Ratan Lal Rai v. Sheo Kumar Kamalia — 1995 DIGILAW 627 (PAT)

Judgment Nagendra Rai, J. 1. -as the common questions of law arise in both the cases they are being disposed of by this commorr judgment. 2. The tenants petitioners have filed the revision applications under proviso to Sec.14 (8)of the Bihar Buildings (Lease, rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act) against the judgments passed by the Courts below decreeing the plaintiffs-respondents suits for eviction on the ground of their personal necessity. 3. In Civil Revision No.1519/91 the petitioner has filed the revision against the judgment dated 11th June, 1991 passed by the Additional Munsif 1st, Patna in title suit no.63/1985. 4. In Civil Revision No.1876/93 the petitioner has filed the revision against the judgment dated 11th September, 1993 passed by the Munsif frd Patna in eviction suit no.11/1990. 5. Both the suits have been disposed of under the special procedure provided under Sec.14 of the Act. Civil Revision No.1519/91 6. The case of the plaintiff-opposite party Sheo Kumar Kamalia is that the suit premises being one Kita Old House in a delapidated and old condition with land measuring 29 Karis bearing holding no.49 (Old), 55 (new) Municipal Survey Plot no.79, Sheet No.240, Ward No.26 (Old) of dharmshala Gali, Chowk, Patna City Districtpatna belonged to one Smt. Anardei Khandelia, who inducted the defendant as tenant on monthly payment of Rs.15/-per month according to English calendar. The plaintiff family consists of his wife, one son and one daughter. His grand father have five sons including his father. His father died leaving behind his widow and four sons including the plaintiff. They have a ancestral house where family members of all the brothers reside. In the said house the plaintiff has got only one room measuring 10 x 12 4" having no separate and independent latrine on partition as a result of which the plaintiff and his family members are facing great inconvenience, in going to the common latrine. The study of the grown up children is also suffering due to lack of proper accomodation. His wife is not maintaining a good health and requires proper and sufficient accomodation. For the aforesaid reasons the plaintiff was in need of a good house to accomodate his family. The study of the grown up children is also suffering due to lack of proper accomodation. His wife is not maintaining a good health and requires proper and sufficient accomodation. For the aforesaid reasons the plaintiff was in need of a good house to accomodate his family. He purchased the land and the house described in schedule-I of the plaint by registered sale deed dated 21.5.84 for Rs.70000/- with the sole object of building a suitable residential house for meeting his requirement. Further case of the plaintiff is that he is working as branch Manager in State Bank of India and he is going to move the State Bank of India to sanction loan for construction of the residential house under the Housing scheme. 7. The defendant denied the relationship of landlord and tenant and claimed to be the owner of the premises on the ground that the suit premises was given 80 to 90 years back to his grand father by late rai Bahadur Hiralal Jalan and Rai Bahadur radha Krishna Jalan for the services rendered. He denied that he or his father or grand father was inducted as tenant over the suit premises. He also challenged the case of the plaintiff regarding personal necessity. According to him the plaintiff has three storied palatial building having 30 to 40 rooms at Chowk and two buildings at naisarak and Mangal Talab road and as such he and his family members have sufficient accomodation and the present suit has been filed without any reasonable and bonafide need. 8. During the pendency of the suit on the application of the landlord trial Court passed an order directing the tenant to deposit the arrears as well as current rent. The tenant defendant did not comply with the order as a result of which his defence has been struck off and he has been estopped to contest the Claim of ejectment in term of Sec.15 of the Act. 9. The plaintiff adduced oral and documentary evidence in support of his case. The defendant did not adduce any evidence even on the question of his own title as asserted by him. 10. 9. The plaintiff adduced oral and documentary evidence in support of his case. The defendant did not adduce any evidence even on the question of his own title as asserted by him. 10. The trial Court after considering the materials on the record came to the conclusion that there was relationship of landlord and tenant between the parties and the plaintiff requires the premises reasonably and in good faith for his own occupation as well as occupation of his family members. The trial Court also found that as the area of the suit is only one katha and there are four members in the family of the plaintiff the partial eviction would not meet the requirement of the plaintiff and, accordingly, decreed the suit for eviction with regard to the entire suit premises. Civil Revision No.1876/93 11. The case of the plaintiff-opposite party Md. Rafey alias Chhedi Mian is that house bearing holding no.174/17 of Patna municipal Corporation situated at Lodipur, budh Marg, Patna belonged to Shiekh Md. Umar Mian who died leaving behind four daughters and one son who is the plaintiff. After partition of the house between him and his sisters the extreme northern portion of the house with a total area of 377 and 4" constructed house with some parti land was allotted to the plaintiff in the year, 1984. The defendant was inducted as tenant of the part of the holding consisting, one room 8 x 8 on the western side before the partition. After partition the room in the occupation of the defendant tenant has been allotted to the plaintiff. 