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2002 DIGILAW 1219 (RAJ)

Kamla Devi v. Hari Ram

2002-07-12

S.K.KESHOTE

body2002
JUDGMENT 1. - These two revision petitions though arise from the two different suits, but the suits were between the same parties and pertaining to the eviction of tenant from the suit premises. Identical orders have been passed in these two suits on the applications filed by the plaintiffs under Order 6 Rule 17 Civil Procedure Code. These revision petitions are being taken up for hearing and are being decided together by this common order. Both these revision petitions are also ordered to be tagged together and that is an another reason for which these matters are to be taken up together for hearing and decision. 2. For the decision of these matters, the facts and grounds of challenge to the orders are being taken from S.B. Civil Revision Petition No. 191/2001. 3. The suit for eviction on the ground of default in payment of rent, sub-letting and non-user of the tenanted premises has been filed by the plaintiff respondents hereinafter referred as the plaintiffs) against late Shri Jawari Lal. Shri Jawari Lal is the father of the present defendant petitioners. 4. The premises is a shop situated at Holi Dada, Ajmer bearing Municipal No. 7/220. 5. Written statements in the suit was filed by late Jawari Lal. 6. During the pendency of the suit Jawari Lal passed away in 1998. The plaintiff respondents filed an application under Order 22 Rule 4 Civil Procedure Code on 19.12.1998 to bring the heirs and legal representatives of Jawari Lal on record in the suit. In his place the petitioners were impleaded as defendants as per the prayer made in that application by the plaintiffs. 7. The plaintiffs thereafter filed an application under section 2 (11) read with Section 151 Civil Procedure Code with regard to the provisions of Section 3(vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, therein it was stated that none of the legal heirs and representatives of late Jawari Lal was doing business with him during his lifetime and till his death and tenancy rights in the tenanted premises do not inherit upon his any of successors as per the aforesaid provisions of the Act. Prayer has been made that the heirs and legal representatives of Late Jawari Lal are not within the ambit of tenant and tenancy rights have not been inherited to them and therefore, their possession of the rented shop is as of a trespasser and they are liable to be evicted. 8. This application was contested by the petitioners. After hearing rival contentions of the parties, learned trial court under its order dated 8.10.1999 had rejected the application of the plaintiffs. 9. It is not in dispute that the order dated 8.10.1999 passed by the trial court on this application of the plaintiffs respondents has not been challenged by them. 10. The plaintiffs moved another application under Order 6 Rule 17 Civil Procedure Code on 5.7.2000 praying therein for grant of permission to amend the plaint. By this application they proposed to add para 4-A to the plaint which reads as under : HINDI MATTER 359678A 11. This application was replied by the defendant petitioners and it was contested on the ground that the proposed amendment is false, vague and if it is allowed, then it will prolong the disposal of the civil suit. It was further replied that the present amendment is barred by the principle of res judicata as the same question has earlier been decided by the trial court vide its order dated 8.10.1999. This application came to be allowed by the learned trial under its order dated 29.11.2000, hence these revision petitions. 12. Learned counsel for the defendant petitioners submitted that the court of the court below is barred by the principles of res judicata. It is urged this very question was earlier considered and decided by the learned trial c under its order dated 8.10.1999. Relying on the decision of the Apex Court of the case of Satyadhyan Ghosal and others v. Smt. Deorajin Dabi another,- AIR 1960 SC 941 , it is contended that in the same proceeding different stages the principles of res judicata are applicable i.e. once the m, is decided that cannot be reagitated and decided by the court again. Last is contended that the plaintiffs themselves have applied for the substitutic the petitioners as heirs and legal representatives of Late Jawari Lal in the of eviction, they are now estopped from raising this point to non-suit them. Last is contended that the plaintiffs themselves have applied for the substitutic the petitioners as heirs and legal representatives of Late Jawari Lal in the of eviction, they are now estopped from raising this point to non-suit them. It is a case where, it is submitted, by this amendment the plaintiffs are seeking to take out their admission made in favour of the petitioners. 