panduranga Rao, AIR 1952 Mad 827, the provision contained in Section 7(2) of the Madras Buildings (Lease and Rent Control) Act (25 of 1949), which corresponds to Section 8(2) of the Bihar Act, was considered. This Section in the Madras Act reads as follows:
"A landlord who seeks to evict his tenant shall apply to the Controller, for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied -
(2) that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application."
Subba Rao, J. (as he then was), relying on the Bench decision in the case of Navaneethammal, AIR 1951 Mad 343 took the view that Section 7(2) does not compel a landlord to adjust the excess amounts in his hands towards any arrears of rent, if the said amounts were not paid by the tenant towards the rent of any particular month. It is true that on the date, when a tenant authorises the landlord to adjust the amounts with him towards the rent of any particular month, or months, the amount will be deemed to have been paid on that date towards rent. But till that adjustment is made and the amount is so appropriated, any amounts in excess of the rent due with the landlord will only be payments made in suspense. The fact that such excess came into the hands of the landlord by reason of the Rent Controller's order fixing the fair rent does not really affect the question, The amount not paid towards rent of any particular month and the amount not agreed to be adjusted towards any rent of a particular month is not payment ot rent within the meaning of Section 7(2)(1). These decisions do support the contention of Mr. Sanyal, though the facts in all these cases were somewhat different from those of the instant case.
9. On the other hand, there is an unreported decision of a Bench of this court in Second Appeal No. 392 of 1958 (Pat) Badri Narain v. Dropadi Devi, decided on 26-11-1962. While interpreting Section 8(2) of the Bihar Act, it was held by the Bench that the question of adjustment by the tenant could come only after the landlord had made an offer to refund the excess amount, and inasmuch as no such offer was made to the tenants in that case, it would be wrong to call the tenants in arrears simply because they did not signify to the landlords their option for adjustment of the excess amount towards the arrears. In that case, the default by the tenants had occurred after the order of the House Controller determining the fair rent. It will be noticed, therefore, that the facts of the instant case are different. It is, however, not necessary to decide the question raised by Mr. Sinha in the second ground raised by him, because the suit as well as the appeal can be finally disposed of on the view taken by us in the first ground.
10. In the result, the appeal is allowed and the suit is dismissed in respect of the claim for eviction for want of notice under Section 106 of the Transfer of Property Act; but the decree for arrears of rent already passed and confirmed by Ahmad J. shall stand. Parties will bear their own costs throughout, except that the plaintiffs shall be entitled to proportionate costs in respect of the decree for arrears of rent up to the stage when Title Appeal No. 119/52 of 1960/61 was dismissed by Mr. K. P. Sinha, Subordinate Judge, 1st Court, Dhanbad, before the second appeal to this court which was disposed of by Ahmad J.