Profulla Chandra Bhar (Landlord) v. Messrs. Prabartak Trust (Tenants) Opposite Parties.

P.N Mookerjee, J.:— This Rule raises two important questions, one relating to the proper meaning of the word “as”, appearing in the Explanations to paragraphs (2) and (3) of Schedule A of the West Bengal Premises Rent Control (Temporary Provisions) Act, T950, where the expression “residential purposes” is defined for purposes of the said paragraphs, the other involving consideration of the applicability of the doctrine of res judicata in relation to proceedings for refixation of ‘standard rent’ under the Rent Control Act of 1950 by reason of a previous decision in a proceeding for standardisation of rent under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948.

2. The material facts are not in dispute and they are as follows:

The petitioner Prafulla Chandra Bhar is the landlord and the opposite party, Messrs. Prabartak Trust, the tenant in respect of Premises No. 61, Bowbazar Street, in the town of Calcutta. In December, 1941, the rent of the said premises was Rs. 327 per month and this was subsequently raised by agreement to Rs. 400 per month in July, 1945. In May, 1949, the landlord applied for standardisation of rent under the Rent Control Act of 1948 and, on 19.7.49, the standard rent was fixed by the Rent Controller at Rs. 444-3-9 per month on the following basis, viz.:

(a) The rent of December, 1941, being Rs. 327 per month the ‘basic rent’ would be Rs. 327 + 10% = Rs. 359-11-3 per month.

(b) The tenant being a charitable institution, its user of the premises in question was for charitable purposes and was thus for ‘residential purposes’ within the meaning of paragraph (2) of Schedule A of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, by reason of the Explanation, appended thereto. The landlord was, therefore, entitled under the said 1948 Act to an increment of 20% over the basic rent, i.e, to a rental of Rs. 359-11-3p.+20% = Rs. 431-10-2P. per month; and

(c) The landlord was also entitled to a further sum of Rs. 12-9-7P. per month, on account of increment of municipal taxes, the standard rent being thus the consolidated figure of Rs. 431-10-2P. + Rs. 12-9-7P, = Rs. 444-3-9P per month.

3. On the above basis the standard rent was fixed in the said proceeding at Rs. 444-3-9P. per month with effect from April, 1949.

4. In May, 1950, the tenant, Messrs. Prabartak Trust, applied under the Rent Control Act, 1950, for refixation of the standard rent under section 17(2) thereof. The Rent Controller by his order, dated 8-7-50, refixed the standard rent at Rs. 413-10-6p per month with effect from June, 1950, on the following findings, viz.;

(a) that the rent of December, 1941, was Rs. 327 per month and this rent, though it might have been ‘unduly low’— and this was irrelevant under the 1950 Act, was not ‘nominal’;

(b) that the ‘basic rent’ would, therefore, be Rs. 327 per month +10% = Rs. 359-11-3P. per month;

(c) that, although the premises were used by a charitable institution, they were actually used for carrying on business, and, as such, for non-residential purposes—or, to quote the language of the statute, “otherwise than for residential purposes”—and, therefore, under paragraph 3(b) of Schedule A of the Rent Control Act of 1950, the landlord was entitled to 15% over and above the ‘basic rent’, as the increased rent of Rs. 400 per month was first paid in July, 1945, from which a period of three years had elapsed.

5. The standard rent was thus fixed by the Rent Controller at Rs. 359-11-3P. +15% = Rs. 413-10-6P per month and it was given effect, as already stated, from June, 1950.

6. Both parties appealed and the learned Appellate Judge affirmed the findings of the Rent Controller except on one point, namely, as to the nature or character of the purposes of user of the premises and he held that, as the user was by a charitable-institution, such user must be construed to be user for “residential purposes” within the meaning of the Explanations to paragraphs 2 and 3 of Schedule A of the Rent Control Act of 1950 and he, accordingly, refixed the standard rent under paragraph 2(b) of the said Schedule A, instead of paragraph 3(b), applied by the Rent Controller, by allowing an increment of 10%— instead of 15%—over the ‘basic rent’, his final figure being Rs. 359-11-3p. +10% = Rs. 395-103P-Per month.

