H BHUJANGA BALLAL Vs. ANTONY JUJE LOUIS

JUDGEMENT

(1.) The plaintiff a mulgani lessor is the appellant in this second appeal and the only point that is raised here is whether he is entitled to a charge for the rent accruing from the property as against the lessee the defendant. The trial court granted him a charge that he prayed for and it was reversed in the appellate court. Hence this second appeal.

(2.) The document of lease is not before the court, nor is it stated that this document contains any covenant or recital creating a charge in favour of the lessor for the rent due. The ground however upon which the trial court upheld the plaintiff's claim for a charge was that there was a previous suit, that in the plaint in that suit the plaintiff had alleged that he was entitled to a charge and that the present defendant (respondent here) who was a party to that suit did not put forward any contention denying that the lessor was entitled to a charge for arrears of rent. The trial court held on these facts that the defendant was estopped by 'res judicata' from raising the plea that the document of lease did not contain a charge. I do not consider that the proceedings in the previous case constituted 'res judicata' preventing the defendant from contending that there is no charge for the arrears of rent due under the lease. Admittedly in the previous suit the parties did not go to trial and no issue was raised about the existence of a charge. There was no adjudication by the court upon this matter. The mere fact that a decree was passed on allegations made in the plaint in respect of rent due for a previous year is not sufficient to constitute 'res judicata' in respect of rent due for a subsequent year when the point is raised for consideration. Apart from this plea of 'res judicata', there is nothing before the court to show that the lessor has any charge created in his favour for the recovery of the arrears of rent.

(3.) The second appeal fails and is dismissed with costs of the respondent. No leave.