Sita Sah v. Ram Jatan Prasad — 1998 DIGILAW 431 (PAT)

Judgment B.P. Singh, J. The appellant in this appeal is the plaintiff-landlord whose suit for the eviction of the respondent-tenant was allowed by the Munsif, Patna city by Judgment and decree dated 30th September, 1985. The respondent-tenant preferred title Appeal No. 170 of 1985 which was allowed by the Addl. District Judge II, Patna by judgment and order dated 21st September, 1987 remanding the matter to the trial Court to dispose of the suit in the light of the observations made in the judgment. The aforesaid judgment and order of the Addl. District Judge II, Patna has been challenged in this appeal by the plaintiff-landlord. 2. The facts relevant for the disposal of the appeal may be noticed. The appellant-landlord filed a suit for the eviction of the respondent-tenant from the premises in question, on the ground of default in payment of rent as also on the ground of his bonafide personal need. According to the appellant the respondent was tenant of the premises in question since 1.5.1970 under registered agreement paying rent at the rate of 25/- per month. The respondent-tenant defaulted in the matter of payment of rent and thus rent for the months from April 1976 to December, 1976 remained unpaid compelling the appellant-landlord to file title Suit No. 1 of 1977 under the provisions of the Bihar Buildings Lease, Rent and Eviction Control Act. Apart from the ground of default, the appellant-landlord also pleaded that his son Krishna Prasad was an unemployed engineer and that he required the premises in question bonafide for his personal use as he needed the premises for his unemployed engineer son who intended to start a business in electrical goods. For that purpose, the premises in question was required by the appellant-landlord. 3. The respondent-tenant admitted the landlord-tenant relationship, but stated that he was a tenant since the year 1962 paying rent at the rate of Rs.25/- per month. According to the respondent, a sum of Rs.175/- was spent on the repair of the premises in question and this expense was incurred with the written consent of the landlord who had agreed that the amount so spent may be adjusted against the rent for the months April, 76 to October, 1976. He had tendered the rent for the month of November, 1976 but the appellant-landlord refused to accept the same. He also denied the bonafide personal need of the appellant landlord. He had tendered the rent for the month of November, 1976 but the appellant-landlord refused to accept the same. He also denied the bonafide personal need of the appellant landlord. 4. It is not in dispute that during the pendency of the suit, on an application made by the appellant-landlord under Section 15 of the Act, an order was passed by the Trial Court on 2.9.1983 directing the respondent-tenant to deposit the arrears of rent for the period November, 1980 to August, 1983 within 15 days of the date of the passing of the order failing which his defence would be struck off and he would not be permitted to cross-examine the witnesses produced on behalf of the plaintiff-landlord. Aggrieved by the aforesaid order the respondent tenant preferred Civil Revision No. 1367 of 1983 before this Court but the same was dismissed as withdrawn. However the High Court directed that the respondent tenant be allowed to adduce evidence on the question of adjustment pleaded by him. It is the case of the respondent tenant that the certified copy of the order passed in the civil revision matter was made available to him only on 1.11.1983 even though he had applied for the same on 27.9.1983 itself. After obtaining the certified copy of the order of the High Court, he deposited the arrears of rent on 3.11.1983. 5. It also appears from the record that the appellant-landlord filed an application on 16.11.1983 before the Trial Court for striking off the defence of the respondent-tenant as he had failed to deposit the arrears of rent as directed by the Court within the time granted. To this application, the respondent-tenant filed a rejoinder. The respondent-tenant also filed an application for condonation of delay in depositing the arrears of rent since he had moved the High Court in its revisional jurisdiction and since he could obtain a certified copy of the order only on 1.11.1983, where after he deposited the arrears of rent on 3.11.1983. 6. By order dated 19.4.1984 the trial Court allowed the application filed by the appellant-landlord striking off the defence of the respondent- tenant. It also rejected the application filed by the respondent tenant for condonation of delay holding that the provision of Section 15 was mandatory and, therefore, the delay could not be condoned. 7. 6. By order dated 19.4.1984 the trial Court allowed the application filed by the appellant-landlord striking off the defence of the respondent- tenant. It also rejected the application filed by the respondent tenant for condonation of delay holding that the provision of Section 15 was mandatory and, therefore, the delay could not be condoned. 7. Against the order dated 19.4.1984, the respondent-tenant preferred civil revision No. 781 of 1984 but the same was also dismissed by the High Court. According to the respondent-tenant he had filed an application on 5.7.1984 for permission to lead evidence and to cross-examine the witnesses produced by the plaintiff-landlord, but the said application was rejected on the same day. 8. On 8.7.1984, the trial Court passed an order that the respondent-tenant shall not be allowed to cross-examine the witnesses examined by the plaintiff landlord even on the question of default. This order was also challenged before the High Court in its revisional jurisdiction by filing Civil Revision No. 1154 of 1984. This Civil revision was also dismissed. 