12. The plaintiff has sought eviction on two grounds. Firstly, on the ground that he requires the premises for selling eggs. According to him, he is engaged in the business of selling eggs on road which is not being allowed by the local police. Secondly, on the ground that he has to open a passage through the suit premises to connect the portion of the house allotted to him through the main road on the western side known as Patna Gaya Road. 13. Secondly, on the ground that he has to open a passage through the suit premises to connect the portion of the house allotted to him through the main road on the western side known as Patna Gaya Road. 13. It is stated by the plaintiff that earlier he filed a eviction suit being Eviction suit no.74/85 which was decreed but the appeal filed by the tenant before the appellate Court was allowed and thereafter the plaintiff withdrew the aforesaid suit after obtaining permission to file a fresh suit by order dated 14.6.1989. 14. The defendant challenged his eviction on the ground that the suit itself was not maintainable as it was barred by resjudicata in view of the filing in the earlier suit. He also challenged the story of partition alleged by the plaintiff. According to him there is no need of a passage to the plaintiff as he has already a passage for exit and extrance into the holding. His requirement of premises for opening a shop for selling eggs is not genuine and bonafide. 15. Both the parties led their evidence and the Trial Court found that there was a partition between the plaintiff and his sisters and the suit premises was allotted to the plaintiff and there is relationship of landlord and tenant between the parties and the plaintiff requires the tenant premises for his own use that is for construction of a passage through which he has to approach to his portion of the suit premises. It was also held that partial eviction of the suit would not meet the requirement of the plaintiff. 16. Both the civil revision applications were placed for hearing before the learned single judges of this Court. C. R. No.1519 of 1991 has been referred to a division Bench on 22.1.93 to decide the question as to whether the requirement of the premises fort re-construction of the building is covered by the word occupation as mentioned under section 11 (1) (c) of the Act. C. R. No.1876/1993 has been referred to a Division bench on 8.11.94 to decide the question as to whether order for eviction can be passed under Sec.11 (1) (c) of the Act on the ground that the plaintiff requires the tenanted premises for opening a passage for access to the portion of the building in his occupation. 17. C. R. No.1876/1993 has been referred to a Division bench on 8.11.94 to decide the question as to whether order for eviction can be passed under Sec.11 (1) (c) of the Act on the ground that the plaintiff requires the tenanted premises for opening a passage for access to the portion of the building in his occupation. 17. Learned counsel for the petitioners in both the cases contended that in both the case the ground for eviction is not covered by Sec.11 (1) (c) of the Act, which provides for eviction of the tenants from the building when it is required reasonably and in good faith by the landlord for his own occupation or for occupation of any person for whose benefit the building is held by the landlord and accordingly the judgments are vitiated in law. Learned counsels for the petitioners have relied upon the following judgment of this court in support of their case.1969 BUR 164 (Haji Abdul Ghaffar vs. Sawal Rarn and anoth) AIR 1972 patna 383 (Binapani Sarkar vs. Indradeo Singh) AIR 1973 Patna 83 (Mahabir Prasad Sarogi and Ors. vs. Bibhuti Mohan Bhattacharjee and Ors.) 1991 (2) BLJ 380 : 1991 (2) PLJR 752 (Abdul Aziz Khan vs. Abdul Hafiz Khan ). 