Dinbandhu Ghosh v. Tasawar Hussain And Another Opposite Party.

1. This application by the plaintiff arises out of an order passed by the Court of appeal below modifying an earlier order passed by it under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the ‘Act’).

2. The petitioner filed a suit in the year 1965 for eviction of the opposite party No. 1 from the premises in question on the ground that he required the same for his personal use and occupation. The suit was decreed on contest and opposite party No. 1 filed Title Appeal No. 8 of 1965 in the Court below. In that appeal, he made an application on 15-7-1969 under the provisions of Section 11-A of the Act for a direction to opposite party No. 1 to deposit all the arrears of rent from May, 1963 at the rate of Rs. 25/- per month and also current and future rents at the same rate. By his order dated 29-11-1971, the learned Subordinate Judge allowed the petition of the petitioner and directed the opposite party No. 1 to deposit the arrears of rent from May, 1963 as well as the current and future rents in terms of Section 11-A of the Act, failing which the memorandum of appeal itself was to stand dismissed. This order was challenged by opposite party No. 1 in Civil Revn. No. 1361 of 1971, and this Court by its order dated 2-12-1971 at the admissible stage itself, directed the learned Subordinate Judge to modify its above order with regard to the penalty which should follow for the failure of the defendant appellant to deposit the arrears of rent or current or future rent in terms of a Bench decision of this Court in Sheikh Mohammad Rasool v. Sheikh Anisur Rahman, (1967 BLJR 108), where it has been laid down that even at the appellate stage, on failure to carry out the order passed under Section 11-A of the Act, the penalty should be to strike out the defence as against ejectment and to give effect to the ensuing consequences, and not to dismiss the appeal itself. Default had, however, already been committed by the opposite party No. 1 in the meantime and the Court of appeal below had dismissed the appeal by an order dated 9-12-1971 before the order of this Court was communicated, but it was restored in view of the order of this Court on the application of opposite party No. 1.

3. On 6-1-1975, opposite party No. 1 filed a petition for modification of the order passed under Section 11-A of the Act on 9-12-1971 stating that in view of the Full Bench decision of this Court in Ram Nandan v. Mt. Maya Devi, (AIR 1975 Pat 283) (FB), he was not required to deposit the arrears of rent for the period before the date of institution of the title suit. The learned Subordinate Judge by the impugned order has modified the said order dated 9-12-1971, which is under challenge in this application.

4. The provision of Section 11-A of the Act has fallen for consideration before this Court on times without number and the views of this Court changed from time to time. According to this provision, a landlord may make an application at any stage of the suit for order on the tenant to deposit monthly rent at a rate at which it was last paid and also “arrears of rent”. The expression “arrears of rent”, as already indicated above, has been the subject-matter of great controversy from time to time and received different interpretation until it was finally settled by the Full Bench decision in Ram Nandan Sharma's case (AIR 1975 Pat 283) (FB) (supra). Earlier Untwalia, J. (as he then was) in Bhola Nath Tewary v. Kuer Rup Narain Singh Trust, (1967 BLJR 397), while considering this question had ruled that “Court has no concern with the law of limitation while making an order under Section 11-A of the Act”. The learned Judge affirmed his above view again in the case of the Managing Committee v. Tripurary Charan Palit, (AIR 1973 Pat 60). A Division Bench of this Court in Sashadhar Das v. Harihar Prasad, (AIR 1973 Pat 361), however, overruled the above decisions and held that under this section only such arrears of rent which accrued due prior to the institution of the suit may be ordered to be deposited which could be legally recovered by the landlord and is not barred by any law. It was, accordingly, held that arrears of rent under the said provision could not be claimed for a period beyond three years from the date of institution of the suit. This view held the field for a long time, but it was again changed and ultimately the question was referred to a Full Bench and the Full Bench in Ram Nandan Sharma's case (supra) overruled the earlier views of this Court and firmly held that the expression “arrears of rent” was confined only to the period after the institution and during the pendency of the suit, and not earlier to that. The Court below while modifying its earlier order has taken the view that in view of the above Full Bench decision “the order of this Court directing the defendant appellant to deposit the time barred arrears of rent cannot be sustained because on the face of it the order is wrong and erroneous now”