7. The landlord has now come up in revision and the only point, raised by Mr. Banerjee, who appears for the landlord-petitioner, is that the learned Appellate Judge was wrong in holding that the disputed premises were being used for “residential purposes” within the meaning of the relevant statutory provision, merely because they were used by a charitable institution. To this contention the tenant's reply has been of a two-fold character. Mr. Dutt, appearing for the tenant-opposite party, has contended, in the first place, that the learned Appellate Judge is right on the merits, as the tenant is a charitable institution and its user of the premises in question, though for the purpose of carrying on business, being for a purpose of the said charitable institution,— which is the tenant, within its Memorandum and Articles of Association, is user for the purpose of a charitable institution and, as such, it satisfies the relevant test of user of the premises “as a charitable institution” and hence, the relevant test of user for “residential purposes”. Mr. Dutt has not argued that every user by a charitable institution would be user for the purpose of a charitable institution so as to satisfy the requirement of user “as a charitable institution”, but his submission under this head has been of a limited character, namely, that the carrying on of the business in question in this particular case being one, sanctioned by the Memorandum and Articles of Association of the tenant, Messrs. Prabartak Trust, which is a charitable institution, the user of the disputed premises for this purpose is user for the purpose of a charitable institution and satisfies the test of user “as a charitable institution”. In the second place, Mr. Dutt has argued—and this really cropped in the course of discussions in Court— that, in view of the ‘decision’ on this point, viz., that the tenant's user of the disputed premises was for “residential purposes”, in the previous proceeding for standardisation of rent under the Rent Control Act of 1948, it was not open to the landlord in the present proceeding to contend that the user of the premises was “otherwise than for residential purposes”, such contention being barred by the general principles of res judicata.

8. In our opinion, this Rule ought to succeed. In defining ‘residential purposes’ in the Explanations to paragraphs 2 and 3 of Schedule A of the Rent Control Act of 1950, the relevant language, used by the statute, is that the said expression “includes purposes of being used as a charitable institution”. The word “includes”, as used above, is not very material for our present purpose and no contention has, in fact, been founded upon it. It merely shows that scope of the expression “residential purposes” as used in the said paragraphs, is wider than what is normally understood by it but, though it includes some purposes, normally non-residential, such non-residential purposes would be restricted to the specific purposes, mentioned in the definition, viz., “purposes of being used as a hospital, an orphanage, a public library or an educational or charitable institution”. The word “as”, however, used in the Explanations, seems to us to be highly suggestive and significant and, in its context,—and in the context, also of the other words, used in the Explanations —it appears pretty clear that the expression “charitable institution” has been used in the above definition to refer not to the character of the tenant, who rents the premises in question but to the character of the purpose for which the same is used. We feel no doubt on this point, particularly when we find that the relevant provision speaks not of “user of the premises ‘by’ a charitable institution” but of “user of the premises ‘as’ a charitable institution” There is a world of difference between “user ‘as’ a charitable institution” and “user ‘by’ a charitable institution” and if all modes of user ‘by’ a charitable institution were meant to be included, the legislature could easily have used the word ‘by’ in place of ‘as’. That has not been done—and, indeed, Mr. Dutt also did not contend that the expression “purpose of being used as a charitable institution” would include every user ‘by’ a charitable institution. The relevant finding of the learned Appellate Judge is only this—that the premises in question are being used by a charitable institution—and from that he has jumped to the conclusion that the test, laid down in the expression, quoted above, has been satisfied. We are unable to agree with the learned Judge in this interpretation of the statutory language and we hold that, merely from his finding, noted above, he was wrong in concluding that the relevant test of user of the premises for “residential purposes” has been satisfied in this case.

9. Before, however, finally deciding this question of interpretation in the present case we have to consider—and consider carefully—the narrower submission of Mr. Dutt on this part of the case. That submission cannot be thrown out straightaway and it has in it a large element of plausibility. Giving, however, the matter our best consideration, we are unable to accept the same. This submission of Mr. Dutt has already been sufficiently indicated above and, briefly put, it runs thus: The tenant, Messrs. Prabartak Trust, is a charitable institution—though some of its accredited purposes e.g, the purpose, with which we are here here directly concerned, namely, the purpose of carrying on business, may not be ‘strictly charitable’—and user for any of the accredited purposes of this charitable institution will be user as “a charitable institution”. We have used above the words “strictly charitable”, because Mr. Dutt has really contended that the carrying on of the business, in the present case, being one of the accredited purposes of the charitable institution, Messrs. Prabartak Trust, and being, further, for the purpose of augmenting the funds of the said charitable institution, to be applied exclusively to charity, may well be called a charitable purpose in the wider sense of that expression, and user for this purpose will be user “as a charitable institution”. There is force in this latter contention but, having considered the matter as best as possible, we are not inclined to accept it and we are disposed to think that for determining whether the user of the premises in question is “as a charitable institution” within the meaning of the language of the relevant statutory provision, the purpose, of, at least, the major or substantial purpose,—because the statute also speaks of main user—of the particular user must be what we have called above ‘strictly charitable’ or ‘charitable’ in the strict or narrower sense of the term and not in the broader sense of including purposes which are not by themselves charitable but are, in some way, connected with charity and for a charitable institution and may thus —not inappropriately—be called ‘charitable’ in the wider sense of that term.

