Jagan Nath vs Krishan Kumar

Jindra Lal, J.—This second appeal arises out a suit brought by respondent Krishan Kumar against the appellant Jagan Nath for the recovery of Rs. 4,720/- alleged to be the arrears of rent in respect of a shop belonging to Krishan Kumar, admittedly rented out to Jagan Nath by virtue of a rent-deed dated the 8th of December, 1956. The rent deed contains a clause fixing the monthly rent at Rs. 120/-. Krishan Kumar also claimed interest at the rate of 6 per cent per annum on the arrears of rent.

The suit was contested by Jagan Nath on various grounds, one of them being that the rent for the premises was not Rs. 120/- per month as claimed but Rs. 60/- and that this matter of quantum of rent had been decided in previous proceedings before the Rent Control authorities and could not be re-agitated. The learned Subordinate Judge First Class, Jind, granted a decree to Krishan Kumar for Rs. 2,359/80nP. with proportionate costs of the suit, on coming to the conclusion that the rent was Rs. 60/-.

Dissatisfied by the judgment and decree of the learned Subordinate Judge First Class, Krishan Kumar went up in appeal, which was decided by the learned District Judge, Sangrur, by his judgment and order dated the 18th July, 1963. The learned District Judge accepted the appeal, modified the decree of the learned Subordinate Judge and in lieu of the decree for a sum of Rs. 2,359/80nP. with proportionate costs of the suit, granted to Krishan Kumar a decree for a sum of Rs. 4,320/- as arrears of rent from 8th January, 1958 to 7th January, 1961 and Rs. 400/- as interest on these arrears at the rate of 6 per cent per annum and therefore, granted a total decree for Rs. 4,720/- as claimed by Krishan Kumar with costs throughout.

Dissatisfied by this judgment and decree of the learned District Judge, Sangrur. Jagan Nath has come up in second appeal to this Court.

In order to appreciate various contentions in this appeal, it is important to state the facts in some detail.

On the 6th of February, 1958, Krishan Kumar made an application against Jagan Nath. tor the latter's ejectment from a shop, situated on railway road Narwana, u/s 13 of the Pepsu Urban Rent Restriction Ordinance 2006 Bk. Krishan Kumar urged that the shop in dispute had been rented out to Jagan Nath at a monthly rent of Rs. 120/-, that Jagan Nath was in arrears of rent, and sought his ejectment on grounds of non payment of arrears of rent. Other grounds for ejectment of Jagan Nath were also taken which are not relevant at this stage.

Jagan Nath in reply asserted that the rent for the shop in dispute was Rs. 60/- per mensem and not Rs. 120/- as alleged and that he had offered the rent due. through a money order to Krishan Kumar which had not been accepted by him. Various issues were framed on that application, issues Nos. 3 and 4 are in the following terms:

Whether the respondent is liable to be ejected for non-payment of rent ?

Whether the shop in dispute was given to the respondent on monthly rent of Rs. 60/ and that the respondent had offered the due rent through money order, if so, with what effect ?

The first hearing of the application was fixed on the 19th February, 1958, when Jagan Nath appeared, but neither tendered the rent due together with interest and costs of the application to the landlord, nor got it deposited in Court. He, thus, failed to comply with the provisions of section 13(2)(i) of the Pepsu Urban Rent Restriction Ordinance 2006 Bk. Jagan Nath claimed that since there was a dispute with regard to rent, he was not bound to tender the arrears of rent on the first date of hearing. He further claimed that since Krishan Kumar had refused to accept a tender made by him by a money order before the filing of the application, he was not bound to deposit the amount in Court. The learned Rent Controller rejected these contentions of lagan Nath and held him liable to ejectment from the shop on account of non-payment of arrears of rent even if the rate of rent is taken to be Rs. 60/-, and consequently decided issue No. 3 against Jagan Nath.