9. The suit was ultimately tried and disposed of by the Munsif, Patna City. The plaintiff-landlord examined witnesses in support of his plea of bonafide personal need as also on the question of default on the part of the respondent-tenant in payment of rent for more than two months. The trial Court held that the appellant landlord had proved his bonafide personal need. On the question of default, the trial Court held that the respondent-landlord had permitted him to incur an expense of Rs.175/- for the repair of the suit premises which was to be adjusted against rent for the months of April, 76 to October, 1976 was not established. The signature appearing on the receipt purporting to be that of the plaintiff-landlord, was not his signature as found by the expert. There was, therefore, no question of adjustment and the respondent-tenant was a defaulter in the eye of law. On both grounds, the suit for eviction was decreed. It may here be noticed that the respondent tenant was not allowed to plead a defence nor was he allowed to cross-examine the witnesses examined by the plaintiff on the question of default or even on the question of personal bonafide need. 10. Aggrieved by the judgment and decreed passed by the trial Court, the respondent-tenant preferred an appeal which was heard and disposed of by the Addl. 10. Aggrieved by the judgment and decreed passed by the trial Court, the respondent-tenant preferred an appeal which was heard and disposed of by the Addl. District Judge, II Patna being Title Appeal No. 170 of 1985. The appellate Court after noticing the facts of the case and the case law cited before him came to the conclusion that the appeal deserved to be allowed and the matter remanded to the trial Court for disposal in accordance with law after permitting the respondent-tenant to cross-examine the witnesses examined' on behalf of the plaintiff-landlord and to adduce such evidence as the respondent-tenant may wish to examine at the trial. It is this judgment and order of the appellate Court which is challenged before us in this appeal. This appeal was earlier heard by a learned Single Judge of this Court but the learned Judge ultimately directed that the appeal be heard by a division bench. That is now this appeal has been placed before us for hearing. 11. The appellate Court has primarily rested its decision on a finding that the order passed by the Trial Court striking off the defence by refusing to condone the delay in making the deposit of arrears of rent was not justified. The appellate Court has also held that the trial Court erred in not permitting the respondent-tenant to cross-examine the witnesses who had deposed in favour of the plaintiff-landlord. Counsel for the appellant submitted that the appellate court in effect has sat in judgment over three revisional orders passed by the High Court which he could not do and, therefore the appellate judgment ought to be set aside. It was submitted that the order dated 2.9.1983 directing the respondent-tenant to deposit the arrears of rent within 15 days was affirmed by the High Court by dismissing Civil Revision No. 1367 of 1983 on 27.9.1983. Since the respondent-tenant failed to deposit the rent as directed by order dated 2.9.1983, his defence was struck off and his application for condonation of delay in depositing the arrears of rent was also rejected by order dated 19.4.1984. This order was also challenged in Civil Revision No. 781 of 1984, but the said civil revision was also dismissed. By order dated 8.7.1984, the trial Court had directed that the respondent tenant shall not be allowed to cross-examine the witnesses examined by the plaintiff-landlord even on the question of default. This order was also challenged in Civil Revision No. 781 of 1984, but the said civil revision was also dismissed. By order dated 8.7.1984, the trial Court had directed that the respondent tenant shall not be allowed to cross-examine the witnesses examined by the plaintiff-landlord even on the question of default. This order was also challenged in Civil Revision No. 1154 of 1984 but the said revision was also dismissed. It was, therefore, submitted that in view of the orders of the High Court dismissing the Civil revision petitions thereby affirming several orders passed by the trial Court, it was not open to the appellate Court to go behind those orders passed in civil revision petitions and to find fault with the judgment and decree passed by the trial court on the ground that the defence ought not to have struck off and that the respondent-tenant should not have been prevented from cross-examining the witnesses examined on behalf of the plaintiff landlord. It was submitted that the earlier orders passed in the civil revision petitions operated as res-judicata and therefore, the respondent-tenant could not be allowed to plead defence or to cross-examine the witnesses examined on behalf of the appellant-landlord. The order of the trial Court merged with the order of the High Court and, therefore, the Addl. District Judge, the appellate Court, could not sit in judgment over the orders of the High Court. Counsel for the respondent-tenant has urged before us that orders passed under Section 115 of the Civil Procedure Code should not operate as res-judicata. The revisions were dismissed in limine and therefore, this Court did not give any decision or record any reason for its decision. Thus though the order of the trial Court remained, there was no decision by the High Court declaring the order of the trial Court to be good or bad. The mere fact that the High Court refused to exercise its revisional jurisdiction, did not amount to holding that the order of the trial Court was in accordance with law and could not be challenged in appeal against the final judgment and decree In the suit. The mere fact that the High Court refused to exercise its revisional jurisdiction, did not amount to holding that the order of the trial Court was in accordance with law and could not be challenged in appeal against the final judgment and decree In the suit. It was also submitted on behalf of the respondent-tenant that at the time when the trial Court dismissed the application filed by the respondent-tenant for condonation of delay in depositing the arrears of rent, it was unduly Influenced by the fact that several Judgments of this Court had held that the provisions of Section 15 were mandatory and that the Court had no discretion In the matter and could not extend time for depositing the arrears of rent. However, in A.I.R. 1975 Supreme Court, 964, this view of the High Court was reversed by the Apex Court which held that even in the matter of deposit of arrears of rent pursuant to an order passed under Section 15 of the Act, the Court had a discretion to condone the delay In appropriate cases and it was not correct in law to hold that the Court had no discretion in the matter and failure to deposit the arrears of rent within the prescribed period necessarily entailed striking off the defence of the tenant. It was submitted that the appellate Court has rightly taken notice in the change of law. According to him, change of law has to be given a wider meaning and ought not to be confined to changes brought about by legislation. It must include the changes brought about as a result of interpretation by courts of law. Learned counsel for the parties have relied upon several decisions in support of their• respective pleas and I shall now proceed to examine those decisions. 