Deputy Manager, Biscomaun and ors. Vs. Sri Hardeo Prasad - Court Judgment

Excerpt:
bihar buildings (lease, rent and eviction) control act, 1982-sections 18(3) and 23-civil procedure code, 1908-section 2(2)-an order passed by rent controller although not a decree, yet such an order is executable as decree. - - thus, in the case of satyadhyan ghosal (supra) it has been clearly held by the apex court that when a matter -whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed is a future suit or proceeding between the same parties to canvass the matter again. it has been further held that the result of the application of resjudicata doctrine is that..... ramesh kumar datta, j.1. the petitioners have approached this court by filing the civil revision application against the order dated 27.8.2004 passed by the sub judge-i, hilsa (nalanda) by which the prayer of the petitioners to dismiss the execution case no. 1 of 1999, on the ground that it is not maintainable and barred by the law of res judicata, has been rejected.2. the brief facts of this case are that the opposite party had filed a petition for fixation of fair rent before the house controller being b.b.c. case no. 9 of 1983-84 in which the controller determined the fair rent of the premises at rs. 1800/- per month by order dated 28.9.1987. thereafter the opposite party filed an application before the controller for passing necessary order directing the petitioners to pay the rent.....

Judgment:

Ramesh Kumar Datta, J.

1. The petitioners have approached this Court by filing the civil revision application against the order dated 27.8.2004 passed by the Sub Judge-I, Hilsa (Nalanda) by which the prayer of the petitioners to dismiss the Execution Case No. 1 of 1999, on the ground that it is not maintainable and barred by the law of res judicata, has been rejected.

2. The brief facts of this case are that the opposite party had filed a petition for fixation of fair rent before the House Controller being B.B.C. Case No. 9 of 1983-84 in which the Controller determined the fair rent of the premises at Rs. 1800/- per month by order dated 28.9.1987. Thereafter the opposite party filed an application before the Controller for passing necessary order directing the petitioners to pay the rent so fixed by the Controller and the same was directed by the Controller to be paid within one month from the date of receipt of the order. Thereafter the opposite party filed an Execution Case being Execution Case No. 2 of 1992 before the Sub Judge-I, Hilsa (Nalanda). The petitioners appeared and filed an objection in the said execution case contending that the order passed by the Controller is not a decree and as such the Execution Case was not maintainable. It was further contended that the Civil Court had no jurisdiction to proceed with the Execution Case for the recovery of fair rent determined by the Controller. It was also informed that the premises was vacated on 29.2.1992 and the entire dues had been paid. After hearing the parties by order dated 12.9.1995, the learned Sub Judge-I, Hilsa (Nalanda) dismissed the execution case.

3. Against the aforesaid order dated 12.9.1995 the opposite party filed Civil Revision No. 1621 of 1995 before this Court. A learned single Judge Bench of this Court dismissed the civil revision application by order dated 25.4.1997 holding that Sections 5 and 6 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 simply empowers the Controller to determine the fair rent of a building premises and while so determining the fair rent he may fix a date from which his order shall take effect but he cannot make an order directing the tenant to pay arrears of rent of the building premises at the rate so fixed by him. For the said reasons, it was held that such an order/direction, if made by the Controller, cannot be held to be a decree and thus cannot be executed by a Civil Court as contemplated in Section 23 of the Act. It was further held that a Landlord is not entitled to recover arrears of rent from the tenant at the rate so fixed by the Controller by executing his order unless a decree for such recovery of rent is obtained from a Civil Court by filing the required money suit. For all the said reasons, this Court did not find any illegality or, infirmity in the order passed by the court below and accordingly the Civil Revision Application was dismissed as not maintainable. The said order of this Court was challenged by the opposite party by filing SLP (Civil) No. 6707 of 1997 which was dismissed by order dated 8.9.1997 holding that there was no infirmity in the reasonings of the High Court.

4. Again in the year 1999 the opposite party filed another execution case on the same point, against the same order and with the same prayer being execution Case No. 1 of 1999 in the Court of Sub Judge-I, Hilsa, (Nalanda). The petitioners filed rejoinder in the said execution case stating that it was not maintainable since the matter was finally decided by this Court and the same was upheld by the Supreme Court but ignoring the said stand by order dated 25.9.2000 the court below dismissed the rejoinder filed on behalf of the petitioners on the point of maintainability of the execution case holding that the case of the opposite party is on this same footing as that in the decision reported in 1999 (1) PLJR 362. Admittedly, the said order was not challenged by approaching the higher forum and again the petitioners filed a petition under Sections 11 and 12 of the Code of Civil Procedure taking the plea that the execution Case No. 1 of 1999 is not maintainable either on fact or on law and is barred by law of res judicata. However, by the impugned order dated 27.8.2004, the said petition has been rejected on the ground that earlier also the similar objection of the petitioners had been rejected on 25.9.2000.