On issue No. 4, there was a keen dispue between the parties, whereas the landlord claimed that the rent for the premises was Rs. 120/-, the tenant asserted equally strongly that the rent fixed was Rs. 60/- per mensem. Exhibit P. 1 in that application, which was the rent-deed, was produced before the Rent Controller and evidence was led and after going thoroughly into the evidence the Rent Controller came to the conclusion that it was crystal clear that the rent of the shop in dispute was Rs. 60/- per mensem and not Rs. 120/- and, therefore, decided the issue accordingly. Feeling aggrieved by the order of ejectment, Jagan Nath went up in appeal before the appellate authority under the Patiala and East Punjab States Union Urban Rent Restriction Ordinance 2006 Bk. In para 30 of the order of the appellate authority, it is observed-

One of the main points of dispute between the parties-and perhaps the chief point of dispute-is as to whether the monthly rent of the shop in dispute is Rs. 60/- or Rs. 120/-.

After going through the rent-deed and the evidence of the parties at a considerable length, the appellate authority upheld the finding that the rent of the shop in occupation of the tenant was Rs. 60/- per mensem and not Rs. 120/-.

Under issue No. 3, the learned appellate authority agreed with the findings of the Rent Controller that the tenant was liable to be ejected on the ground of non payment of rent because he had neither paid the rent due on the 8th of January 1958 nor had he tendered the same along with the interest etc. on the first hearing. He, therefore, dismissed the appeal of the tenant.

Jagan Nath filed a revision in the High Court, i. e. civil revision No. 41b of 1961, which was decided by Dua, J. on the 9th of March, 1962. It was urged before Dua, J. that since Krishan Kumar had expressed his unwillingness to accept the rent sent by the money order on the ground, according to him, that the rent was Rs. 120/- per mensem, there was no question of any default having been committed by Jagan Nath, the tenant. However, his Lordship came to the conclusion that it did not absolve. Jagan Nath, tenant, from tendering the arrears of rent together with costs etc. in Court on the first day of hearing and, therefore, dismissed the revision.

This is the previous history of litigation between the parties.

The present litigation in the civil Court started with the filing of a suit by the landlord Krishan Kumar against Jagan Nath and Jawahar Lal for the recovery of Rs. 4,720 as rent for the same shop regarding which eviction proceedings had been taken earlier by Krishan Kumar. The allegation in the plaint was that Jagan Nath had taken the shop in dispute on the 8th of December, 1956 on rent for Rs 120 per mensem and he depended on the rent-deed on the basis of which the ejectment order had been passed by the Rent Controller. Various defences were taken up and on the pleadings of the parties, the following issues were framed-

What is the stipulated rate of rent ?

Whether the question embodied in issue No. 1 stands clinched by the rule of res judicata ?

Relief.

On the first issue, the learned Subordinate Judge held that the stipulated rent was Rs 60/- per month. On the second issue, he came to the conclusion that although the judgment of the authorities under the Rent Act does not amount to res judicata but the finding in respect of the rate of rent is final between the parties. This finding he gave, as, according to him, the Rent Controller had the jurisdiction to determine as to what was the stipulated, rent, because it was only after determining the rate of rent that he could reach a proper decision whether there had been any non-payment of rent or not. In view of the above findings, the learned Subordinate Judge passed a decree for Rs. 2,160 as rent for the period 8th January, 1958 to 7th January, 1961 and interest at the rate of 6 per cent per annum which came to Rs. 199/80 nP. Krishan Kumar did not feel satisfied with this decree and went up in appeal which was decided by the learned District Judge, Sangrur, by his judgment and order dated the 18th of July, 1965. The learned District Judge held that the stipulated rent as proved by evidence on record was not Rs. 60 but Rs 120 per mensem, as alleged by the plaintiff-landlord. On issue No. 2 the learned District Judge came to the conclusion that there was no finality in the order of the Rent Controller and, therefore, on principle also the defendant could not succeed. Virtually he held, therefore, that the question embodied in issue No. 1 did not stand concluded either by the principle of res judicata or any other principle.