12. The first decision to be noticed is that of the Supreme Court in A.I.R. 1960 Supreme Court 941 (Satyadhyan Ghosal and others vs. Smt. Deorajin Debi and another). Before adverting to the principle laid down in the aforesaid decision, it would be necessary to briefly notice the facts of the case. The appellant-landlord in the appeal before the Supreme Court had obtained a decree for ejectment against the respondent-tenants on February 10, 1949. Soon after the decree was made, the Calcutta Thika Tenancy Act, 1949 came on the statute book. The appellant-landlord in the appeal before the Supreme Court had obtained a decree for ejectment against the respondent-tenants on February 10, 1949. Soon after the decree was made, the Calcutta Thika Tenancy Act, 1949 came on the statute book. The respondents-tenants made an application under O.9, R.13 of the Code of Civil Procedure on March 3, 1949, for having the decree set-aside. The application was dismissed on July 16, 1949. On September 9, 1949, another application was made by the respondents-tenants under Section 28 of the Calcutta Thika Tenancy Act alleging that they were Thika tenants and praying that the decree made against them in February, 1949 may be rescinde. By order dated November 12, 1951 the Munsif, holding that the applicants were not Thika Tenants within the meaning of the Act, dismissed the application. Against this order the respondents-tenants moved the High Court in its revisional jurisdiction tinder Section 115 of the Code of Civil Procedure. Before the matter could be taken up for hearing, the Calcutta Thika Tenancy Ordinance came into force on October 21, 1952 and Calcutta Thika Tenancy (Amendment) Act, 1953 came into force on March 14, 1953. The 1953 Amendment Act inter alia omitted Section 28 of the original Act. In order to decide whether the application under Section 28 was still alive the High Court had to consider the effect of Section 1 (2) of the Amendment Act which provided that the provisions of the Calcutta 'Thika Tenancy Act, 1949 as amended by the 1953 Act shall apply and be deemed to have always applied in proceedings pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance of 1952. The High Court held that Section 1 (2) of the Thika Tenancy Amendment Act did not affect the operation of Section 28 of the original Act to these proceedings and disposed of the matter on the basis that Section 28 was applicable. The High Court also held that the petitioners must be found to be Thika tenants. On such findings, the revision petition was allowed setting aside the order of the Munsif dismissing the application under Section 28 and the matter was remanded to the Munsif's Court for disposal in accordance with law. After remand the Munsif rescinded the decree. The High Court also held that the petitioners must be found to be Thika tenants. On such findings, the revision petition was allowed setting aside the order of the Munsif dismissing the application under Section 28 and the matter was remanded to the Munsif's Court for disposal in accordance with law. After remand the Munsif rescinded the decree. An application under Section 115 of the Code of Civil Procedure filed by the landlord against the Munsif's order was also rejected by the High Court. The High Court also held that the question of the applicability of Section 28 as between the parties was res judicata. It was against this order of the High Court that the appeal was preferred by the landlords before the' Supreme Court by special leave. Before the Supreme Court, it was urged on behalf of the appellant-landlord that after the amending Act came into force, Section 28 of the original Act did not apply to any proceeding pending on the date of the commencement of the Ordinance of 1952. This question was decided by the Supreme Court in another appeal judgment whereof is reported in A.I.R 1960 Supreme Court 936 holding that Section 28 of the original Act was not applicable to such proceedings. 13. It was in the context of the above facts that the respondent-tenant contended before the Supreme Court that the appellant was barred by the principle' of res judicata from raising before the Supreme Court the question whether on" the enactment of the Thika Tenancy Amendment Act, 1953, Section 28 of the original Act survives or not in respect of proceedings pending on the date of the commencement of the Ordinance, 1952. Repelling the argument advanced on behalf of the respondent-tenant, the Court observed; "The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigaion. Repelling the argument advanced on behalf of the respondent-tenant, the Court observed; "The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigaion. When a matter-whether on a question of fact or a question of law-has been decided between two parties n one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed n a future suit or proceeding between he same parties to convass the matter again. This principle of res judicata is embodied in relation to suits in S.11 of he Code of Civil Procedure; but even where S.11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is hat the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again. After considering the authorities cited he bar, it was observed; There can be little doubt the salutary effect of the rule as laid down in the above cases on the administration of justice. The very fact that in future litigation it will not be open to either of the parties to challenge the correctness of the decision on a matter finally decided in a past litigation makes it important that in the earlier litigation the decision must be final in the strict sense of the term. The very fact that in future litigation it will not be open to either of the parties to challenge the correctness of the decision on a matter finally decided in a past litigation makes it important that in the earlier litigation the decision must be final in the strict sense of the term. When a court has decided the matter it is certainly final as regards that court. Should it always be treated as final in later stages of the proceeding in a higher court which had not considered it at all merely on the ground that no appeal lay or no appeal was preferred ? As was pointed out by the Privy Council in Moheshur Singh's case, 7 Moolnd App 283, the effect