R.S.A. No.3883 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3883 of 2007 Date of Decision:01.12.2008 Puran Chand .....Appellant Vs. Kamlesh and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Ms. Anju Arora, Advocate for the appellant. Mr. R.L. Lohan, Advocate for the respondents. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 2.11.2007 passed by the Court of learned Additional District Judge, Rewari, whereby he decreed the suit for ejectment of respondent- Puran Chand from the suit shop with a direction to hand over the vacant possession of the same to the appellant- Kamlesh Devi within a period of one month from the passing of the judgment by accepting the appeal preferred against the judgment/ decree dated 14.5.2005 rendered by the Court of learned Additional Civil Judge (Senior Division), Rewari whereby she had dismissed the suit with costs. The facts which form the backdrop of the suit are that the plaintiff is the owner and landlady of the newly constructed shop, which is a part of property bearing House Tax No.959-A. This shop was erected in 1988. Pursuant to the oral agreement dated 9.2.1989 Puran Chand, defedant was inducted in this shop on monthly rent of Rs.500/- for a period of 11 months. Prior to the construction thereof, an application seeking sanction to R.S.A. No.3883 of 2007 -2- raise construction was filed by the plaintiff on 23.3.1988. The requisite permission was granted vide order dated 7.5.1988. Thus the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, `the Rent Act') are not applicable. His tenancy was terminated in pursuance of the notice dated 13.1.1998, whereafter he was asked to hand over the vacant possession of the shop, but of no avail. He is still in occupation of the shop and is thus, liable to make the payment of Rs.30/- per day on account of use and occupation of the same. He has also not paid the arrears of rent from 1.2.1995 to 31.1.1998 amounting to Rs.18,000/-. This apart, the plaintiff is also entitled to recover the arrears. Despite repeated requests and demands, he has refused to hand over the vacant possession of the shop. In his written statement, Puran Chand inter-alia pleaded that the shop was constructed about 17 years back and he is in possession of the same as tenant for the last 14 years at a monthly rent of Rs.250/- under the plaintiff and her husband Jai Singh, defendant. The answering defendant has deposited the rent for the period from 1.2.1995 to 30.11.1998 vide challan No.18 dated 15.12.1998. In a previous civil suit, titled Puran Chand v. Jai Singh etc., the plaintiff had filed the written statement alleging that the possession of the shop was handed over in the year 1995. She suppressed the true and material facts from the Court and is thus disentitled for any discretionary relief. She has got no cause of action to file the present suit and the same is also not maintainable. The following issues were framed by the learned trial Court:- 1. Whether the petitioner is entitled to get evicted the shop in question from the respondent as alleged? OPP 2. Whether the petitioner is entitled to recover the arrears of R.S.A. No.3883 of 2007 -3- rent with interest at 12 percent P.A. as alleged? OPP 3. Whether the petitioner is estopped by her own act and conduct to file the present petition? OPR 4. Whether the petitioner has no cause of action against the respondent? OPP 5. Whether the petition of the petitioner is not maintainable in the present form? OPR 6. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court dismissed the suit as noted supra. Feeling aggrieved therewith, the plaintiff went up in appeal which has been accepted in terms as noted before. Feeling dissatisfied therewith, Puran Chand- defendant has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the findings returned by the learned First Appellate Court with due care and circumspection. Ms. Anju Arora, Advocate appearing on behalf of the appellant urged with great eloquence that the learned First Appellate Court has gravely erred in holding that the demised premises is a newly constructed building and sequelly, the provisions of Section 13 of the Rent Act are inapplicable as the landlady did not produce any cogent evidence in proof of this fact. She further argued that the learned First Appellate Court has lost sight of the fact that the disputed shop in fact was rented out by her about 15/16 years ago and prior thereto, the same was tenanted to Anil Kumar son of Umrao. The landlady has not adduced any evidence revealing as to on which date the building was completed and that this fact was reported to the R.S.A. No.3883 of 2007 -4- local authorities or that such fact was recorded by the local authorities, though she was obligated to do so. The onus heavily lay upon her to prove these facts on record in view of the observations rendered by the Apex Court in re: Ram Saroop Rai v. Smt. Lilavati, AIR 1982 Supreme Court 945; D.L. Sathyanarayana v. Kalasantha Radha Krishnaiah, 1995(1) Rent Control Reporter 389. She further argued that the evidence of Om Parkash with regards to the completion of construction of the building in the month of December, 1988 is found to be unreliable and unworthy of credence. Furthermore, as would be apparent from Ex.PW4/1 and Ex.PW4/2, the site plans were prepared