NIRMAL KR. MUKHERJEE Vs. HARINARAYAN BAGCHI

JUDGEMENT

(1.) THIS is an application under section 115 of the C. P. Code challenging the order No. 25 dated 17.9.1994, passed by the Munsif, 1st Court, Maldah in O.C. Case No. 20 of 1992. It was a suit for eviction of a premises tenant specially on two grounds, of default and on the ground of reasonable requirement, but before filing of the suit the plaintiff O. P. filed an application under section 29B of the W. B. P. T. Act for eviction of the present petitioner. But the Rent Controller ultimately came to the conclusion that section 29B was not attracted to that case and as such he dismissed that application for eviction. On the basis of this finding, the present petitioner took up the plea before the Trial Court that the Title Suit filed for eviction was not maintainable being barred by the principle of res judicata. Now the question before this Court is whether the finding of the Rent Controller that section 29B is not attracted to the application which was filed before him for eviction would operate as res judicata in the present suit. The learned Munsif decided those two points against the present petitioner. It was held that the suit was not barred by principle of res judicata and as such it was maintainable. On being aggrieved, the present application has been filed. The learned advocate appearing for the O. P. has referred to some decisions of the Apex Court. The decision reported in Pandurang Ramchandra Mandlik and another v. Smt. Shantabai Ramachandra Ghatge and others, AIR 1989 SC 2240 clearly lays down the scope of section 11, C.P.C. It is laid down that where an application before the tenancy authorities for possession is filed and dismissed on ground of want of jurisdiction, subsequent Civil suit against tenant for recovery of possession remanding of that application of that case by the High Court for hearing by Trial Court with a direction to refer the issue regarding tenancy to tenancy authorities will not be barred by the principle of res judicata. It is wellestablished principle of law that unless the issues involved are decided, but the matter is dismissed on the ground of want of jurisdiction alone, it was not a finding on merit and as such, such finding can never be treated as res judicata in a subsequent suit. This view is also supported by the decision of the Apex Court reported in State of Maharashtra and another v. M/s National Construction Co., Bombay and another, AIR 1996 SC 2367 where dismissal of a suit and subsequent appeal on technical grounds, but no decision on merits of the case was given, such dismissal of suit and the appeal would not operate as bar to subsequent suit.

(2.) CONSIDERING all these aspects, and the position of law, as it stands, this Court does not find any illegality, or incorrectness in the impugned order and as such the application under section 115, C.P.C. fails on merit. The revisional application is, thus disposed of. The Trial Court is to expedite the dismissal of the suit pending before it.