of the rule that at every stage of the litigation a decision not appealed from must be held to be finally decided even in respect of the superior courts, will put on every litigant against whom an interlocutory order is decided, the burden of running to the higher courts for redress of the grievances, even though it may very well be that though the interlocutory order is against him the final order will be in his favour .and so it may not be necessary for him to go to the appeal court at all. Apart from the inevitable delay in the progress of the litigation that such rule would cause, the interests of the other party to the litigation would also generally suffer by such repeated recourse to the higher courts in respect of every interlocutory order alleged to have been wrongly made. It is in recognition of the importance of preventing this mischief that the Legislature included in the Code of Civil Procedure from the very beginning a provision that in an appeal from a decree it will be open to a party to challenge the correctness of any interlocutory order which had not been appealed from but which has affected the decision of the case." Ultimately the Court concluded : "It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand." 14. It would thus appear that the Court clearly held that when a court has decided the matter it is certainly final as regards that court. But the question arose as to whether the order should be treated as final in later stages of the proceeding in a higher court which had not considered it at all merely on the ground that no appeal lay or no appeal was preferred. The Supreme Court held that an interlocutory order which had not been appealed from either because no appeal lay, or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order. The Apex Court also noticed that from the order of the High Court remanding the matter, no appeal lay to the Privy Council and therefore, no appeal lay to the Supreme Court as well. After the order of remand and after the matter was finally decided, the correctness of the order of remand was challenged in an appeal from the final decision before a superior court. In such circumstances, the Superior Court was not precluded from going to the question of the correctness of the order of remand. The order of remand was interlocutory order which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order. The Court therefore allowed the appeal and following its decision in A.I.R. 1960 Supreme Court 936 held that the Courts below were in error in rescinding the ejectment decree. The order of remand was interlocutory order which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order. The Court therefore allowed the appeal and following its decision in A.I.R. 1960 Supreme Court 936 held that the Courts below were in error in rescinding the ejectment decree. It is, therefore, of significance to notice that the order of the High Court remanding the matter to the Court of the Munsif was not challenged earlier in any proceeding and was challenged ultimately in the appeal before the Supreme, Court since the High Court refused to entertain the plea on the ground that it was barred by the principle of res judicata. It is also significant that the Court held as a matter of principle that a matter decided by a court is certainly final as regard that court but can be challenged in an appeal before a superior court. 15. The decision in Satyadhyan Ghosal was followed in A.I.R. 1964 Madhya Pradesh 288 (Shyamacharan Raghubar Prasad vs. Sheojee Bhai Jairam Chattri and another). After noticing the aforesaid decision of the Supreme Court, their lordships held; "The judgment of the Supreme Court in Satyadhyan's case, AIR 1960 SC 941 (Supra) makes it clear that an interlocutory order is final as regards the court making that order. But its correctness can be challenged in an appeal from the final decree or order even though no appeal had been, filed against the interlocutory order either because none lay or because even though an appeal lay none was filed. On the principles laid down by the Supreme Court in Satyadhyan's case, AIR 1960 SC 941 (Supra), there can be no doubt that the order of Bhargava, J., dated the 26th October 1962 made in G.R. No. 385 of 1962, was final as regards this Court. Its correctness could not be challenged in this Court. It could be challenged only before the Supreme Court in an appeal from the final decree. Its correctness could not be challenged in this Court. It could be challenged only before the Supreme Court in an appeal from the final decree. It is important to note in Satyadhyan's case, while holding that the landlord-appellants before them were not precluded from raising in the Supreme Court the question of availability of Section 28 of the original Thika Tenancy Act to the tenants, the Supreme Court nowhere said in that decision that the view taken by the Calcutta High Court that the landlords could not in the revision petition they filed raise this question, which was res judicata between the parties as it had been decided in the revision petition filed earlier by the tenants, was erroneous." Their lordships also noticed Section 105 of the Code of Civil Procedure and observed that the provision only postpones the challenge to an interlocutory order till an appeal is preferred from the final decree. But the challenge must be in an appeal from the final decree filed not in the Court making the interlocutory order impugned, but in the appeal ultimately taken to the higher court from the final decree. 16. In A.I.R. 1963, Punjab, 187 (Balkishan Dass v. Parmeshri Dass deceased substituted by Madhuri Sharan Sharma and others), it was held following the decision of the Supreme Court in Satyadhyan's case that where an interlocutory order is heard on merits either in appeal or in revision, the matter becomes res judicata. Their lordships also referred to a decision of the Hyderabad High Court reported in A.I.R. (38) 1951 Hyderabad 132 (Laxminarayan vs. Sultan Jehan Begum), wherein it was held; "A ruling of the Madras High Court has been cited in Pichu Ayyangar v. Ramanuja, A.I.R. (37) 1940 Mad, 756 & it is said to be an authority for the proposition that whenever a decision of a Bench of the High Court has been delivered in interlocutory orders that finding is not final & can be reagitated in an appeal from the final judgment of that case under S. 105, Indian Civil P.C. (S. 606, Hyderabad Civil P.C.). S. 105 provides that 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 memo, of appeal. S. 