[1.0] Present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the petitioners herein – original defendants to quash and set aside the impugned judgment and order passed by the learned Appellate Court – learned 2nd Joint District Judge, Banaskantha, at Deesa in Regular Civil Appeal No.52 of 1983 by which the learned Appellate Court has allowed the said Appeal preferred by the respondents herein – original plaintiffs and has quashed and set aside the judgment and decree dated 31.03.1983 passed by the learned Civil Judge (Junior Division), Dhanera in Regular Civil Suit No.44 of 1979 by which the learned trial Court dismissed the said suit which was for eviction decree and consequently decreed the suit and passed the eviction decree on the ground of subletting. [2.0] That the respondent herein – original plaintiff instituted Regular Civil Suit No.44 of 1979 against the petitioners herein – original defendants for recovery of possession of the suit premises on the grounds of (1) subletting, (2) erecting permanent construction, (3) change of user, (4) arrears of rent, (5) bonafide requirement of the landlord and (6) for mesne profit. That it was the case on behalf of the plaintiffs that the original defendant Nos.1 and 2 have subletted the suit premises to defendant No.3.
[2.1] That the suit was resisted by the defendants by filing written statement at Exh.18. So far as subletting is concerned, it was specifically denied by the defendants submitting that as such in the earlier suit being Civil Suit No.28 of 1975, the said issue is already decided and it was held that the suit premises was let to the partnership firm Ambica Machinery & Lathe Works of which even defendant No.3 was also the partner and therefore, the said issue is barred by res judicata.
[2.2] That the learned trial Court framed issues at Exh.24. That both the sides led the evidence, oral as well as documentary, and by judgment and decree dated 31.03.1983 partly decreed the suit only regarding recovery of Rs.3640/ towards the rent and mesne profit and dismissed the suit regarding eviction of the suit property. That being aggrieved and dissatisfied by the judgment and decree passed by the learned trial Court, the original plaintiff preferred Appeal before the District Court. That in the Appeal, an application Exh.19 was submitted by the original plaintiff – appellant to remand the matter by framing the issues about permanent construction/bonafide requirement, breach of terms of tenancy of the suit premises and change of user for nonresidential to residential, for which no issues were framed by the trial Court. That the learned Appellate Court allowed the said application by framing additional issue Nos.8 to 12 and directed the learned trial Court to give findings on the aforesaid issues. That thereafter further evidence was recorded and the learned trial Court answered issue Nos.8 to 12 and returned the matter to the learned Appellate Court against which the defendants also submitted their cross objections vide Exh.60. It is required to be noted at this stage that so far as issue with respect to subletting and whether the said issue is barred by res judicata in view of earlier decision in Civil Suit No.28 of 1975, the learned trial Court specifically held that as such the said issue is barred by res judicata. However, as the First Appeal against the judgment and decree passed by the learned Civil Judge (Junior Division), Dhanera in Civil Suit No.28 of 1975 was pending, the learned trial Court held that the said issue cannot be said to be barred by res judicata.
[2.3] That thereafter the learned Appellate Court by impugned judgment and order has allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently passing the eviction decree on the ground that defendant Nos.1 and 2 have subletted the suit premises to defendant No.3 and consequently directed the petitioners – original defendants to hand over the peaceful and vacant possession of the suit premises to the plaintiffs. It is also required to be noted at this stage that the learned trial Court decided the issue with respect to permanent construction made upon the suit land in favour of the plaintiffs. However, the learned Appellate Court reversed the said finding and held in favour of the defendants by observing that as the open land was given to defendant Nos.1 and 2 on rental basis with a permission to make construction according to their willingness and requirement and therefore, it was permissible for the defendants to put up construction on the suit land.
[2.4] Now, so far as the issue with respect to subletting and whether in view of the earlier decision in Civil Suit No.28 of 1975, the said issue is barred by res judicata or not, the learned Appellate Court reversed the finding given by the learned trial Court by observing that as the issue whether the suit property has been let to the partnership firm decided in earlier suit was in a suit under Section 9 of the Code of Civil Procedure, 1908 and the said issue is required to be decided in the present suit under the Bombay Rent Act and therefore, the decision in the earlier suit being Civil Suit No.28 of 1975 cannot be said to be barred by res judicata and consequently the learned Appellate Court held on appreciation of evidence that the defendant Nos.1 and 2 have subletted the suit premises to defendant No.3 and consequently passed eviction decree solely on the ground of subletting. Feeling aggrieved and dissatisfied by the judgment and order passed by the learned Appellate Court – learned 2nd Joint District Judge, Banaskantha, at Deesa in Regular Civil Appeal No.52 of 1983, the petitioners herein – original defendants have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
[3.0] Shri J.M. Patel, learned advocate appearing on behalf of the petitioners herein – original defendants – tenants has vehemently submitted that the learned Appellate Court has materially erred in allowing the Appeal by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and passing the decree on the ground of subletting. It is submitted that the learned Appellate Court has materially erred in holding that the issue as to whether the suit premises was let to the partnership firm of which defendant No.3 was the partner cannot be said to be barred by res judicata despite the decision in Civil Suit No.28 of 1975. It is submitted that in the earlier suit being Civil Suit No.28 of 1975, it has been specifically held that the suit property was let to the partnership firm Ambica Machinery Works of which the original defendant No.3 was the partner and even the said finding has been confirmed by the learned Appellate Court, the said issue in the present case is to be held to be barred by res judicata.
