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Judgment
Vinod K. Sharma, J.—By way of present appeal challenge is to order passed by Additional District Judge, Ludhiana, vide which appeal
filed by the respondents was allowed and the case was remanded back to the learned trial Court for rehearing the matter after impleading Mr.
Swaran Singh, as respondent in the application under Section 144 of the Code of Civil Procedure and after giving him opportunity of being heard.
The facts in brief are that Mr. Rakesh Kumar Verma, who was tenant under Khushwanti Devi (now deceased) and represented by Shri
Narender Kumar were ordered to be ejected by way of ex parte orders passed against him on 27.3.1981.
In pursuance to the ejectment order passed against Mr. Rakesh Kumar Verma, the landlady took possession of the shop in dispute on
28.11.1981.
After eviction of Mr. Rakesh Kumar Verma from the shop in dispute, Mr. Swaran Singh was inducted as a tenant on 5.3.1983. On an
application moved by the tenant, Mr. Rakesh Kumar Verma, ex parte order of ejectment was set aside on 4.5.1983, which attained finality and
accordingly, an application was moved by Mr. Rakesh Kumar Verma for restoration of possession under Section 144 of Code of Civil Procedure.
Further against the order of restoration, Swaran Singh, who was to be in possession of the shop on 5.3.1983, filed a civil suit No. 20 of 1984,
titled as Swaran Singh v. Khushwanti Devig, in which Rakesh Kumar was also impleaded as one of the parties.
The suit filed by Swaran Singh was decreed by the learned Sub Judge, Ist Class, Samrala and declaration was issued in his favour holding
therein that he was in possession of the property in his own right and the landlady Khushwanti Devi as well as Mr. Rakesh Kumar were restrained
from interfering in his possession. The finding on issue No. 3 by the Court is as under :
The order dated 21.1.1984 passed under Section 144 CPC does not have any effect upon the rights of the plaintiff. The plaintiff had come into
possession of the disputed premises as a tenant inducted by defendant No. 1 without any knowledge of litigation in between the defendants when
the premises in dispute were in possession of the defendant No. 1. The rights of the plaintiff in the disputed property are protected and he cannot
be ejected from there as held in Sham Lal Dhingra v. Jaswant Kaur and others, 1980(2) RCR(Rent) 59 (Delhi) : AIR 1980 Delhi 171, in which
case also subsequent tenant had taken the premises on rent being not aware of the litigation between the landlord and the previous tenant and it
was held that the subsequent tenant could not be ejected. The issue is decided accordingly in favour of the plaintiff.
However, during the pendency of the suit, an application for ejectment was decided on merit and the Rent Controller was pleased to order
ejectment of Mr. Rakesh Kumar vide order dated 24.12.1984 and the appeal filed against that order was also dismissed by the Appellate
Authority on 25.7.1986.
Mr. Rakesh Kumar filed a revision petition against the order of ejectment, which was allowed by the High Court, vide order dated 26.9.1989.
After obtaining an order in his favour, Mr. Rakesh Kumar filed an application under Section 144 of the Code of Civil Procedure. Section 144
reads as under :
Application for restitution : (1) Where and is so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is
set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order, shall, on the application of any party
entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the
position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified;
and, for this purpose, the Court may make any orders, including order for the refund of costs and for the payment of interest, damages,
compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.
(2) Explanation For the purpose of subsection (1), the expression ""Court which passed the decree or order"" shall be deemed to include,
(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;
(b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;
(c) Where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the
decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try
such suit.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub section
(1).
It was case of the applicant in the application moved under Section 144 of Code of Civil Procedure that Mr. Swaran Singh came in possession
of the property during the pendency of ejectment proceedings and, therefore, his right to retain the possession was lost after the High Court
accepted his revision petition and dismissed the application for ejectment moved by Khushwanti Devi (landlady). However, the application filed by
the applicant was rejected by the learned trial Court on the ground that the Civil Suit filed by Mr. Swaran Singh was decreed against the applicant
and as no appeal was filed against the said order, the same is binding upon him and, therefore, he is not entitled to seek possession under Section
144 of Code of Civil Procedure.