5. Mr. S.C Ghose appearing for the petitioner challenged the order of the learned Subordinate Judge on the ground that the earlier order dated 23-11-1971 directing the opposite party No. 1 to deposit the arrears of rent from May 1963, which was affirmed by this Court in Civil Revision No. 1361 of 1971, as indicated earlier, could not be modified even if any illegality was committed in the said order and the said order would be binding on both the parties in this proceeding. Reliance was strongly placed upon the decision of the Supreme Court in the case of Satyadhyan Ghosal v. Smt. Deorajin Debi, (AIR 1960 SC 941), where it has been observed:

“The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court, having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.”

6. Following the above decision, a Bench of this Court in Prabhu Halwai v. Fulchand, (AIR 1969 Pat 16) held that “apart from Section 11, the principle of res judicata applies also between two stages in the same litigation to this extent that a Court, whether the final Court or a higher Court, having at an earlier stage decided the matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceeding. But in the earlier stage of the litigation the decision must be final in the strict sense of the term”.

7. In order to meet the above contention, learned counsel for the opposite party No. 1 placed strong reliance upon a decision of the Supreme Court in the case of Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B Jeejeebhoy, ((1970) 1 SCC 613 : AIR 1971 SC 2355) where it has been observed that “a question relating to jurisdiction of a Court cannot be deemed to have been finally determined by erroneous decision of that Court and if by an erroneous interpretation of the statute a Court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly, by an erroneous decision if the Court assumes jurisdiction which it does not possess under a suit, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise”. The facts of this case may be noticed very briefly. On an earlier occasion, when an application was filed in the Court of the Civil Judge, Junior Division, Borivli, District Thana, for determination of the standard rent of the land under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Civil Judge had rejected the application holding that the provision of the said Act did not apply to open land let out for constructing building for residence, etc. This order was confirmed by a single Judge of the Bombay High Court. Later on, the Bombay High Court in a different set of cases held that the provisions of the above Bombay Rents Act did not altogether exclude from its application an open plot. Relying upon this decision, a fresh application was filed in the Court of Small Causes, Bombay, for an order determining the standard rent of the premises as the area in which the land was situate had since been included within the limits of the Greater Bombay Area. The trial Court rejected the application on applying the principle of res judicata and the order was confirmed up to the High Court of Bombay. The matter went to the Supreme Court on special leave. The Supreme Court overruling the view of the Bombay High Court observed that “the doctrine of res judicata belongs to the domain of procedure. It cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby”. Proceeding further, it was observed that a pure question of law unrelated to facts which give rise to a right, cannot be deemed to be matter in issue. While the Supreme Court still maintained in this decision also that a previous decision on a matter in issue is a composite decision, the decision on law cannot be dissociated from the decision of facts on which the right is founded. A decision on an issue of law will be as res judicata in the subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding. Exceptions have however been made in the following cases; (a) when the cause of action is different, (b) when the law has since the earlier decision been altered by a competent authority, (c) when the decision relates to the jurisdiction of the Court to try the earlier proceeding, and (d) when the earlier decision declares valid a transaction prohibited by law.

8. In a very similar situation, the Madras High Court, following the above decision of the Supreme Court, in Palaniappa Chettiar v. Parvathi Bai, (AIR 1972 Mad 52) held that a former decision between the parties rendered in accordance with the case law then in force can be reopened by any of the parties at a subsequent stage of the proceeding on ground of the latest change in the case law rendering the former decision erroneous.

9. Mr. Sanyal, strongly leaned on this decision and contended that the earlier order passed by the learned Subordinate Judge on 23-11-1971 directing deposit of arrears of rent for a period earlier to the institution of the suit, in view of the earlier decisions of this Court, could now be reopened on account of the latest change in the said view, rendering erroneous.