13. In contra, learned counsel for the plaintiffs submitted that this revision petition is not maintainable as in passing the impugned order the learned court has not committed any material irregularity in exercise of its jurisdiction In support of this contention reliance is placed on the decision of the Apex Court in the case of The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and another,- AIR 1976 SC 2621 . It has next been contended that in the matter of grant of amendment in the pleadings, the court has to liberal view and where the court has granted the amendment considering it to be necessary for decision of the suit, interference of this court is not called for under section 115 Civil Procedure Code. 14. Replying to the contention of the learned counsel for the defendant petitioners are res judicata, it is contended that this principle is not applicable in the facts of this case. Earlier this court has not decided the matter finally Learned counsel for the plaintiffs has read out for the court the order passed by the learned trial court earlier in these proceedings on 8.10.1999. Replying to the contention raised that by this amendment the plaintiffs are seeking to take out the admission earlier made, it is urged that this principle is also not applicable in the facts of this case. At the most it is a case where the plaintiff are giving and furnishing explanation for their earlier alleged admission. Lastly it is contended that Late Jawari Lal tenant expired during the pendency of the suit and under section 3 (vii) (b) of the Rajasthan Premises (Control of Rent & Eviction Act, 1950 deals with the devolving of tenancy rights to the heirs and legal representatives of the category as enumerated therein. Lastly it is contended that Late Jawari Lal tenant expired during the pendency of the suit and under section 3 (vii) (b) of the Rajasthan Premises (Control of Rent & Eviction Act, 1950 deals with the devolving of tenancy rights to the heirs and legal representatives of the category as enumerated therein. Conditional tenancy rights after the death of tenant devolved upon his/her heirs and in view of this provision the amendment of the plaint was necessary and that is how it has been prayed for and rightly the learned trial court has allowed it in which this court may not interfere. 15. To appreciate and decide the points raised for consideration, I consider it to be appropriate to reproduce here in this order the order of the learned trial court dated 8.10.1999 and the provisions of Section 3 (vii) (b) of the Act afore-stated which are as under : HINDI MATTER 359678B 3 (vii) (b): In the event of death of the person as is referred to in sub-clause (a) his surviving spouse/son/daughter and other heir in accordance with the personal law applicable to him who had been in the case of premises leased out for residential purposes ordinarily residing and in the case of commercial purposes, ordinarily carrying on business with him in such premises as member of his family upto his death.' 16. Clause (vii) to Section 3 of the Act afore-stated was substituted by Section 3 (ii) of the Rajasthan Act No. 40 of 1976 published in the Rajasthan Gazette Extraordinary Part 4A dated 13.2.1976. This substitution has been brought in the Act to meet out the hardship which the heirs and legal representative of a statutory tenant were facing after his death. Statutory tenancy was not heritable and as a result of which on death of this tenant his heirs and legal representatives were not having any statutory protection as given to the tenants under the Act afore-stated. However, to the heirs and legal representatives of the statutory tenant on his death, a restricted right of devolving of tenancy are being given under Section 3 (vii) (b) of the Act afore-stated. However, to the heirs and legal representatives of the statutory tenant on his death, a restricted right of devolving of tenancy are being given under Section 3 (vii) (b) of the Act afore-stated. In the event of death of statutory tenant his survived spouse, son, daughter and heirs in accordance with the personal law applicable to him who had been in the case of premises leased out for residential purposes ordinarily resides and in case leased out for the commercial purposes ordinarily carrying on business in such premises as the member of the family upto his death. Irrespective of the fact whether the spouse, son, daughter and other heirs in accordance with personal law applicable to him had been in the case of the premises leased out for residential purposes ordinarily residing and the case of the premises leased out for commercial purpose ordinarily carrying on the business with him in such premises or not as a member of his family upto his death are to be brought on record for continuing the suit. Where the heirs and legal representatives are not brout on record the consequence thereof shall be the abatement of the suit and if it is permitted will result in a fatal blow to the right of the landlord. That way he will not be able to get the possession of the suit premises though legal heirs and representatives of the deceased tenant may not have any of the tenancy right in the suit premises. It cannot be the intention of the legislature nor it is. 17. Tenant Jawati Lal has expired on 17.12.1998 and on his death to continue the suit his heirs and legal representatives irrespective of the fact whether tenancy rights are inherited by them in the premises or not are to be brought on record and correctly the plaintiffs filed application in the suit on 19.12.1998 under Order 22 Rule 4 Civil Procedure Code to bring on the record his legal heirs and representatives to continue the suit for eviction. Accordingly these petitioners were impleaded as defendants in the suit. 18. Accordingly these petitioners were impleaded as defendants in the suit. 18. As restricted tenancy rights are devolved in a tenanted premises on the death of statutory tenant to his heirs under section 3 (vii) of the