on 1.10.1986 which are sufficient to hold that the construction was not completed in the month of December, 1988. She has also not placed on record the bills pertaining to the purchase of construction material nor the completion certificate. To crown it all, admittedly, Puran Chand had filed a civil suit against the landlady as well as her husband Dr. Jai Singh and the same was decreed vide judgment/ decree dated 1.2.2000, copy of which is Ex.DX1 in which it has been held that the rate of rent was Rs.250/ per month and the construction was not completed in the month of December, 1988. These findings have attained finality as the appeal preferred against the judgment dated 1.2.2000 was also dismissed by the Court of learned Additional District Judge, Rewari vide his judgment/ decree dated 21.10.2000, copy of which is Ex.DX3. These findings having become final between the parties operate as res-judicata in view of the observations rendered in re: Tirumala Tirupati Devasthanams v. K.M. Krishnaiah, 1998 Supreme Appeals Reporter (Civil) 226. To controvert these submissions, Mr. R.L. Lohan, Advocate representing the plaintiff- respondent pressed into service that a glance R.S.A. No.3883 of 2007 -5- through Ex.DX1 would reveal that it was a suit for permanent injunction and that being so, there was no occasion for the Court either to assess the rate of rent or to find out as to when the building was completed and thus the observations rendered therein do not operate as res-judicata in view of the observations made by the Apex Court in re: Gram Panchayat of Village Naulakha v. Ujagar Singh and others, AIR 2000 Supreme Court 3272. He further canvassed at the bar that the findings returned by the First Appellate Court being based on documentary evidence are not liable to be disturbed . I have given a deep and thoughtful consideration to the rival contentions. The following substantial question of law arises for determination by this Court:- “Whether the First Apellate Court was required to go into the question of rate of rent as well as age of the disputed shop when both these facts were adjudicated upon earlier by a Court of competent jurisdiction vide judgment, copy of which is Ex.DX1? A meticulous perusal of Ex.DX1 would reveal that Puran Chand- appellant had filed the civil suit for permanent injunction restraining the defendants Kamlesh Devi and her husband Dr. Jai Singh from dispossessing him from the shop in question illegally, unlawfully, forcibly and without due course of law. To be determined is as to whether the findings returned by the learned Civil Judge (Junior Division), Rewari in Ex.DX1 with regards to the rate of rent as well as the date of completion of the demised shop would operate as res-judicata in the instant case. R.S.A. No.3883 of 2007 -6- Primarily, I deem it appropriate to clear the legal ground in this behalf. In re: Sajjadanashin Sayed Md. B.E. Edr. (D) by L.Rs v. Musa Dadabhai Ummer and others, AIR 2000 Supreme Court 1238, the Apex Court has held as under:- “The words used in S. 11, CPC are “directly and substantially in issue”. If the matter was in issue directly and substantially in a prior litigation and decided against a party, then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only `collaterally or incidentally' in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression `collaterally or incidentally' in issue implies that there is another matter which is `directly and substantially' in issue. The test to determine whether an issue was directly and substantially in issue is earlier proceedings or collaterally or incidentally, is that if the issue was `necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as `directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. One has to examine the plaint, the written statement, the issues and the R.S.A. No.3883 of 2007 -7- judgment to find out if the matter was directly and substantially in issue. It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision. While the principle has been accepted that matters collaterally or incidentally in issue are not ordinarily res judicata, it has however been accepted that there are exceptions to this rule. The English, American, Australian and Indian Courts and jurists have therefore proceeded to lay down certain tests to find out if even an earlier finding on such an issue can be res judicata in a later proceeding. There appears to be a common thread in the tests laid down in all these countries. It is well settled that an earlier decision which is binding between the parties loses its binding force, if between the parties a second decision decides to the contrary. Then, in the third litigation, the decision in the second one will prevail and not the decision in the first.” As a matter of fact, here in this case, in the previous suit of permanent injunction, the Court was to hold simpliciter as to whether or not Puran Chand was entitled to have injunction. The rate of rent or the date of R.S.A. No.3883 of 2007 -8- completion of building was not required to be determined. The judgment passed by the Additional Civil Judge (Senior Division), Rewari in the present case on 14.5.2005 would reveal that Puran Chand- appellant had come up with the plea in his written statement that the previous civil suit titled