MOHARANI JANKI KOERI Vs. BASDEO OJHA

JUDGEMENT

(1.) THE question of law which calls for our decision in this appeal is, whether the trial of a suit for rent is barred by reason of an order made by a Collector under the Public Demands Recovery Act by which he cancelled a certificate on the ground that there is a bona fide claim of right involved in the proceedings. THE appellant claims to be the landlord of the defendants. She is a Ward of the Court and a certificate for arrears of rent was made upon an application presented on her behalf under Section 7, Sub-section (1) Clause (c) of the Public Demands Recovery Act of 1895. Under Section 8, subject to the other provisions of the Act, the certificate so made acquire the force and effect of a decree of the Civil Court as regards the remedies for enforcing the same and for that purpose alone. Notices were thereafter served upon the judgment-debtors under Section 10. THEy appeared and objected under Section 12, Sub-section (1), that they were not liable to pay any portion of the amount for which the certificate had been made against them inasmuch as they held the land rent-free. THE certificate officer thereupon heard the petition and decided in favour of the landlord. An appeal was preferred by the tenants to the Collector under Sub-section (1) of Section 32 of the Public Demands Recovery Act. THE result was that the Collector cancelled the certificate, inasmuch as he was of opinion that substantial questions of title were in controversy between the parties. THE landlord thereupon commenced the present action for recovery of the rent in respect of which the certificate had previously been made at her instance. THE tenants objected that the claim was barred by the doctrine of res judicata. This contention was overruled by the Court of first instance but upon appeal has found favour with the Subordinate Judge. THE landlord has now appealed to this Court, and on her behalf it has been contended that the doctrine, of res judicata, as embodied in Section 13 of the Code of Civil Procedure of 1882, has no application to the circumstances of the present case. In our opinion this contention is obviously well founded. We may state at the outset that it has not been argued by the learned Vakil for the appellant that if a certificate has been made and the matter has been decided on the merits by the certificate officer and in appeal by the Collector, the question can be re-agitated in a suit for rent. Such a view cannot possibly be maintained on first principles. A litigant who is allowed two alternative remedies cannot, if he elects in favour of one of them and pursues it unsuccessfully, take recourse to the other remedy. Here, however, the case is different. THEre was no adjudication on the merits by the Collector. In fact, the Collector proceeded in substance under the proviso to Section 13 of the Public Demands Recovery Act. That proviso lays down that if in the opinion of the certificate officer the petition involves a bona fide claim of right he shall refer the petition to the District Collector for orders and the District Collector, if he is satisfied that a bona fide claim of right is involved, shall make an order cancelling the certificate. In the case before us, the Collector has cancelled the certificate not upon a reference by the certificate officer but in the exercise of his appellate jurisdiction. This, in our opinion, does not make any substantial different in the position of the parties. THE essence of the matter is, that there has been no adjudication on the merits by the Collector and consequently there is nothing to prevent the plaintiff from seeking relief in the present suit.

(2.) THE result, therefore, is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remanded to him in order that the appeal may be heard on the merits. THE costs of this appeal will abide the result.