YAKUBBHAI AHMEDJI MISTRI Vs. IMAMUDDIN HUSENUDDIN KADRI

JUDGEMENT

(1.) The present revision arises under the following circumstances in which there is no dispute as to the facts : The present respondent as a landlord of premises let out to the present petitioner had filed an H.R.P. Suit No. 2010 of 1973 for a decree of possession of the premises and for recovery of rent. The grounds for seeking recovery of possession of the suit premises were that the tenant was in arrears of rent exceeding six months and that the landlord required the suit premises for personal use and occupation. In the said suit the tenant-petitioner filed his written statement whereby he contended that the standard rent could only be Rs. 10.00 per month inclusive of municipal taxes and education cess as against the contractual rent of Rs. 25.00 per month plus municipal taxes plus education cess as claimed by the landlord. Thus, the tenant invoked the powers of the Rent Court under Sec. 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 to determine the standard rent of the rented premises by raising the contention as regards standard rent in his written statement. The suit proceeded through the recording of evidence and during the course of arguments the parties passed joint purshis whereby issue No. 4, viz., "what is the standard rent of the suit premises of each of the suits", was "not pressed". The Rent Court thereafter proceeded to determine the suit proceedings with which we are not directly concerned. This suit was decided on 29/04/1979. Thereafter, after a number of years the tenant was faced with the claim made by the landlord and was required to pay rent on the basis claimed in the previous suit, and the tenant, therefore filed a Standard Rent Application in the Court of Small Causes at Ahmedabad being Standard Rent Application No. 2661 of 1982, for fixation of the standard rent under Sec. 11 of the Rent Act. 1(1). This application was dismissed by the Rent Court mainly on the ground of bar created by Sec. 11 of the Civil Procedure Code. 1(2). Being aggrieved by the dismissal of the above application the tenant preferred Civil Revision Application No. 52 of 1984 before the Appellate Bench in the Court of Small Causes at Ahmedabad under Sec. 29(b) of the Rent Act, which by judgment and order dated 14/12/1984, was also dismissed. 1(3). Aggrieved by the dismissal of the appeal and revision, the tenant has preferred the present Revision Application under Sec. 115 of the Civil Procedure Code.

(2.) The learned Counsel for the petitioner has submitted that when the issue pertaining to the determination of the standard rent was "not pressed" in the suit of the landlord, the only effect thereof was that the contention taken by the tenant in his written statement was given up and that the only consequence of giving up such a contention is that such a contention is deemed not to have taken at all. Naturally, according to the tenat, if such a contention has not been taken at all, there cannot, obviously, be any decision on the basis of any such contention and that, therefore, there is no decision on that issue. The giving up of such a contention is relevant only for the purpose of that particular suit and that the right to agitate standard rent is not taken away for all time to come inasmuch as it is a statutory right in respect of which the principle of estoppel cannot be applied. The learned Counsel for the petitioner further contends that since the issue was "not pressed" and since there was no finding on that issue, it cannot be said that there was any decision on that issue. Under the circumstances Sec. 11 of the Civil Procedure Code, whereby a bar is created against the adjudication of the same question in a subsequent proceeding, cannot operate against the petitioner-tenant. In this context the learned Counsel for the petitioner emphasises that the operative phrase in Sec. 11 in order that the bar should be created, is "has been heard and finally decided by such Court". He, therefore, submits that since the issue has not been heard and finally decided by the Court in the earlier suit of the landlord, the bar of Sec. 11 does not come into operation against the tenant's right to move the Rent Court for determination of standard rent by way of a substantive application under Sec. 11 of the Rent Act. 2(1). The learned Counsel for the petitioner further submits that inasmuch as the relevant issue was not pressed, it would only result in the abandonment of the relevant contentions on his part, the direct result of which would be and has been that there has not been any decision on merits on that issue. For this reason also the bar created by Sec. 11 cannot be brought into effect.

