Brahma Kumar Mahendra v. Urmila Gupta — 1988 DIGILAW 515 (ALL)

JUDGMENT A.P. Misra 1. These revisions are directed as against an order dated 21st November, 1987, passed by the Judge, Small Causes, after remand, by virtue of which the suit of the plaintiff-respondent-landlady for arrears of rent, mesne profits and eviction from the accommodation in dispute was decreed. The plaintiff also has preferred revision challenging finding on issue no. 2. 2. Brief facts of the case are : two halls and two bath rooms forming part of premises no. 1/9-C situate at Mahatma Gandhi Road, Agra were let out by the respondent to the applicants-defendants-tenants at a monthly rent of Rs. 600/- plus Rs. 100/- payable on account of municipal taxes for a fixed period ending 31st January, 1979. The premises in question was taken on rent for running a school under the name and style Brahma Kumari Ishwariya Vishwa Vidyalaya, Agra. Subsequent to the expiry of the aforesaid period the tenant of the premises remained in occupation for a month which was granted. Thereafter, since the premises was not vacated despite repeated demands the tenancy was terminated by means of registered notice dated 22-4-1979. The building was constructed on 1st October, 1972. As per the respondent's-landlady's case U. P. Act no. XIII of 1972 does not apply to the premises in question, the defendants fell in arrears of rent from 1-3-1979 to 26-5-1979 and further claimed damages for use and occupation from 27th May, 1979 to 2nd July, 1979 at the rate of Rs. 20/- per day along with Rs. 60/- as costs of notice and Rs. 600/- as municipal taxes from 1st March, 1979 to 31st August, 1979. In this case, service of notice for termination of tenancy under section 106, Transfer of Property Act was done on the applicant-defendants by refusal. The defendants contested the claim of the plaintiff and pleaded that the plaintiff let out the land for permanent construction, on which the defendants are running the aforesaid school. The jurisdiction of the Judge, Small Causes Court, was also challenged. It was also urged that there was no relationship of landlord and tenant between the plaintiff and defendant no. 1 and defendant no. 2 came into occupation of the premises in suit as tenant on behalf of Smt. Urmila Gupta in March, 1972. The jurisdiction of the Judge, Small Causes Court, was also challenged. It was also urged that there was no relationship of landlord and tenant between the plaintiff and defendant no. 1 and defendant no. 2 came into occupation of the premises in suit as tenant on behalf of Smt. Urmila Gupta in March, 1972. The further contention also was that on the principles of res judicata the plaintiff-respondent is bound by the judgment of this Court in earlier revision. The court below decreed the suit by holding that U. P. Act No. XIII of 1972 was not applicable to the premises in dispute, notice dated 22nd April, 1979, had determined the tenancy of the defendants and service was held sufficient by refusal, the suit was not barred by estoppel and acquiescence ; the suit was not bad for non-joinder of Km. Vimla, and the court had jurisdiction to adjudicate on the suit. The applicants-defendants filed a revision before this Court, which was numbered as Civil Revision No. 524 of 1981 and this Court relying on the case of Vineet Kumar v. Mangal Sain, 1984 AWC 128 SC held that even though when the suit was filed the building was not covered by U. P. Act No. XIII of 1972, since ten years did not expire, but since during the pendency of the suit ten years were completed, the provisions of the aforesaid Act No. XIII of 1972 could be applicable. Thus, the decree of eviction and mesne profits was set aside and the case was remanded to the court below for considering the remaining matter with a direction that the Court should apply the provisions of the Act and to also consider what further amount is due from the tenant and to consider what benefit the applicant-tenant under section 39 of the Act No. XIll of 1972 is entitled. The decision of this Court squarely rested on the decision of the Vineet Kumar's case (supra). The decision of this Court squarely rested on the decision of the Vineet Kumar's case (supra). After remand, the trial court held that the tenant is entitled for the benefit of Section 39 as no suit was pending on 15th July, 1972 when the aforesaid Act came into force, which is a pre- condition for granting benefit to a tenant Since the present suit was instituted only on 30th July, 1979 i. e. several years after coming into force of the said Act, it was held, the tenant is not entitled for any such benefit. It recorded a finding, the requisite deposit contemplated under the provision was not made within the time stipulated, and, secondly, even the total amount, for which deposit should have been made was not made. Thereafter, the trial court again decreed the suit of the plaintiff-respondent for eviction and for recovery of rent with interest and mesne profits. Aggrieved as against this, the present revision has been filed. 3. I have heard the learned counsel for the parties and perused the records. 