MOHAN LAL Vs. BHUTESHWAR

JUDGEMENT

(1.) There are so many points upon which it seems possible to defeat the plaintiff's attempt to dodge the previous judgment, that it is somewhat difficult to select, and personally I have abandoned the task. I am inclined to think that if I were driven to it, I should hold that, inasmuch as the plaintiff as a matter of grace - to use his Counsel's expression - succeeded in extracting from the Munsif a decree giving him possession of the property in a suit in which he had merely made a claim for rent, he is estopped in this Court, or any other, from saying that the Munsif was not competent to decide the question of title in that suit, if he should come to the conclusion that there was no tenancy. If he is estopped from disputing that point, then ha is in this suit raising an issue which the Court is undoubtedly competent to try, which has been in issue in a suit which the previous Court was also competent to try. But I should prefer not to express a final decision upon that point without further argument, because it is a new form of estoppel to me, and I am note satisfied that it is sound. But if the plaintiff's vakil is correct in his view that the Munsif as a matter of grace was justified in giving him a decree for possession as owner, after deciding that there was no tenancy, then it seems to me that the plaintiff brings himself within the mischief of the 2nd rule of Order 2, because it is quite clear to my mind that the plaintiff knew that the Court which tried his suit, would find as a fact that there was no tenancy and that he deliberately refrained from, and therefore within the meaning of the rule, relinquished his alternative claim for possession in the event of the tenancy not being established and of the defendants denying his title. This again is one of those points on which I should prefer to hear further argument before I make up my mind that it was the right point for disposing of this case. I am also satisfied that this suit is an abuse of the process of the Court within the meaning of Section 153, having been deliberately chosen for the purpose of getting over the difficulty created by the judgment of the appellate Court in the first suit. It looks rather as if the plaintiff had some reason for expecting success as a matter of course in the Munsif's Court in the first suit, otherwise it is difficult to understand why he did not value the suit as he has now done, at Rs. 1,600 and bring it in the Subordinate Judge's Court. However, these observations are mere dicta and my brother being quite satisfied that the better and safer course is to hold that this suit has been improperly valued, and ought to have been rejected on that ground, I agree with that view, and allow the appeal, reverse the decision of the lower Appellate Court, and direct the plaint to be returned to the Munsif's Court with the value of Rs. 24. The appellants will have the costs in all Courts, including in this Court, fees on the higher scale. Sulaiman, J.

(2.) It is necessary to recite the allegations in the plaint in order to make the point clear. The plaintiff alleged that he was the owner of the house in dispute, and that the defendant No. 1 had been a tenant for about seven years. That as he did not pay rent for three years, the plaintiff instituted a suit against him for ejectment and for arrears of rent, and in the written statement filed by the defendant to that suit, he expressly denied the tenancy and the plaintiff's title. It was further alleged that that suit was decreed by the first Court on the ground of title, though the tenancy was not proved, but on appeal, the learned Judge dismissed the suit altogether. The cause of action for the present suit is stated to be the date of the written statement, in which the defendant denied the plaintiff's title. The plaintiff originally claimed a declaration that he was the owner of the house in dispute, but that relief was subsequently struck out, and a relief for recovery of possession was sub-stituted.

(3.) The defendant in his written statement denied that the Court of the Subordinate Judge had jurisdiction to entertain the claim. The learned Subordinate Judge however overruled this plea, but dismissed the suit on the ground that the previous finding and decree were a bar to the present claim. When the plaintiff went tip in appeal to the District Judge, the defendant filed an application stating that the suit was not cognizable by the Subordinate Judge, inasmach as the valuation had been deliberately inflated. The learned Judge, however, has overruled 4his plea and allowed the appeal, decreeing the suit on the ground that there was no bar of Section 11 of the Civil P. C..