Calcutta High Court (Appellete Side)
Ravi K. Bagaria vs Sudarshan Kumar Nayar @ S. K. Nayar And ... on 11 October, 2018
1 S/L. 5.
October 11, 2018.
MNS.
C. O. No. 1972 of 2018 Ravi K. Bagaria Vs. Sudarshan Kumar Nayar @ S. K. Nayar and another Mr. Buddhadeb Ghoshal, Mr. U. S. Menon, Mr. Abhirup Chakraborty ...for the petitioner.
Mr. Saptansu Basu, Ms. Suman Agarwal ...for the opposite parties.
The present revisional application has been filed against the dismissal of an application under Section 114 of the Transfer of Proper Act, 1882, primarily on the ground that a similar application had been rejected earlier.
It appears that previously the predecessor-in-interest (father) of the petitioner had filed a similar application with the same prayer as the application-in-question, which was rejected on March 3, 2017 by the trial court as "not pressed".
Learned senior counsel for the petitioner argues that such dismissal was not on merits and as such does not preclude the petitioner, who was subsequently substituted in place of his father in the suit, from filing the present application under Section 114 of the said Act of 1882.
In support of such proposition, learned senior counsel cites a judgement reported at (1969) 1 Supreme Court Cases 718 (Shivashankar Prasad Shah and Others Vs. Baikunth Nath Singh and others).
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It was held in the cited judgment that the principle of res judicata cannot apply in the event a previous adjudication was not on the merits of the matter.
The next judgment cited by learned senior counsel for the petitioner was reported at AIR 1961 Supreme Court 1457 (Daryao and others Vs. State of U. P. and others).
The point for consideration in the said matter was also whether the principle res judicata would apply. The Hon'ble Supreme Court held that an application under Article 32 of the Constitution of India was maintainable despite the dismissal of a previous writ petition under Article 226 of the Constitution, made before the concerned High Court, if the same was not dismissed on merits or was dismissed on the ground that an alternative remedy was available.
It was further held in the said reported judgment that, since the previous application was dismissed in limine without passing a speaking order, the same could not operate as a bar of res judicata.
Learned senior counsel next places reliance on Clauses - (I) and (J) of the relevant lease agreement, which are quoted below:
"(I) On my death nobody, whether my son or my other heir/s could claim any right whatsoever in respect of the Flat and the Garage and the son or any heir/s shall be liable to make vacant and peaceful possession of the Flat and the Garage to you or your heir/s within 3 (three) months thereof (the month of death being excluded), I shall make a fresh deposit of Rs.26,000/- (Twenty Six thousand only) to you, in addition to Rs.10,000/- (Ten thousand) already with you, then totaling Rs.36,000/- (Rupees Thirty Six thousand) of which it will be adjusted against the three months rent after my death.
(J) In default of compliance of the aforesaid condition i.e. vacating within clear three months period, the son or any other legal heir/s will be liable to enhance the rent to Rs.30,000/- (Rupees thirty thousand) only per month, thereafter."3
It is submitted that in view of the default clause incorporated therein, the present petitioner, being the son of the original lessee, did not claim directly through the father but on the strength or a de novo contract, with enhanced rent of Rs.30,000/- (Rupees thirty thousand) only per month.
As such, it is argued, the present petitioner did not come within the definition of "heir and legal representative" of the original defendant within the contemplation of Order IX Rule 9, or Order XXIII Rule 1 of the Code of Civil Procedure.
As such, it is argued, even if the previous petition was dismissed as not pressed, there was no embargo on the petitioner to take out the current application.
Learned senior counsel appearing for the opposite parties, on the other hand, argues that it is evident from the said clauses of the agreement, in particular Clause - (I), that on the death of the original lessee, the lease was terminated and the subsequent clause mandating payment of Rs.30,000/- (Rupees thirty thousand) only per month was only in the nature of a penal clause and did not create any lease, inasmuch as such payment was in lieu of occupation charges.
It is further submitted on behalf of the opposite parties that the judgments cited are distinguishable from the facts of the present case.
It appears that, in the present lis, the previous application with a similar prayer was rejected on the finding that the petition was not pressed on behalf of the original defendant.
Both the judgments cited on behalf of the petitioner pertain to the principle of res judicata. It is obvious that the said principle does not apply in the present context, since there was no adjudication on merits on the previous occasion. However, the bar created 4 in the present case arose from the principle embodied in Order IX Rule 9, alternatively Order XXIII Rule 1 of the Code, since the previous application had not been pressed on behalf of the defendant, meaning either that the same was dismissed for default or that the said petition was consciously not proceeded with.
Either of the two cases is not covered by the cited judgments and as such those do not apply to the present case.
A consideration of Section 114 of the said Act of 1882 reveals that there is little scope of adjudication envisaged by such provision, apart from the prerequisites therein being fulfilled by the petitioner.
Section 114 of the said Act of 1882 is entirely about the conscious exercise of an option given to the lessee/defendant and, in the present case, in view of the relinquishment of such option by the predecessor-in-interest of the petitioner on March 3, 2017, the present petitioner is now precluded from taking out a similar application.
As regards the contention of the petitioner, that there was a virtual cessation of the contract on the death of the original lessee in terms of Clauses- (I) and (J) of the relevant lease agreement, such contention is not acceptable for two reasons. First, a complete reading of the said two clauses would indicate unerringly that, at best, the lease granted to the original lessee continued in favour of the son or legal heir of the original lessee and only the rent was enhanced to Rs.30,000/- (Rupees thirty thousand) only per month.
Taking the best interpretation in favour of the petitioner, the petitioner's claim would be restricted to be the son/legal heir of the original lessee. Unless the petitioner claims through the original lessee as his legal heir, there arose no question of Clause - (J) being attracted at all. In the event the petitioner claims as an heir of the original lessee, the 5 principles of Order IX Rule 9, alternatively of Order XXIII Rule 1 of the Code, squarely apply and the second application is barred.
If the other interpretation is accepted, and the petitioner does not claim through the original lessee, the question of applying Clause - (J) would not arise at all, since the sine qua non of Clause - (J) is the petitioner being the son or legal heir of the original lessee.
In such scenario, the petitioner would, in any event, have no right to take out an application under Section 114 of the said Act of 1882, if the spirit of the said provision is taken in proper perspective.
In such view of the matter, the second application of the petitioner, under Section 114 of the said Act of 1882, was rightly rejected by the trial court by virtue of the impugned order.
As such, the said order does not call for any interference by this Court. Accordingly, C. O. No. 1972 of 2018 is dismissed on contest. There will, however, be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.) 6