105 provides that 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 memo, of appeal. Of course that section enables the appellant to contend the validity or correctness of the orders passed in the course of a civil trial in case they are material' & affect the decision. But, in my opinion that section does not authorise the appellate Court to reconsider or interfere in the judgment of a Court whose orders are not liable to be treated in an appeal as orders of a Subordinate Court provided these orders are within the competence of that Court & have the character of being final & conclusive as between the parties." This decision also emphasises the fact that the court which is entitled to reconsider the question as to the correctness of an interlocutory order earlier passed must be a court to which an appeal can be preferred under Section 105 of the Code of Civil Procedure and this must mean a superior court and not the same court which passed the interlocutory order at the earlier stage. 17. This takes me to a consideration of the decision of the Supreme Court in A.I.R. 1970 Supreme Court, 1, (Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatraya Bapat) on which considerable reliance has been placed by counsel for the appellant. The facts of the case 'were that the appellant was the owner of a house in Poona and in respect of a block of four rooms on the first floor of the house, the respondent was a teacher. The respondent was transferred to another town where he was allotted suitable residential accommodation but his son however stayed in Poona as he was studying there. The appellant filed a suit for possession of the suit premises inter alia on the ground that the respondent had acquired suitable accommodation elsewhere. The application was contested by the respondent. The trial Court held that only a part of the premises which were required by the son should be vacated. It granted a decree for possession of two out of four rooms and directed proportionate reduction of the rent. The appellant as well as the respondent preferred appeals in the court of the District Judge. The trial Court held that only a part of the premises which were required by the son should be vacated. It granted a decree for possession of two out of four rooms and directed proportionate reduction of the rent. The appellant as well as the respondent preferred appeals in the court of the District Judge. The appellate Court disposed of the appeal on a finding that the Court was not empowered to bifurcate the premises, but the decree was affirmed on the ground that the order of the trial Court was an equitable one. The respondent tenant preferred a revision under Section 115 of the Code of Civil Procedure which was dismissed by a learned Single Judge of a High Court as he was not satisfied that the appellate Court had acted in the exercise of its jurisdiction illegally or with material irregularity. Thereafter the respondent tenant tiled a writ petition under Articles 226 and 227 of the Constitution of India challenging the same order of the appellate Court. The writ petition was entertained and ultimately allowed. The order of the Division Bench allowing the writ petition was challenged before the Supreme Court. The Supreme Court noticed the limits of the jurisdiction of the High Court under Section 115 of the Code of Civil Procedure, but the question still arose that if the revisional jurisdiction is invoked and both parties are heard and an order is made, whether the order of the subordinate court merges in the order of the High Court. If there is such a merger, the order is only of the Higher Court and therefore, the order of the Subordinate Court cannot be challenged or attacked by another set of proceedings in the High Court. Only if it was held that by dismissal of the revision petition the order of the Subordinate Court had not merged in that of the High Court that it may be open to a party to invoke the extraordinary jurisdiction of that Court. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a Subordinate Court in writ petition when a petition for revision under Section 115 of the Code of Civil Procedure against the same order had been dismissed. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a Subordinate Court in writ petition when a petition for revision under Section 115 of the Code of Civil Procedure against the same order had been dismissed. Their lordships considered the authorities on the subject and observed that a right of appeal was one of entering a superior court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior courts and the power on the part of the former to review decisions of the latter. The appellate jurisdiction may be exercised in a variety of forms, and, indeed, in any form in which the legislature way choose to prescribe. The Court then concluded; "Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of .merger of orders of interior courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal." 19. The Supreme Court therefore, allowed the appeal and set aside the judgment of the Division Bench in the writ petition filed on behalf of the respondent. It also found that the High Court was not justified in exercising its jurisdiction under Articles 226 and 227 of the Constitution of India when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. 20. The judgment of the Supreme Court in Shankar Ramchandra Abhyankar case is not based on the principle of res judicata but on the principle of merger. 20. The judgment of the Supreme Court in Shankar Ramchandra Abhyankar case is not based on the principle of res judicata but on the principle of merger. It proceeds on the basis that even the exercise of revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure is a part of the general appellate jurisdiction of the High Court as a superior court. Once the order of the Subordinate Court merges with the order of the High Court, the order is that of the High Court and the said order cannot be challenged before the High Court by resorting to another set of proceeding before the High Court in respect of the same order of the Subordinate Court. The principle laid down in the aforesaid judgment, no doubt, supports the convention of the appellant that the earlier orders passed by the Sub-ordinate Court merged with the orders passed by the High Court in exercise of its revisional jurisdiction and it was not permissible in law to .make a distinction between a petition for revision and an appeal since exercise of revisional jurisdiction is a part