10. The argument of Mr. Sanyal, although attractive on its face, cannot be accepted as there is a clear fallacy in the same. In the case before the Madras High Court also, the earlier order which was held not to be operative as res judicata, was also with respect to the jurisdiction of the Court in relation to the entertainment of an application under the provision of the Madras Buildings (Lease and Rent Control) Act, 1960, where following the Supreme Court decision, it was held that the question relating to jurisdiction of the Rent Controller cannot be deemed to have been finally determined by an erroneous decision of the Court and that such question of jurisdiction cannot be barred by the principle of res judicata.

11. The point, in my opinion cannot be said to be covered by either of the decisions relied upon by Mr. Sanyal. The Subordinate Judge, in this case was fully competent to pass the order under Section 11-A of the Act, and in course of that he might commit even an illegality of law or fact. That order when it became final, would be binding on the parties and, would be fully covered by the authority of the Supreme Court in AIR 1960 SC 941 (supra) where it was observed that the principle of res judicata was applied by Courts for the purpose of achieving finality in litigation. Even in the case of Mathura Prasad Sarjoo Jaiswal, ((1970) 1 SCC 613 : AIR 1971 SC 2355), the Supreme Court has affirmed its earlier view that a decision of a competent Court on a matter in issue may be res judicata between the same parties. “The matter in issue may be an issue of fact, an issue of law or one of mixed law and fact”. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be reopened between them. It is very clearly stated in this decision that a decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same, as in the previous proceeding. The learned Judges have indicated the exceptions where this principle would have no application, which I have mentioned earlier. I am afraid, the contention raised by Mr. Sanyal is not covered by any of the exceptions.

12. If the argument of Mr. Sanyal is accepted, its practical consequences, however, would be appalling to contemplate. The default in compliance of the order passed under Section 11-A has been made penal and results in striking off the defence against ejectment of the tenant. In cases where on account of the order passed by subordinate Courts, in terms of the earlier view of this Court, defence has been struck off, decrees have been passed and issues determined; then in all such cases the tenants would claim rehearings of their cases and challenge the old orders striking off their defence on the ground that it was as a consequence of an illegal order and a state of confusion would follow. It is only to guard against such consequences that the principle of res judicata has been applied to interlocutory orders as well. It is since well settled that rights of parties have to be decided and determined in accordance with the law in force at the time when the same is decided, and once the decision becomes final, any subsequent change of law will not entitle any party bound by that decision, to challenge the same in any collateral proceeding.

13. Considering the point canvassed before me, I have no doubt in taking the view that the learned Subordinate Judge has committed an apparent error of jurisdiction in refusing the earlier order in this purported attempt to give effect to the change of view expressed by this Court on a subsequent occasion in the year 1974 in respect of a matter which had already been concluded and the rights of the parties had been determined and consequences followed in pursuance thereof.

14. Any order passed under Section 11-A of the Act by any Court is subject only to variation if the House Controller determines during the pendency of the suit the fair rent of the premises in question somewhat different, as observed by the Full Bench in Mahabir Ram v. Shiva Shanker Prasad, (AIR 1968 Pat 415) (FB) and again in the case of Gyan Mohan Das v. Hariram Maharaj, (1970 BLJR 370) following the said decision and in no other case once the order becomes final.

15. There is yet another ground on which the order of the learned Subordinate Judge must be set aside. The order dated 23-11-1971 had been challenged in this Court in Civil Revision No. 1361 of 1971 and was confirmed only with a slight modification.

16. The learned Subordinate Judge, therefore, had no jurisdiction to modify the said order and, in my opinion, that would amount to a modification by a subordinate Court of an order passed by the Court.

17. For all the aforesaid reasons, this application must succeed and the impugned order passed by the learned Subordinate Judge set aside. The application is accordingly, allowed with costs. Hearing fee is assessed at Rs. 110/- only.

18. Application allowed.