Saturday, 27 April 2019

Whether principle of Res judicata is applicable even if subject matter of dispute is different in both suits?

The principle of res judicata is well known. Explanation III to Section 11 states that the matter referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or implied-ly, by the other. Explanation IV further states that any matter which might and ought to have been made ground of defence or attack in such former suit should be deemed to be a matter directly and substantially in issue in such suit. For the application of Section 11, C.P.C. it is not always necessary that the issue in conflict must be raised in the pleadings themselves as such conflict may come up for decision otherwise also in view of the stand taken by the parties in course of the hearing of the suit. It is also well settled that even if the subject matter of dispute be different, as in the instant case the period for which the rent was claimed was different in the two suits, if the matter is otherwise covered by Section 11 of the Code of the Civil Procedure the principle of res judicata will apply with equal force. This being the position the decision in Title Appeal No. 65 of 1962 will operate as res judicata against the pre-sent appellant and he cannot competently challenge in the instant suit about there being no relationship of landlord and tenant between him and the plaintiff. This is one aspect of the matter.

IN THE HIGH COURT OF PATNA

Appeal from Appellate Decree No. 76 of 1970

Decided On: 18.01.1980

Thakur Ram Sahai Sinha  Vs. Mostt. Bimla Devi and Anr.

Hon'ble Judges/Coram:
H.L. Agarwal and C.S.S. Sinha , JJ.

Citation: Citation : AIR 1980 Pat 204



1. Defendant No. 1 has come up in second appeal against the judgment of reversal passed by the lower appellate court, namely, First Additional Subordinate Judge, Gaya. One Simla Devi, respondent No. 1, as plaintiff, instituted Money Suit No. 66 of 1963, praying for a decree for Rs. 1,120 against three persons, namely, the appellant (defendant No. 1), the State of Bihar and one Sri Balmiki Prasad Sinha impleading the latter two as defendants 2 and 3. The claim was on account of 'rent or damage' in respect of a house at the rate of Rs. 40 per month for a period of 28 months from February, 1960 to May, 1962. The plaintiff prayed for a joint decree against the three defendants.

2. Although the case of the plaintiff as to who was inducted as tenant in respect of the house in question is highly shaky, it appears that the plaintiff sought to make out a case that the Criminal Intelligence Department of the State of Bihar was a tenant in respect of this house through its employee defendant No. 1 working as a Group Officer of that Department. As it appears from the submission made by the learned, counsel for the appellant (defendant No. 1), defendant No. 1 used the premises in question both for office purposes as also for his residential purposes. The plaintiff's case further was that defendant No. 3 had been inducted as a sublessee by defendant No. 1. There being default in payment of rent, the suit was instituted, as stated above, for a joint decree for 'rent or damage' against all the three defendants.

3. It appears that sometime at the stage of hearing of the suit the plaintiff did not want to press her claim for rent against the State of Bihar and a petition to that effect was filed which appears to have been accepted by the trial Court. The result was that the State of Bihar (defendant No. 2) left the scene and the suit was contested by the remaining defendants only, both of whom disowned their liability to pay the rent claimed.

4. The trial court held that under the peculiar circumstances of the case when the plaintiff had not chosen any remedy against the State of Bihar who was liable to pay rent, she has got no valid cause of action against defendants 1 and 3, and, as such, it dismissed the suit. The plaintiff took up the matter in appeal. Relying on the finding of Title Appeal No. 65 of 1962 in the earlier litigation, to be referred to hereinafter, the lower appellate court fastened the responsibility on the shoulders of the appellant for payment of the rent at the rate of Rs. 30 per month for a period from February, 1960 to July, 1961. The lower appellate Court also saddled the responsibility for payment of the rent for the subsequent period as claimed in the plaint on the shoulders of defendant No. 3. The appeal was allowed in part on contest against defendants 1 and 3 and dismissed against the State of Bihar OB the ground that no relief was claimed against the State of Bihar. This has led defendant No. 1 to come up to this Court in second appeal which, by order of a learned single Judge of this Court, stands referred to a Division Bench.

5. The point raised by learned counsel for the appellant is a short one, namely, that the State of Bihar having acknowledged in written statement filed in the earlier suit, though they disputed the same in the instant suit, that they (State of Bihar) was a tenant of the tenanted premises the lower appellate court acted illegally in allowing a decree against defendant No. 1. Defendant No. 1 is the sole appellant of this appeal. Defendant No. 3, against whom also a decree was passed by the lower appellate court, has not appealed. A submission was made by the learned counsel for respondent No. 1 that defendant No. 3 being dead, this appeal stood abated. The liability of defendant No. 1 and defendant No. 3 being clearly separate, this contention about abatement is unacceptable and it must fail.