of the general appellate jurisdiction of the High Court as a superior court. This takes me to a consideration of the decision of the Supreme Court in A.I.R. 1971 Supreme Court 2355 (Mathura Prasad Sarjoo Jaiswal and others vs. Dossibai N.B. Jeejeebhoy). The facts of the case were that the respondent Dossibai had granted a lease of 555 sp. yards n village Pahadi to appellant Mathura Prasad or constructing buildings for residential or business purposes. The appellant constructed buildings on the land. He thereafter submitted an application in the Court of Civil Judge that the standard rent of the land be determined under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Civil Judge rejected the application holding that the provisions of the Bombay Act did not apply to open land let for constructing buildings for residence, education, business, trade or storage. The Civil Judge rejected the application holding that the provisions of the Bombay Act did not apply to open land let for constructing buildings for residence, education, business, trade or storage. In a group of revision applications, the learned Single Judge of the Bombay High Court confirmed the order on September 28, 1955, but in subsequent case reported in AIR 1957 Bombay, 94, the High Court held that the question whether Section 6(1) of the Act applies to any particular lease must be determined on its terms and a building lease in respect of an open plot is not excluded from Section 6(1) of the Act solely because open land may be used for residence or educational purposes only after the structure is built thereon. In view of the subsequent decision of the Bombay High Court, the appellant Mathura Prasad, tenant, tiled a fresh petition in the Court of the Small Causes Bombay for an order determining the standard rent of the premises. The Trial Judge rejected the application holding that the question whether to an open piece of land let for the purpose of constructing buildings for residence, education etc. Section 6(1) of the Act applied was res judicata since it had been finally decided by the High Court between the same parties in respect of the same land in the earlier proceeding for fixation of standard rent. This order was confirmed by a bench of the Court of the Small Causes as also by the High Court of Bombay. Against the judgment of the High Court, the appellant appealed to the Supreme Court by Special leave. The earlier judgment of a learned Single Judge of the Bombay High Court was overruled by the Supreme Court in AIR 1966 Supreme Court 1936 and the decision of the Bombay High Court in AIR 1957 Bombay 94 was affirmed by the Supreme Court. The question arose before the Supreme Court as to whether the High Court was right in holding that the question regarding application of Section 6(1) of the Act could not be reagitated as the same was barred by res judicata. After considering the authorities, the Supreme Court succinctly laid down the principle thus; "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. After considering the authorities, the Supreme Court succinctly laid down the principle thus; "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in S.11 Code of Civil Procedure, means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law appliable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land." It was, therefore held that the decision of the Civil Judge that he had no jurisdiction to entertain the application for determination of standard rent was plainly erroneous in view of the judgment of the Supreme Court in A.I.R. 1966 Supreme Court 1939. If the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. The appeals were accordingly allowed. 21. If the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. The appeals were accordingly allowed. 21. Mathura Prasad is therefore an authority for the proposition that the principle of res judicata must apply if the matter in issue decided in the earlier proceeding by a competent court be an issue purely of fact or a mixed question of law and fact or where the decision is on a question of law i.e. the interpretation of a statute. But the principle of res judicata will not apply where the question is one purely of law and relates to the jurisdiction of the Court. 22. There are two decisions of this Court both rendered by single Judges of this Court reported in A.I.R. 1974 Patna 153 (Ramsarup Dass and others vs. Pyare Das and another) and 1983 Bihar Law Journal Reports 486 : 1983 PLJR 439 (Shankar Sahu vs. Niranjan Prasad), which have been noticed by the appellate Court and really speaking the decision of the appellate Court is based on these decisions. In Ramsarup Dass and others vs. Pyare Das & another (A.I.R. 1974 Patna 153) an order passed by the lower appellate Court of taking additional evidence was confirmed by the High Court in revision. On the basis of the additional evidence adduced in the proceeding, the suit was decreed. In second appeal, it was contended that the order of taking additional evidence was illegal and decision based on such evidence was vitiated. The submission was rejected and it was held that the order of taking additional evidence was illegal and decision based on such evidence was vitiated. The submission was rejected and it was held that the order of taking additional evidence had become final after the order of the High Court and as such it was not open for attack in the appeal under the provisions of Section 105 of the Code of Civil Procedure. The learned Judge noticed the decision of the Supreme Court in AIR 1970 Supreme Court 1 and held that in view of the principles laid down in the aforesaid decision, the contention must be rejected. The learned Judge noticed the decision of the Supreme Court in AIR 1970 Supreme Court 1 and held that in view of the principles laid down in the aforesaid decision, the contention must be rejected. The learned Judge also referred to the decisions reported in AIR 1963 Punjab 187 and AIR 1964 Madhya Pradesh 288 which have been noticed earlier in this judgment. In Shankar Sahu vs. Niranjan Prasad ( 1983 BLJR 486 ) the facts were quite different. In a suit for eviction of the petitioners from the building in question, an application was filed by the landlord under Section 11-A of the Bihar Buildings Lease, Rent and Eviction Control Act, 1947 for a direction on the petitioners to deposit the rent from the date of the institution of the suit at the rate of Rs.150/- per month and also the rent month to month. That prayer was allowed by the trial Court but in revisional