(3.) The appellate Court has confirmed the judgment and order of the trial Court both on the ground of res judicata as well on the ground of estoppel, although the latter aspect has not been explicitly considered or dealt with by the trial Court. I am inclined to accept the submission of the petitioner insofar as the scope and operation of Sec. 11 of the Civil Procedure Code is concerned inasmuch as obviously there is no decision on merits on the question of standard rent. That, however, does not conclude the controversy between the parties. 3(1). Section 11 of the Rent Act confers a statutory right on the tenant to have the standard rent determined by the Rent Court in either of the two ways specified in the said Section. One manner of moving the Court is to file a substantive application directly requiring the Court to determine the question of standard rent. The other mode of obtaining such determination is to take up a contention in the written statement filed by the tenant in a suit filed by the landlord. The conferment of this right to move for determination of standard rent is to be seen and construed in the light of the definition of "Standard Rent" as laid down in Sec. 5(10) of the said Act. It is obvious that the two modes of obtaining adjudication on this question are in the alternative and mutually exclusive. Where one mode of obtaining adjudication has been exercised, the other mode is ruled out. Once the choice is made and exercised, it may be pursued to its logical conclusion and a decision obtained or as in the present case it may be abandoned midway. However, once the choice is made as regards one specific mode, the alternative mode is ipso facto ruled out and the door is then shut for ever. To conceive otherwise would amount to rendering nugatory the principles analogous to the principles of res judicata. In the instant case by not pressing the issue for determination of standard rent, the tenant has abandoned his right of obtaining an adjudication, after having exercised the said right. This in effect, amounts to an admission on the part of the tenant as regards the claim of the landlord made in the suit, read together with the evidence on record, at least as regards the question of rent. 3(2). The learned Counsel for the respondent has, in this connection, relied upon the case of M/s. Abdulgani and Co. v. Gulam Hussain, reported in (1979) XX GLR 827. While holding that unless there is a specific decision on the matter of controversy between the parties the principle of res judicata cannot be applied, it is also held that the principle of estoppel by conduct between the parties may come into operation on the facts and circumstances of the case. In the instant case the tenant exercised his right to obtain adjudication on the question of standard rent and then abandoned the same. The only necessary implication which can be read into this is that by his own conduct the tenant accepted the claim of the landlord on the question of the quanturm of rent he was liable to pay. The view taken by me hereinabove is further supported by an earlier decision of this Court in the case of S. K. Narayanan v. Indian Institute of Management, Ahmedabad and Anr., reported in 1983 GLH 183 (Coram : B. K. Mehta, J.). The main question for consideration in that decision was whether the principles of res judicata would apply to petitions under Art. 226 of the Constitution. However, in consideration of this question the Court had dealt with the application of Sec. 11 of Civil Procedure Code as also the application of the principles analogous to the principles of res judicata and or estoppel as they would apply to the withdrawal of a petition. In the consideration of the latter question it has been held that where a petition has been withdrawn unconditionally, a second petition on the same cause of action is not competent unless liberty is reserved at the time of withdrawal of the earlier petition. As found by me hereinabove when the tenant did not press the issue as regards determination of standard rent, that contention was withdrawn by him unconditionally. Thus, he would be estopped from raising the same issue again in another proceeding, viz., by way of a substantive application under Sec. 11 of the Rent Act. 3(3). As against this, the learned Counsel for the petitioner has relied upon a number of decisions which require a mere reference inasmuch as the same are not applicable to the facts and circumstances of the case. In the case of Mangaldas Nenumal v. Hasumati Jashwantrai, reported in 1983 GLH 1031 : [1983 (2) GLR 1364], the Court held that the tenant cannot be prevented from exercising his statutory right to obtain determination of standard rent merely because his earlier application for such determination was dismissed for default. It must be noted that if any proceeding is dismissed for default, it may be on account of non-appearance of the applicant or his lawyer, which amounts to inaction or negligence on the part of the applicant. In the instant case the tenant has deliberately given up his right to obtain adjudication after having exercised the same. In the case of Tran Devadi Mandir Trust v. Dilipkumar Babulal, reported in 1984 GLH 259 : [1984 (2) GLR 938], the standard rent had been determined by a consent decree passed earlier. A subsequent application for such determination was held to be maintainable on the basis that the earlier decision was found to be vitiated by fraud practised upon the tenant in obtaining his consent. In effect, therefore, there was no earlier legal and valid decision and, therefore, there was no question of the bar created by Sec. 11 of the Civil Procedure Code. In the case of Ahmed Ibrahim v. Khokhar Issa, reported in [1980(2)] XXI (2) GLR 514, the bar of res judicata created by Sec. 11 has been discussed and it has been held that the final adjudication in earlier proceedings is essential in order to create a bar against fresh proceedings, against the same issue between the same parties. In the case of Mirta Lina Pvt. Ltd. v. Finlay Mills Ltd., reported in AIR 1982 Calcutta 41, Sec. 11 of the Civil Procedure Code has been interpreted and it has been held that the matter in issue between the parties must have been identical in the earlier proceedings. In the case of Isher Singh v. Sarwan Singh, reported in AIR 1965 SC 948, once again Sec. 11 of the Code of Civil Procedure was considered and it has been held that the controversy between the parties must have been "directly and substantially in issue" both in the earlier proceedings as well as the current proceedings in order to bring home the operation of Sec. 11 of the Civil Procedure Code. It was also held that there must have been "finding recorded" in the earlier proceedings in order to bar the subsequent proceedings.