[3.1] It is submitted by Shri Patel, learned advocate appearing on behalf of the petitioners that the learned Appellate Court has materially erred in holding that the said issue is not barred by res judicata, by observing that the decision on the said issue in the earlier suit was in a suit under Section 9 of the Code of Civil Procedure, 1908 and the present suit is under the Bombay Rent Act. It is submitted by Shri Patel, learned advocate appearing on behalf of the petitioners that whether the decision on the said issue was in suit under Section 9 of the Code of Civil Procedure, 1908 or under the Bombay Rent Act was hardly material. It is submitted that what was required to be considered by the learned Appellate Court was decision by competent court on the said issue. Shri Patel, learned advocate has relied upon the Explanation VIII to Section 11 of the Code of Civil Procedure, 1908 in support of his above submissions.
[3.2] Shri Patel, learned advocate appearing on behalf of the petitioners – original defendants has also heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Sulochana Amma vs. Narayanan Nair reported in AIR 1994 SC 152; in the case of Ramchandra Dagdu Sonavane (Dead) by L.Rs. & Ors. vs. Vithu Hira Mahar (Dead) by L.Rs. & Ors. reported in AIR 2010 SC 818 as well as the decision of the Kerala High Court in the case of Puthen Veettil Nolliyodan Devoki Amma and others vs. Puthen Veettil Nolliyodan Kunhi Raman Nair and others reported in AIR 1980 Kerala 230 in support of his above submissions.
[3.3] It is further submitted by Shri Patel, learned advocate appearing on behalf of the original defendants that as such the learned trial Court specifically gave the finding and held that in view of the earlier decision in Civil Suit No.28 of 1975, the issue whether the suit premises was let to the partnership firm Ambica Machinery Works of which defendant No.3 was the partner is infact barred by res judicata, however, as the decision of the civil court in Civil Suit No.28 of 1975 was challenged before the Appellate Court and the Appeal was pending, the learned trial Court held that the said issue cannot be said to be barred by res judicata. It is submitted that admittedly subsequently the Appeal against the judgment and decree passed in Civil Suit No.28 of 1975 has been dismissed and the finding given by the learned Civil Judge (Junior Division), Dhanera in Civil Suit No.28 of 1975 holding that the suit premises was let to the partnership firm Ambica Machinery Works has been confirmed.
Making above submissions and relying upon above decisions, it is requested to allow the present Civil Revision Application.
[4.0] Ms. Archana Acharya, learned advocate appearing on behalf of the original plaintiff has tried to support the reasoning given by the learned Appellate Court that the issue as to whether the suit premises was let to the partnership firm Ambica Machinery Works is not barred by res judicata. It is submitted that as on facts and on appreciation of evidence, the learned Appellate Court has held that the suit property was not let to the partnership firm Ambica Machinery Works and infact it was let to original defendant Nos.1 and 2 in their individual capacity and consequently defendant Nos.1 and 2 have illegally subletted the suit premises to defendant No.3 and consequently the learned Appellate Court has passed the eviction decree on the ground of subletting the same is not required to be interfered by this Court in exercise of powers under Section 29(2) of the Bombay Rent Act.
Making above submissions, it is requested to dismiss the present Civil Revision Application.
[5.0] Heard learned advocates appearing for respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as the judgment and decree passed by the learned Civil Judge (Junior Division), Dhanera in Civil Suit No.28 of 1975 by which the learned Civil Court decided the issue with respect to tenancy and held that the suit property was let to the partnership firm Ambica Machinery Works of which the original defendant No.3 is the partner.
