SUKUMAR BANERJEE Vs. DILIP KUMAR SARKAR

JUDGEMENT

(1.) The tenant-defendant filed an application under Section 17 (2) of the West Bengal Premises Tenancy Act, 1956. The objection was filed by the plaintiff-landlords. The defendants' plea was that there was no relationship of landlord and tenant between the parties regarding the premises in question. In the earlier Title Suit No. 534 of 1974 instituted in the Court of the third Munsif at Alipore, it was already decided that defendant No. 1 was a tenant regarding that property under plaintiff No. 2. That order remains unchallenged and operates as res judicata. He is not a defaulter. The plaintiff's objection was that the previous title suit was withdrawn with liberty to sue afresh and so there was no question of res judicata.

(2.) The learned Munsif accepted the plaintiff's contention and stated that the previous decision did not operate as res iudicata. He, however, found that the defendant was a defaulter from October, 1973. Hence necessary order was passed in this respect. A direction was given to defendant No. 1 to liquidate the arrears in lump by 30th April. 1981, and also to pay the current rent within the 15th day of each month. Hence this revisional application by the defendant-petitioner No. 1.

(3.) The learned Advocate appearing on behalf of the petitioner has referred to a decision of Renu Pada Mukherjee, J. in the case of Bishnu Charan v. Basudeb Banerjee in (1957) 99 Cal LJ 72 to show that where in a suit for ejectment brought under the provisions of West Bengal Rent Control Act, 1950, the tenant pleads that he is not the plaintiffs tenant, the decision of the court on such a question for the purpose of deciding an application under Section 14 (4) of the Act. must be taken to be final and conclusive at all subsequent stages of the suit. Subsequently, the plaintiff prayed for withdrawal of the aforesaid suit with liberty to sue afresh on the same cause of action. That permission was refused and only the plaintiff was permitted to withdraw the suit. Hence the previous finding operates as res iudicata.