Back
IN THE HIGH COURT OF BOMBAY
Chandrachud M.N, J.
Appellants: Ramchandra Sheshgiri Kamath
Vs.
Respondent: Janardan Vishwanath Hegde
A.F.O.D. No. 355 of 1967Decided On: 15.11.1967
Counsels:
For Appellant/Petitioner/Plaintiff: K. Joseph, Adv.
For Respondents/Defendant: R.V. Joshi and J.V. Kasbekar, Advs.
PRESIDENCY SMALL CAUSE COURTS ACT, 1882 - CHAPTER VII - RECOVERY OF POSSESSION OF IMMOVEABLE PROPERTY - RES JUDICATA - PRINCIPLES ANALOGOUS TO RES JUDICATA - SUIT FOR POSSESSION - SUMMARY PROCEEDING - FINALITY OF ORDER - TITLE TO PROPERTY - APPLICABILITY OF SECTION 11 OF THE CIVIL PROCEDURE CODE - INTERPRETATION OF SECTIONS 41, 42A, 43, 46, 47 AND 49 OF THE ACT - DISTINCTION BETWEEN SUMMARY INQUIRY AND REGULAR SUIT - SCOPE OF RES JUDICATA - PUBLIC POLICY - RECIPROCITY IN THE BAR OF RES JUDICATA.
Fact of the Case:
Plaintiff filed a suit for possession of shop premises from the defendant, alleging that the defendant was his licensee and that the license was duly determined. The defendant contended that he was in possession as a sub-tenant of the plaintiff and therefore, the plaintiff had no right to recover possession from him, save under the Bombay Rent Act. The trial court dismissed the suit on the preliminary issue that it was barred by res judicata by reason of a previous decision between the plaintiff and the defendant in an ejectment application filed by the plaintiff under Section 41 of the Presidency Small Cause Courts Act, 1882, in which the Small Cause Court had held that the defendant was a sub-tenant and not a licensee of the plaintiff.
Finding of the Court:
The High Court held that the suit was not barred by res judicata or principles analogous to res judicata. The Court observed that the proceeding under Chapter VII of the Presidency Small Cause Courts Act was of a summary nature and the order passed under Section 43 was not appealable. The Court further noted that the provisions of Sections 46, 47 and 49 of the Act, which were in force at the material time, showed that the order passed under Section 43 was not intended to have finality and was subject to a decree passed in a regular suit. The Court also held that the issue in the suit, whether the defendant was the plaintiff's licensee, was different from the issue in the summary proceeding, which was whether the tenancy or license had been determined or withdrawn.
Issues: 1. Whether the suit was barred by res judicata or principles analogous to res judicata by reason of the previous decision in the ejectment application filed by the plaintiff under Section 41 of the Presidency Small Cause Courts Act, 1882? 2. Whether the order passed under Section 43 of the Act was final and conclusive? 3. Whether the issue in the suit was the same as the issue in the summary proceeding?
Ratio Decidendi: 1. The Court held that the suit was not barred by res judicata or principles analogous to res judicata because: (a) The proceeding under Chapter VII of the Presidency Small Cause Courts Act was of a summary nature and the order passed under Section 43 was not appealable. (b) The provisions of Sections 46, 47 and 49 of the Act, which were in force at the material time, showed that the order passed under Section 43 was not intended to have finality and was subject to a decree passed in a regular suit. (c) The issue in the suit, whether the defendant was the plaintiff's licensee, was different from the issue in the summary proceeding, which was whether the tenancy or license had been determined or withdrawn. 2. The Court held that the order passed under Section 43 of the Act was not final and conclusive because: (a) The order was not appealable. (b) The provisions of Sections 46, 47 and 49 of the Act, which were in force at the material time, showed that the order was not intended to have finality and was subject to a decree passed in a regular suit.
Final Decision: The High Court allowed the appeal, set aside the decree passed by the trial court, and remanded the suit for a decision on other issues.
2. The plaintiff used to run a tailoring shop at Tribhuvan Road, Girgaum, Bombay. The shop consisted of two rooms and was run by the plaintiff in the name of Kamath Brothers. The plaintiff was a tenant in respect of the two rooms but by an agreement dated the 1st of November 1965, he gave to the defendant the right to conduct the shop for one year. The defendant obtained possession of one of the two rooms under this agreement and at the end of the year, he exercised the option available to him under the agreement for extension of the period mentioned therein. Under the terms of the agreement, the plaintiff was entitled to recover possession of the shop from the defendant if he failed to pay the monthly royalty for a period of three months. The defendant appears to have fallen in arrears for over three months and thereupon, the plaintiff terminated agreement and filed an application under Section 41 of the Presidency Small Cause Courts Act, 1882 (Ejectment Application No.8/177 E of 1958) for possession of the shop premises from the defendant. The plaintiff alleged in that application that the defendant was put in possession of the shop as a licensee and that the licence having been withdrawn he was liable to hand over possession. The defendant contended in that proceeding that he was in possession not as a licensee of the plaintiff but as his sub-tenant and he was therefore entitled to the protection of the Rent Act. The Small Cause Court, Bombay by its order dated the 14th of March 1960 dismissed the plaintiffs application for possession on the ground that the defendant was a sub-tenant and not a licensee of the plaintiff.
3. On the 28th of April 1960, the plaintiff brought the present suit against the defendant (Suit No.2364 of 1960) in the City Civil Court, Bombay for possession of the shop premises from the defendant alleging that the defendant was his licensee and that the licence was duly determined. The defendant contended by his written statement that he was in possession of the premises as a sub-tenant of the plaintiff and therefore, the plaintiff had no right to recover possession from him, save under the Bombay Rent Act On the 28th of November 1966, the defendant amended his written statement with the leave of the Court and he raised an additional contention that the suit was barred by res judicata or on principles analogous to res judicata, by reason of decision of the Court of Small Causes, Bombay in Ejectment Application No. 8/177 E of 1958.
4. The learned trial Judge then framed an issue, whether the suit was barred by res judicata as contended by the defendant and tried that issue as a preliminary issue. The learned Judge was apparently in two minds and he felt that there was considerable substance in the submission made on behalf of the plaintiff that, the decision in the earlier proceeding could not create the bar of res judicata. The attention of the learned trial judge was however, drawn to a decision of the then Principal Judge of the City Civil Court in which he had taken the view that a suit of the present nature would be barred by principles analogous to res judicata. The learned trial judge felt that in the interest of uniformity he should follow the decision of the principal judge and he has therefore dismissed the suit on the ground that it is barred by principles analogous to res judicata. The correctness of this view is questioned in this appeal.
5. In order to determine the question whether the suit is barred by principles analogous to res judicata, it would be necessary to draw attention to the provisions of Chapter 7 of the Presidency Small Cause Courts Act, 1882, which is entitled "Recovery of Possession of Immoveable Property". Section 41 which is the first of
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