[5.1] At the outset it is required to be noted that the plaintiff had instituted the suit for recovery of the possession of the suit premises on the ground of subletting alleging interalia that the suit premises was let to defendant Nos.1 and 2 in their individual capacity and defendant Nos.1 and 2 have illegally inducted defendant No.3 and thereby have illegally subletted the suit premises to defendant No.3. On the other hand it was the case on behalf of the defendants that as such the suit premises was let to partnership firm Ambica Machinery Works of which defendant No.3 was the partner and as such the said issue is already decided in the earlier suit being Civil Suit No.28 of 1975 and the learned Civil Court in Civil Suit has specifically held that the suit premises was let to the partnership firm Ambica Machinery Works. Therefore, it was the case on behalf of the defendants that the said issue is barred by res judicata. The learned trial Court as such held that the said issue is barred by res judicata, however, as the Appeal against the judgment and decree passed by the learned Civil Judge (Junior Division), Dhanera in Civil Suit No.28 of 1975 was pending at the relevant time, the learned trial Court held that it cannot be said that the said issue is conclusive and therefore, the same is not barred by res judicata. However, in Appeal the learned Appellate Court has taken the contrary view. It is required to be noted at this stage that at the relevant time when the learned Appellate Court decided the Appeal, the Appeal against the judgment and decree passed by the learned Civil Judge (Junior Division), Dhanera in Civil Suit No.28 of 1975 came to be dismissed and the finding given by the learned Civil Court in the aforesaid suit holding that the suit premises was let to the partnership firm Ambica Machinery Works of which defendant No.3 was the partner came to be confirmed.
[5.2] However, the learned Appellate Court held that the said issue cannot be said to be barred by res judicata solely on the ground that the decision on the aforesaid issue in Civil Suit No.28 of 1975 was in a suit under Section 9 of the Code of Civil Procedure, 1908 and the said issue is required to be considered in present proceedings under the Bombay Rent Act and therefore, the decision on the aforesaid issue taken by the Civil Court in a suit under Section 9 of the Code of Civil Procedure, 1908 cannot be held to be barred by res judicata in subsequent suit filed under the Bombay Rent Act and consequently the learned Appellate Court decided the said issue afresh and held that the suit premises was let to defendant Nos.1 and 2 in their individual capacity and as they have inducted defendant No.3 in the suit premises and have subletted the suit premises to defendant No.3 and consequently the learned Appellate Court has passed the eviction decree on the ground of subletting only. Therefore, the question which is posed for consideration of this Court is whether the decision on the aforesaid issue by a competent civil court in a suit under Section 9 of the Code of Civil Procedure, 1908 can be said to be barred by res judicata in subsequent suit, may be under another statute i.e. Bombay Rent Act etc.?
[5.3] As such Explanation VIII to Section 11 of the Code of Civil Procedure, 1908 is clear answer to the aforesaid question. Explanation VIII to Section 11 of the Code of Civil Procedure, 1908 reads as under:
Explanation viii An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
As per Explanation VIII to section 11, an issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Therefore, considering Explanation VIII to Section 11 of the Code of Civil Procedure, 1908, issue decided by the learned Civil Judge (Junior Division), Dhanera in Civil Suit No.28 of 1979 holding that the suit premises was let to the partnership firm Ambica Machinery Works of which defendant No.3 is the partner shall operate as res judicata in a subsequent suit filed under the Rent jurisdiction. It is not in dispute and it cannot be disputed that the learned Civil Judge (Junior Division), Dhanera had jurisdiction to decide the aforesaid issue in Civil Suit No.28 of 1975. Under the circumstances, considering Explanation VIII to Section 11 of the Code of Civil Procedure, 1908, the learned Appellate Court has materially erred in holding that as the decision on the aforesaid issue in Civil Suit No.28 of 1975 was in a suit under Section 9 of the Code of Civil Procedure, 1908 and therefore, the same shall not operate as res judicata in a subsequent suit filed under the Rent jurisdiction / under the Bombay Rent Act. The said finding given by the learned Appellate Court is just contrary to Explanation VIII to Section 11 of the Code of Civil Procedure, 1908.
