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1993 Supreme(Cal) 134
High Court Of Calcutta
S. P. RAJKHOWA
MESSERS PREMIER WOODCRAFTS PVT.LTD. - Appellant
Versus
MESSERS DARBARI UDYOG - Respondent
C. O. 3542 Of 1991
Decided On : 03/23/1993
ASOKE BANERJI, BIJON MAJUMDAR, Jayanta Biswas, S.MITRA
A decree obtained by a court with jurisdiction and in accordance with the law is valid and enforceable, and cannot be challenged in a separate suit on the same grounds.
Headnote:
CIVIL PROCEDURE CODE - S. 11, 21, 21(A), 47 - SECOND APPEAL - S. 116 OF 1989 - ORDER 41 RULE 5(1), 11 - TRANSFER OF PROPERTY ACT - APPLICABILITY - JURISDICTION - DECREE - EXECUTION - STAY OF PROCEEDINGS - RES JUDICATA - ABUSE OF JUDICIAL PROCESS - SUIT FOR DECLARATION - DECREE OBTAINED FRAUDULENTLY - VOID AB INITIO - DECREE HOLDER - JUDGMENT DEBTOR - RELATIONSHIP OF LANDLORD AND TENANT - TENANCY - APPLICABILITY OF WEST BENGAL PREMISES TENANCY ACT - APPLICABILITY OF CIVIL PROCEDURE CODE - APPLICABILITY OF S. 11 OF CIVIL PROCEDURE CODE - APPLICABILITY OF S. 21 OF CIVIL PROCEDURE CODE - APPLICABILITY OF S. 21(A) OF CIVIL PROCEDURE CODE - APPLICABILITY OF S. 47 OF CIVIL PROCEDURE CODE - APPLICABILITY OF ORDER 41 RULE 5(1) OF CIVIL PROCEDURE CODE - APPLICABILITY OF ORDER 41 RULE 11 OF CIVIL PROCEDURE CODE - APPLICABILITY OF EXPLANATION (IV) AND EXPLANATION (VII) OF S. 11 OF CIVIL PROCEDURE CODE - APPLICABILITY OF TRANSFER OF PROPERTY ACT.
Fact of the Case:
Petitioner, a tenant, challenged the legality of an eviction decree obtained against him by the landlord on the grounds that the notice served was invalid and the suit premises were located within a municipal area, thus attracting the West Bengal Premises Tenancy Act instead of the Transfer of Property Act. The petitioner had unsuccessfully pursued various legal remedies, including appeals and a revision petition, to set aside the decree. Subsequently, the petitioner filed a suit seeking a declaration that he was a tenant under a different entity and that the decree obtained by the landlord was fraudulently obtained and void ab initio. The petitioner also filed an application for a stay of execution of the decree pending the disposal of the suit.
Finding of the Court:
The court held that the petitioner's suit was barred by the principles of res judicata and abuse of judicial process. It observed that the petitioner had ample opportunities to raise all objections regarding the execution of the decree in the earlier proceedings, including the application under Section 47 of the Civil Procedure Code, and that he could not relitigate the same issues in a separate suit. The court further held that the decree obtained by the landlord was valid and enforceable, and that the petitioner's attempt to challenge it through a separate suit was an abuse of the judicial process.
Issues: 1. Whether the petitioner's suit was barred by the principles of res judicata and abuse of judicial process? 2. Whether the decree obtained by the landlord was valid and enforceable?
Ratio Decidendi: 1. The court relied on various provisions of the Civil Procedure Code, including Sections 11, 21, 21(A), and 47, to hold that the petitioner's suit was barred by res judicata. It observed that the petitioner had already had the opportunity to raise all objections regarding the execution of the decree in the earlier proceedings, and that he could not relitigate the same issues in a separate suit. The court also noted that the decree obtained by the landlord was valid and enforceable, and that the petitioner's attempt to challenge it through a separate suit was an abuse of the judicial process. 2. The court held that the decree obtained by the landlord was valid and enforceable, as it had been passed by a court with jurisdiction and in accordance with the law. The court rejected the petitioner's arguments that the notice served was invalid and that the suit premises were located within a municipal area, thus attracting the West Bengal Premises Tenancy Act instead of the Transfer of Property Act.
