DEVASSY Vs. SANKARANARAYANA NAMBOOTHIRI

JUDGEMENT

(1.) The first defendant is the appellant. The suit was for redemption of a mortgage. The only point that arises for consideration in this second appeal is as to whether the mortgagor is liable to pay the value of improvements claimed by the 1st defendant. The Trial Court held that there were improvements to the extent of Rs. 632-13-3 which the mortgagor plaintiff was liable to pay at the time of redemption. There was an appeal to the District Court of Anjikaimal. The then Temporary Additional District Judge disallowed the value of improvements which was the main point pressed in appeal. The view taken by him is that in a prior suit which was filed by the present first defendant as plaintiff for eviction of defendants 4 and 6 who were his tenants in respect of the suit property, when a contention was raised by defendants 4 and 6 and they were entitled to the value of improvements, the present first defendant as plaintiff denied that there was any liability to pay for improvements. At the trial of that suit the issue that was framed regarding the value of improvements in that case was not pressed and, therefore, the court passed a decree in eviction without making any provision for payment of the value of improvements. This appears from the records.

(2.) The lower appellate court in the present case referred to this incident and relying upon the authority of the case reported in 1123 Cochin at page 606 holds that the present first defendant must not be permitted to blow hot and cold by the same breath. It is difficult to understand why any authority is needed for establishing such a proposition. However the learned Additional Judge has quoted the authority. The question is whether the decision is attracted in the present case. It will be seen that in the earlier litigation the present first defendant did not deny that there were any improvements made on the property. He denied liability to pay for improvements and when the case came up for trial, the tenants who wanted to claim the value of improvements did not press their claim. A contention that a a person is not liable to pay for improvements does not necessarily imply a denial that improvements were made. It may be due to other reasons which it is not necessary to specify at this stage. Moreover, the present plaintiff was impleaded in that suit as a pro forma party against whom no relief was claimed.

(3.) In the circumstances, the question is whether there is any legal impediment to the first defendant claiming the value of improvements when the mortgage in his favour is sought to be redeemed. There is certainly no case of estoppel made out, because it cannot be said that any one was affected to his prejudice as a result of the denial made by the first defendant in the prior suit that he was not liable for the value of improvements. It is not a case of res judicata because the present plaintiff was impleaded in the earlier suit purely as pro forma party. The law on the point is considered in Mullas Commentaries on the Code of Civil Procedure (11th Edition) at page 64 where the relevant authorities are all collected in the foot-note at page 65. The learned author lays down the proposition of law in these two sentences:-