afore-stated Act, the plaintiff respondents filed an application under this section of the Act read with Section 151 Civil Procedure Code in which it is prayed that as none of the legal heirs of Jawari Lal was carrying on business with him in the premises as member of his family upto his death the tenancy rights are not being inherited by them and they are not the tenants and, therefore, their possession over the rented shop is as trespasser and they are liable to be evicted. This application came to be rejected by the learned trial court under order dated 8.10.1999 reproduced above. The principles of res judicata is based on the need of giving a finality to the judicial decisions. What it says that once a res is judicata, it shall not be adjudicated again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or law- has been decided between the parties in a suit or proceedings 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 in a future suit of proceedings between them to canvass the matter again. The principles of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 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 that the original courts as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. 19. The result of this is that the original courts as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. 19. In the case of Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another, - AIR 1960 SC 941 , their Lordships of the Supreme Court had held that the principle of res judicata applies also as 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 it again at a subsequent stage of the same proceedings. In the same proceedings as said by their Lordships of the Supreme Court the principles of res judicata are attracted and once the matter has been decided either of the parties to the suit cannot be permitted to reagitate it again in those proceedings. So far as to the principle as canvassed by the learned counsel for the defendants petitioners is concerned, there cannot be two views, but the question which falls for consideration of the court is whether under the order dated 8.10.1999 the court has decided the point regarding devolution or inheriting of tenancy rights in the tenanted premises upon the defendants petitioners on the death of late Jawari Lal. A bare perusal of the order of the learned trial court dated 8.10.1999 leaves no doubt that the court has left open this question of devolution or inheritance of the tenancy rights by the defendants petitioners in the suit premises. The learned trial court has very categorically and in unambiguous term stated HINDI MATTER 359678C 20. Otherwise also that was not the stage where this question could have been gone into and finally decided on this interlocutory application filed by the plaintiffs. A bare perusal of the provisions of Section 3 (vii) (b) of the Act afore-stated gives out that this question is to be decided after framing the issues and leading of the evidence by both the parties. The matter would have been different that is not the case here, where this position is accepted by the heirs and legal representatives of the deceased tenant in the suit. The matter would have been different that is not the case here, where this position is accepted by the heirs and legal representatives of the deceased tenant in the suit. This question is not conclusively and finally decided between the parties and the contention of the learned counsel for the defendant petitioner raised that under the order dated 8.10.1999 the matter has been decided and it is now res judicata and it cannot be allowed to be raised by the plaintiffs is without any merit and substance and it cannot be accepted. 21. In the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another, - AIR 1983 SC 462 , their Lordships of the Hon'ble Supreme Court had held that an admission made by a party in the pleadings may be withdrawn or explained and it cannot be said that by amendment an admission of fact cannot be withdrawn. 22. In the case in hand it is difficult to accept nor it was a case infact of the defendant petitioners that on the death of Jawari Lal an application filed by the plaintiffs under Order 22 Rule 4 Civil Procedure Code for bringing on record his heirs and legal representatives, they have admitted this position that these persons were carrying on the business with late Jawari Lal in the premises as member of his family upon his death. By filing of this application it cannot be read, taken and accepted that this matter is finally adjudicated, determined and decided between the parties once for all and the plaintiffs are debarred from raising same in the plaint by amending it or otherwise in the proceedings. 23. The inquiry held under Order 22 Rule 5 Civil Procedure Code is summary in character. The order passed in the matter is not an appealable order also. The question whether a person can be permitted to be brought on record as legal representative of the deceased defendant for the purpose of continuing the proceedings already begun is a matter collateral to the suit and any adjudication arrived at in the course of such enquiry cannot operate as res judicata or an admission. The question whether a person can be permitted to be brought on record as legal representative of the deceased defendant for the purpose of continuing the proceedings already begun is a matter collateral to the suit and any adjudication arrived at in the course of such enquiry cannot operate as res judicata or an admission. After the death of the defendant to continue the suit as said earlier and to state at the cost of repetition, the plaintiff has no option except to apply for substitution of the legal heirs and representative of the deceased defendant otherwise the suit shall abate. 