SHYAM BEHARI LAL Vs. LALLA JAGESHWAR PRASAD

JUDGEMENT

(1.) This appeal is brought by special leave from the judgment of the Allahabad High court, dated the 20/05/1965, in Second Appeal No. 3858 of 1962.

(2.) The respondent Jageshwar Prasad purchased house No. 18/168 situated in Kursawan Muhalla, Kanpur city, from one Harinarayan, under a registered sale deed, dated 22/ 23/01/1946. At the time of the purchase by the respondent, a portion of the house was in the occupation of one Shri Jagmohan lal. After purchasing the house, the respondent filedasuitforrecoveryol possession and mesne profits against Jagmohan Lal and the suit was decreed by the First Civil Judge, Kanpur, on 6th December, 1947. In execution of the decree, the respondent obtained possession of the house on 30/01/1961. In 1962 the respondent filed suit No. 1 138 of 1952 in the court of the Judge, small Cause, Kanpur, against the appellant and Smt. Kamla Devi for recovery ofrs. 580/ as arrears of rent for the period 30/01/1961 io 30/03/1962. In the suit the appellant put in appearance in September, 1955 and prayed for leave to contest the suit and the court by its order, dated 22/09/1955, granted him permission to contest the suit on payment of Rs. 25. 00 as costs. The appellant, however, did not pay the costs and the suit was decreed exparte against him by the court ofjudge Small Causes, Kanpur, on 1 3/03/1956. The appellant applied for setting aside the ex parte decree under Order IX, Rule 13, C. P. C. and Section 151, C. P. C. but the application of the appellant filed by the appellant for the review of the order, dated 14/07/1956 was also rejected by the court by its order, dated 8/02/1958. The appellant thereafter filed suit No. 606 of 1968 in the court of additional Munsif, Kanpur, for setting aside the decree, dated 13/03/1966 in suit No. 1 138' of 1952 on the ground that the decree had been obtained by the respondent fraudulently. But the suit was dismissed by the Additional munsif, Kanpur, by his judgment, dated 28/07/1960 and the appeal filed by the appellant against the judgment of the Munsif was dismissed by the First civil Judge, Kanpur, by judgment, dated 6/07/1962. In the meanwhile on july 30, 1966, the respondent filed suit No. 1965 of 1966 giving rise to the present appeal, in the court of Munsif, Kanpur, against the appellant forrecovery of Rs. 1,440. 00 as rent for the period 30/07/1953 to Jul 20/07/1956. The suit was based on the allegation that the appellant was the tenant of the first floor of the house above referred at a monthly rent of Rs. 40. 00 and that the appellant had been held to be a tenant of the respondent in suit No. 1 138 of 1952 by Judge, Small Cause court, Kanpur. The appellant contested the suit and denied the relationship of landlord and tenant between him and the respondent and further admitted that the house was under the occupation of appellant's wife, Smt. Kamala Devi, since 1950 and that she was a tenant of Jagmohan Lal, owner of the house and not of the respondent.

(3.) The Trial court held that the decree passed by the Judge, Small cause court in Suit No. 1 138 of 1952 did not operate as res judicata in the present suit. On the merits of the case the Trial court found that the respondent had failed to prove that the appellant had taken the accommodation on monthly rent of Rs. 40. 00 and so the appellant was not liable to pay the rent. The respondent took the matter in appeal but it was dismissed by the first Civil Judge, Kanpur, by his judgment, dated 6/07/1962. The respondent thereafter filed the second appeal in the Allahabad High court. The appeal was allowed by the High court by its judgment and decree dated, 20/05/1966, on the ground that the finding of the Judge, Small Cause court, kanpur, in suit No. 1138 of 1952 that there was an agreement of tenancy between the parties operates as res judicata in the present suit.