2017 Supreme(MP) 325

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BENCH
Rajendra Menon, Anurag Shrivastava, JJ.
Hafizulla - Appellant
Versus
Shri Puran Chand Jain S/o Late Sheikhar Chand Jain - Respondent
First Appeal No. 1194 of 2011
Decided On : 01-02-2017

The principle of res judicata or constructive res judicata is not applicable, if the decision has been rendered in rent cases.

Headnote:

The suit for eviction of a co-owner by another co-owner from joint property is not maintainable. The decision of the Supreme Court in Promod Kumar Jaiswal v. Bibi Husn Bano (2005) 5 SCC 492 will not apply as a precedent in inter party suit.

Fact of the Case:

The plaintiffs filed a suit for possession and mesne profit with regard to the disputed premises. The suit house was let out to Sheikhar Chand Jain by registered lease deed dated 01.05.1968 for a period of 10 years @ Rs. 150/- per month rent for non-residential purpose. The plaintiffs had instituted Civil Suit No.147-A/1998 against the original tenant Sheikhar Chand Jain for his eviction from suit house on various grounds under Section 12(1) of M.P. Accommodation Control Act. During pendency of the said ejectment suit, in the life time of original tenant Sheikhar Chand Jain, his son Inder Kumar Jain (Defendant No.3) had purchased undivided share of the suit house from the two co-owners Smt. Sona Bi and Smt. Begum Bi by registered sale deed dated 03.02.1982 and 20.09.1982 respectively. In Civil Suit No.147-A/1988 the Court vide judgment dated 30.07.1981 found the bona fide need of the plaintiff No.1 Hafizulla established, but suit was dismissed on the ground that plaintiff No.1 is not absolute owner of the suit house, therefore, the suit is not maintainable. The plaintiff preferred First Appeal and after its dismissal Second Appeal No.813/1995 was filed before High Court. This Second Appeal was also dismissed vide judgment dated 12.05.1997 on the ground that the defendant No.3 Inder Kumar Jain had purchased the undivided share of two co-owners and became co-owner of the suit house, hence the suit for eviction of a co-owner by another co-owner from joint property is not maintainable. Against this, plaintiff filed SLP(C) No.16299/1997 before Hon'ble Supreme Court, which was also dismissed on 15.09.1997 in limine. After dismissal of SLP the plaintiff filed Civil Suit No.11-A/2002 against the defendant for declaration, that two sale deeds dated 03.02.1982 and 20.09.1982 executed in favour of defendant No.3 Inder Kumar Jain as null and void and also ejectment of defendant/tenants from suit house. During pendency of this suit plaintiff No.2 Smt. Hameeda Begum filed a separate suit before Rent Control Authority RCA Case No.2A/90(7) 97-98 under Section 23-A of M.P. Accommodation Control Act, for eviction of defendant on the ground of bona fide requirement of her son Mohd. Anwar. The Rent Control Authority considering earlier judgment in Civil Suit No.147-A/1998 dismissed the suit on the ground of res-judicata. Against this order, Smt. Hameeda Begum preferred a Civil Revision No.1676/2001 before High Court, which was dismissed vide order dated 25.02.2003 on the ground that the judgment of S.A. No.813/1995 has effect of res-judicata and the suit is not maintainable. In Civil Suit No.11-A/2002 the Additional District Judge (Fast Track) Jabalpur, relying upon the finding of Second Appeal No.813/1995 as well as Civil Revision No. 1676/2001 dismissed the suit on the ground of res-judicata. Against this, the plaintiffs filed First Appeal No.451/2003 before High Court. This appeal was allowed by Division Bench of this Court and decreed the suit of the plaintiffs by holding that the decision of Civil Suit No.147- A/1985 and S.A. No.813/1995 does not operate as res judicata and decree of eviction of defendants from suit house was passed. Against the order dated 25.02.2003 of Civil Revision No.1676/2001, the plaintiff Hameeda Begum filed Civil Appeal No.1180/2006 before Supreme Court. Similarly, against the order dated 27.02.2009 passed by High Court in F.A. No. 451/2003, the defendant filed Civil Appeal No.5312/2010. Hon'ble Supreme Court by passing a common order on 13.07.2010 allowed the defendants' appeal C.A No. 5312/2010 and by setting aside the judgment and decree passed in F.A. No.451/2003, and thereby dismissed the plaintiffs' suit on the ground of res-judicata and constructive res-judicata with an observation that the decision of Promod Kumar Jaiswal v. Bibi Husn Bano and Others, (2005) 5 SCC 492 will not apply as precedent in inter party suit. Hon'ble Supreme Court vide common order dated 13.07.2010 dismissed Smt. Hameeda Begum's Civil Appeal No.1180/2006 on the ground of res-judicata. The plaintiffs further pleaded that the findings of Supreme Court passed in C.A. No.1180/2006 and C.A. No.5312/2010 vide common dated 13.07.2010 confirming findings of S.A. No.813/1995 in judgment dated 12.05.1997 holding that the defendant No.3 Inder Kumar Jain became the co-owner, hence the suit is not maintainable against the co-owner is coram non-judice. Since, SLP (C) No.16299/1997, which was preferred by plaintiffs against the judgment dated 12.05.1997 of S.A. No.813/1995 was dismissed by Supreme Court on 15.09.1997 in limine. Therefore, this judgment shall not operate as res-judicata. It is also settled law that the principle of res-judicata or constructive res-judicata is not applicable, if the decision has been rendered in rent cases. The binding precedent laid down by the Supreme Court in the matter of Promod Kumar Jaiswal v. Bibi Husn Bano (2005) 5 SCC 492 is fully applicable in the instant suit. The suit house is bonafidely required by plaintiff No.1 Hafizulla and his son Mohd. Shafiqullah, who are Advocate for their Office for non-residential purpose. The suit house was let out on 01.05.1968 for a period of 10 years for non-residential purpose in which defendant running Electrical goods shop having occupied total area 2025 Sq.ft. The suit house is situated at market place having rental value at present Rs. 2000/- per day. The defendants become tress passer after expiry of lease period. Therefore, by filing instant suit the plaintiffs sought the relief of declaration that the defendant No.1 to 3 are tenant/co-tenant in suit house and decree of eviction under Section 12 (1) (f) of M.P. Accommodation Control Act, 1961 and mesne profit @ Rs. 1000/- per day from the date of filing of the suit till eviction of tenants/defendants.

Finding of the Court:

The suit for eviction of a co-owner by another co-owner from joint property is not maintainable. The decision of the Supreme Court in Promod Kumar Jaiswal v. Bibi Husn Bano (2005) 5 SCC 492 will not apply as a precedent in inter party suit.

Issues: 1. Whether, finding of S.A. No.813/1995 vide judgment dated 12.05.1997 shall have the effect of Res-judicata in instant suit? 2. Whether, the appellants/plaintiffs are entitled for claiming mesne profit from the defendants?

Ratio Decidendi: The principle of res judicata or constructive res judicata is not applicable, if the decision has been rendered in rent cases. The binding precedent laid down by the Supreme Court in the matter of Promod Kumar Jaiswal v. Bibi Husn Bano (2005) 5 SCC 492 is fully applicable in the instant suit.

Final Decision: The suit is dismissed.