The order of the trial Court was challenged by way of appeal by Rakesh Kumar before the learned Additional District Judge, Ludhiana. The
learned Appellate Court was pleased to remand the case for decision on merit after impleading Swaran Singh as party. The operative part of the
order reads as under:
It appears that some important aspects of this controversy were not adverted to by the learned trial Court. Besides this Swaran Singh had not
been given an opportunity of being heard by the learned trial Court. Therefore, in the interest of justice and in the peculiar facts and circumstances
of this case, the impugned order of the learned trial Court dated 16.8.1990 is set aside. The case is remanded to the learned trial Court with the
direction to enter it at the original number and dispose it of afresh in accordance with law after giving an opportunity of being heard, to Swaran
Singh aforesaid. Since in the learned trial Court the respondents had taken objections that Swaran Singh was a necessary party to these
proceedings and since before this Court this point is conceded by the learned counsel for the appellant, therefore, Shri Rakesh Kumar Verma
tenantappellant is allowed to amend his application under 144 CPC and implead Swaran Singh as a respondent. After the amendment application
under Section 144 CPC has been filed in the learned trial Court, the said learned trial Court shall dispose of the application in accordance with
law, after giving an opportunity of being heard to the legal representatives, of the deceased landlady and also to Shri Swaran Singh. The parties,
shall bear their own costs.
The parties through their counsel are directed to appear before the learned trial Court on 27.11.1991. Trial Court record be returned. File of this
Court be consigned.
Mr. Arun Jain, learned counsel for the appellants did not dispute the facts; however, he challenged the order passed by the learned Additional
District Judge primarily on the ground that there was no occasion with the Court below to remand the case as the learned trial Court had rightly
held that the judgment of the Civil Court inter se party was a bar to maintenance of the application under Section 144 of Code of Civil Procedure.
It is further contended by the learned counsel for the appellant that the said judgment between the parties would operate as res judicata.
Mr. B.M. Lal, learned counsel appearing for the respondent vehemently argued that the previous suit between the parties could not operate as
res judicata as the present application has been filed on the basis of fresh cause of action on account of the fact that his rent revision was allowed
by the Hon''ble High Court on 26.12.1989 i.e. after passing of the judgment and decree dated 12.10.1985 in favour of Swaran Singh, on which a
strong reliance was placed by the learned trial Court as well as by learned counsel for the appellant. The learned counsel for the respondent placed
reliance on Gurjoginder Singh v. Jaswant Kaur (Smt.) and another, 1994(1) RRR 749 : 1994(1) RCR(Rent) 517 (SC) : 1994(2) Supreme Court
Cases 368 to contend that finding on issue No. 3 by the Civil Court was based on a law which stood overruled by the Supreme Court. He made
reference to paras 3 and 4 of the judgment, which reads as under :
We are unable to share the view expressed by the High Court as in our considered opinion, the status of a bona fide purchaser in an auction
sale in execution of a decree to which he was not a party stands on a distinct and different footing from that of a person who is inducted as a tenant
by a decree holderlandlord. A stranger auctionpurchaser does not derive his title from either the decree holder or the judgmentdebtor and
therefore restitution may not be granted against him but a tenant who obtains possession from the decree holderlandlord cannot avail of the same
right as his possession as a tenant is derived from the landlord. Even in the case of Binayak Swain which the High Court relied upon, this Court has
drawn a distinction between purchase made by a decree holder and a stranger in auctionsale by quoting with approval the following observation
made in the case of ZainulAbdin Khan v. Muhammad Asghar Ali Khan.
It appears to their Lordships that there is a great distinction between the decreeholders who came in and purchased under their own decree,
which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in execution of the decree to which
they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order.
In our view the above principle will apply in the case in hand as it is the decreeholder who has put respondent 2 in possession and, therefore,
when the decree has been set aside he is bound to restore the judgmentdebtor what he gained under the decree and subsequently transferred to
respondent 2.
