Abdul Sahid vs China Lee Hing

Thadani, C.J.—This second appeal is from the judgment and decree of the learned Subordinate Judge, Upper Assam Districts, dated 15-3-49, by which he set aside the judgment and decree of the trial Court, dated 9-8-48, which had decreed the plaintiff''s suit with costs.

The plaintiff brought a suit to eject the defendant by evicting him from the demised premises and for recovery of a sum of Rs. 180 on account of arrear of rent at the rate of Rs. 12 P.M. It was the plaintiff''s case that the defendant was irregular in the payment of rent and did not pay any rent from 1-5-46; he served a notice of ejectment upon the defdt. on 14-8-46, on the defdt''s failure to comply with the notice, he brought the present suit.

The defdt. admitted the tenancy but denied that he was irregular in the payment of rent from 1-5-46. He alleged that he used to remit the rent due from month to month by Money Orders, which the plaintiff refused to accept.

Upon the pleadings, the trial Court framed the following issues:

Whether the defendant is irregular in payment of rent and is in arrear from 1-5-46, as alleged by the plaintiff?

Whether the plaintiff is entitled to eject the defendant from the house in suit and to recover the rent claimed

On 27.5.48 a date fixed for the hearing of the suit, the defdt. Asked for an additional issue as to the effect of the decision in Misc. Case No. 53 of 1947, brought by the defdt. against the plff. It appears that in Misc. Case No. 53 of 1947 filed by the defdt. u/s 8, Assam Urban Areas Bent Control Act, 1946, the Court had come to the conclusion that the defdt. was not a defaulter the defendant accordingly claimed that this decision of the Munsiff in Misc. Case No, 53 of 1947 operated as a bar to the present suit. This issue was set down for trial as a preliminary issue, namely, whether the suit wag-barred by the provisions of Section 11, Civil P.C. On 19-7-48, the parties filed a joint petition, by which they agreed that the suit would stand dismissed or decreed in conformity with the decision of the Court on this issue and that the parties did not propose to lead any evidence on the remaining issues.

Before the trial Court, it was argued that as there was a decision of the Munsiff in Misc. case No. 63 of 1947, brought u/s 8, Bent Control Act of 1946 to the effect that the deft. was not a defaulter, upon a question which was in issue in the present case, the decision, though made in a case brought u/s 8, Rent Control Act, operated as res judicata u/s 11, Civil P.C.

On behalf of the pltf. on the other hand, it was argued before the trial Court that the only issue before the Munsiff in Misc. case No. 53 of 1947 wag whether the house required repairs and whether the landlord was bound to repair it, and that the question of default was not necessary for the determination of that case The trail Court agreed with this contention and came to the conclusion that the matter of the alleged default in the payment of rent due was not directly and substantially in issue in Misc. case No. 53 of 1947. It pointed out that the Rent Control Act, nowhere lays down that the landlord is not to repair or keep the house in good condition if the tenant commits default in the payment of rent the decision on this particular point was, therefore, not necessary for the purpose of giving relief to the deft, in that case. We think this view is not correct.

It is true Sub-sections 7 and 8, Rent Control Act of 1946 are silent on the question of the failure by the deft, to pay rent regularly. But manifestly they must be read with the relevant section of the Transfer of Property Act, namely, Rule 108(c) which says:

The lesser shall be deemed to contract with the lessee that if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, be may hold the property during the time limited by the lease without interruption.

In other words, the right of a lessee to quiet enjoyment is dependent upon his paying the rent reserved by the lease. The lesser in this case disputed the lessee''s right to quiet enjoyment of the premises within the meaning of Clause (c) of Section 108, Transfer of Property Act, on the ground that the lessee was irregular in the payment of rent. The question, therefore, of the alleged non-payment of rent by the deft, lessee was a matter directly and substantially in issue in disposing of the lessee''s application made u/s 8, Rent Control Act of 1946; and it having been decided against the plaintiff lesser, the decision operated as res judicate in the present suit.

The principle of the decision of the Privy Council reported in AIR 1932 50 (Privy Council) , is applicable to the facts of this case.

We think the lower appellate Court was tight in regarding the decision of the Munsiff in Misc. Case No. 53 of 1947 as res judicata on the question of the alleged default in the payment of rent raised by the plaintiff in the present suit. The result is that the appeal is dismissed.

I agree in the con-elusion arrived at by my Lord the Chief Justice. I wish, however, to add a few words.

The question is whether plaintiff, in the present case, is debarred by the Rule of res judicata from pleading that defendant was irregular in the payment of rent from 1-6-1946 onwards or in other words, that he was a defaulter.