24. In the facts of this case, object, purpose and scope of Order 22 Civil Procedure Code and order of the trial court dated 8.10.1999, I am satisfied that the plaintiffs have not made an admission regarding devolution or inheritance of tenancy rights in the suit premises to the defendant petitioners. Leaving apart, otherwise also in view of this legal position, object and scope of Order 22 and provisions as contained under section 3 (vii) (b) of the Act afore-stated this question is permissible to be agitated by the plaintiff after substitution of legal heirs of the statutory tenant and for which he has all the rights to apply for amendment of the plaint. 25. This amendment sought in the plaint by the plaintiffs is necessary to effectively adjudicate the dispute between the parties and it is to be granted by the court. The court should be liberal in granting prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side. In this case this amendment had become necessary due to the death of original tenant defendant. By allowing this amendment it is not the case of defendant petitioners either before the trial court or this court that any injustice or irreparable injury is caused to them. After amendment of the plaint on this question of devolution and/ or inheritance of tenancy rights in the suit premises or not an issue will be framed and defendants shall have all the opportunities to put their case and then the court will decide it. 26. After amendment of the plaint on this question of devolution and/ or inheritance of tenancy rights in the suit premises or not an issue will be framed and defendants shall have all the opportunities to put their case and then the court will decide it. 26. In the case of Haridas Aildas Thadani and others v. Godrej Rustom Kermani, - AIR 1983 SC 319 , their Lordships of the Supreme Court held that a revisional court also ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances. By this amendment what the plaintiffs sought to insert a plea that the substituted defendants were not carrying on business in the shop with Shri Jawari Lal thus they have no in heritted tenancy rights therein. Where it is proved the consequence thereof would be that the defendant will not have statutory protection under the Act and they are to be evicted from the suit premises. By this grant of amendment in the plaint neither nature of the suit is altered nor is there any question of right having been accrued to the defendants being taken away. 27. Now I may advert to the contention raised by the learned counsel for the plaintiffs re interference of this court in the matter under section 115 Civil Procedure Code. The nature of the order is only an interlocutory order. It is not made appealable under section 104 read with Order 43 Civil Procedure Code and the intention of the legislature is very obvious to given finality to such orders so that unscrupulous litigants may not attempt to stall the final adjudication of the suit by challenging indiscriminatorily the interlocutory order. An order against which no appeal lies can be challenged in the regular appeal to be filed against the judgment and decree in the suit. The reference here may have to Section 105 (2) of the Civil Procedure Code. Section 115 Civil Procedure Code was amended by Act No. 104 of 1976 and a proviso to Sub-section (1) thereto has been inserted. The reference here may have to Section 105 (2) of the Civil Procedure Code. Section 115 Civil Procedure Code was amended by Act No. 104 of 1976 and a proviso to Sub-section (1) thereto has been inserted. This provides that this court shall not under this section vary or reverse any order made or any order deciding an issue in the course of a suit or other proceedings except where the order if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings or the order if allowed to stand would occasion any failure of justice or will cause irreparable injury to the party against whom it was made. The order of the trial court impugned in this revision petition is allowed to stand, it would not occasion any failure of justice or will cause any irreparable injury to the petitioners. In the case in hand, if the order impugned in this revision petition is examined keeping in view the object and purpose of Section 115 Civil Procedure Code and the decisions of their Lordships of Supreme Court and this court it if difficult to accept that this case falls under any of the clauses (a), (b) and (c) of Sub-section (1) of Section 115 Civil Procedure Code. See D.L.F. Housing & Construction Company (P) Ltd. New Delhi, AIR 1971 SC 2324 and The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar v. Ajit Prasad Tarway, - AIR 1973 SC 76 . 28. As a result of the aforesaid discussion, both these revision petitions fail and the same are dismissed with costs which is quantified to Rs. 2,000/- each petition, to be paid personally to the plaintiffs by the defendant petitioners.As a result of the dismissal of the revision petitions, the stay applications have become infructuous and the same are dismissed.Revision dismissed. *******