10. We, accordingly, reject Mr. Dutt's contention and hold, as a matter of inter pretation, that the user of the disputed premises in the present case is not for “residential purposes” under the Explanations to paragraphs 2 and 3 of Schedule A of the Rent Control Act of 1950. Although the tenant, Messrs. Prabartak Trust, is, admittedly, a charitable institution, its primary or main or substantial purposes or objects being, according to its Memorandum and Articles of Association, ‘strictly charitable’ even though one of such purposes or objects is the carrying on of business and thus not ‘strictly charitable’, notwithstanding the fact that the profits of the said business are not —and are not to be—enjoyed by the members of the institution, but are and are to be-applied for what we have called above ‘strictly charitable’ purposes. This carrying on of business would not, as just stated by us, be a ‘strictly charitable’ purpose and would thus be, in our opinion, above expressed, of no assistance to the tenant in the present case.

11. It may be convenient at this stage to sum up our net conclusions on this part of the case and we do so as follows:

In order that the user of any premises may be for ‘residential purposes’ within the meaning of the Explanations to paragraphs 2 and 3 of Schedule A of the Rent Control Act of 1950, it is neither necessary nor sufficient that the tenant should or would be a charitable institution but it is necessary —and it will also be sufficient—if the user be for a ‘charitable’ purpose in the strict or narrower sense of that term. This test is not satisfied in the present case and the tenant-opposite party cannot, therefore, claim the benefit of paragraph 2(b) of the above Schedule. The first contention of Mr. Dutt must, accordingly, fail and it is overruled.

12. That, however, is not the end of the matter, for we have still to consider Mr. Dutt's second contention, namely, the question of res judicata. It is quite obvious that, if, on this point, Mr. Dutt's submission be correct, this Rule must fail, whatever be the proper interpretation of the expression “residential purposes”, as defined in the relevant statute, or, to be more precise, whatever might be the true meaning of the words ‘purposes of being used as a charitable institution’ as contained in the said definition. It is not disputed that, in the proceeding for standardisation of rent under the 1948 Act, the same or a similar user of the disputed premises, as at present, was held to have been for “residential purposes” within the meaning of the said statute. It is also not disputed that the definition of the said expression “residential purposes” is the same, i.e, in the same language, in both the Acts of 1948 and 1950. The question, therefore, arises whether under the above circumstances, the decision under the 1948 Act that the user of the disputed premises was for “residential purposes” would operate as res judicata so as to preclude a fresh consideration of the matter when it arises in the present proceeding for refixation of rent—and this is really the same thing as standardisation of rent, as the refixation has to be in accordance with the provisions laid down in the statute, for standardisation of rent,—under the 1950 Act. The solution of this question has given us considerable trouble. We were worried over this part of the case and our task became harder by reason of the fact that, though Mr. Dutt raised this question of res judicata as one of his points in opposing the Rule, he did not develop or argue it fully, and, Mr. Banerjee, also on behalf of the petitioner, frankly confessed that he had not looked up this matter. Both sides merely stated their ultimate contentions on this point—the opposite party asserting the plea of the bar of res judicata and the petitioner denying the same,—and left it there without developing their respective contentions. We had, therefore, to consider the question ourselves and, the point at issue not admitting of an easy solution, we felt considerable anxiety over the matter.

