GOPALAKRISHNA BHATTA Vs. GURURAJACHARYA

JUDGEMENT

(1.) THE defendant in a suit for recovery of arrears of mulgeni rent brought by the respondent seeks to revise the decree passed against him by the learned District Munsiff of Udipi. The only question in dispute is as to the rate of rent. The plaintiff claimed at Rs. 10 -2 -0 per year. The defendant contended that the proper rate of rent was Rs. 7 -2 -0. The plaintiff also alleged that the rate of rent was concluded by res judicata. by reason of the judgment in a prior suit S.C.S. No. 357 of 1936. The learned District Munsiff found on the merits that the rent fixed was only Rs. 7 -2 -0 per year, but held that the decree in S.C.S. No. 357 of 1936 operated as res judicata. The only evidence relating to the prior suit is that furnished by the judgment and the decree. The copy of the judgment filed as Ex. P -2 does not appear to be complete. It simply states that the suit is for a particular amount and that there should be a decree in favour of the plaintiff for the sum claimed. The decree does not furnish any more information. No doubt from a calculation it can be deduced that rent must have been claimed at Rs. 10 -2 -0 per year. From the decree it is clear that the" defendant was ex parte.

(2.) THERE is very little of authority in this Court on the question whether in such circumstances the prior decision would operate as res judicata on the question of the rate of rent. The only decision directly in point appears to be that of Madhavan Nair, J., in Rajah of Vizianagaram v. : AIR1929Mad673 . There, the learned Judge, after referring to several decisions of the Calcutta High Court and an earlier decision of the Madras High Court, laid down the effect of the decisions in the following words:

(3.) MR . Srinivasa Rao points out that the learned Judge in Rajah of Vizianagaram v. : AIR1929Mad673 overlooked the rule of constructive res judicata which is also a part of the doctrine of res judicata. Even if in the prior suit the matter was not made the subject of an issue, nevertheless, as the defendant could have raised the defence and an issue could have been raised if he had raised such a defence, the omission to do so would entail the application of the rule of res judicata. I cannot agree that the learned Judge was not aware of this well -known aspect of the rule of res judicata Apparently the special considerations which were considered to be applicable to the case of suits more or less summary in their nature brought by landlords against tenants outweighed the rule of constructive res judicata. In any event, I am not inclined to dissent from the considered decision of the learned Judge, and following it I set aside the decree of the District Munsiff and pass a decree in favour of the respondent at Rs. 7 -2 -0 which is the rate found by him.