5. Learned Counsel for the petitioners has mainly submitted that the court below has committed judicial impropriety in again taking up a fresh execution case when earlier execution proceedings in the same case being execution Case No. 2 of 1992 has been held to be not maintainable not only by the earlier executing Court itself by order dated 12.9.1995 but the same has been upheld on a challenge made to it by the present opposite party, by the appellate order dated 25.4.1997 of this Court holding that the execution proceeding is not maintainable for the reasons stated in that order, with respect to which reasoning no infirmity has been found by the Supreme Court which had also dismissed the special Leave Petition filed by the opposite party by order dated 8.8.1997. Since the issue regarding maintainability of the execution case with respect to the order intended to be executed, has been decided between the same parties by the Courts giving concurrent findings in favour of the petitioners and against the opposite parties, it was not open to the learned Sub Judge-I, Hilsa to have again held that the execution case was maintainable by relying upon another order passed by this Court in any other case between the other parties. The finding of the issue between the same parties cannot be re-opened in view of the provisions of Sections 11 and 12 of the Code of Civil procedure.

6. Counsel for the opposite party, on the other hand, has sought to uphold the impugned order on two grounds. Firstly, it is submitted that the order dated 25.9.2000 having not been challenged by the petitioner after their earlier petition regarding the maintainability of execution Case No. 1 of 1999 had been dismissed. The said order dated 25.09.2000 acquired finality and it has rightly not been interferred with by the learned Sub Judge when the similar fresh petition has been filed. It is thus, submitted that the principles of res judicata, in fact, apply against the present petitioners since it is an established proposition of law that where the earlier order between the same parties in the earlier stage of the same proceedings are allowed to acquire finality then the said issue will operate as res judicata between the parties against whom the issue has been decided and they cannot be permitted to reagitate the said issue at a latter stage of the same proceedings. In support of the said proposition learned Counsel for the opposite party relies upon the decisions of the Supreme Court in the case of Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. : [1960]3SCR590 and in the case of Y.B. Patil and Ors. v. Y.L. Patil AIR 1977 S.C. 392.

7. The second submission of the learned Counsel for the opposite party is that the order of the supreme Court dismissing the SLP by not granting the leave cannot be considered as a decision on merits and thus the doctrine of merger will not apply to the same and it is open to the opposite party to re-agitate the matter. In support of the said proposition, learned Counsel relies upon a decision of the supreme Court in the case of Kunhayammed and Ors. v. State of Kerala and Anr. : [2000]245ITR360(SC) in which it has been held that while hearing the petition for special leave to appeal, the Supreme Court is not exercising its appellate jurisdiction but merely is exercising its discretionary Jurisdiction to grant or not to grant leave to appeal and if such a petition is dismissed. It is expression of an opinion by the Court that the case for invoking appellate jurisdiction to the Court was not made out and thus, upon such dismissal at the stage of special leave without reasons the doctrine of merger does not come in application and there is no res judicata.

8. Learned Counsel for the opposite party also relies upon a decision of the learned Single Judge Bench of this Court in the case of Tribhuwan Nath Choudhary v. Arjun Choudhary and Anr. 1988 PLJR 897 wherein it has been held that an order passed by the rent Controller under Section 18(3) of the Act although cannot be said to be a decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908, yet such an order is executable as 2006 decree. It is further submitted that the said decision has been upheld by the Apex Court by dismissing the special leave petition which is reported in 1988 PLJR 104 (SC).

9. Lastly the learned Counsel for the opposite party relies upon the decision of another Single Judge Bench of this Court in the case of Md. Khaliquz Zaman v. Shri H.C. Joshi 1999 (1) PLJR 362; which is also the decision relying upon which the court below had held by order dated 25.9.2000 that Execution Case No. 1 of 1999 was maintainable. In the said case it had been held that an order passed by the Controller is under Section 23, although not a decree but it is executable as a decree by the court.

10. On a consideration of the rival submissions there can hardly be any doubt that there is force in the submissions of the learned Counsel for the petitioners and the various pleas raised on behalf of the opposite party must be rejected. It is true that the order dated 25.9.2000 passed by the learned Sub Judge in this very execution Case No. 1 of 1999 ought to have been challenged by filing civil revision application before this Court and the same has not been done and only the subsequent rejection of the application on the ground of the bar of res judicata by the present order, the impugned order dated 27.8.2004 has been challenged. Subsequently, however, it appears that I.A. No. 1452 of 2006 has been filed after the hearing of the matter had concluded on the same day in which the said order dated 25.9.2000, which was already brought on the record earlier as Annexure-6 by way of supplementary affidavit, filed on 19.9.2005, is also sought to be challenged.