6. Undisputedly, earlier to the instant suit, the plaintiff had instituted Title Suit No. 39 of 1960 against the present appellant for his eviction from the suit premises as also for arrears of rent. The appellant filed a written statement in the suit in which he averred, inter alia, that it was the State of Bihar who was a tenant in respect of the suit premises, The plaintiff thereupon added the State of Bihar also as defendant in the suit and the State of Bihar in their written statement admitted that they were the tenant in respect of the house in question through the appellant. When the matter went to trial, the plaintiff, however, took up a different stand. One Kedar Nath, husband of the plaintiff, in course of his evidence stated that the State of Bihar was not a tenant and he, therefore, claimed a decree only against the appellant. In spite of the evidence adduced on behalf of the plaintiff absolving the State of Bihar from the liability the trial court acting on the admission of the State of Bihar in the written statement decreed the suit against the appellant and the State of Bihar jointly.

7. The State of Bihar took up the matter in appeal, it being Title Appeal No. 65 of 1962. The appellate court observed that though in the plaint of the earlier suit, as it originally stood, the plaintiff did not claim the State of Bihar to be her tenant, she got the plaint amended on the assertion in the written statement made by the present appellant that the State of Bihar was the real tenant. But in spite of this amendment, in course of evidence, adduced on behalf of the plaintiff, the plaintiff did not acknowledge the relationship of landlord and tenant between the plaintiff and the State of Bihar. The lower appellate court, therefore, held that in view of the evidence adduced on behalf of the plaintiff any admission made by the State of Bihar in the written statement could not entitle the plaintiff to get a decree against the State of Bihar. The result was that the lower appellate court set aside the decree of the court below decreeing the suit against the State of Bihar and it affirmed the same so far as it related to the present appellant. Undoubtedly, this judgment of the lower appellate court has become final.

8. This time the plaintiff instituted the instant suit for arrears of rent in respect of the same house, though for a period subsequent to that claimed in the earlier suit, against the present appellant, the State of Bihar and defendant No. 3. Defendant No. 3 was impleaded on the ground that defendant No. 1, when he left the suit house, inducted defendant No. 3 as a sublessee. Defendant No. 3 disowned his liability as alleged in the plaint. Even defendant No. 1 denied his liability and stated that it was not he but the State of Bihar, who was the tenant in respect of the house in question. The State of Bihar, however, took a different stand this time, presumably being emboldened by the decision of the lower appellate court in the earlier suit, the case set up by them being that the State of Bihar was not a tenant in respect of the house in question.

9. Several issues were framed on the basis of the pleadings, one of which (vide issue No. 5) raised the question of res judicata. One of the issues (vide issue No. 4) also related as to whether the plaintiff was entitled to the decree for the amount claimed and if so from whom. While dealing with issue No. 4, the trial court observed that there was no difficulty in deciding that the plaintiff was a landlord of the holding in question of which defendants 1 and 2 were for some time tenants. It further observed that no doubt defendants 1 and 2 have denied the relationship of landlord and tenant between the parties in this case, but the matter is now not open to question in view of the decision in the earlier suit. To this extent, the trial court adopted the principle of res judicata, but the trial court took a somewhat inconsistent stand while dealing with the issue of res judicata in paragraph 16 of the judgment and held that the liability to pay rent, obviously as claimed in the instant suit, was not barred by res judicata. In paragraph 10 of his deposition, in the instant suit, the same Kedar Nath, who had deposed in the earlier suit for the plaintiff, admitted that in the previous suit he had stated that it would be wrong to say that the State of Bihar was tenant in the house in question. His further admission was that no tenancy in respect of the premises in question between the plaintiff and the State of Bihar came into being after the decision in the earlier suit, In spite of the pleadings of the parties and the evidence of P. W. Kedar Nath, the trial court dismissed the suit against defendants 1 and 3 observing that as the plaintiff did not choose his remedy against the State of Bihar, who, in its opinion, was liable to pay rent, the plaintiff had no cause of action against defendants 1 and 3. Being aggrieved the plaintiff-respondent took the matter in appeal. The lower appellate court accused the trial court of the wrong approach adopted by it and held that in view of the finding given in Title Appeal No. 65/ 62, it was wrong on the part of the trial Court to ignore the same and decide afresh about the relationship of landlord and tenant meaning thereby that the lower appellate court took the view that the matter regarding the relationship of landlord and tenant stood concluded by the principle of res judicata. The result was that the lower appellate court allowed the appeal in part on contest against defendants 1 and 3 making them responsible for rent for the different periods mentioned in the judgment. The lower appellate court, however, observed that since no relief was claimed against the State of Bihar the appeal stood dismissed against them. This is what has led defendant No. 1 to approach this Court in the instant second appeal.