13. In the above situation, we have ourselves examined the principles and the authorities which may be of some assistance in the solution of the problem before us and upon such examination; we have reached the conclusion that the plea of res judicata, raised by Mr. Dutt, cannot be accepted. Res Judicata—or, as it is also sometimes called Res Adjudication—literally means ‘(the) thing adjudged’, and the doctrine known by that name rests on the principle that a matter, once adjudged, cannot be reopened. In its practical application the doctrine or the rule of res judicata bars the trial of an issue, previously decided. In essence, therefore, the rule postulates a previous decision or adjudication and a recurrence of the matter or issue, there or then adjudged or decided. It is the decision or adjudication which operates as res judicata and, for the success of this plea in bar, it is essential that the point, now arising for determination, has already been decided in the previous proceeding, either expressly or by necessary implication. In the application, therefore, of the rule of res judicata, what matters is the decision— and not the reasoning—of the Court and one requirement of the rule is the identity of the issue of eadem questio.

14. I have just stated above my conclusion, reached on an examination of the principle, underlying the rule of doctrine of res judicata. The same conclusion also emerges from an examination of the relevant authorities on the point. In such circumstances, the tenant's plea that the landlord's claim in the present Rule is barred by res judicata cannot succeed and must be rejected.

15. As pointed out by Bankes, L.J, in the case of Jones v. Lewis (1) [(1919) 1 K.B, 328], it is the decision—and not the reasons of the decision—which operates as res judicata. This is clearly supported bythe pronouncement of the Judicial Committee in the case of Broken Hill Proprietary Co., Ltd. v. Municipal Council of Broken Hill (2), [(1926) A.C 94], and it is not opposed either to the decision of the same tribunal, reported in the same volume, at page 155— Hoystead v. Commissioner of Taxation (3) [(1926) A.C 155]— or to its earlier decision in Badar-Bee v. Habib Merican Noordin (4) [(1909) A.C 615], neither of which can be read as justifying the application of the rule of res judicata to the reasoning of the Court as distinguished from its decision in both these latter cases the plea of res judicata succeeded, because in each of them the res in the later proceeding had already been ad-judged in the earlier and the issue in either was eadem questio. The absence of this feature distinguishes the other two cases cited, namely, Jones v. Lewis (1) [(1919) 1 K.B 328] and Broken Hill Proprietary Company Ltd. v. Municipal Council of Broken Hill (2) [(1926) A.C 94], where res judicata was pleaded without success. The distinction between these two lines of cases is well-illustrated by the Madras Full Bench decision in Narayana v. Subramanian (5) [I.L.R (1937) Mad. 364 : A.I.R 1937 Mad. 254 (F.B)], where the plea of res judicata was accepted on one part of the case, but rejected on the other. It thus appears that there is no conflict as between the cases cited,—the presence or absence of the eadem questio explaining the difference in the ultimate results—but what is also important for our present purpose is that in the three of them, where the bar of res judicata was applied what mattered was the decision, and not the reasoning, of the Court on the former occasion.

16. The principle, enunciated by Bankes, L.J, as set out above, and affirmed or recognised in the other cases cited as shown in the preceding paragraph, was accepted by the Full Bench of this Court in the case of Santosh Kumar v. Nripendra Kumar (6), [53 C.W.N 533 (F.B)], and also by our earlier Full Bench in the well-known and off-quoted case of Tarini Charan Bhatracharya v. Kedar Nath Haldar (7) [I.L.R 56 Cal. 723 : 33 C.W.N 126 (F.B)], where Rankin, C.J, observed at pages 736–737 of the report that “what is conclusive between the parties is the decision of the Court and that reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which those rights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided.” The first part of this observation clearly restates the above principle and in the fines that follow, read in the light of the later Full Bench case, above cited, there appears to be nothing which detracts from the correctness or efficacy of the said principle or whittles down its scope. That this is so becomes abundantly clear when we turn to the submission which was accepted by the Full Bench in this latter case of Santosh Kumar v. Nripendra Kumar (6) [53 C.W.N 533 (F.B)]. That submission appears at page 538 of the Report and is in these terms:

“What is res judicata is the point directly decided or the order passed and not the reason thereof.”

17. The language shows a full and complete acceptance of the principle, quoted above, from Jones v. Lewis (1) [(1919) 1 K.B 328], and the Full Bench must be taken to have put upon it the seal of its own authority.