4. The main contention raised on behalf of the applicants-tenants is once this Court in the earlier revision held that the Act is applicable it was beyond the competence of the trial court to have come to the conclusion that section 39 was not applicable ; since as against an order of remand the landlord-respondent did not go up in appeal to the Supreme Court, therefore, that order became final and it was no more open for the trial court to have considered the matter afresh, and, finally, the finding that the applicants did not in terms comply with section 39 was also wrong as the applicants did deposit all the amounts, which are referred to under the said provision. On the other hand, it was urged on behalf of the respondent that since after the order passed by this Court while remanding the case, Vineet Kumar's case (supra) was specifically overruled by the Supreme Court in Nand Kishore Marwah v. Smt. Samundari Devi, 1987 AWC 1261 SC. The trial court was justified in holding that benefit of section 39 could not be given to the tenant. The trial court was justified in holding that benefit of section 39 could not be given to the tenant. It was further contended that since there was no appeal provided to the Supreme Court as against an order of remand the matter would become final and the question could always be raised subsequently by filing an appeal as against the original judgment and decree after remand. It was further contended on the facts of this case, there is no question of the application of principles of res judicata as there was no finality to the proceedings between the parties. The main thrust by the learned counsel for the applicants was that in the earlier order of this Court in revision it was clearly held relying on Vineet Kumar's case (supra) that the trial court on remand will only consider as to what benefit the tenant is entitled under section 39 of Act No. XIII of 1972 and the trial court was bound by that order and could not have gone beyond the order in remand. 5. It is significant in this case the trial court also held to the same effect as urged by the learned counsel for the applicants. IT recorded a finding that the order of remand holds that the Act is applicable and the directions given by this Court was to examine as to what benefit the tenant is entitled under section 39. The trial court, in effect, examined that provision and came to the conclusion, that even if defendant is entitled to the benefit under this section he has not complied with the provisions within the time specified under the said provision, nor he has deposited the total amount as contemplated therein. Thus, on facts also, it was held that the defendant is not entitled for any benefit since he did not deposit the said rent in accordance with section 39 of the Act, and thus finally the decree for eviction was passed by the trial court. In doing so, I do not find the trial court committed any error, nor could it be said that it transgressed beyond the direction issued by this Court while remanding the earlier case. This Court directed in the earlier revision to examine as to what benefit the applicant-tenant is entitled under section 39 of the Act. 6. In doing so, I do not find the trial court committed any error, nor could it be said that it transgressed beyond the direction issued by this Court while remanding the earlier case. This Court directed in the earlier revision to examine as to what benefit the applicant-tenant is entitled under section 39 of the Act. 6. Before section 39 is made applicable it is pre-condition that there should be a suit pending on the date of the commencement of U. P. Act No. XIII of 1972 and such suit for eviction should be such to which the old Act did not apply. As aforesaid, the suit was filed in 1979 i.e. several years later than the enforcement of the Act. Thus, by plain reading of the section no benefit now under this section could be given to the tenant, which was rightly held by the trial court. The only decision given by this Court earlier was that the Act is applicable but this Court while remanding the case did not examine section 39 and a direction was given to the trial court to examine what benefit under section 39 of the Act the tenant is entitled. There was no finding by this Court earlier that section 39 also applies on the facts and circumstances of the present case. Thus, examination by the trial court and application of that provision was within the competence of the trial court and on the facts of this case it rightly held that the tenant is not entitled for any benefit under section 39 of the Act No, XIII of 1972. Even where section 39 is applicable the further condition is that the tenant shall deposit in court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent per annum and the landlord's full costs of the suit within one month of either the commencement of the Act or from the date of his knowledge of the pendency of the suit whichever is later. The trial court rightly held even if section 39 is to be applicable the applicant-defendants did not deposit the amount either within one month of the commencement of the Act or from the date of knowledge of pendency of the suit. Thus also, no benefit could be given to him. The further finding of the trial court is that even the total amount as contemplated under this provision has not been deposited by the tenant, though disputed by the learned counsel for the applicants, but I do not find any error which calls for interference in the said finding that he even did not deposit the total amount and thus no benefit to him could be given under this section. It is also relevant that subsequent to the earlier remand order passed by this Court the case of Vineet Kumar v. Mangal Sain Wadhera (supra) which was decided by the Supreme Court was reversed in a subsequent decision specifically in Nand Kisbore Marwah v. Smt. Samundari Devi (supra). The relevant portion of Nand Kishore's case is quoted hereunder :- "It is well-settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit, but in Vineet Kumar's case (supra) this Court took the view that if during the pendency of the proceedings 10 years have elapsed the tenant is entitled to the protection under the Act and in coming to this conclusion the Court also considered the language of Section 39 of the Act and it observed : ' The appellant in the present case only seeks the protection of the new Rent Act which became applicable in question