T RANGANATHAN Vs. ESSAU ALFRED

JUDGEMENT

(1.) THE main point urged by the petitioner's learned Advocate is that if the amount in question was mistakenly paid by him, that the law entitles him to claim a refund for it. In this proceeding, two earlier suits had been filed against the petitioner, the first one was a suit for eviction and the second one was on the ground that certain arrears were due. The petitioner had compromised the matter and agreed to leave the premises but there was some dispute with regard to the amounts due from him and the Court was required to pass a second decree against the petitioner. In the second proceeding, the petitioner had also made some counter-claim which was examined by the Court and the Court had granted some amount to the petitioner against his counter-claim. Subsequently, the petitioner applied to the Court for modification or amendment and that application came to be partially allowed. The petitioner's learned Advocate submits that since the Court did not grant the rectification along the lines as indicated by him namely the Court did not give the petitioner credit for an aggregate amount of Rs. 1,293/- plus interest etc. , that the petitioner was left with no option except to institute a separate suit for recovery of this amount. Learned Advocate submits that he is in a position to satisfy the Trial Court that the respondent-landlord has wrongly appropriated certain amounts during the overall tenancy of the petitioner as a result of which the petitioner has virtually been subjected to double payment. He submits that the learned trial Judge has dismissed the suit on the ground that it is barred by principles of res judicata. His contention is that the cause of action is entirely different, that the suit was maintainable and that the concept of res judicata would not apply to the present proceeding.

(2.) IT is true that the order of the Trial Court is not very happily worded. The fact of the matter is that the dues in question pertains to payment during the period when he was a tenant. It is because of the dispute in relation to the amount due from him that the matter went back to the Court and the Court ultimately held that a certain amount of money was due from the petitioner. At a subsequent point of time, the petitioner checked all the figures and the records and he found that the aggregate amount that he had been ordered to pay was incorrect in so far as it would amount to double payment in respect of a certain period. The question is as to whether the petitioner is entitled in law to file a separate suit for purposes of recovering this amount.

(3.) THE principle enunciated in Section 72 of the Contract Act has nothing to do with the present proceeding because we are here concerned with amounts that have been recovered under a decree passed by the Court. It is not a question of whether the period was the same or different but the fact is that the amount constituted payment against what the Court has held to be arrears of rent. If a separate suit were to be instituted and the petitioner were to be allowed to re-agitate the issue, the end result of the process would be that the same Court namely the court of Small Causes would be required to pass a decree in respect of the very amount that was the subject-matter of an earlier decree and covered by it and would therefore constitute virtually modifying or setting aside the earlier decree even if the prayer is not worded in so many words. There is a finality to proceedings and assuming, in favour of the petitioner, that an error had taken place, if the Trial Court refused to rectify it, the only option open to the petitioner was to have taken the matter higher and got the error corrected in that proceeding itself. It is not permissible to permit virtually reopening of that decree or going behind that decree or modification of that decree by a court of concurrent jurisdiction in another proceeding irrespective of how the cause of action has been made out. The principles of constructive res judicata would bar such a proceeding because in effect, it would mean that after the decree in the previous proceeding has become final and it has been held that a prescribed amount was payable as of then by way of arrears of rent. In the present proceeding, a Court could hold that a lessor amount was payable and that therefore, the earlier decree was wrong. The law does not permit such a procedure and to this extent therefore, the dismissal of the suit by the Trial court was justified in law.