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2001 DIGILAW 27 (CAL)

Sunil Chandra Dutta v. Amarendra Nath Das

2001-01-18

Bhaskar Bhattacharya

body2001
JUDGMENT Bhaskar Bhattacharya, J. This second appeal is at the instance of a plaintiff landlord in a suit for eviction, inter alia, on the ground of reasonable requirement and violation of clause (p) of section 108 of the Transfer of Property Act and is directed against the judgment and decree dated August 27, 1993 passed by the Additional District Judge, 8th Court, Alipore in Title Appeal No. 28 of 1993 thereby reversing those dated November 30, 1992 passed by the Assistant District Judge, 6th Court, Alipore in Title Suit No. 41 of 1990. 2. The aforesaid Title Suit No. 41 of 1990 was filed on various grounds including the aforesaid two grounds on which the learned Trial Judge was pleased to pass a decree. The said suit was contested by the tenant defendant by filing written statement thereby disputing the allegations made by the plaintiff. The specific defence of the defendant was that in the absence of some necessary parties to the proceeding, the suit was not maintainable and accordingly the notice of eviction served only on the defendants was invalid. In other words the defence of the tenant was that apart from the two defendants, there are other persons who are tenant in respect of the property along with those two defendants. 3. The learned Trial Judge on consideration of the materials on record decreed the suit only on the ground of reasonable requirement and on the ground that the defendants have violated the provision of clause (p) of section 108 of the Transfer of Property Act. 4. Being dissatisfied, the defendants preferred an appeal before the learned first appellate court below and by the judgment and decree impugned in this second appeal the said first appellate court has although affirmed the finding of the learned Trial Judge on the question of reasonable requirement and violation of clause (p) of section 108 of the Transfer of Property Act, but set aside the finding recorded by the learned Trial Judge as regards the validity of the suit in the absence of necessary parties. Thus the learned first appellate court dismissed the suit on the aforesaid ground of non-joinder of necessary parties and invalidity of ejectment notice. 5. Being dissatisfied, the plaintiff has come up with the instant second appeal. 6. Thus the learned first appellate court dismissed the suit on the aforesaid ground of non-joinder of necessary parties and invalidity of ejectment notice. 5. Being dissatisfied, the plaintiff has come up with the instant second appeal. 6. The tenant defendant has also filed a cross objection against the finding recorded by the learned first appellate court below on the question of reasonable requirement and violation of clause (p) of section 108 of the Transfer of Property Act. 7. At the time of admission of the aforesaid second appeal, although the same was admitted by the Division Bench on ground Nos. 4 and 5 as mentioned in the Memorandum of Appeal, after hearing the learned Counsel for the parties I have formulated the following additional point as, in my view, the same is substantial. "If an earlier suit is wholly dismissed, whether an adverse finding made against the defendant in such a suit can be res judicata in a subsequent suit filed by the plaintiff.". 8. I have heard Mr. Banerjee appearing on behalf of the appellant and Mr. Ghoshal on behalf of the respondents on the aforesaid question. 9. To appreciate the aforesaid point, it may not be out of place to mention here that in the past the present appellant filed a suit for eviction against the present respondents on the ground of default in payment of rent and reasonable requirement. In the said suit similar defence as regards non-joinder of necessary parties and consequently the defect of ejectment notice on that account was raised by the respondents. 10. The learned Trial Judge found that the respondent was, not a defaulter in payment of rent but decreed the suit on the ground of reasonable requirement against such decree, the defendants preferred an appeal before the learned first appellate court below, but the learned first appellate court below although affirmed all the findings recorded by learned Trial Judge in favour of the landlord but dismissed the suit on the ground that the suit having been filed within three years from the date of purchase by the present plaintiff was hit by the provision contained is section 13A (3) of the West Bengal Premises Tenancy Act. Thus on the ground that the suit was premature, the entire judgment and decree passed by the learned Trial Judge was set aside. 11. Thus on the ground that the suit was premature, the entire judgment and decree passed by the learned Trial Judge was set aside. 11. In the instant case while arriving at a finding on the issue of absence of necessary parties and validity of notice, the learned Trial Judge without considering the evidence on record answered the issue in favour of the plaintiff on the sole ground that the findings in the earlier suit on the aforesaid issues were res judicata in the instant one. Thus the learned Trial Judge was of the view that the defendants alone are the tenants under the plaintiff after surrender of the original tenancy by the erstwhile tenant and consequently ejectment notice served against the present defendant was valid. 12. The learned first appellate court, however, has held that the learned Trial Judge erred in law in holding that the previous finding on the question of non-joinder of parties and validity of notice could not be resjudicata and thereafter on consideration of the materials on record held that the defendants having raised the plea of surrender of earlier tenancy, it is the duty of the plaintiff to make all those heirs of the previous tenant as parties and that in the absence of those parties the suit was not maintainable. The learned first appeal late court below, however, did not consider whether there was really surrender of tenancy by the other heirs of the previous tenant. 