[5.4] As such identical question came to be considered by the Hon'ble Supreme Court in the case of Sulochana Amma (Supra) and while discussing the law on res judicata in paras 5 to 7, the Hon'ble Supreme Court has observed and held as under:
5. The words "competent to try such subsequent suit" have been interpreted that it must refer to the pecuniary jurisdiction of the earlier Court to try the subsequent suit at the time when the first suit was brought. Mere competency to try the issue raised in the subsequent suit is not enough. A decree in a previous suit will not operate as res judicata, unless the Judge by whom it was made had jurisdiction to try and decide, not that particular suit, but also the subsequent suit itself in which the issue is subsequently raised. This interpretation had consistently been adopted before the introduction of Explanation VIII. So the earlier decree of the Court of a limited pecuniary jurisdiction would not operate as res judicata when the same issue is directly and substantially in issue in a later suit filed in a Court of unlimited jurisdiction, vide P. M. Kavade v. A. B. Bokil, AIR 1971 SC 2228. It had, therefore, become necessary to bring in the statute Explanation VIII. To cull out its scope and ambit, it must be read along with Section 11, to find the purpose it seeks to serve. The Law Commission in its report recommended to remove the anomaly and bring within its fold the conclusiveness of an issue in a former suit decided by any Court, be it either of limited pecuniary jurisdiction or of special jurisdiction, like insolvency Court, probate Court, land acquisition Court, Rent Controller, Revenue Tribunal, etc. No doubt main body of Section 11 was not amended, yet the expression "the Court of limited jurisdiction" in Explanation VIII is wide enough to include a Court whose jurisdiction is subject to pecuniary limitation and other cognate expressions analogous thereto. Therefore, Section 11 is to be read in combination and harmony with Explanation VIII. The result that would flow is that an order or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent Court or tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such Court of limited or special jurisdiction was not a competent Court to try the subsequent suit. The issue must directly and substantially arise in a later suit between the same parties or their privies. This question is no longer res integra. In Bajrang Bahadur Singh v. Beni Madho Rakesh Singh, AIR 1938 PC 210 at p.214, the facts were that under U. P. Land Revenue Act 3 of 1901, the consolidation and partition of the lands were effected and became final. Thereafter, one of the landowners claimed title in a civil suit for a declaration that he was the superior landholder. In view of Section 233(k) of the Land Revenue Act, on a divergence of opinion among Oudh Chief Court and Allahabad High Court, the judicial committee held at p. 214 that if a question of title affecting the partition, which might have been raised in the partition proceedings, was not raised and the partition was completed, Section 233(k) debars parties to the partition from raising the question of title subsequently in a Civil Court. The revenue Court is a Court of special jurisdiction, in Daryao v. State of U. P.,(1962) 1 SCR 574:(AIR 1961 SC 1457), this Court held at p. 582 that the doctrine of res judicata is in the interest of public at large and a finality should be attached 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. In Gulam Abbas v. State of U. P., (1982)1 SCC 71 at p. 92:(AIR 1981 SC 2198 at p. 2213), this Court held that the principle of res judicata though technical in nature, is founded on considerations of public policy. The technical aspect, for instance, pecuniary or subjectwise competence of the earlier forum to adjudicate the subject matter or to grant reliefs sought in the subsequent litigation, should be immaterial when the general doctrine of res judicata is to be invoked.
Explanation VIII, inserted by the Amending Act of 1976, was intended to serve this purpose and to clarify this position. It, therefore, has to be held that the decree of the District Munsif, though of limited pecuniary jurisdiction, would operate as res judicata in the subsequent suit between the same parties.
6. The Calcutta High Court took a very narrow view limiting the scope of Explanation VIII to the decisions of the Courts of special jurisdiction like probate, insolvency, land acquisition, Courts, Rent Controller, Land Revenue Tribunal etc. The Kerala, Orissa and Madras High Courts have taken broader view, which view now stands approved by this Court in the aforestated decision. Take an instance, if the scope of Explanation VIII is confined to the order and decree of an insolvency Court, the scope of enlarging Explanation VIII would be defeated and the decree of civil Courts of limited pecuniary jurisdiction shall stand excluded, while that of the former would be attracted. Such an anomalous situation must be avoided. The tribunal whose decisions were not operating as res judicata would be brought within the ambit of Section 11, while the civil Court which is accustomed to the doctrine of res judicata, the decree of limited pecuniary jurisdiction shall stand excluded from its operation. Take for instance, now the decree of a Rent Controller shall operate as res judicata, but a decree of a District Munsif (Civil Judge) Junior Division, according to the stand of the appellant will not operate as res judicata, though the same officer might have decided both the cases. To keep the litigation unending, successive suits could be filed in the first instance in the Court of limited pecuniary jurisdiction and later in a Court of higher jurisdiction, and the same issue shall be subject of trial again, leading to conflict of decisions. It is obvious from the objects underlying Explanation VIII, that by operation of the non obstante clause finality is attached to a decree of civil Court of limited pecuniary jurisdiction also to put an end to the vexatious litigation and to accord conclusiveness to the issue tried by a competent Court, when the same issue is directly and substantially in issue in a later suit between the same parties or their privies by operation of Section 11. The parties are precluded to raise once over the same issue for trial.
