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Allahbad High Court
M.P.MEHROTRA
Vibhuti Singh - Appellant
Versus
Damari Lal - Respondent
Decided On : 12/14/1977
CIVIL PROCEDURE CODE - Section 11 - Res Judicata - Applicability - Subsequent Transfer of Rights - Effect - Lease Rights Granted Prior to Institution of Suit - Decree in Earlier Suit Not Res Judicata Against Transferee.
Fact of the Case:
Plaintiff sought injunction against defendant, claiming rights as lessee of disputed land allotted by Nagar Palika. Defendant claimed prior lessee rights and raised defense of res judicata based on an earlier suit where he obtained a decree against Nagar Palika. The trial court and lower appellate court decreed the suit in favor of the plaintiff.
Finding of the Court:
The court held that the decree in the earlier suit was not res judicata against the plaintiff as his lessee rights were granted prior to the institution of that suit. The court also rejected the defendant's contention that the plaintiff's lease period had expired and he had no right to prosecute the appeal.
Issues: 1. Whether the decree in the earlier suit was res judicata against the plaintiff. 2. Whether the plaintiff's lease period had expired and he had no right to prosecute the appeal.
Ratio Decidendi: 1. Res judicata under Section 11 of the Civil Procedure Code applies when a person claims under another whose title arose subsequently to the commencement of the first suit. In this case, the plaintiff's lessee rights were granted prior to the institution of the earlier suit, so the decree in that suit was not res judicata against him. 2. The court has a general rule to decide rights of parties based on the cause of action disclosed in the plaint. Subsequent developments are not ordinarily considered in an appeal, unless there are exceptional circumstances such as a change in law or to avoid circuity of action. In this case, the expiration of the plaintiff's lease period did not prevent the Nagar Palika from renewing the lease, and the defendant could not take advantage of this fact.
Final Decision: The appeal was dismissed with costs.
2. The facts in brief are these :
It was claimed that the defendant No. 1 allotted the land in dispute in favour of the plaintiff on 1st of December, 1969 and the allotment was by way of a lease for a period of eight years. The plaintiff was directed to construct a Pucca shop on the said land. The defendant No. 2, in collusion with the defendent No. 1, was alleged to have put up a tin Gumti some five or six days before the suit and it was alleged that the said defendant No. 2 was seeking to interfere in the plaintiff s construction. The defendant No. 1 was not providing any redress to the defendant No. 2 even though the former was moved to do so. The defendant No. 2 contested the suit on various grounds. He claimed rights on the ground that on 18th Oct, 1969, the land in question had been settled with him on a daily fee or rental of Re. 1/- and since then he had been in possession. He had deposited six months rent in advance. He had constructed a Gumti by investing Rs. 600/-. It was also contended that in an earlier suit filed by him, i e. Suit No. 607 of 1969 - Vibhuti Singh v. Nagar Mahapalika, a decree had been passed in his favour and against the defendant No. 1 whereby the latter had been restrained from dispossessing him i. e. Vibhuti Singh. The suit was, therefore, also contended to be barred by Section 11 CPC in view of the decree passed in earlier suit No. 607 of 1969. Certain other defences were also taken but it is not necessary to notice them in the instant appeal.
3. The trial court framed the necessary issues, tried them and ultimately decreed the suit. An appeal was filed in the lower appellate court but the same also failed. Now, the defendant No. 2 has come in the instant second appeal and in support thereof I have heard his learned counsel Sri
R. N. Singh. In opposition, Sri Mohammad Moonis, learned counsel for the respondents has made his submissions.
4. Before going into the merits of the appeal, it will be necessary to dispose of an application which has been moved on behalf of the heirs of the appellant who died during the pendency of this second appeal on 27th Oct., 1976. As there happened to be a short delay of two days in the filing of this application for substitution, therefore, a prayer was made for setting aside the abatement and in support of this prayer, a supplementary affidavit was filed setting out the circumstances in which the delay has occurred. I am allowing this prayer, as in my opinion, sufficient cause has been shown for setting aside the abatement. Now, coming to the merits of the substitution application, a question has arisen as to whether in the facts and circumstances of the case, the heirs and legal representatives of the deceased appellant can be held to be entitled to be brought on record. Sri Mohammad Moonis contends that the findings of the court s below are that the appellant was a mere licensee
and his licence stood revoked, therefore, his legal representatives are not entitled to be brought on record as no cause of action survives on the death of mere licensee. In this connection, he placed reliance on the following cases:
In Mahtab Singh v. Hub Lal, (24 All LJ 796) : AIR 1926 All 610) where a Division Bench laid down that in the case of personal injuries, whether mental or physical, the real cause of action as well as the claim for incidental costs dies with the death of the person injured and the right to sue or continue the suit does not survive to the legal representatives of the deceased. It seems that the plaintiff had filed a suit for damages for malicious prosecution which was dismissed by the trial court and then the plaintiff filed a fir
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