The facts bearing on the question are not disputed. In Miscellaneous case No. 53 of 1947 the proceedings were initiated by the tenant (defendant in the present case), u/s 8, Assam Urban Area Rent Control Act, 1946 Assam Act III [3] of 1946. The tenant sought to have directions of the Court for the repairs of the house in question. The landlord, who is the plaintiff in the present case, resisted the-application of the tenant on the ground that he. Was a defaulter in the payment of rent and that as a consequence of his default, be had instituted) a suit for ejectment against him He disputed his liability to execute repairs on this basis. The Sadar Munisiff at Dibrugarh found that the tenant was not a defaulter. He was offering rent to the plaintiff who had refused to accept He further found that the pendency of the ejectment suit instituted by the landlord against the tenant had no effect on the proceedings before him. He, therefore, directed the landlord to make necessary repair by 16-12-1947. The landlord preferred an appeal against the order in the Court of the Additional Sub Judge, U.A.D.

The learned Judge in appeal agreed'' with the learned Munsiff and dismissed the appeal He also came to a clear finding that the tenant was not a defaulter as in the circumstances the landlord was ''bound to execute the necessary repairs under the Assam Urban Area. Rent Control Act.

It is clear that the order directing the-landlord to execute repairs was based on the finding that the tenant was not a defaulter. The plea was raised by the present plaintiff in those proceedings He was dissatisfied with the order of the learned Munsiff and preferred an appeal. Even at that stage it was being urged on his behalf that mere offers of rent on due dates did not save the tenant from becoming a defaulter. He should have deposited the rent in Court and. as he had failed to do so, he must be held to be a defaulter. This view did not prevail with the Court and the result was that plaintiff was-ordered to execute the necessary repairs to the cook shed, the latrine and the fencing.

In the present litigation, the defendant contends that the question whether he was a defaulter or not was directly and substantially in issue in the earlier proceedings under the Assam Urban Area Rent Control Act. It has been heard and finally disposed of. The plaintiff, therefore, is precluded from re-agitating it by the rule of res judicate the default was specifically alleged by the landlord. It was expressly denied by the tenant.

Explanation 3 to Section 11 requires that the matter referred to in Rule 11 must have been alleged in the former suit by one party and denied by the other. This is exactly what has happened in the case. It is not necessary that a distinct issue should have been actually framed. There can, therefore, be no doubt that the matter may be directly in issue, bat even though a matter may be directly in issue, it was not have the force or authority of res judicata unless it was substantially in issue in the former litigation. A matter would be substantial if it is of importance and value for the decision of the case, speaking generally In this case, the landlord C.P. in the proceedings under the Assam Urban Area Rent Control Act) relied mainly on the default of his tenant and resisted the claim foe repairs on that basis. The allegation of default was repudiated. The parties joined issue and the decision of the Courts under that Act were based on a clear finding to the effect that the tenant could not be regarded as a defaulter. The plaintiff evidently regarded that the question of default was necessary for the decision as to the right of the tenant to claim repairs. The tenant also by his conduct acquiesced in this position. The only point of difference between the two was whether the default had actually taken place or not. The Courts accepted the assumption on which the pleas of the parties were baaed and proceeded to decide the question whether the default had been committed by the tenant in the payment of rent. The application of the tenant for an order to the landlord to execute repairs was allowed on the finding that default had not been committed. The finding, therefore, was, in the view of the parties and also in the view of the Court, necessary for the disposal of the tenant''s application under the Assam Urban Areas Bent Control Act. The question of default thus was substantially in issue. It was heard and finally decided. It, therefore, ought to operate as res judicata.

The case, in my opinion, is covered by the decision of their Lordships of the Privy Council reported in Krishna Chandra v. Ghana Bamanna AIR 1932 P.C. 60. In fact, the pronouncement from the Privy Council case goes even further then the present case. Viscount Dunedin in delivering the judgment of their Lordships of the Privy Council observed as follows:

As their Lordships have pointed out, nil this inquiry about occupancy rights and as to whether the settlement of 1869 was permanent one, was not properly raised by the plaint but as both parties have without protest chosen to join issue upon these points, their Lordships see no reason why these matters in dispute should not be res judicata between them.

The main question in the case before their Lordships was whether plaintiff was en-titled to have rent in kind instead of cash. The Subordinate Judge framed issues which, in the words of Viscount Dunedin,

strayed Jar beyond that simple question and these issues were adopted by the District Judge before whom the case came to depend.

