RAM KISHUN Vs. MURLIDHAR SHARMA

JUDGEMENT

(1.) The appellants were the defendants in an action brought for declaration that the rent of the house in question is Rs. 23/- per month. In the original suit a claim for arrear of rent for one month at that rate was also included. But, that has been refused by both the courts below, and there is no appeal against that. The plaintiff's case is that the defendants took two rooms at a monthly rent of Rs. 13/- sometime in 1948, then, later on, took another room on an additional monthly rent of Rs. 10/- in 1952. Thus, the three rooms in occupation of the defendants are for total monthly rent of Rs. 23/-. No specific period has been mentioned, in respect of which the present declaration has been sought. The defence was that in a previous small cause court suit, which was numbered as 120/42 of 1953, instituted by the present plaintiff against the present defendants for one month's rent at the rate of Rs. 23/- was decreed only for Rs. 13/- on a finding that Rs. 13/- was the monthly rent due to the plaintiff. It was contended that that judgment will operate as res judicata and will bar the present suit seeking a declaration that the house rent is Rs. 23/-.

(2.) Both the Courts below have not accepted the plea of res judicata, as the previous suit was decided by a Court which is n6t competent to try the present suit. The plaintiffs suit has, therefore, been decreed.

(3.) Learned counsel for the appellants con-terded that the view taken on the question of res judicata is erroneous, because applying the general principles of res judicata, the previous judgment should have been held as a bar against the present suit. Whether Section 11 of the Code of Civil Procedure in terms or the general principles of res judicata will be attracted to a case of this nature is the real point at issue. It has no doubt been held in several decisions that where the previous decision is made by a Court of special jurisdiction, like Land Acquisition proceedings or probate or administration suit, such decisions will be. applicable as a bar against subsequent suits involving an issue of the same nature on the principle that Section 11 in terms is not applicable, but the general considerations of res judicata are attracted. It has not been shown how a Court having Small Cause Court powers can be said to be a Court of such special jurisdiction, like Land Acquisition, probate or letters of administration. A reference to a decision of the Calcutta High Court in Anantamoni Dasi v. Bhola Nath, AIR 1941 Cal 104 will show that their Lordships of the Calcutta High Court) held the judgment given in a Small Cause Court Suit will not operate as res judicata in regard to a subsequent -suit brought on the original side of the, Court, for the simple reason that the subsequent suit was not within the jurisdiction of the previous Court. The same view has been taken in other cases disposed of by this Court also. Reference may(sic) made to Purnjma Pebya v. Nand Lal Ojha. ILR 11, Pat 50 : (AIR 1932 Pat 105). Learned counsellor the appellants cited the case of Ram Charitar Sah v. Bifai Mahto, AIR 1951 Pat 288, where the judgment passed in a suit for house-rent and ejectment was held as a bar, on the principles of res judicata, to a subsequent suit for rent, in regard to the issue on the question of title which had been decided in the previous case. The facts of the present case are entirely different and, therefore, will not attract the principles decided in that reported case. In my view, the judgment of the Small Cause Court in Small Cause Court Suit No. 120/42 of 1953 has been rightly held by the Court-below as not to be a bar under the principles of res judicata against the present suit, which is one for a bald declaration.