7. It is settled law that explanation to a section is not a substantive provision by itself. It is entitled to explain the meaning of the words contained in the section or clarify certain ambiguities or clear them up. It becomes a part and parcel of the enactment. Its meaning must depend upon its terms. Sometime, it would be added to include something within it or to exclude from the ambit of the main provision or condition or some words occurring in it. Therefore, the explanation normally should be so read as to harmonise with and to clear up any ambiguity in the same section.
[5.5] In the subsequent decision in the case of Ramchandra Dagdu Sonavane (Dead) by L.Rs. & Ors. (Supra), a similar view has been expressed by the Hon'ble Supreme Court and considering the earlier decision in the case of Sulochana Amma (Supra), it is held that the issue between the same parties or person under whom they claim title or litigating under the same title, it operates as a res judicata. It is further held that a plea decided even in a suit for injunction touching title between the same parties, would operate as res judicata.
[5.6] Explanation VIII to Section 11 of the Code of Civil Procedure, 1908 came to be considered by the Kerala High Court in the case of Puthen Veettil Nolliyodan Devoki Amma and others (Supra) and it has been held that decisions rendered even by civil courts of limited pecuniary jurisdiction operates as res judicata and the fact that such Court rendering decision is not competent to try subsequent suit is immaterial. In para 6, the Kerala High Court discussed the object and purpose of Explanation VIII to section 11 of the Code of Civil Procedure, 1908 and has observed as under:
"An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised". It appears to us that the intention of the Parliament in introducing the Explanation was to widen the scope of Sec. 11 by relaxing the condition or limitation that the earlier decision on the issue concerned should have been rendered by a court competent to try the subsequent suit, such relaxation being limited to cases where the earlier decision had been rendered by courts of limited jurisdiction which were fully competent to decide such issue. It is a notorious fact that the wholesome principle of res judicata embodied in the Section as it originally stood was being successfully circumvented by the simple process of reagitating the same issue by so framing the subsequent suit as to take it out of the pecuniary jurisdiction of the Court which tried the earlier suit, which could easily be done by the inclusion of additional properties or reliefs in the subsequent suit. The result was that the object and purpose underlying the rule of res judicata could to a large extent, be easily nullified. It appears to us manifest that the Parliament's object in introducing Explanation VIII was to remove this anomaly and to render the principle of res judicata more effective by providing that the prior decision rendered on the issue concerned by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit.
[5.7] Considering the aforesaid facts and circumstances and the aforesaid decisions of the Hon'ble Supreme Court as well as Kerala High Court and even considering Explanation VIII to Section 11 of the Code of Civil Procedure, 1908, the finding given by the learned Appellate Court that the issue decided by the learned Civil Judge (Junior Division), Dhanera in Civil Suit No.28 of 1975 holding that the suit premises was let to the partnership firm Ambica Machinery Works of which defendant No.3 was a partner would not operate as res judicata, cannot be accepted and the same cannot be sustained. Once it is held that issue decided by the learned Civil Judge (Junior Division), Dhanera in Civil Suit No.28 of 1975 holding that the suit premises was let to the partnership firm Ambica Machinery Works would operate as res judicata and when it has been found that defendant No.3 was partner of the said partnership firm and he was in possession of the suit premises as a partner of the partnership firm, it cannot be said that defendant Nos.1 and 2 have subletted the suit premises to defendant No.3. Therefore, the finding given by the learned Appellate Court that defendant Nos.1 and 2 have subletted the suit premises to defendant No.3 cannot be sustained and consequently eviction decree passed by the learned Appellate Court passed solely on the ground of subletting cannot be sustained and the same deserves to be quashed and set aside. As once it is held that the issue whether the suit premises was let to the partnership firm Ambica Machinery firm as decided by in earlier suit No.28 of 1975 operating as res judicata, it was not open for the Appellate Court to consider the same issue again to take contrary decision to the decision taken in Civil Suit No.28 of 1975, which was confirmed even by the Appellate Court.
[6.0] In view of the above and for the reasons stated above, the present Civil Revision Application succeeds. Impugned judgment and order dated 28.11.2001 passed by the learned 2nd Joint District Judge, Banaskantha, at Deesa in Regular Civil Appeal No.52 of 1983 is hereby quashed and set aside and the judgment and decree dated 31.03.1983 passed by the learned Civil Judge (Junior Division), Dhanera in Regular Civil Suit No.44 of 1979 is hereby restored and consequently the eviction decree passed against the petitioners on the ground of subletting is hereby quashed and set aside. Rule is made absolute accordingly. No costs.
Sd/ (M.R. Shah, J.) menon