The learned counsel also placed reliance upon the judgment of the Hon''ble Supreme Court in Shakuntla Devi v. Kamla and others, 2005(2)
RCR(Civil) 668 (SC) : 2005(5) Supreme Court Cases 390 to contend that a declaratory decree delivered without jurisdiction or contrary to
existing law at the time of issue which comes up for reconsideration, could not operate as res judicata in a subsequent case between the same
parties, unless it was protected by a special enactment. He made reference to para 14 of this judgment, which reads as under :
It is to be noticed that in the present case when the first declaratory decree was obtained, on the basis of the law as it stood then, the right of
Uttamdassi remained a limited right in the suit property. Hence, a declaratory decree was given in favour of the plaintiffs in that suit; but by the time
the second declaratory decree was obtained by the appellant herein, this Court by the judgment in V. Tulasamma case had declared the law under
Section 14 of the Hindu Succession Act holding that the estate of persons similarly situated as Uttamdassi got enlarged and a beneficiary under a
Will with limited rights became the absolute owner of the same. Since the judgment of this Court in Tulasamma case was the law on the date and is
the law currently, the second declaratory decree was contrary to the said declaration of law made by this Court. Therefore, that declaration cannot
be of any use to the appellant in view of the law laid down by this Court in Mathura Prasad case as extracted hereinabove.
The learned counsel for the respondent contends that the decree of injunction obtained against the order dated 21.1.1984 by Mr. Swaran
Singh cannot be used to deny his application for restoration of possession of the demised premises in pursuance to order dated 26.9.1989 passed
by the High Court finally dismissing the ejectment petition filed against him by the landlord.
The learned counsel for the respondent contended that the earlier judgment cannot operate as res judicata at the time of passing of decree, he
could not file any appeal because at that time, he was not left with any right to claim possession in view of his eviction on merits by the learned Rent
Controller as well as by the Appellate Authority. However, by way of subsequent order passed by the Hon''ble High Court on 26.9.1989, he got
a fresh cause of action to move an application under Section 144 of the Code of Civil Procedure and therefore, the previous judgment and decree
cannot operate as res judicata. In support of his contention, the petitioner placed reliance on the judgment of Hon''ble Supreme Court in the case
of Hope Plantations Ltd. v. Taluk Land Board, Peermade and another, 1999(1) RCR(Civil) 235 (SC) : 1999(5) Supreme Court Cases 590
wherein in para 31 of the said judgment, it was held as under :
Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these
subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however,
different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh
cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the
meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive
res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (Explanation to Rule
1) review is not permissible on the ground :
that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a
superior Court in any other case, shall not be a ground for the review of such judgment.
The learned counsel for the appellant faced with this situation contended that subsequent change in law cannot be a ground to review the earlier
order in view of the explanation to Rule 1 of Order XLVII.
I have considered the arguments raised by the learned counsel for the parties and find that only point to be considered as to whether order
dated 26.9.1989 gave a fresh cause of action to the respondent herein to file an application for restoration of possession ?
The cause of action in common legal parlance is existence of those facts, which give a party right to judicial interference on his behalf.
Now it would be seen that order dated 26.9.1989 passed in a revision petition by this Court gave a right to the respondent to seek restoration
of possession and, therefore, would be treated as a fresh cause of action. This being the position, the tenant had a right to move a petition under
Section 144 of the Code of Civil Procedure for seeking repossession of the property and the said application could not be rejected by the Courts
by holding that previous judgment and decree passed inter se between the parties would operate as res judicata as the second application was filed
on afresh cause of action.
It is also well settled that the question of res judicata is a mixed question of law and facts and the same cannot be applied unless the parties are
allowed to lead evidence and proved the factum of the previous judgment being binding on the parties. This process was not followed. In view of
this, the order passed by the learned lower Appellate Court cannot be faulted with. The learned Lower Appellate Court on the facts pleaded
before it, has rightly come to the conclusion that the trial Court should retry the matter after impleading Mr. Swaran Singh as party. It may absolute
(also be ?) noticed that the finding in the earlier suit was based on law, which was subsequently overruled by the Hon''ble Supreme Court and,
therefore, prima facie the same would not operate as res judicata. The contention of the learned counsel for the appellant Mr. Arun Jain that the
respondent was barred under Explanation to Rule 1 of Order XLVII of the Code to question the previous judgment is not relevant as the
respondentapplicant did not seek the review of the judgment and decree passed by the learned trial Court in view of the subsequent change in law
but had filed an application for restoration of possession on a fresh cause of action and, therefore, the previous judgment and decree per se was
not to operate as res judicata unless the parties are allowed to lead evidence on this point.
In view of the what has been stated above, this Court finds no merit in the present appeal and same is dismissed with no order as to costs.