13. As regards the finding on the question of reasonable requirement and violation of clause (p) of section 108 of the Transfer of Property Act, the learned first appellate court below simply stated that after considering the materials on record he had every reason to accept the finding of the learned court below on the issue Nos. 7,8 and 10. 14. After hearing the learned counsel for the parties and after going through the aforesaid materials I am unable to approve the judgment and decree passed by the learned first appellate court below. As pointed out by the Supreme Court in the case of Deua Ram & Anr. vs. Ishwar Chand & Anr., reported in (1995) 6 S.C.C. page 733, relied upon by Mr. As pointed out by the Supreme Court in the case of Deua Ram & Anr. vs. Ishwar Chand & Anr., reported in (1995) 6 S.C.C. page 733, relied upon by Mr. Ghoshal appearing on behalf of the respondents, it is now settled position of law that where a decree in a previous suit is wholly in favour of a person and he has no right of appeal against the decree so as to enable him to contest any adverse finding against him in such suit, such adverse finding cannot operate as a res judicata as against him in subsequent suit. 15. In the instant case, in the previous suit the tenant had no right of preferring any appeal against the order of the appeal court because the appellate court has dismissed the entire suit. Therefore, any adverse finding made by the court in that proceeding could not be resjudicata in the instant suit filed by the landlord. Mr. Banerjee however, vehemently contended by relying upon the decision of Apex Court in the case of Gangappa Gurupedappa Gugwad vs. Rachawwa and Ors., reported in AIR 1971 S.C. page 442 that even in such a case the finding recorded in the earlier suit will be res judicata. I am afraid I cannot accept such contention. In the aforesaid case of Gangappa Gurupedappa Gugwad (supra) the plaintiffs suit was dismissed not only on merit but also on the ground of absence of valid notice under section 80 of the Code of Civil Procedure. In a subsequent suit filed by the plaintiff it was held that the finding recorded in the earlier suit on merit would be res judicata. Therefore, in the said case the plaintiff had right of appeal against the finding made in the earlier suit. Thus, the decision would operate as res judicata in the second suit as be accepted the earlier decision. Similarly the case of Debabrato Mukherjee vs. Kalyan Kr. Roy, reported in 1983 (1) CHN page 241 was a case where the Court decided the issue as to the validity of the notice, but the basis whereof the plaintiff could sue and the decision went against the plaintiff. In such a case the finding on that issue would be res judicata for the simple reason that the plaintiff had right to prefer an appeal against the entire decision. In such a case the finding on that issue would be res judicata for the simple reason that the plaintiff had right to prefer an appeal against the entire decision. I thus find no substance in the aforesaid contention of Mr. Banerjee. 16. I, however, cannot support the finding of the learned first appellate court below that the other heirs of the previous tenant should be made necessary party simply because the issue as to the surrender has been raised by the defendant. If such a point is raised by the defendant, it is the duty of the court to decide such issue on the basis of the materials that will be placed by the parties and after considering such materials if the court is of the view that there was no surrender by the other heirs of the deceased, the court could answer the issue, but otherwise simply because such issue has been raised, the plaintiff is under no obligation to make other heirs of the previous tenant parties to the proceeding. 17. I also cannot approve the finding of the learned first appellate court below on the question of reasonable requirement and violation of clause (p) of section 108 of the Transfer of Property Act. I have already indicated that the learned first appellate court has simply stated that the learned Trial Judge assessed the evidence in respect of those issues quite correctly and came to correct finding. In my view, such finding is not a binding in the eye of law. The learned first appellate court below, being the last court of fact, ought to have at least discussed the respective contention of the parties with reference to the materials on record and arrived at his own finding after consideration of those materials on record. Therefore, the aforesaid finding on the issue of reasonable requirement and violation of clause (p) of section 108 of the Transfer of Property Act cannot be supported. 18. Since the suit is pending from 1990, in my view, instead of remanding the entire matter back to the appellate Trial Court there will be a limited remand on the issue Nos. 4, 5, 8 and also on the issue of reasonable requirement and violation of clause (p) of section 108 of the Transfer of Property Act on the basis of the materials on record. 4, 5, 8 and also on the issue of reasonable requirement and violation of clause (p) of section 108 of the Transfer of Property Act on the basis of the materials on record. The learned first appellate court below is hereby directed to come to his finding on the aforesaid questions afresh on the basis of the materials on record after giving opportunity to the parties to address on the aforesaid questions and shall return the findings with the reason therefor within two months from the date of communication of this order in terms of Order 41 Rule 25 of the Code of Civil Procedure. 19. With the aforesaid observation, this matter is remanded to the learned first appellate court below. Time limit fixed by this court is mandatory. 20. Let the records be immediately sent down by Special Messenger at the cost of the appellant. Such costs be put in by Monday next (22.1.2001). Matter remanded below with directions.