11. In my opinion, even though the order dated 25.9.2000 had not been challenged earlier, but the same would not affect the basic issue which is that with respect to the same order which is now sought to be executed by filing the execution case No. 1 of 1999, the earlier execution case No. 2 of 1992 had been filed and it has been specifically held both by the Sub Judge-I and in civil revision application by this Court that the said execution case was not maintainable. The said order dated 8.8.1997 of this Court has not been set aside, rather the SLP filed against has been dismissed by the Supreme Court. Thus, the said order has acquired finality between the parties and it was not open to the opposite party to have filed a fresh Execution Case No. 1 of 1999 for the execution of the same order dated 28.9.1987 with respect to which it has been specifically held that it is not executable, merely because in a different case between different parties another single Judge Bench of this Court has held differently. The very entertainment of a fresh execution case despite the matter having been decided right up to the Apex Court shows gross judicial indiscipline committed by the court below and no such technical plea of bar of res judicata can apply on account of non-challenge of the order dated 25.9.2000 when not only the said order but the entire execution proceeding itself would stand barred by the doctrine of res judicata as a laid down in Section 11 of the Code of Civil Procedure.

12. The decisions cited on behalf of the opposite party on this point, in my opinion, do not support his case rather they go against him. Thus, in the case of Satyadhyan Ghosal (supra) it has been clearly held by the Apex Court that when a matter - whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed is a future suit or proceeding between the same parties to canvass the matter again. It has been further held that the result of the application of resjudicata doctrine is that the original Court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.

13. Similarly, in the case of Y.B. Patil (supra) it has been held that it iS well settled that principles of res-judicata can be invoked not only in separate subsequent proceedings; they also get attracted in subsequent stage of the same proceedings. It is not open to the opposite party to try and take benefit of second part of the said proposition when the case is clearly covered by the first part of what has been laid down by the Apex Court since the second execution case itself was not maintainable alter the matter stood concluded and acquired finality between the parties. Thus, no benefit of the second part of the proposition that the principle of res judicata will apply to the subsequent stage of the proceeding can be taken by the opposite party.

14. The reliance by the opposite party on the decision of the Apex Court in the case of Kunhayammed (supra) is also wholly misconceived. If the submission of the learned Counsel is to be accepted then it would mean that only matters which are decided on merits by the Supreme Court acquire finality and not those which ate decided either by the Subordinate Courts or by this Court. In the said decision itself it has been clearly stated that in spite of a petition for special leave to appeal haying been filed, a judgment, decree or order against which leave to appeal has been sought for continuous to be final, effective and binding is between the parties. Applying the said principle if the order dated 12.9.1995 of the Sub Judge and the order dated 25.4.1997 passed by this Court in the earlier revision application was final, effective and binding as between the parties in spite of the petition for special leave to appeal having been filed by the opposite party against the same, then it is not understandable how that finality ceases to exist once the special leave petition is dismissed. The attempt of learned Counsel for the opposite party to apply the doctrine of merger has no relevance in the facts of the present case since even if no final and binding order has been passed by the Supreme Court in the SLP filed by the opposite party, at least the earlier decision dated 12.9.1995 of the subordinate Judge and the order dated 25.4.1997 passed by this Court had acquired finality between the parties, and would continue to be final, effective and binding as between the same parties. That being the position the order dated 25.9.2000 passed earlier in the present execution Case No. 1 of 1999 has to be treated as a nullity and it is open to this Court to declare it to be so at any point of time when the matter has been brought to the notice of this Court.

15. The order dated 25.9.2000 is declared to be nullity and of no binding effect between the parties since the earlier decision of this Court regarding, the non-maintainability of the execution case with respect to the order dated 28.9.1987 passed by the rent Controller continues to bind the parties.

16. So far as the reliance of Tribhuwan Nath Choudhary's case (supra) is concerned, the said case has no relevance to the facts of the present case since by Section 18(3) of the Act specific provision has been laid down regarding the execution of a decree by an order passed by the Rent Controller determining any amount as daily compensation and nothing that is said about that Section can be directly applied to the interpretation of an order of the present nature which is sought to be executed.

17. Lastly the reliance upon the case of Md. Khaliquz Zaraan (supra) by the learned Counsel for the opposite party is wholly misconceived. It is true that in the said case another learned Single Judge Bench has taken directly contrary view to that taken in the order dated 25.4.1997 in the earlier civil revision No. 1021 of 1995 filed in the present matter. However, whatever has been decided in the said civil revision is binding at least upon the parties to the present litigation and then it is not open at a subsequent stage to the opposite party to approach the executing Court on the basis of any such decision unless the order dated 25.4.1997 passed by this Court in the earlier civil revision is itself set aside in appropriate proceedings.

18. Thus, on a consideration of the facts and circumstances of this Case, the impugned order dated 27.8.2004 is set aside and it is also held that the earlier order dated 25.4.1997 of this Court parsed in C.R. No. 1621/1995 continues to bind the parties to the present litigation and thus the execution Case No. 1 of 1999 is also not maintainable. As already held easier the order dated 25.9.2000 is a nullity and the same car not be given effect to for the purpose of keeping the case No. 1 of 1999 alive.

19. The Civil Revision application is accordingly allowed with costs.