Basanta Kumar Sarkar and anr. Vs. Sukhomoy Mondal and ors.

civil procedure code (act v of 1908), section 11 - res judicata--landlord and tenant--rent decree, ex parte, whether operates as res judicata. - syed shamsul huda, j.1. i think this rule must be made absolute. the suit has been dismissed on the ground that the plaintiff had failed to prove the existence of the relationship of landlord and tenant between him and the defendants. my attention has been drawn to the fact that there was a, previous rent decree to which all the defendants were parties. the learned judge refers to this decree, but says that it is not shown that any payment was made towards the satisfaction of this decree. it seems to me, on the authority of the decisions of this court in the case of raj kumar boy v. alimaddi 16 ind. cas. 911 : 17 c.w.n. 627 and in the case of mohammad gowhar ali v. samiruddin sheikh 22 ind. cas. 383 : 18 c. w. n. 33 at p. 37 that a rent decree though only ex parte is res judicata on the question of the existence of the relationship of landlord and tenant. the case must be remanded to the court below for the determination of the other issue, namely, what was the amount of rent payable by the defendants as rent.2. the decree of the small cause court is, therefore, set aside and the case sent back to that court for being tried in accordance with law. the parties will be allowed to adduce snob evidence as they may think it necessary to prove their respective cases regarding the amount of rent. the rule is made absolute with costs. the hearing fee is assessed at one gold mohur.