18. The position is thus well established that what is res judicata is the decision and not the reason thereof. The interpretation, therefore, of the definition of the expression, “residential purposes” in the proceeding for standardisation of rent under the 1948 Act, which was really the reason for the decision therein that the disputed premises, with which we are concerned, were being used for “residential purposes” within the meaning of the said Act, would not, in our opinion, be res judicata in the present proceeding under the 1950 Act and would not preclude consideration of the question whether the user of the disputed premises is for “residential purposes” under the 1950 Act.

19. It is to be remembered further that the Act of 1948 has been repealed and the Act of 1950 is in operation and although it is true that the definition of the expression “residential purposes” is the same in either of the said two Acts, it cannot be said that the same question is or was involved in the proceedings under the two Acts. In the earlier proceeding the question for decision was whether the user of the disputed premises was for “residential purposes” under the 1948 Act; the question, now arising for decision, is whether such user is for “residential purposes” within the meaning of the 1950 Act. This latter question, namely, whether the user of the disputed premises is for “residential purposes” under the 1950 Act, was not in issue—far less directly and substantially in issue in the previous proceeding under the 1948 Act and the bar of res judicata cannot, therefore, apply to the decision thereof in the present proceeding. The rights, claimed and denied as between the parties in the earlier proceeding, were under the 1948 Act and the rights, claimed and denied in the present proceeding, are under the 1950 Act and, although, as a matter of language, the same words have to be interpreted in both the proceedings, one would govern the rights of the tenant and the character of the tenanted premises under the 1948 Act and the other under the 1950 Act. The question would not, therefore, in our opinion, be the same or eadem questio in the two proceedings, and, consequently, the bar of res judicata could not, in the light of what I have stated above, apply against the petitioner.

20. The facts found in the earlier proceeding, were for ascertainment of rights under the 1948 Act and were thus for purposes of that Act. The facts now to be found are to be for ascertainment of rights under the 1950 Act and would thus be for purposes of this latter Act. This is a material difference which, in our view, excludes, on principle and authorities alike, application of the doctrine of res judicata in the present case. We, accordingly, overrule Mr. Butt's contention on the point of res judicata.

21. What I have said above is sufficient for the rejection of the tenant's plea of res judicata, but there is also another aspect of the matter to which I shall now refer. Section 17(2) of the Rent Control Act of 1950— under which the present proceeding was initiated—authorises the “Controller”, in cases where the standard rent has been fixed under the earlier Act of 1948, to “refix the standard rent” in accordance with the provisions of the new Act. The portion in bold types above—and there the word ‘refix’ is particularly important—clearly shows an intention—and similar is the position under section 17(3) also which is plainly intended to affect pending proceedings—to reopen the matter and so to preclude the application of the bar of res judicata by reason of the previous decision under the 1948 Act. This case, therefore, falls within the exception, noticed by Das, J. (Das Gupta, J., concurring with him) in the recent decision of this Court in the case of the Province of Bengal v. Haidar Shaikh (8) [S.A Nos. 1321 to 1323 of 1947, decided on the 2nd April, 1952 (unreported)], to which the rule of res judicata would not apply and the observations of Rankin, C.J, quoted by the learned Judge and relied on by him in that connection, would be clearly attracted. True, on this ground too, the petitioner's claim in the Rule cannot be defeated by invoking the plea of res judicata and Mr. Dutt's second contention must therefore fail.

22. The bar of res judicata being thus out of the way, and, upon our interpretation of the relevant statutory language, as indicated above, the opposite party's user of the disputed premises for the purpose of carrying on business not being for “residential purposes” but being “otherwise than for residential purposes” within the meaning of the relevant statute, and there being no case, on the materials on record, that the disputed premises are used for any purpose other than the said purpose of carrying on business, we must hold that the petitioner is entitled to 15% over the ‘basic rent’, as held by the Rent Controller, under paragraph 3(b) of Schedule A of the Rent Control Act of 1950, and not to 10% only over the ‘basic rent’ under paragraph 2(b) of the said Schedule, as held by the learned Appellate Judge, and the standard rent should, therefore, be fixed or refixed at Rs. 359-11-3P. + 15% = Rs. 413-10-6P per month, as found by the Rent Controller and we decide accordingly.

23. In the result, therefore, this rule succeeds and it is made absolute. The order of the learned Appellate Judge is set aside and that of the Rent Controller restored.

24. There will be no order for costs in this Rule.

Guha Ray, J.:— I agree.

P.S