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High Court Of Calcutta
B. N. Maitra
BISWANATH DAS - Appellant
Versus
DEBIPROSAD PAUL - Respondent
Appeal From Appellate Decree 571 Of 1969
Decided On : 07/13/1978
RES JUDICATA - C. P. C. SECTIONS 11, 99, ORDER 8 RULE 5 - TITLE SUITS - DISMISSAL OF APPEAL IN EARLIER SUIT - WHETHER BARS SUBSEQUENT APPEAL IN LATER SUIT - ADMISSION IN PLEADINGS - WHETHER SEVERABLE - LAW OF NON-TRAVERSE - WHETHER APPLICABLE - REMAND FOR DETERMINATION OF TITLE.
Fact of the Case:
Biswanath filed a suit (Title Suit No. 252/1963) for declaration of his tenancy right over a shop room. The defendants, Debiprosad and Umaprasad, filed a written statement denying the tenancy and claiming ownership of the premises. In a subsequent suit (Title Suit No. 121/1964), Debiprosad and Umaprasad sought to eject Biswanath from the shop room, alleging that he was a trespasser. Biswanath defended the suit, claiming tenancy under the plaintiffs. The trial court dismissed Biswanath's suit and decreed the suit filed by Debiprosad and Umaprasad. Biswanath appealed against the decree for ejectment, but did not appeal against the dismissal of his own suit.
Finding of the Court:
The court held that the doctrine of res judicata did not bar the appeal in the subsequent suit because the issue of the plaintiffs' title was not directly and substantially in issue in the earlier suit filed by Biswanath. The court also held that the admission of the plaintiffs' title in Biswanath's written statement was severable from other admissions and could be used against him in the subsequent suit. However, the court found that there was a lacuna in the case due to the proviso to Order 8, Rule 5 of the C. P. C., which allows the court to require any fact admitted in the pleadings to be proved otherwise than by such admission. Therefore, the court remanded the case to the appellate court for determination of the plaintiffs' title and whether they could sue in their personal capacity.
Issues: 1. Whether the dismissal of Biswanath's appeal in the earlier suit barred the subsequent appeal in the later suit under the doctrine of res judicata. 2. Whether the admission of the plaintiffs' title in Biswanath's written statement was conclusive or severable. 3. Whether the plaintiffs could sue in their personal capacity or whether they should have sued as trustees.
Ratio Decidendi: 1. The court held that the doctrine of res judicata did not apply because the issue of the plaintiffs' title was not directly and substantially in issue in the earlier suit filed by Biswanath. 2. The court held that the admission of the plaintiffs' title in Biswanath's written statement was severable from other admissions and could be used against him in the subsequent suit. 3. The court found that there was a lacuna in the case due to the proviso to Order 8, Rule 5 of the C. P. C., which allows the court to require any fact admitted in the pleadings to be proved otherwise than by such admission. Therefore, the court remanded the case to the appellate court for determination of the plaintiffs' title and whether they could sue in their personal capacity.
Final Decision: The appeal was allowed, the judgment and decree appealed against were set aside, and the case was remanded to the appellate court for disposal according to law in the light of the observations made by the court.
( 1 ) TITLE Suits Nos. 252 of 1963 and 121 of 1964 were tried together. In the earlier Suit No. 252, the plaintiff's allegation is that the premises No. 601, Diamond Harbour Road, belonged to Debiprosad Paul and Umaprosad Paul, out of these 7 (seven) shop rooms located in that premises, the disputed shop room was let out to Biswanath Das (plaintiff) at a rental of Rs. 18/- per month payable according to English Calendar. The agreement was that the tenancy would commence from the 1st June, 1963. The defendants accepted the rent for June in advance and a receipt was granted. On the 11th June, 1963, the plaintiff took some articles to that shop. The defendants demanded premium from him. The plaintiff declined to make such payment. The police was falsely informed that he had stored his belongings in the room in question. The suit is for a declaration that the plaintiff is a tenant in respect of the disputed land under the defendants and for an injunction.
( 2 ) THE defendants filed a written statement alleging inter alia that the plaintiff's case was absolutely false. No settlement was granted to the plaintiff, who was a trespasser.
( 3 ) IN the latter Title Suit No. 121, Biswanath (plaintiff of Title Suit No. 252) is the sole defendant. Debiprosad and Umaprosad (two defendants of that earlier suit) are the sole plaintiffs. They alleged that on the 11th June, 1963, the defendant along with others forcibly broke open the lock and occupied the disputed room in their absence. They initiated a criminal proceeding against the defendant. Thus, the latter filed the false Title Suit No. 252 of 1963 for declaration of his tenancy right. So, the plaintiff prayed for ejectment. Subsequently, the plaint was amended and a prayer for declaration of title added.
( 4 ) THE defence is that the defendant is a tenant of the disputed room under the plaintiffs and the suit is not maintainable.
( 5 ) THE learned Munsif discussed the issues of the earlier Title Suit No, 252/1963 only. However, he discussed the parties' contention on the merits and stated that Biswanath's version was not true. He was a trespasser. So, he dismissed Biswanath's Title Suit No. 252/63 and decreed the other suit. Biswanath preferred two appeals, which were dismissed by the learned Additional District Judge, Ali-pore. In that Court, a plea was first taken that the Title Suit No. 121/1964 was not maintainable since it had been instituted by the plaintiffs in their personal capacity. This contention was not accepted because the same was not raised in the pleadings or before the learned Munsif. Being aggrieved by that decision, only one appeal has been filed by Biswanath against the decree for ejectment passed against him in the latter Title Suit No. 121 of 1964. No appeal was filed by him against the dismissal of the other appeal.
( 6 ) THE learned Advocate, appearing on behalf of the plaintiffs (respondents, Umaprasad and Debiprasad) has contended that since defendant Biswanath lost both the appeals before the learned Additional District Judge and he chose not to prefer an appeal against the dismissal of his appeal in his own earlier suit, the present appeal is barred by res judicata. Reliance has been placed on the cases in Lonankutty in and Narayan Prabhu in. In Lonankutty's case, it has been stated that where there is a common judgment in four appeals arising out of two suits filed by both parties against each other on the same subject and decided on different dates, the decision in one set of appeals will operate as res judicata in the other set of appeals. In the case of Narayan Prabhu, Mr. Justice Beg has observed that one of the tests in deciding whether the doctrine of res judicata applies to a particular case or not, is to determine whether two inconsistent decrees will come into existence if it is not applied. The learned Advocate appearing on behalf of the respondents (sic) has referred to the case, Ramagya Prasad v. Murli Prasad in to show tha
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