NEWTON HICKIE Vs. OFFICIAL TRUSTEE OF WEST BENGAL

JUDGEMENT

(1.) The only question argued in this appeal was a question of res judicata and, in the end, the only ground on which the bar of 'res judicata' was sought to be avoided was that the decision in the earlier suit was a decision of a Court which was not competent to try the subsequent suit out of which the appeal had arisen.

(2.) The facts are not many and may be briefly stated. A two-storied building, known as 69, Park Street, is admittedly situated within the limits of the ordinary original civil jurisdiction of this Court and in 1951, the Appellants, who may be compendiously called the Hickies, were admittedly in occupation of both the upper and lower flats as tenants. The premises belong to the Trust Estate N. B. Elias and R. O. Cohen and the trustee of the trust is the Official Trustee of West Bengal. In 1951, the Official Trustee brought two suits for ejectment against the Appellants, one in respect of the upper flat and one in respect of the lower, on the basis that there were two several tenancies in respect of the two flats and that both the tenancies had been determined by notices to quit. In both the suits, it was alleged that no rent had been paid since August, 1950, which, if established would exclude the Appellants from the benefit of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, except to the extent provided for in Section 14. According to the Official Trustee, the rent of the upper flat was Rs. 350/-per month and that of the lower flat Rs. 375/-per month and consequently he instituted the suits in the Court of the Chief Judge of the Calcutta Court of Small Causes under Section 16, Rent Control Act, read with Schedule B. The suit in respect of the upper flat was Suit No. 323 of 1951 and that in respect of the lower flat Suit No. 318 of 1951. Actually, the suits were heard first by the third and finally by the fourth Judge on transfer to them by the Chief Judge which he ordered in exercise of his powers under the Rent Control Act.

(3.) The Appellants filed written statements in both the suits which were couched in identical language but for a small addition in one of them. Except that they denied service of notice, they raised no direct issue of fact, but merely put forward a number of general defences in the broadest of terms. They pleaded that the suits were not maintainable in the form adopted, put the plaintiff to proof of the Trust, denied the relationship of landlord and tenant, denying therewith that the Plaintiff had any right to sue or that any rent was due to him and finally denied that there was any cause of action. In Suit No. 313, they added that the notice was mala Me and illegal. '