Gopi Lohar and Others vs Maheshwar Prasad Narain Singh and Others

Rowland, J.—This is an application framed as under Order 41, Rule 21, Civil P.C., to restore to the file for re-hearing an appeal which was heard and decided ex parte.

The petitioners were the defendants in the original suit and were respondents in the appeal to this Court. The suit had been dismissed by the Courts below and the second appeal was dismissed by this Court. It is therefore objected that an application for re-hearing under Order 41, Rule 21 does not lie and should not be entertained. The provisions of Order 41, Rule 21 correspond to those of Order 9, Rule 13 to which I may refer by way of comparison. An application under Order 9, Rule 13 will lie "in any case in which a decree is passed ex parte against a defendant," and it seems perfectly clear that an application for re-hearing of a suit will only lie at the instance of the defendant if a decree has been passed against him. The wording of Order 41, Rule 21 is not identical. This rule provides that:

Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the appellate Court to re-hear the appeal.

The applicants notwithstanding that the appeal against them was dismissed, seek to obtain the benefit of this rule as being persons against whom judgment was pronounced because of some observations made in the course of the judgment by which the appeal was decided. I should here explain that the claim of the plaintiffs in suit was to eject the defendants from a holding which the latter had purchased from a tenant who held it under the plaintiffs.

Among the defences set up were these: that the tenancy was transferable and a permanent tenancy not terminable at the instance of the plaintiff; in the alternative that if the tenancy had not been in its inception a permanent one, the plaintiffs, having acquiesced in the construction by the defendants of permanent pucca buildings on the premises, were estopped now from asserting that the tenancy was not a permanent tenancy; it was further contended that the plaintiffs had no cause of action on the ground that they had not given notice to terminate the tenancy.

In the Courts below which had to decide the questions of fact, the first ground of defence failed, but the suit was dismissed on the view that although the original, lease had not been made in perpetuity, the plaintiffs were estopped by acquiescence from treating it as a temporary tenancy and ejecting the defendants.

In this Court that finding was assailed and in the judgment of the appeal the arguments against holding that there was estoppel by acquiescence were set out and examined, the conclusion being reached that an estoppel did not arise, but that the defendants could not be ejected without the service of a proper notice. In the result the appeal and the suit were dismissed. The applicants urge now that the observations in the judgment regarding the plea of estoppel by acquiescence if acted upon and taken as final will have the effect of making it impossible for them to resist any subsequent suit in ejectment that may be brought against them after service of the requisite notice, and it is suggested that in placing on record those observations judgment was in substance pronounced against the respondents.

In my view the contention is not well-founded. The difference of language between Order 9, Rule 13 and Order 41, Rule 21 does not necessarily mean that the conditions in the latter rule are fulfilled merely by the presence of some observations of the nature of obiter dicta. It can readily be understood that the language of Rule 21 of this order could not be identical with that in Order 9, Rule 13 so as to limit Rule 21 to cases in which a decree against the respondent had been passed in the appeal, because the appeal may have other results than the passing of a decree against the respondent. It may for instance lead to an order of remand or the calling for further evidence, cases which would not be covered by the rule if it were expressed to be applicable only where the appeal is heard ex parte and is decreed against the respondent. I am however of opinion that the rule is not wide enough to cover the case of an appeal which has been wholly dismissed, merely by reason of some remarks which may be in the nature of obiter dicta and thus incapable of constituting a final decision of the matter discussed so as to be res judicata.

For this reason I am of opinion that this application for rehearing of the appeal must fail and be dismissed with costs on the ground that it is not maintainable.

A further objection is taken at the hearing that the ground of fact on which it is based is not made out. The ground alleged was that prior to the hearing of the appeal in this Court the petitioners had not received any notice of it and that they only came to know of the appeal on 16th January 1940 from a karpardaz of the estate of the plaintiffs. That allegation, if true, would be a sufficient basis for a re-hearing application if maintainable.

There is no counter-affidavit and I think this application must be disposed of on the footing of the allegations in the petitioners'' affidavit being correct. Had the opposite party in good time presented a counter-affidavit denying those allegations, it might have been necessary to order an inquiry to be made by one of the Courts below into the matter of fact; but in the absence of any counter affidavit, I think the matter must be dealt with on the footing that the fact alleged by the petitioners is true.