The District Judge notwithstanding that he dismissed the suit held that respondents had not proved occupancy rights. This finding was reversed by the High Court where it was held that respondents had occupancy rights but that the settlement of 1869 was not a permanent settlement. Their Lordships were of the view that the inquiry about occupancy rights and as to whether the settlement of 1869 was a permanent one or not was not properly raised. Inspite of this, as parties had joined issue and the matter was decided, the Rule of res judicata was applied to these findings. In this case the question of default was expressly raised. It was also heard and finally decided.

In Midnapur Zemindary Co. v. Naresh Narayan Boy AIR 1984 P.C. 144 the question raised but later on abandoned by the plaintiff was decided by the Court at the express request of the defendant. In a subsequent litigation, it was contended on behalf of the defendant that whatever the defendant may have done in the previous litigation, the issue was not a necessary or proper one to be decided in the previous suit and, therefore, the finding on it could not operate as res judicata. Their Lordships were of the view that the question whether the issue was necessary in the former litigation would depend on the decision in the former litigation. If the Court which heard the question decided that the issue did arise, the decision would be res judicata. The Court may be wrong in that decision but the decision, in the view of their Lordships would be as much res judicata as the final determination of the issue on the merits. In the particular case before them, they held that the defendant urged that the issue was necessary to be decided in that case notwithstanding that the plaintiff, did not want a decision on it. The Judge decided the issue. Their Lordships in these circumstances assumed that in deciding the issue the Judge treated the issue as a necessary one.

If we apply this test to this case, the conclusion would be that the Court in the previous litigation treated the issue as a necessary one both the parties were agreed on this point There was no controversy on the question as to whether the question of default necessarily rose in the sail or not. The landlord (present plaintiff) raised it and the defendant did not even remotely suggest that the question was not relevant to the inquiry. He merely repudiated the allegation of default. Both, therefore, invited a finding on this point. The Court accepted the assumption on which the parties joined issue on the question of default. The parties and the Courts all regarded the issue as a necessary one. In these circumstances according to the view of their Lordships of the Privy Council as expressed in Midnapore Zemindary Co. v. Naresh Narayan Boy AIR 1924 P.C. 144, the question whether it was necessary to decide the issue about default should also be taken as decided and the decision though by implication, is as much res judicata as the decision of the question of default itself.

It has bean pointed out by the learned Counsel for the appellant that the application of the tenant under the Assam Urban Areas Bent Control Act was u/s 8, and it has been contended that Section 7 imposed a statutory obligation on the landlord to keep the house in good repair even if the tenant was making default in the payment of rent. According to him the question of default was wholly irrelevant. I do not think this contention even is correct. Section 7 of the Act provides that:

Every landlord shall be bound to keep the house in the occupation of a tenant wind-proof and water-proof and to carry out other repairs which he is bound to make by law, contract or custom.

Now it is clear that the obligation created by this section is that the landlord should keep the house wind-proof and water-proof. As regards other repairs, his liability depends on obligations which may exist under the law, contract or custom. In his application, the tenant did not allege that the house had ceased to be wind-proof or water proof the repairs which he wanted to be executed were to the cook-shed, the latrine and the fencing. What is said in his petition is that the cook shed, the latrine and the fencing were badly in need of repairs. The obligation to execute these repairs would depend on the general law the contract between the parties and on custom. The law as contained in Section 108, Transfer of Properly Act, provides that if the lessor is bound to make repairs and then'' neglects to make them within a reasonable time after notice, the lessee may have the repairs done by himself and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor (Section 108(f)). The obligation obviously is not statutory and must arise from contract or custom. Since the landlord did not deny the obligation on his part to make repairs, it ought to be assumed that this obligation existed. His answer to the tenant''s claim only was that by his default the tenancy had terminated and he had actually instituted a suit for ejectment. His liability to make repairs, therefore, had ceased to exist. The plea may have been based on the contract or on Section 108(c) or on Section 6, Assam Urban Area Rent Control Act, but whatever the basis for the plea the determination of the question as to whether default had occurred in the payment of rant could not have been regarded as any thing but necessary. There is no force in the contention that u/s 7 a landlord is bound to make repairs notwithstanding that the tenant is not paying rent. In fact, it cannot be argued on the language of Section 7 that there is any unqualified obligation on the landlord to make repairs of all description. The obligation is limited to keeping the house wind-proof and water-proof. For other repairs, no obligation was intended to be created by this section. The obligation in this respect, if any, depends on the general law, contract or custom regulating the relationship between the parties. In this view of the matter, the argument that the question of default was not relevant to the inquiry as to whether the landlord was bound to make the repairs which the tenant desired him to make cannot be regarded as sound.

Agreeing in the conclusion arrived at by the learned Chief Justice I concur in the dismissal of the appeal.