in this second appeal before me, it is urged by Mr. Jagan Nath Kaushal, appearing for the tenant Jagan Nath, that although the learned District Judge has held as a fact, that the rent payable for the suit premises was Rs. 120 and not Rs. 60 per mensem, that finding is not final because in coming to that conclusion the learned District Judge is in error in as much as the legal basis on which he sought to give that finding is wrong. He concedes that the strict principles contained in section 11 of the CPC will not apply, but the basic principles of res judicata will apply. According to him, the principle is that where a Court of competent jurisdiction or a Court or Tribunal of limited jurisdiction decides a matter inter parte it has a binding force as between the parties for all times. He urged that before the Rent Control authorities the parties invited a decision on the issue as to what was the rent settled between them for the premises in suit. Krishan Rumar there had pleaded that the rent for the premises was Rs. 120, which had not been paid to him, therefore the tenant was in arrears of rent and was liable to be evicted, apart from other pleas taken by him Jagan Nath had not deposited rent due in Court on the first date of hearing and had pleaded that he had tendered rent to the landlord prior to the filing of the suit at the rate of Rs. 60 per month and he having not accepted it, Jagan Nath was absolved from depositing the amount in Court. An issue was struck on above pleas, evidence was led and finding was given by the Rent Controller that the Rent fixed was not Rs. 120 but Rs. 60. Jagan Nath was dissatisfied and went up in appeal. The appellate authority, as already mentioned, observed that "one of the main points of dispute between the parties and perhaps the chief point of dispute is as to whether the monthly rent of the shop in dispute is Rs. 60 or Rs. 120." After going into the evidence, oral and documentary, at length, he came to the conclusion that the rent fixed for the premises was Rs. 60 but held that if the landlord had not accepted the rent it did not obsolve the tenant from tendering the rent in Court on the first date of hearing. Mr. Kaushal, therefore, urges very strenuously that the matter was agitated by the parties before the rent control authorities and that having been held by the Kent Controller that the rent of the premises was at Rs. 60 per month, it was not open to Krishan Kumar in the present suit to raise the same matter again. It is true that the Tribunal could not have passed a decree for the arrears of rent, but from the language of section 13 of the Patiala and East Punjab States Union Urban Rent restriction Ordinance 2006 Bk.. it would be obvious that one of the grounds for the eviction of a tenant u/s 13(2) is if the Controller after giving a tenant a reasonable opportunity of showing cause against the application is satisfied that the tenant has not paid or tendered the rent due from him in respect of the building etc. etc. It is a duty, therefore, of the Controller to find out what is the rent due and in coming to that conclusion, he must decide what is the rent settled by the parties for particular premises.

Mr. Kaushal has cited some authorities which may be examined for this proposition. He has cited firstly Munshi and Others Vs. Chiranji Singh and Another, . In this case, it was held that-

The principle of res judicata has been held to be of wider application on the basis of the wider principle of the finality of decisions by Courts of law. It would be a mockery of a decision if a decision of a Court of competent jurisdiction be treated as nothing by another Court having the same jurisdiction over the matter and having identically the same point for its consideration.

Now that was not a case where the decisions were given by Courts of law in the strict sense of the word, as the decisions were given by the Collector. Learned counsel for the respondent, however, has distinguished this authority on the ground that in that case the second order was also passed by a Tribunal or a Court of competent jurisdiction having the same jurisdiction over the matter and having identically the same point for consideration. According to him, this authority is not useful because the previous order before me was by the Rent Controller who could not order the payment of rent, whereas the present order is by a Court which could not order eviction u/s 13.

The next authority cited by Mr. Kaushal is Daryao and Others Vs. The State of U.P. and Others, . That was a case where their Lordships of the Supreme Court were considering whether a decision of the High Court under Article 226 of the Constitution can be pleaded as a bar to a petition under Article 32. There, their Lordships observed that-

The rule of res judicata as indicated in section 11 of the CPC has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation". Their Lordships further held that-

these two principles form the foundation of the general rule of res judicata....

Their Lordships further observed that -

It is doubtful if the technical requirement prescribed by section 11 as to the competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata;

Relying upon this authority Mr. Kaushal submits that the Rent Controller having decided the quantum of rent inter parte some finality must attach to it and the landlord should not be allowed to re-agitate the matter.

