BEPIN BEHARY DAS Vs. HARA CHANDRA BAIRAGI

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in an action for rent in respect of the years 1309 to 1312. The plaintiff claimed rent at the rate of Rs. 58 in cash and 10 1/2 bishes of paddy in kind. The defendants Nos. 2, 3 and 4 alone contested the claim and they alleged that the amount of annual rent was Rs. 58 only and that no rent in kind was payable by them. The substantial question in controversy between the parties is as to the conclusive effect of a previous decision between them in a suit for rent in respect of the years 1304 to 1307. In order to explain how this question arises it is necessary to mention that according to both the parties the tenancy has been in existence during many years past and according to the plaintiff the terms of the tenancy were settled so far back as the 1 January 1856, by a kabuliat which has been marked -as Ex. (1). The case for the plaintiff is that this kabuliat was executed by the father of some of the defendants and grandfather of the other defendants, that in 1901 he sued the predecessor in interest of the defendants for rent at the rate mentioned in the kabuliat, that that claim was resisted by the father of defendants Nos. 5 to 8 and a decree was made in favour of the plaintiff on the basis of the kabuliat. This decree was ox parts as against all the defendants other than the father of defendants Nos. 5 to 8. Under these circumstances the plaintiff contends that the question of the genuineness of the kabuliat and of the rate of rent annually payable thereunder is res judicata between the parties. Both the Courts below have overruled this contention and have come to the conclusion upon the evidence that the kabuliat is not genuine and that the plaintiff is not entitled to recover rent at more than Rs. 58 annually.

(2.) The plaintiff has now appealed to this Court and on his behalf it has been contended that the Courts below have misunderstood the legal effect of the decision in the suit for rent of 1901 and that upon that decision it ought to have been held that the question of the genuineness of the kabuliat as also of the rate of rent payable thereunder is res judicata between the parties. It appears that the original tenant Nil Madhub, the executant of the kabuliat, left four sons, Issur, Sree Nath, Hara Chandra and Chandra Sagar. Iswar left four sons Dwrka Nath, Palaki, Peary and Ganga Cbaran, who are defendants Nos. 5 to 8 in the present litigation. Chandra Sagar left two sons, Prohlad and Parna, who are defend- ants Nos. 3 and 4 in the present suit. Sree Nath and Hara Chandra are the first and second defendants. In the previous suit for rent the parties were Issur, Sree Nath, Hara Chandra and the sons of Chandra Sagar. That suit was defended by Issur alone, and Sree Nath and Hara Chandra though served with notices did not appear at the trial. In the present case the claim has been resisted not by the sons of Issur, but by Hara Chandra and the sons of Chandra Sagar. This appeal, however, has been resisted by Hara Chandra alone. It has been contended by the learned vakil for the appellant upon the authority of the cases of Jeo Lal Singh`Surfun H.C.L.R. 483; Hurry Behari Bhagat V/s. Pargun Ahir 19 C. 656; Bakshi V/s. Nizamuddi 20 C. 505; Nil Madhub Sarkar V/s. Brojo Nath Singha 21 C. 236; Maharani Beni Pershad Koeri V/s. Raj Kumar Chowbey 6 C.W.N. 589; Rajendra Nath Ghose V/s. Tarangini Dasi 1 C.L.J. 248; Kali Hoy v. Pratap Narain 5 C.L.T 92 that as the question of the annual rent payable in respect of the tenancy was raised and decided in the previous suit that decision must be treated as res judicata. In my opinion this contention is clearly well founded and must prevail. It is not necessary to examine in detail the various decisions to which reference has been made in the course of the argument. The principle applicable to cases of this description is now well settled and was thus laid down by Banerjee, J., in the case of Rajendra Nath Ghose V/s. Tarangini Dasi 1 C.L.J. 248: "The question whether an issue as to the rate of rent generally is a direct or indirect issue in a suit for arrears of rent must be determined with reference to the frame of such suit and cannot be determined upon any general a priori grounds; if the rent is claimed at a certain annual rate, on the simple ground of rent having been paid at that rate in the preceding year, it cannot be said that an issue as to the annual rate of rent generally is a direct issue in such a suit. On the other hand, if the rent is claimed at an annual rate alleged to have been stipulated for in a binding contract between the parties either written or oral, and the Court proceeds to try the question, what is the yearly rent payable according to the contract set up, the general issue must be taken to be a direct one." In other words whether the decision in the previous suit operates as res Judicata must be determined with reference to the question whether the issue in the previous suit related to the amount of rent payable for a particular period or to the relit payable for the full term of the lease. In the former contingency the decision is not res judicata, in the latter event it is. This view is also supported by the decision of this. Court in the case of Bishun Priya Chowdhurani V/s. Bhaba Sundari Debya 28 C. 318 in which it was ruled that when in a previous suit a particular stipulation contained in a kabuliat has been held to be valid, it is not open to the Court subsequently to try the issue whether that particular stipulation is valid Or not. Now in the case before me the question raised in the suit of 1901 was what was the defendant's jumd. Upon this issue the plaintiff relied upon the kabuliat, 1856.