jurisdiction while upholding the order of the trial Court, the High Court modified the order to the extent that the petitioners were directed to deposit the rent at the rate of Rs.55/- per month, the initial contractual amount, although the rate at which the rent was last paid was Rs.150/- per month. Ultimately the suit was decreed by the trial Court. The petitioners/tenants filed an appeal against the decree for eviction and in that appeal the landlord filed an application for a direction that the petitioners be directed to deposit the arrears of rent during the pendency of the appeal. The Court below directed the petitioners/tenants to deposit (a) the current rent from month to month at the rate of Rs.150/- per month and (b) the balance of the arrear rent from the date of the institution of the suit which was earlier deposited in the trial court at the rate of Rs.55/- per month instead at the rate of Rs.150/- per month. Before the High Court, the second part of the order was challenged by the petitioners/tenants and it was urged on their behalf that in view of the earlier order passed by the Court in the civil revision application, the Court below had no jurisdiction to sit over the order of the High Court passed in Civil revision application as that would amount to revising or modifying the order of this Court. It was contended that so far the period from 3.1.1976 to December 1977 was concerned, the order passed by the High Court in the civil revision petition operated as res judicata. On the other hand, it was contended that in view of the Full Bench decision of the High Court, the lower appellate Court had jurisdiction to direct the petitioners/tenants to deposit the balance arrear of rent at the rate of Rs.95/- per month since the earlier order of the High Court in Civil revision application did not operate as res judicata. It may be noticed at this stage that when the High Court disposed of the Civil revision petition earlier the Full Bench judgment of this Court was not available which held that the rent to be deposited both current as well as arrears will be at the rate of rent last paid and not the rate of rent which was payable by the tenant at the inception of the tenancy. The learned Judge held that the law laid down by the Full Bench of this Court was binding, and shall be deemed to be the law throughout. On the date on which the impugned order was passed the law had been clearly laid down that the tenant was liable to deposit the rent at the rate last paid. Moreover, an order to deposit the rent during the pendency of the suit had no effect on the final adjudication of the issues. Such an order being interlocutory in nature remained in force till the disposal of the proceeding at that stage. After the disposal of the suit by the trial Court, the order spent its force and the appellate Court was required to pass a fresh order with regard to deposit of rent pending the disposal of the appeal. The interlocutory order was final so long the suit was pending in the trial Court and could operate as res judicata only upto that stage. There after the appellate Court shall have to pass a fresh order if a prayer is made before it and the appellate Court was required to pass an order in terms of the law then prevailing, notwithstanding any order passed at the trial stage. 23. There after the appellate Court shall have to pass a fresh order if a prayer is made before it and the appellate Court was required to pass an order in terms of the law then prevailing, notwithstanding any order passed at the trial stage. 23. To my mind, the judgment of this Court in Shankar Sahu's case does not help the respondent because the interlocutory order passed during the pendency of the suit with regard to deposit of rent spent its force after the suit was disposed of. In an appeal preferred by the tenant, upon an application being made by the landlord for deposit of rent during the pendency of the appeal, the court was required to pass a fresh order. No question of res judicata therefore, arose and in any event, order passed by the appellate Court was in accordance with the Full Bench decision of this Court which was not available when the order was passed for deposit of rent pending the trial. Since the appellate Court is required by law to pass a fresh interlocutory order in the appeal, it may not be possible to invoke the bar of res judicata in such a case. 24. Having regard to the principles laid down in the aforesaid decisions, the facts of this case in so far as relevant may be recapitulated. The order of the trial Court to deposit the arrears or rent for the period November, 1980 to August, 1983 within 15 days failing which the defence of the tenant to be struck off and he shall not be allowed to cross-examine the witnesses examined by the plaintiff-landlord, was affirmed by the High Court by order dated 27.9.1983 dismissing the Civil revision No. 1367 of 1983. The order of the trial Court therefore, merged in the order of the High Court. Similarly the order of the trial Court dated 19.4.1984 striking off the defence of the tenant and rejecting his application for condonation of delay in making the deposit, merged in the order of the High Court which dismissed Civil revision No. 781 of 1984 preferred against the order of the trial Court dated 19.4.1984. Similarly the order of the trial Court dated 19.4.1984 striking off the defence of the tenant and rejecting his application for condonation of delay in making the deposit, merged in the order of the High Court which dismissed Civil revision No. 781 of 1984 preferred against the order of the trial Court dated 19.4.1984. Lastly the order of the Trial Court dated 8.7.1984 directing that the tenant shall not be allowed to cross-examine the witnesses of the plaintiff even on the question of default, stood merged in the order of the High Court passed in Civil revision No. 1154 of 1984 whereby the Civil revision petition was dismissed. It therefore follows that applying the principle of merger the impugned orders passed by the trial Court stood merged with the three orders passed by the High Court in exercise of revisional jurisdiction. The orders of the High Court are not the subject matter of challenge in the instant appeal, and it is not open to contend that those orders should be held illegal in the instant appeal. The appeal contemplated under Section 105 of the Code of Civil Procedure is an appeal before a forum which is entitled to entertain the appeal. An order passed by this Court in exercise of its revisional