18. Learned counsel for the landlord opposite parties on the other hand have contended that after going through the pleadings of the parties, it is clear that the premises were required by the plaintiff reasonably and in good faith for their own occupation as well as for occupation of their family members. In Civil Revision No.1519/91 the premises is required by the plaintiff for his own occupation as well as his family members as he has no sufficient accomodation in his ancestral house and he intends to make new construction to fulfil his genuine need as the old and delapidated house will not be sufficient to meet the requirement. In Civil Revision No.1876/93 it was stated that the plaintiff requires the permises to open his shop for selling eggs as he is selling the eggs on the road and also to open a passage for going to portion of the holding attached to the suit premises. The grounds of eviction in both the cases are covered by Sec.11 (1) (c) of the Act. Learned counsels for the respondent-opposite parties on the other hand relied upon the following judgments in support of their cases. The grounds of eviction in both the cases are covered by Sec.11 (1) (c) of the Act. Learned counsels for the respondent-opposite parties on the other hand relied upon the following judgments in support of their cases. AIR 1964 S. C.1676 (Ramniklal pitambardas Mehta Vs. Inradaman amratlal Sheth), AIR 1992 S. C.1696 (K. A. Anthappai vs. C. Ahamed) 1979 b. L. J. R.376 (Nagrajmal Baid vs. Ramrati Devi and Ors.) 19. Admittedly, both the suits have been filed under the special procedure provided under Sec.14 of the Act for eviction on the ground of personal necessity as provided under section 11 (1) (c) of the Act, the relevant portion of which runs as follows : 11. Eviction of tenants.- (1) Notwithstanding anythings contained in any contract or law to the contrary but subject to the provisions of the Industrial disputes Act, 1947 (Act XIV of 1947) and to those of Sec.18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of decree passed by the court on one or more of the following grounds :- (c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefits the building is held by the landlord : 20 According to the said provision the plaintiff-landlord is required to prove that the premises is required for his own occupation or for the occupation of any person for whose benefit the building is held by him and such requirement is reasonable and bonafide. There should be a genuine need for occupation. Mere desire or wish is not sufficient to grant decree for eviction. The requirement should be reasonable and not excessive or immoderate. The Court has to be satisfied that the claim for occupation of the premises is a genuine one and is not a device to oust the defendant from the premises on the pretext of personal need. However, it does mean that the landlord has to prove the dire necessity. No doubt the Act is for the benefit of the tenants but that does not mean that the landlord requirement be interpreted in such a way as to make it impossible for the landlord to get a decree for eviction. However, it does mean that the landlord has to prove the dire necessity. No doubt the Act is for the benefit of the tenants but that does not mean that the landlord requirement be interpreted in such a way as to make it impossible for the landlord to get a decree for eviction. The question has to be judged and considered from the rational and reasonable point of the view. 21. The provision does not require that the landlord after the order of eviction should use the premises in the condition as it was before eviction. Nor he should use it for the same purpose for which it was used by the tenant. Once the order of eviction is passed on the ground of particular personal necessity that the landlord can construct or remodel the building in such a way as to satisfy his personal need. For example, if the landlord requires the premises, which is let out to tenant for residential purposes, for starting a business for his unemployed son and order of eviction is passed that the landlord may reconstruct the premises to satisfy the requirement of the business. However, if the landlord requires the premises for the purposes other than occupation then case will not be covered by section 11 (1) (c) of the Act. If the premises is required for the purposes of constructing a new building or opening a passage or for other purpose not covered by Sec.11 (1) (c) of the Act then no order for eviction icould be passed under the said provision. In my view, the relevant question to be determined is as to what is the ground of eviction. If it is found that eviction is sought on the ground of personal necessity and the same in proved then the right of eviction cannot be denied to the landlord only on the ground that to meet his personal necessity he will make changes in the building. 22. A division Bench of this Court in the case of Haji Abdul Ghaffar (supra) has considered the question as to whether the construction or re-construction of the building is covered by section 11 (1) (c) of the act. 22. A division Bench of this Court in the case of Haji Abdul Ghaffar (supra) has considered the question as to whether the construction or re-construction of the building is covered by section 11 (1) (c) of the act. From the facts of the said case it appear that the plaintiff filed a suit for eviction alleging that the Municipal Authority had issued a notice to him to demolish the Katra as the same had become dangerous and thereafter he submitted a plan to the municipal Authority for re-construction of the building and requested the tenant to vacate the premises so that he may demolish and re-construct the building but the defendant refused. In that case there was neither averment in the plaint nor any evidence that the plaintiff required the premises for his bonafide need. Both the Courts below found that the plaintiff did not require the building for his personal need and on the basis of the said proved facts this Court held that the word occupation occuring in section 11 (1) (c) of the Act does not include the construction or re-construction of the building. Thus, it is clear from the said judgment that there the plaintiff suit was not based on his personal need on the other hand, he had sought for eviction only for re-construction of the building. 