SRIRAM PASRISHA Vs. JAGANNATH SEN

JUDGEMENT

(1.) This is an appeal by the defendants against a judgment of affirmance in a suit for recovery of possession on eviction of the defendants therefrom. The plaintiff's case is as follows: One Bhagat Ram Pasrisha was inducted as a monthly tenant in respect of the entire second floor of the premises No. 221/ 1, Rash Behari Avenue, P. S. Ballygunge at a monthly rent of Rs. 150/- according to the English calendar month since 1946, who thereafter promised to vacate the said premises within 31st March, 1947 by a written letter. The tenancy was renewed at the said rate of rent and the tenant undertook to vacate the suit premises positively after 31st March, 1948. After the expiry of the said period he neglected to vacate and died on 18-2-60 leaving behind him the defendants as his heirs and successors who inherited the monthly tenancy. It was stated that the defendants were habitual defaulters in payment of rent and the deposits which were purported to have been made with the Rent Controller were illegal and invalid deposits. It was further stated that the plaintiff was the head of their big joint family of 18 heads and required the suit premises for his own use and occupation by himself and his family members for whose benefits and interests the house at 221/1, Rash Behari Avenue was built. Accommodation was also necessary for the plaintiff's joint family business which was the mainstay of the joint family of the plaintiff. In this state of affairs as the plaintiff required the suit premises for all these purposes the defendants tenancy was determined by a notice dated 13th September, 1962 which was duly served calling upon the defendants to vacate the suit premises with the expiry of October, 1962. The defendants however failed to vacate and accordingly the plaintiff instituted the present suit on 18th December, 1962 praying for a decree for khas possession of the suit premises on evicting the defendants therefrom and also for damages and mesne profits. In the plaint it was stated that the plaintiff had previously instituted on 25-5-60 an ejectment suit for eviction of the defendants on the ground of own use and occupation, default and other grounds. This suit was dismissed on the ground of defect of parties as one heir of the original tenant was left out. An appeal was preferred against that decision and on plaintiff's application the said appeal as also the suit was withdrawn by order dated 26-7-62 and the plaintiff instituted the present suit in the circumstances stated above. The suit was contested by the defendants 1 and 2 who filed written statement contending inter alia that the suit was barred by res judicata, the plaintiff was not entitled to a decree for own use and occupation as he was not the owner nor was the premises held for the benefit of any other person. It was also denied that the defendants were defaulters in payment of rent. Accordingly, it was submitted that the suit should be dismissed. On a trial on evidence the trial Court held that the suit was not barred by res judicata but the deposits without tender were invalid. It was further held that the plaintiff failed to prove that he was the owner of the suit premises but it was established at the same time that the suit premises were required for the benefit of persons for whom it was held and their reasonable requirement was established. About the notice and its service there was no dispute. It was further held that the plaintiff had the right under the agreement to obtain vacant possession on expiry of March, 1948. Such right was waived by the plaintiff by subsequent acceptance of rent from the tenants. The suit however on the findings noted earlier was decreed. An appeal was preferred against this decision and the appellate Court held in agreement with the trial Court that the suit was not barred by res judicata. It was further held that the defendant was not a defaulter. The appellate court also held that the plaintiff held the suit premises for the benefit of others and was competent to institute the suit and obtain the decree. The reasonable requirement of the premises for occupation by the members of the family for whose benefit the property was held also found and the appeal was accordingly dismissed. The present second appeal is against this decision.

(2.) Mr. Chandra Nath Mukherjee, learned Advocate appearing for the appellant has urged three points in support of the appeal. His first contention is that the suit is barred by res judicata in view of the order passed in an earlier title suit filed by the plaintiff on the same cause of action. It appears that the plaintiff instituted a title suit for eviction of the defendants from the suit premises and that the suit was held to be bad for non-joinder of parties as the fifth daughter of Bhagal Ram deceased, who was a co-tenant of the suit premises was not made a party. Accordingly, the suit was dismissed on this ground and an appeal was preferred against that decision. In the appeal the plaintiff filed an application for withdrawal of the suit and appeal. On that application the appellate Court passed an order allowing the prayer on 26-7-62 which is as follows: "No permission to sue afresh is prayed for. The prayer is allowed. The appellant is permitted to withdraw the appeal and the suit." Thereafter, the present suit was instituted on 18-12-62. Mr. Mukherjee contends that this suit was barred by res judicata as no leave was obtained and the case rested on the same cause of action namely reasonable requirement of the plaintiff and his family. Mr. Amarendra Nath Mitra, learned Advocate appearing for the plaintiff respondent disputed the above contention contending that the parties in the matters were not the same while the causes of action of the two suits were also different.

(3.) It would appear that the contention of the appellants on this point is untenable in law. A suit for ejectment is dependent on the determination of a tenancy by a notice to quit as also of a notice of suit. After the dismissal of the earlier suit fresh ejectment notice to quit and of suit dated 13-9-62 was served on the defendants and this notice was the cause of action of the present suit while the reasonable requirement only formed a ground for eviction. Further the parties in the two suits were not the same. Accordingly, I am of opinion that the present suit is not barred by res judicata or by Order 23, Rule 3 of the Code of Civil Procedure as the right to the decree was different in the two suits on different causes of action namely different notices determining the tenancy and of suit.