jurisdiction cannot be challenged in an appeal arising out of the final order passed in the suit. I must, therefore, hold that in this appeal three orders passed in the Civil revision petitions cannot be challenged having regard to the law declared by the Supreme Court in AIR 1970 Supreme Court 1. It may be that those orders may be challenged before a Superior Court if an appeal is preferred, because such superior court had no occasion to pronounce upon the legality or otherwise of the orders passed by this Court in exercise of revisional jurisdiction. This was so held in AIR 1960 Supreme Court 941. The Court held in clear terms that when a Court has decided the matter it is certainly final as regards that Court. But in later stages of the proceeding in a higher court which had not considered the correctness of the order, it may be open to the aggrieved party to challenge the correctness of such an order against which no earlier appeal has been preferred. But in later stages of the proceeding in a higher court which had not considered the correctness of the order, it may be open to the aggrieved party to challenge the correctness of such an order against which no earlier appeal has been preferred. Applying the ratio of the aforesaid two decisions of the Supreme Court, it appears to me that the orders passed by the trial Court merged in the orders of this Court which were passed in the exercise of revisional jurisdiction. In the application of the principle of the merger of the orders of inferior courts in those of superior courts, no distinction can be made between exercise of appellate jurisdiction and exercise of revisional jurisdiction because the exercise of revisional jurisdiction is really a part of the general appellate jurisdiction of the High Court as a superior Court. As a result of the merger, the orders that remained are the orders of the High Court which may be challenged under Section 105 of the Code of Civil Procedure before a superior Court by way of appeal. So far as this Court is concerned, the orders passed earlier in exercise of revisional jurisdiction cannot be assailed in an appeal filed against final decree passed in the suit because this Court cannot entertain an appeal against its own order passed in revisional jurisdiction. In any event, in the instant appeal, the interlocutory orders earlier passed by the Court in its civil revisional jurisdiction cannot be challenged because as laid down in AIR 1960 Supreme Court 941, wren a Court has decided the matter it is certainly 'final as regards that Court, though it may not be treated as final in later stages of proceeding in a higher court which had not considered at any stage the correctness of such interlocutory orders. Against final decree, all in, terlocutory orders passed may be challenged in view of the provisions of Section 105 of the Code of Civil Procedure, but the forum where such challenge can be entertained must be appellate forum entitled to entertain appeals against the order of the court passing such interlocutory orders. Against final decree, all in, terlocutory orders passed may be challenged in view of the provisions of Section 105 of the Code of Civil Procedure, but the forum where such challenge can be entertained must be appellate forum entitled to entertain appeals against the order of the court passing such interlocutory orders. The decision of Supreme Court in AIR 1971 Supreme Court 2355 does not help the respondents because the jurisdiction of the trial Court was never in dispute, the only grievance being that it had erroneously passed an order having regard to the facts and circumstances of the case. 25. In view of the finding arrived at by me that the orders passed by this Court in exercise of revisional jurisdiction cannot be challenged in this appeal, I must hold that the lower appellate Court was not justified in remanding the matter to the trial Court since the interlocutory orders passed by the trial Court merged with the orders passed by the High Court in exercise of its revisional jurisdiction, the trial Court cannot after remand, find fault with the orders passed by this Court in exercise of revisional jurisdiction. If those orders are final so far as this Court is concerned, they also must be final so far as the trial Court is concerned. The appellate Court, therefore, committed an error in allowing the appeal and in remanding the matter to the trial Court. 26. Counsel for the respondent submitted that in view of the judgments of the Supreme Court reported in AIR 1985 Supreme Court 964 (Ganesh Prasad Sah Kesari and another Vs. Lakshmi Narayan Gupta) and AIR 1989 Supreme Court 291 (Manmohan Kaur vs. Surya Kanta Bhagwandi), the Court trying the suit has jurisdiction to condone the delay in making the deposit under Section 15 of the Act. The trial court erroneously rejected the application on the ground that the provision was mandatory, and no extension of time to make the deposit could be allowed. It was, therefore, submitted that the Trial Court ought to have considered the application for condonation of delay and allowed the same. In any event, it was submitted that in the event of defence being struck off, the tenant was still entitled to cross examine the witnesses examined on behalf of the plaintiff landlord. It was, therefore, submitted that the Trial Court ought to have considered the application for condonation of delay and allowed the same. In any event, it was submitted that in the event of defence being struck off, the tenant was still entitled to cross examine the witnesses examined on behalf of the plaintiff landlord. The trial Court as well as the High Court wrongly held that he was not entitled to cross-examine the witnesses examined on behalf of the plaintiff landlord. Since this is not an appeal against the orders passed by this Court in the three civil revision petitions it is not for us to pronounce upon the correctness of those orders. May be, there is substance in the contention of the respondent, but this Court is precluded from going into the correctness of its earlier orders which can only be challenged before the appropriate forum, namely, a superior Court which is entitled to entertain appeals against those orders. 27. In this view of the matter, I have no option but to allow the appeal and to set aside the judgment and order of the Addl. District Judge II, Patna in Title Appeal No. 170 of 1985 dated 21st September, 1987 and to remand the matter to the appellate Court to decide the appeal in the light of this judgment.