23. In the case of Binapani Sarkar (supra) it has been found in paragraph-6 of the judgment that the courts below hadl found that the plaintiff was not able to establish that she needed the house for personal necessity that is for her own occupation. The paragraph-6 runs as follows ; "according to the appellants own case, even if the house be vacated, it cannot be occupied by her immediately. It requires extensive remodelling rather re-construction before she can occupy it. She hereself produced a sanctioned plan (Ext.9) for re-construction of the house. She has also got another house of her own where she lives at present and a new house had afready been partially constructed by her husband at the time of judgment of the lower appellate Court. Under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act)requirement by landlord for remodelling or re-constructing the house is not a ground for eviction of the tenant. Under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act)requirement by landlord for remodelling or re-constructing the house is not a ground for eviction of the tenant. Subclause (c)of section 11 (1) of the Act provides for eviction of a tenant only where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord. The provision in this regard of similar Acts of some other decisions of the High Courts of those States relied on by learned counsel for the appellant are not of real assistant in deciding the question. The courts below have recorded the finding that the appelleint was not able to establish that she needed the house for personal necessity, that is for her own occupation, after taking into consideration the entire material on the record. This is also a finding of fact which cannot be interfered by this Court at the second appellate stage. " In view of the said finding a learned single Judge of this Court held that the requirement of the laindlord for remodelling or re-construction of a house is no ground for eviction under Sec.11 (1) (c) of the Act. 24. In the case of Mahabir Prasad saraogi (supra) the plaintiff sought for eviction on the ground of personal necessity and other grounds. The personal necessity was that the plaintiff required the portion of the land where the house was situated for constructing another house on vacant land behind the house in suit. Dealing with the said facts a Division Bench of this Court held that the requirement of a portion of the suit premises for constructing another house on the vacant land behind the tenanted house cannot be a ground for eviction under Sec.11 (1) (c) of the Act. 25. In the case of Abdul Aziz Khan (supra) eviction was sought from the suit premises for opening a passage for going to another portion of his house. A learned single Judge relying upon the decision of this Court referred to above held that the eviction on the said ground is not covered either by section 11 (1) (c) or 11 (1) (f) of the act. 26. A learned single Judge relying upon the decision of this Court referred to above held that the eviction on the said ground is not covered either by section 11 (1) (c) or 11 (1) (f) of the act. 26. The case which have been relied upon by the petitioner are the authority on the point that the eviction sought for the purpose of re-constructing or remodelling, a building, over the suit premises or for opening a passage for going to the undisputed premises is not covered by the Section 11 (1) (c) of the Act for the reason that in such a case it cannot be said that the premises is required by the plaintiff for his own occupation or for the occupation of any other person for whose benefit the building is held by him. On the basis of the aforesaid decisions it cannot be said that even if the plaintiff proves his bonafide need for occupying building the decree for eviction will be denied to him on the ground that the plaintiff intends to reconstruct or remodel the house for the purpose of satisfying his need or occupation. 27. In the case of Ramniklal Pitambardas Mehta (supra) the Supreme Court was considering a case for eviction on the ground of personal necessity as covered under section 13 (1) (g) of the Bombay rents, Hotel and Lodging House Rates control Act, 1947. 28. It is to be stated that Section 13 (1) (hh) of the said Act provided for eviction on the ground of construction of a new building after demolishing the old one. The provisions of section 13 (1) (g) and (hh) of the said Act are as follows : 13 (1) Notwithstanding anything contained in this act but subject to the provisions of S.15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied. The provisions of section 13 (1) (g) and (hh) of the said Act are as follows : 13 (1) Notwithstanding anything contained in this act but subject to the provisions of S.15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied. (g) that the premises are reasonably and bonafide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purpose of the trust; or (hh) that the premises consist of not more than two floors and are reasonably and bonafide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished. 