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1 - 10 of 14 (0.67 seconds)Section 41 in Presidency Small Cause Courts Act, 1882 [Entire Act]
Presidency Small Cause Courts Act, 1882
The Code of Civil Procedure, 1908
Article 226 in Constitution of India [Constitution]
Section 43 in Presidency Small Cause Courts Act, 1882 [Entire Act]
Section 46 in Presidency Small Cause Courts Act, 1882 [Entire Act]
The Delhi Rent Act, 1995
Gulabchand Chhotalal Parikh vs State Of Bombay (Now Gujarat) on 14 December, 1964
Observing this, Chandrachud, J. considered that the earlier application was only on the ground that the licence was withdrawn, and the substantive suit was on the ground that there was relationship of a licensor and licensee and not of landlord and tenant. He further considered that the matter which is directly and substantially in issue in the suit is whether the plaintiff is the licensor or the landlord of the defendant, which is a very much different matter from the one which was involved in the earlier proceeding and, therefore, he considered that the suit would not be barred by principles analogous to res judicata. So, he did not consider what would be the effect of the decision of the Supreme Court in case of Gulabchand (Supra) pertaining to writ petitions vis-avis separate suits on the facts before him. But he considered that the nature of the reliefs claimed and the matter directly and substantially in issue in the proceedings under the Act and in a regular suit would be very much different, and on this distinction he held that the earlier decision would not to res judicata. There was one more factor which weighed with Chandrachud, J; and which, to my mind, is quite justified, Chandrachud, J. considered that the Supreme Court was dealing with a matter of an entirely different nature and the provisions of Chapter VII of the Act were not before it. The argument before the Supreme Court was that a decision on a Writ petition under Article 226 of the Constitution of India cannot create the bar of res judicata and that an issue decided in the writ petition can be reagitated in a regular suit. It is while rejecting this argument that the Supreme Court held that the nature of the former proceeding is immaterial, that it is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit, etc. Then considering the provisions of Section 46 and 49 of the Act Chandrachud, J. considered that these provisions in terms contemplated a substantive suit and, therefore, the very statute under which the previous decision was recorded contemplated in a sense the removal of the possible bar of res judicata. This reasoning is quite justified because in order that a decision may be res judicata it must have a finality so far as these proceedings are concerned. A decision under the Act is not final. Right of a party to file a substantive suit is open. Even during the proceeding, if an occupant after issue of summons goes to the Court, gives sureties and makes a request to stay the proceedings to file a substantive suit, that is permitted under the provisions of Section 47 and 49 of the Act.
Mir Hyder Ali Sahib vs Amirudin Sahib And Ors. on 9 December, 1927
12. It should be noted that there is also judgment of the Madras High Court in Mir Hyder Ali Sahib v. Amirudin Sahib AIR 1929 Madras 69, to which my attention is drawn by Mr. G.D. Bhatt. In that case also contention before the Small Cause Court was that the occupants were not the tenants of the person who filed an application for eject-ment and that they were the tenants of somebody else. That application was dismissed holding that the occupants were not the tenants of the applicants. Thereafter the applicants filed regular suit. That suit was entertained and the Madars High Court specifically observed that such a suit would lie. After considering the provisions of Section 49 of the Act the Madras High Court observed that in the face of the provisions of that section, it is difficult to hold that the present suit should be considered as one: "to alter or set aside a decision or order in any proceeding under Chapter 7 of the Act". That was considered from the point of Limitation Act. But it was specifically considered that that was not a suit for setting aside the order of the Small Cause Court but to get a substantive relief in a substantive suit. In terms, the suit filed by an unsuccessful litigant in the Small Cause Court was considered maintainable under Section 49 of the Act.