during the pendency of the litigation. We see no reason why the benefit of the New Rent Act be not given to the appellant. Section 20 of the New Rent Act provides a bar to suit for eviction of a tenant except on the specified grounds as provided in the section. Sub-section (5) of Section 20 stipulated that in any suit for eviction on the grounds mentioned in Clause (a) to sub-section (2) viz. Section 20 of the New Rent Act provides a bar to suit for eviction of a tenant except on the specified grounds as provided in the section. Sub-section (5) of Section 20 stipulated that in any suit for eviction on the grounds mentioned in Clause (a) to sub-section (2) viz. the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate of rent together with interest thereon at the rate of nine percent, per annum and the landlord's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on the ground. Sections 39 and 40 of the new Rent Act also indicate that the benefit of the new Act will be given to the tenant if the condition contemplated in those sections are satisfied. Section 39 also indicates that the parties are entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary." But unfortunately attention of the Court was not drawn to the Om Prakash Gupta's case (supra) which specifically considering this Act and the language of Section 39 in particular and is a decision of a Bench of three judges which is binding on us. The restriction on the right of a landlord to evict a tenant has been provided for in this Act under section 20 and the language of Section 20 is also significant. "20. The restriction on the right of a landlord to evict a tenant has been provided for in this Act under section 20 and the language of Section 20 is also significant. "20. Bar of suit for eviction of tenant except on specified grounds :-(1) Save as provided in sub-section (2) no suit shall be instituted for the eviction of tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner : Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy of a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceedings, which is either recorded in court or otherwise reduced to writing and signed by the tenant." This is put in Chapter IV with the heading "Regulation and Eviction" and the section starts with title which is printed in bold "Bar of suit for eviction of tenant except on specified grounds" and again in the wording of the section itself it provides: "No suit shall be instituted for eviction." This clearly indicates that the restriction but under section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applied then no suit for eviction can be instituted except on the grounds specified in the sub-sections of this section. Keeping in view the language of this section if we examine the provisions contained in sub-section (2) of Section 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for a clause (2) of Section 2 restriction on institution of suit as provided for in section 20 Clause (1) quoted above will not be applicable and it is, thus, clear during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in section 20 can not be attracted. In the light of discussions above therefore, in our opinion, the contention advanced by learned counsel for the appellant cannot be accepted. The appellant-tenant could not be given the advantage of the provisions contained in this Act. In this view of the matter therefore the appeal is without any substance and is dismissed. 7. Thus, it was held by their lordships of the Supreme Court in this case that there the suit was filed before the expiry of the period of ten years the provisions of the Act could be inapplicable even if ten years had expired during the pendency of the suit. It is also held that section 39 of the Act applied to those suits which is pending on the date of the commencement of the Act and it is only where the suit is pending on that date the benefit under the provisions of section 39 could be given to the tenant. In the light of this also it cannot be urged that the trial court committed any error in following the principle laid down by the Supreme Court, which is declaration of law binding on all courts in India. 8. Finally, the main argument was, this question could not have been opened by the trial court after this court in the earlier revision held the Act to be applicable. As I have said earlier the trial court did not open any such question, rather it proceeded treating that Act to be applicable by holding the tenant did not comply with section 39, nor its benefit could be given. As I have said earlier the trial court did not open any such question, rather it proceeded treating that Act to be applicable by holding the tenant did not comply with section 39, nor its benefit could be given. But the argument of the learned counsel for the applicant is not sustainable even otherwise. There is distinction between the principle of res judicata and judicial precedent. Under the principle of res judicata the parties are bound on issue of fact of law decided between them. Finally, while judicial decisions are in the nature of declaration of law which is binding on other courts. Under Article 141 of the Constitution of India any declaration of law by the Supreme Court is binding on all the courts including the High Courts and when a declaration of such law was made it cannot be said in following the same the trial court committed any error. The only argument raised is that when this Court in the earlier revision held while remanding the case that the other side having not filed any appeal against that decision it became final. It is true under the principles of res judicata where a party either does not file an appeal where an appeal lies or if the appeal is filed and it has been finally adjudicated it is binding on the parties and the principles of res judicata comes into play. The principle is that once the res is adjudicated finally the parties are bound by it. It is under this principle the courts have been repeatedly holding that not only what has been decided between the parties but what ought to have been raised and if not raised it would be binding on the parties on the principles of constructive res judicata. 