Learned counsel then cited Shrimati Raj Lakshmi Dasi and others v. Banamali Sen AIR 1953. S.C.33. It was held in that authority that -

The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by section 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the latter suit. A plea of res judicata on general principles can be successfully taken in respect of Judgments of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administration Courts etc. These Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute.

These observations of their Lordships of the Supreme Court are strongly relied upon by Mr. Jagan Nath Kaushal and he says, therefore, that the Rent Controller had the jurisdiction to decide as to what the rent for the premises was and having decided the matter on evidence before him, it binds the parties. He has pointed out that in the judgment of the learned District Judge, which is under appeal, it has been observed that the question as to what was the rent for the premises was only indirectly in issue before the Kent Controller because whatever be the rent, it was, in fact, not paid and all that the Tribunal had to say was that the rent having been not paid, whatever be the rent, and not having been tendered the landlord was entitled to an order of ejectment. Mr. Kaushal has urged that there was a keen controversy regarding the quantum of rent, issues were framed, evidence was led and, in fact, it was an important issue and since the matter has already been decided inter parte it could not be allowed to be agitated again in the civil Court.

The second proposition enunciated by Mr. Kaushal is that even if a matter does not arise but if the parties invite a decision from a body competent to give a binding decision, then that decision is also final between the parties and cannot be agitated again in other proceedings. For this proposition, he has relied on AIR 1932 50 (Privy Council) where their Lordships were dealing with section 11 of the CPC and held as contended by Mr. Jagan Nath Kaushal. That was a case where their Lordships held that-

all this inquiry about occupancy rights and as to whether the settlement of 1869 was a 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.

Another authority cited by Mr. Kaushal is Midnapur Zamindary Co. v. Naresh Narain AIR 1924 P.C. 144, but I do not think, this helps him very much.

One of the points urged against the appellant, and which had been accepted by the learned District Judge, is that the order of ejectment by the Rent Controller was in favour of the landlord Krishan Kumar, respondent herein, and the decree being in 1 is favour, he could not go in appeal and challenge the finding by the Rent Controller by asserting that the rent for the premises was, in fact, Rs. 120/ per month and not Rs. 60/-. The previous litigation, however, did not stop before the Controller only, the same issue was fought out before the learned appellate authority at length and after hearing lengthy arguments and going through the evidence he came to the conclusion that the rent was Rs. 60/- per month. In that appeal, it was competent for the landlord to challenge the finding to this effect and he did, in fact, challenge it, but the finding was against him and, therefore, it is not a case where he had no opportunity of contesting that order.

Mr. Sarin, learned counsel for the respondent, has urged that it was not necessary at all for the Rent Controller to have gone into the question as to what was the amount of rent due for the premises regarding which a petition was pending before him. As soon as the Rent Controller found that Jagan Nath had made default in the payment of rent due in Court together with costs of the application on the first date of hearing, he was bound to pass a decree for ejectment and not go into the question as to what was the proper rent for the premises and, therefore, in fact was not entitled to give a decision whether the rent fixed was at the rate of Rs. 60/- per month as alleged by Jagan Nath or Rs. 120/- per month as alleged by Krishan Kumar. This argument seems to have, been accepted by the learned District Judge.

There seems a fallacy in this argument because the Rent Controller and the Appellate Authority under the Rent Control Act had the jurisdiction to decide whether the Rent fixed for the premises was Rs. 60/- or Rs. 120/- par month. This would appear from the wording of section l3(2)(i) of the East Punjab Urban Rent Restriction Act that the Kent Controller must come to the conclusion whether the tenant has not paid or tendered the rent due by him and in coming to that conclusion he had the jurisdiction to decide whether the rent for the premises was faxed at the rate of Rs 60/- or Rs. 120/- per month.