29. The provision of section 13 (1) (g) is similar to the provision of the Bihar Act. The plaintiff in that case sought for eviction on the ground that he required the entire house for his residential purposes. He stated that the suit Bunglow is a very old one and the same has to be demolished and another building has to be erected at that place. The question was whether the decree can be passed on the ground of personal requirement under Sec.13 (1) (g) of the Act It was contended on behalf of the tenant in that case that the case is covered by Sec.11 (1) (hh) and no eviction could be granted under Section 13 (1) (g) on the ground of personal necessity. Dealing with the said matter, the Apex court has held in paragraph-12 as follows : we agree with the Courts below that the respondents case falls under Cl. (g)when he bonafide requires the premises for his own occupation. The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not effect the question of his requiring the house bonafide and reasonably for his occupation, when he has proved his need for occupying the house. The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not effect the question of his requiring the house bonafide and reasonably for his occupation, when he has proved his need for occupying the house. There is no such prohibition either in the language of C. (g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alteration in it. There could not be any logical reason for such a prohibition. Under ordinary law, the landlord is entitled to eject his tenant whenever he likes, after following certain procedure except in cases where he has contracted not to eject him before the happening of a certain event. The Act restricts that general right of the landlord in the special circumstances prevailing in regard to the availability of accomodation and the incidental abuse of those circumstances by landlords in demanding unjustifiably high rents. 30. In the case of K. A. Anthappai (supra), the Supreme Court was dealing with a similar provision as contained in Sec.13 (3)of the Kerala Buildings (Lease and Rent Control) Act, 1965. Sec.11 (3)of the Act runs as follows; section 11 (3)-A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him; provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 31. Agreeing with the view taken in the case of R. P. Mehtas case (supra) the apex Court held as follows ; "the claim of the landlord that he needs the building bonafide for his personal occupation cannot be negatived on the ground that the building require repairs and alterations before the landlord occupies the same. " 32. 31. Agreeing with the view taken in the case of R. P. Mehtas case (supra) the apex Court held as follows ; "the claim of the landlord that he needs the building bonafide for his personal occupation cannot be negatived on the ground that the building require repairs and alterations before the landlord occupies the same. " 32. The provisions contained in Sec.11 (1) (c) of the act is similar to the provisions contained under the Rent Control acts considered by the Apex Court in the said cases and as such the law laid down in the aforesaid cases will apply with full force in dealing with a case of eviction on the ground of personal necessity under the aforesaid provision of the Act. In other words, the provisions under the Act have to be given the same meaning and interpretation as given by the Apex Court in the aforesaid cases. 33. The word occupation used under section 11 (1) (c) means possession which includes both the actual physical possession and deemed physical possession. If the premises is required by the landlord for his residence or opening a shop then it is case of actual physical possession and in case it is required for opening a hotel or guest house to meet his personal need then it is a case of deemed physical possession as in such a case he is not in actual physical possession. In both the cases on proof of bonafide need the landlord is entitled to decree for eviction. The said provision does not require that landlord after decree for eviction is passed in his favour on the ground of personal necessity should use the building in the same condition as it was before eviction. Nor it requires that the premises be used for the same purpose for which it was used by the tenant. Only requirement in law is that the landlord should prove his bonafide need for occupation. Once the need is established he is entitled to a decree for eviction and his right to recover possession cannot be denied on the ground that he will occupy the premises after remodelling or constructing a new building after demolishing the old premises. On account of his requirement or necessity or other relevant consideration he can make changes in the building. On