9. Earlier, the principle of res judicata was made applicable within the four corners of section 11, CPC to the subsequent suits or proceedings. Later even where section 11 is not applicable in strict sense yet its principles were made applicable not only in subsequent suits and proceedings but even in execution proceedings and in subsequent proceedings in the same suit. It is under the last part, it is urged, that when in the same proceedings when the matter became final between the parties the court subsequent cannot...........................go into the question afresh as the parties would be bound by the principles of res judicata. It is under the last part, it is urged, that when in the same proceedings when the matter became final between the parties the court subsequent cannot...........................go into the question afresh as the parties would be bound by the principles of res judicata. 10. Before the principle of res judicata is applied the court has to come to the conclusion that proceedings or issue has become final, which was decided between the parties. In the present case, there is no provision of appeal to the Supreme Court against the order of remand passed by this Court. Similar was the position even before creation of the Supreme Court that no appeal lay to the Privy Council. To the same effect has been held in the following cases ; Maharajah Moheshur Singh v. Bengal Government, (1865) 7 Moo. Ind. App. 283, Forhes v. Ameeroonissa Begum, 10 Moo. Ind. App. 340, and Sheonath v. Hamnath, 10 Moo. Ind. App. 431. Following the aforesaid Privy Council decision to the same effect was held in Satya Dhan Ghosal v. Smt. Doorajin Debi, AIR 1960 SC 941 . The relevant portion of the decision is quoted below : - "In our opinion the order of remand was an interlocutory order which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order............" 11. Thus, it would be seen in an order of remand if there is no appeal provided then a party has a right to raise it again after remand in an appeal from the final order passed. Since in the matter of remand the proceedings are not terminated nor any finality is attached the principle of res judicata does not come into play but only where no appeal lies against such an order. However, if appeal lies and has not been preferred, it would be binding. THUS argument on behalf of the applicants is not sustainable. 12. Section 104, CPC specifies orders from which appeal lies. It refers to any order made under rules from which an appeal is expressly allowed by rule, which, in effect, refers to Order XLIII, rule 1, CPC. Order XLIII, rule 1 (u) refers to an order of remand passed under Order XLI, rules 23 and 23-A where an appeal would lie from the decree of the appellate court. 13. It refers to any order made under rules from which an appeal is expressly allowed by rule, which, in effect, refers to Order XLIII, rule 1, CPC. Order XLIII, rule 1 (u) refers to an order of remand passed under Order XLI, rules 23 and 23-A where an appeal would lie from the decree of the appellate court. 13. In the present case, the appellate court is this Court and no appeal lies from the decree of this Court. Thus, it cannot be said that the plaintiff- respondent not having preferred appeal where appeal lay the adjudication became final and thus entrenched on the principles of res judicata. Section 105, CPC specifically refers that no appeal shall lie from any order made by the court in exercise of its original or appellate jurisdiction unless specifically provided. In such a case, the error committed by the court in passing an order could be challenged only while appealing as against the main decree in setting-forth a ground of objection in the memorandum of appeal. Under sub-section (2) it is further provided where an order of remand is appealable and if the appeal has not been preferred the correctness of the same cannot be disputed. Thus, in a case where an order of remand is appealable as provided under Order XLIII, rule 1 read with Order XLI, rules 23 and 23-A and no appeal has been preferred it would become final. But that would not be the position in the present case as an order of remand passed by this Court is not appealable and thus correctness of the same could always be urged after the final order and decree is passed after remand. 14. The following decisions lend support to this principles Anand Ram Gupta v. Assistant Director, 1979 RD 40; Kesho Ram v. Board of Revenue, U. P., AIR 1972 Alld. 360; Deep Chand Jain v. Board of Revenue, AIR 1966 Alld. 412 and Amalgamated Coalfields Ltd. v. Janapada Sabha Chhindawala, AIR 1964 SC 1013 . In view of the aforesaid findings, I find that Revision No. 981 of 1987 filed by the defendants is devoid of any merit. The various grounds raised by the applicant are not sustainable and the impugned order is not such which calls for any interference by this Court. Similarly, in view of the aforesaid findings, Revision No. 83 of 1988 also stands disposed of. 15. The various grounds raised by the applicant are not sustainable and the impugned order is not such which calls for any interference by this Court. Similarly, in view of the aforesaid findings, Revision No. 83 of 1988 also stands disposed of. 15. Accordingly, Revision No. 981 of 1987 is dismissed with costs. Revision No. 83 of 1988 is disposed of in terms of the observations made above.