Mr. Sarin relied upon Kishun Sah v. Harinandan Prasad Sah AIR 1963 Pat. 79, which is a Full Bench decision, and has urged that the question of the quantum of rent can be re-agitated in this present suit. I do not see how the authority relied upon by Mr. Sarin helps him. The question there was whether a Tribunal of limited jurisdiction had exclusive power to decide facts upon which it can assume jurisdiction to do a certain act or to pass a certain type of order. Their Lordships held that a Tribunal of limited jurisdiction had no such exclusive power, and that while it was necessarily to come to its own conclusions on those facts in order to exercise its jurisdiction relating to matters within its exclusive jurisdiction, its decision on those facts is liable to be challenged in the civil Court It further held that no power had been given to the Controller under the Bihar Buildings, Lease, Rent and Eviction Control Act, to decide finally and conclusively the question of the existence of the relationship of landlord and tenant between the parties or the question as to whether the premises occupied by the tenant is a building. These facts were held to be jurisdictional facts and in regard to these facts it was held that neither Controller nor his higher authorities could possibly be held to have exclusive jurisdiction. In the present case there is no question either of jurisdictional facts or of title. The relation of landlord and tenant was admitted. The jurisdiction of the Tribunal to go into the matter of rent was not challenged and, in fact, was conceded. The jurisdiction of the Tribunal does not depend upon the question whether the rent was Rs. 60/- or Rs. 120/-. and in my view the authority cited by Mr. Sarin does not help him in the least.

Mr. Sarin then cited Om Parkash Gupta v. Dr. Rattan Singh (1963) 65 P.L.R. 543 which is a judgment of their Lordships of the Supreme Court on the interpretation of certain provisions of the Delhi Rent Control Act (59 of 1958). Their Lordships held that the Delhi Rent Control Act does not in terms authorise the authorities under the Act to determine finally the question 0f the relationship of landlord and tenant, and that the Act proceeds on the assumption of such relationship. It was further held that if the relationship of landlord and tenant is denied, the authorities under the Act have to determine that question also, because a simple denial of the relationship cannot oust the jurisdiction of the Tribunals under the Act. It was further held that if in such a case the Controller came to the conclusion that there is no relationship of landlord and tenant, the proceedings before him would be terminated; whereas, if the Controller comes to the opposite conclusion, he must proceed.

I do not see how this authority helps Mr. Sarin. It is not denied that the Rent Control authorities under the Pepsu Urban Kent Restriction Ordinance 2006 Bk are Tribunals of limited jurisdiction, but in deciding question of the quantum of rent, they act within their scope of authority and can give a binding decision between the parties before them.

It is not quite correct to say that before the Rent Controller the decision as to what was the rent for the shop in dispute was only incidental. Of course, the question before the Rent Controller was whether the defendant was liable to eviction or not for non-payment of rent, but on the pleadings of the parties it was quite clear that there was a keen contest whether the rent was Rs. 60 or Rs. 120. I have already pointed out the observations made by the Appellate Authority, who in paragraph 30 himself observed that the main point of the dispute between the parties-and perhaps the chief point of dispute-is as to whether the monthly rent of the shop in dispute is Rs. 60 or Rs. 120. It is fertile to say, therefore, that this dispute was only incidental before the Rent Control authorities. The landlord before the Rent Controller was asserting definitely that the rent for his premises was fixed at Rs. 120 and that the rent had not been paid to him, and that the lesser rent tendered to him was not accepted by him because it did not amount to the rent due, whereas the tenant was asserting that he had made a proper tender by sending him Rs. 60 by way of money order. At that stage it was open to the landlord to assert that he did not want any decision with regard to the quantum of rent and that he would press the legal issue as to what would be the effect of non acceptance of rent by him sent by a money order, on the question of the liability of the tenant to deposit rent as required by section 13(2) of the Act. He did not choose to do so because he had two strings to his bow for if the Rent Controller had come to the conclusion at the stage that the tenant was not bound to make a tender in Court, he wanted to change back on the plea that in any case the tenant was still in arrears. I am of the view, therefore that this was a question which was hotly contested by the parties before the Rent Control authorities and invited a decision of the authorities. That decision is binding upon them. In my view the principle is fully covered by the observations of their Lordships of the Supreme Court contained in Shrimati Raj Lakshmi Dasi and others v. Banamali Sen3 quoted earlier in the judgment.

For the reasons given above, I accept this appeal and set aside the judgment and decree of the learned District Judge and restore that of the learned Subordinate Judge. The respondent will pay the costs of the appellant.