(3.) Issur who was the first defendant in that stilt and resisted the claim of the plaintiff, apparently denied the genuiness of that kabuliat. The Munsif came to the conclusion upon the evidence that the document was genuine and that it established the annual rate of rent as alleged fey the plaintiff. It is difficult to appreciate how in the face of this determination it is open to the defendant in the present litigation to plead that the kabuliat is not genuine. The learned vakil for the respondent has conceded that so far as the representatives of Issur are concerned, it is not open to them to challenge in the present suit the genuineness of the, kabuliat or to raise again the question of the rate of rent annually payable thereunder. But he argued that so far as his client; the second defendant, Hara Chandra is concerned the decision is not res judicata because the decree in the previous suit so far as Hara Chandra is concerned was ex parte. The learned vakil suggested that the rule of res judicata does not apply to ex parte decrees. This view of course is manifestly untenable and it is sufficient to refer to the decision of this Court in the case of Modhusuden Shahi Mundul V/s. Brae 16 C. 300. The same view is also supported by the case of Shyama Charan Banerji V/s. Mrinmayi Debi 31 C. 79 in which it was held that an ex parte decree operates as res judicata not only as regards questions which were substantially and directly in issue and had been decided, but also as regards points which ought to have been taken in defence and were not taken in defence by the absent defendant. The contention, therefore, that the mere circumstance that the decree was ex parte as against some of the defendants and contested as against the others made the decree inoperative as res judicata so far as the absent defendants are concerned cannot be supported. The true cost to be applied is, what was the question raised and decided and was the decision of such questions necessary for the decision of the points in controversy between the parties. Judged by this test, there is no question that the defendants have no case at all. ft may be pointed out that if the contention of the respondent Hara Chandra prevails, extraordinary complications ought arise. According to the view put forward by the vakil for the respondent, the plaintiff is entitled as against the representatives of Issur to realise rent on the basis of the kabuliat and as against Hara Chandra and other defendants against whom the previous decision was ex parte, he is entitled to realize rent only at the rate admitted by them. If so, how is the decree to be framed? Are there to be two decrees one against the representatives of lssur, and another against the other defendants? But even if this was done what would be the effect of them, and what would be the position of the purchaser at the sales in execution of those decrees? Would he be entitled to hold the tenancy under the terms of the kabuliat or under the terms alleged to be the true terms of the tenancy by the other defendants? It is obvious to my mind that the contention of the defendant is unsound. There is also no doubt that the representatives of lssur realising the difficulty of their situation have not defended the present action, whereas the other defendants against whom the former decision was ex parte have tried to make the most of the situation that they did not appear in the previous litigation. They now ask the Court to ignore the previous decision and to, pass a decree in their favour, on the basis of what they allege to be the rate of rent. Upon no conceivable principle of law can they be permitted to do so. The result, therefore, is that the decision of the Subordinate Judge must be set aside and the case remitted to him in order that he may pass a decree in favour of the plaintiff against all the defendants on the basis of the kabuliat after the decision of any other question which may arise. Costs of this appeal will abide the result.