10. It is difficult to accept the contention raised on behalf of the appellant. The shaky stand taken by the plaintiff had given rise to a conflict, directly and substantially in issue, as to who was the actual tenant in respect of the house in question. This conflict was settled at rest in a properly constituted suit which went up to appeal in Title Appeal No. 65 of 1962, in which the appellant as also the State of Bihar were parties. The appellate court dismissed the suit against the State of Bihar and it was decreed against the appellant. The principle of res judicata is well known. Explanation III to Section 11 states that the matter referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or implied-ly, by the other. Explanation IV further states that any matter which might and ought to have been made ground of defence or attack in such former suit should be deemed to be a matter directly and substantially in issue in such suit. For the application of Section 11, C.P.C. it is not always necessary that the issue in conflict must be raised in the pleadings themselves as such conflict may come up for decision otherwise also in view of the stand taken by the parties in course of the hearing of the suit. It is also well settled that even if the subject matter of dispute be different, as in the instant case the period for which the rent was claimed was different in the two suits, if the matter is otherwise covered by Section 11 of the Code of the Civil Procedure the principle of res judicata will apply with equal force. This being the position the decision in Title Appeal No. 65 of 1962 will operate as res judicata against the pre-sent appellant and he cannot competently challenge in the instant suit about there being no relationship of landlord and tenant between him and the plaintiff. This is one aspect of the matter.

11. In the instant suit the amount of Rs. 1,120 was claimed by the plaintiff as the amount of 'rent or damages' for the relevant period mentioned therein. Though there was a difference between the appellant and the State of Bihar in the instant suit as to who was the tenant in respect of the house in the relevant period, both of them were at one on the point that during the period for which the rent or damage, as the case may be, was claimed, it was the appellant who was in occupation of the house in question. While the appellant held his office in some portion of the house he occupied the remaining portion of the house for his residential purposes. There is no evidence that the State of Bihar was liable to pay for the residential portion on behalf of defendant No. 1. The position with respect of the office portion might be slightly different but if in the facts and circumstances of the case defendant No. 1 is made liable to pay rent, it may be open to him to recover rent for the office portion from the State of Bihar in accordance with law. This will not, however, absolve the appellant from his responsibility to pay the rent for a house in his sole occupation in view of the relationship of landlord having been finally decided in the earlier suit.

12. There is a third aspect also. A plaintiff of a suit can legitimately aban- don a part of his claim or a relief sought for by him against a particular defendant if he considers appropriate and if he decides to abandon a part of his claim or his relief against a particular defendant as originally claimed in the plaint, it may not be open to a court to compel him not to do so. The primary duty of a court is to grant relief to the plaintiff as claimed by him if he is found entitled in law to the same.

13. There is yet another aspect to be kept in view. Order VIII, Rule 5 of the Code of Civil Procedure states that "every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability." There is a proviso also which lays down that "the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission". The admission made by a defendant in a written statement becomes relevant and assumes importance only in the context of facts stated in the plaint and relief claimed by the plaintiff. Generally the effect of an admission in pleading is to shift the burden of proof. In spite of admission of the State of Bihar in the written statement filed in the earlier suit about the tenancy, the plaintiff chose not to stick to that admission and gave evidence in the contrary leading the State of Bihar to leave the scene. Defendant No. 1 contested the claim of the plaintiff but ultimately failed. In such circumstances, defendant No. 1 cannot be allowed to take advantage of such an admission made in the written statement filed by the State of Bihar in the earlier suit, in the instant suit where the State of Bihar has denied the relationship of landlord and tenant.

14. Considered in the light of the above facts and circumstances, it must be found that there is no merit in this appeal and it must fail. However, in the facts and circumstances of this case, the parties are directed to bear their own costs.

H.L. Agarwal, J.

Having heard the long and well considered judgment of my learned brother, I would simply observe that this appeal was concluded by finding of facts recorded by the court of appeal below. The claim of the appellant was barred by res judicata.

I, therefore, hold that this appeal has rightly been dismissed.


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