Puran Chand v. Jai Singh etc., is pending, wherein present plaintiff (referring to Kamlesh Devi) has filed written statement alleging that the possession of the shop was handed over in 1995. It implies that the previous suit which culminated in Ex.DX1 was still pending disposal, when the present one was instituted by Kamlesh Devi. The fact with regards to the pendency of the present suit would have also been brought to the notice of the Court which rendered the original of Ex.DX1. Thus that Court was not required to go into the question of rate of rent or the date of completion of building. Even otherwise, these facts did not require adjudication being a simpliciter suit for perpetual injunction. More to the point, in view of the afore-extracted observations from the case of Sajjadanashin Sayed Md. B.E. Edr. (D) by L.Rs (supra), the earlier decision, copy of which is Ex.DX1 and Ex.DX3 lost its binding force, the moment the second decision i.e., the impugned judgment decided to the contrary between the same parties came. Their Lordships have also observed that “the expressions `collaterally or incidentally' in issue implies that there is another matter which is directly and substantially in issue.” The above facts were collaterally and incidentally in issue in Ex.DX1 for the reason that the same were directly and substantially in issue in the instant suit. Further their Lordships have observed that “one has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue. It is not to be assumed that matters in respect of R.S.A. No.3883 of 2007 -9- which issues have been framed are all of them directly and substantially in issue.” As transpires form the proceedings in the present suit, the plaint, the written statement and the issues of the previous suit were not placed on record. Of course, as has been depicted in Ex.DX1, the issues with regard to the rate of rent as well as completion of construction of the demised premises in the year 1988 were framed. But their Lordships have clearly laid down that “it is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue.” Thus, the issues with regards to the rate of rent as well as completion of construction of the building in December, 1988 are not to be deemed to be directly and substantially in issue in the earlier suit. According to their Lordships, “a material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision.” To my mind, the former being simpliciter suit for perpetual injunction, the above facts did not call for determination. It has been further laid down that the earlier decision would not operate as res judicata in later proceedings, since subsequent proceedings would prevail. So, the findings returned by the learned First Appellate Court herein are to prevail. In re: Tirumala Tirupati Devasthanams (supra), it has been ruled that the judgment not inter parties passed in a previous suit declaring title of one of the parties is admissible in later suit. In the previous suit, the title was not to be determined by the Court. That being so, these observations have no applicability to the facts of the case in hand. It is apt to be borne in mind that in the previous suit the landlady had taken the specific plea that the disputed shop was newly constructed in the year 1988 and the rate of rent is Rs.500/- per month. Earliest of the following dates will be considered R.S.A. No.3883 of 2007 -10- deemed date of construction:- 1. Date on which completion of building is reported to local authority; 2. Date on which completion of building is otherwise recorded by local authority; 3. Date on which the assessment of property is first made; and 4. In absence of any such report, record of assessment, the date on which the building was actually occupied. Reverting back to the instant case, the building plans Ex.PW4/1 and Ex.PW4/2 were sanctioned on 7.5.1988. The site plan was got prepared on 1.10.1986. It was submitted before the Municipal Committee for sanction in March, 1988. It is a common-place experience that the construction of the whole building would have taken adequate time as the different parts thereof were to be completed on different dates. The plea of the appellant in the terms that the shop was constructed about 17 years back pales into insignificance in view of the fact that vide sale deed Ex.PW3/1, the land was purchased only on 5.1.1984. Om Parkash PW5 has solemnly affirmed that the building was constructed by him. His testimony carries conviction being not interested in any party. If the appellant was confident that the disputed building was not completed in December, 1988, he could have summoned the relevant record from the local authority. The above referred documentary evidence sustains the landlady's plea that the construction was completed in December, 1988. The facts with regards to the rate of interest as well as completion of the disputed building in the month of December, 1988 being directly and substantially in issue in the R.S.A. No.3883 of 2007 -11- subsequent case, i.e., the present one, have been rightly determined by the First Appellate Court. Accordingly, the substantial question of law stands answered. As a sequel of the above discussion, this appeal being devoid of any merit is dismissed. December 01, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No