account of his requirement or necessity or other relevant consideration he can make changes in the building. Thus, it is held that if the landlord asserts and establishes that the building is required reasonably and in good faith for his occupation or for the occupation for other person for whose benefit the building is held that he is entitled to a decree for eviction under section 11 (1) (c) of the Act. His right to eviction can not be denied or negatived on the ground that he further asserts that he will occupy the premises after reconstruction or remodelling or alteration with a view to satisfy his need in a useful and convenient manner. However, if the eviction is sought for on the ground that the building is required for construction of a new building or alteration or for opening a rasta etc. then such case will not be covered by Sec.11 (1) (c) of the Act for the reason that the building is not required for landlords occupation. The cases relied upon by the petitioners are an authority on the point that eviction on the ground for reconstruction or opening of passage is not covered by Sec.11 (1) (c) of the Act. I am in complete agreement with the proposition of law laid down in the said cases. It is made clear that if the construction work or alteration in the building is required at the instance of the authorities as mentioned in section n (1) (f) of the Act then landlord can be granted eviction under the said provision. 34. Now the facts of the each case has to be scrutinised to find out as to whether the ground of eviction is covered by section 11 (1) (c) of the Act or not and as to whether the Courts below were justified in granting decree for eviction. 35. In C. R. No.1519/91, the plaintiff has clearly stated that he has got only one room without lavatory in the ancestral house, which is not sufficient to meet the requirement of his family. He needs the suit premises for providing better accomodation to his ailing wife as weil as to the children whose education is suffering for want of room. While stating the aforesaid need he has also stated that as the house is delapidated one he will reconstruct the house to meet his need. 36. He needs the suit premises for providing better accomodation to his ailing wife as weil as to the children whose education is suffering for want of room. While stating the aforesaid need he has also stated that as the house is delapidated one he will reconstruct the house to meet his need. 36. In my considered view, after going through the pleadings it cannot be said that eviction has been sought for re-construction of building over the suit premises. The eviction has been sought for on the ground of personal necessity and the said necessity would be satisfied by re-construction of the old holding. The trial Court has found that the plaintiff requires the premises reasonably and in good faith for his own occupation and the said finding has not been challenged by the counsel appearing for the petitioner. Thus, the ground for eviction is covered by Sec.11 (1) (c) of the Act and the Trial Court has rightly decreed the suit. The question of partial eviction has also been considered according to the proviso to Sec.11 (1) (c) of the Act. Accordingly, there is no merit in the case and the same is dismissed. 37. So far Civil Revision No.1876/93 is concerned, from the pleadings it is clear that the eviction has been sought for on two grounds. Firstly, the plaintiff needs the premises to open a shop as he is selling eggs on the footpath and secondly, the plaintiff needs the premises to open a passage for going to other portion of the holding. So far as the second ground for eviction is concerned the same cannot be a ground for eviction under Sec.11 (1) (c)of the Act. The trial Court has not considered the case for eviction on the first ground though there is evidence on the record and has decreed the suit on the second ground that the landlord requires the permises tor the purposes of opening a passage for going to another portion of the house, which, in my view, is not sustainable in law. 38. 38. As the Trial Court has not given the definite finding with regard to the requirement of the building by the plaintiff for opening a shop for running his business the case has to be remitted to the Court below to give a specific finding on the said ground and thereafter to dispose of the suit in accordance with law before parting with this case, I may state that in Civil Revision No.1876/93 an additional submission was advanced on behalf of the petitioner that as there was earlier suit for eviction on the same grounds the present suit is barred by res-judicata. It is an admitted fact that earlier the suit was withdrawn by the order of the Court with a liberty to file a fresh suit. Once the earlier suit has been withdrawn after grant of permission by the Court to file fresh suit the filing of subsequent suit is not barred by res-judicata. 39. In the result, C. R. No.1591/91 is dismissed and C. R. No.1876/93 is remitted to the Court below for fresh decision in accordance with the direction given above. 40. In the facts and circumstances of the case there shall be no order as to costs.