Final Decision: The court dismissed the petitioner's revision petition and upheld the lower court's order dismissing the petitioner's application for a stay of execution of the decree. The court also imposed costs on the petitioner.
( 1 ) THIS revisional application is directed against the judgment and order dated 9-9-1991 passed by the learned Additional District Judge, Third Court, Barasat in Misc. Appeal No. 148 of 1990, arising out of Order No. 16 dated 22/08/1990 passed by the learned Munsif, First Court, Barasat in Title Suit No. 91 of 1990.
( 2 ) BEFORE discussing the impugned order, I propose to make a discussion of the whole background which gave rise to the instant revisional application.
( 3 ) DHIREN Roy and Barindra Mitra who are opposite parties Nos. 2 and 3 respectively in this revisional application filed on 14-5-1979 Title Suit No. 214 of 1979 in the Court of learned Munsif, Third Court at Sealdah, praying for a decree of ejectment of M/s. Premier Woodcrafts Pvt. Ltd. , who is the petitioner in this revisional application. In the first paragraph of the plaint it was stated that the defendant was a tenant under the plaintiff in respect of one Bungalow at the ground floor at Ganganagar, Jessore Road, Police Station Airport, District-24 Parganas. In the second paragraph it was stated that the suit property was situated outside the municipal area and, therefore, the Transfer of Property Act would be applicable to the instant case. The petitioner before me contested the suit by filing a written statement in which inter alia he averred in paragraph 6 that the statements contained in paragraph 1 of the plaint were substantially correct, but that the description of the suit premises had not been correctly described. The learned Munsif held that admittedly the defendant was inducted as tenant under the plaintiff in respect of the suit premises. He also found that the plaintiffs had adduced evidence that the suit premises fell outside the municipal area. The defendant did not adduce any evidence on that point. The defence also did not cross-examine the plaintiff (P. W. 1) on this point. So, he held that the suit premises was situated outside the municipal area and that the provisions of Transfer of Property Act were attracted. On the basis of his findings the learned Munsif decreed the suit on 8/04/1985.
( 4 ) BEING aggrieved, the petitioner came up before the learned Assistant District Judge, Ninth Court, Alipore in Title Appeal No. 480 of 1985. The petitioner appellant raised two points before the lower appellate court that the suit premises was located under the municipal area and it came under the purview of the provisions of the West Bengal Premises Tenancy Act and that the notice was not legal and valid as it was not duly served upon the defendants. During argument it was admitted that the defendant was a tenant in the suit premises under the plaintiffs. The learned Counsel for the appellant petitioner frankly admitted before the lower appellate court that he had no document to show that the suit premises was located within the municipal area. So, the learned lower appellate court decided that the suit premises was located outside any municipal area and that the provisions of the West Bengal Premises Tenancy Act were not attracted and that it would be governed by the Transfer of Property Act. On the point of notice, the learned lower appellate found that the notice was validly served upon the defendant. On the basis of his findings he dismissed the Appeal by his judgment and decree dated 28-11-86 and confirmed the judgment and decree of the learned Munsif.
( 5 ) BEING aggrieved thereby the petitioner filed the Second Appeal Tender No. 1252 of 1987 which was subsequently registered as S. A. 16 of 1989. I was told at the Bar that the said Appeal is still pending and the petitioner/appellant has not as, yet taken any steps for admission of the Appeal under O. 41, R. 11 of the Code of Civil Procedure.
( 6 ) IN the meantime Ajoy Jhunjhunwala, son of late S. K. Jhunjhunwala, who was a Director of the defendant company, filed a petition on 26-10-88 under S. 144 (2) of the Code of Criminal Procedure before the learned Executive
