Civil Procedure Code, 1908 – Section 11 – Res judicata – Principles of – A mere finding in an earlier proceedings will not operate as res judicata unless the party against whom such a finding has been entered has a right of appeal to challenge the same.
Civil Procedure Code, 1908 – Section 11 – Res judicata – Principles of – A finding on an issue in an earlier suit will operate as res judicata if the court can pass a decree on the basis of the finding on that issue and that issue arises for consideration substantially and directly for adjudication of the rights of parties and the findings in each of the issues are independently sufficient to decide the suit and if such a finding is made and the case was decided on that basis and if the affected party did not challenge the same by filing an appeal, then that finding will operate as res judicata in a subsequent proceedings.
Civil Procedure Code, 1908 – Section 11 – Res judicata – Principles of – the question of res judicata is not a question of law but it is a question of procedure and it is a caution to prevent subsequent suit being filed on the same subject matter which has been decided finally in an earlier proceedings between the same parties or persons claiming under them. So it has to be pleaded and proved by the party claiming that benefit and the court below also has to raise an issue on the question as to whether the finding against the defendant in the earlier proceedings will operate as res judicata in the present proceedings as well.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
R.F.A.No.30 of 2010
Dated this the 7th day of September, 2016
AGAINST THE JUDGMENT OS. NO.864/2007 OF PRINCIPAL SUB COURT, ERNAKULAM DATED 30-06-2009
INDIAN OIL CORPORATION LTD., REPRESENTED BY ITS SENIOR DIVISIONAL MANAGER, PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI-36.
BY ADVS.SRI.E.K.NANDAKUMAR, SRI.P.BENNY THOMAS, SRI.P.GOPINATH MENON, SRI.K.JOHN MATHAI, SRI.MADHU N.NAMBOOTHIRIPAD.
JOSEPH PAUL, ERNAKULAM
BY ADVS. SRI.JOSE JOSEPH ARAYAKUNNEL, SRI.VARGHESE PARAMBIL.
K. RAMAKRISHNAN, J
The defendant in O.S.No.864 of 2007 on the file of the Sub Court, Ernakulam is the appellant herein.
2. The suit was filed for recovery of possession for the plaint schedule property after removing the constructions therein by the defendant from the possession of the defendant on the basis of the plaintiff’s title and also on the ground of termination of lease agreement and also for recovery of damages for use and occupation with following allegations. The plaintiff is the absolute owner of the plaint schedule property having an area of 10.030 cents of property comprised in survey No.912/2011 and 913/4 of Elamkulam village which he obtained as per partition deed No.2656/72 of S.R.O, Ernakulam. This property was leased out to the defendant for the purpose of erecting petrol pump and service station as per registered lease date No.3098/1981 of S.R.O. Ernakulam executed on 20.7.1981 for a period of 20 years with effect from 1.4.1981. It is alleged in the plaint that in the lease deed so executed, the defendant fraudulently incorporated a clause whereby the lease will automatically and without any further act of any of the parties thereto renew for a period of five years from the expiration of the period of twenty years. According to the plaintiff such a term was incorporated without his knowledge, as he did not know english. That apart, in the certified copy of the lease deed sent to the plaintiff by the defendant that portion, was struck off to mislead him.
3. After the expiry of twenty years, the plaintiff filed O.S.No.396/2001 before the Sub Court, Ernakulam for recovery of possession, but that suit was dismissed on the ground that it is prematured one and also the defendant is entitled to get protection under
Section 106 of the Kerala Land Reforms Act
The plaintiff filed A.S.No.396/2005 before the District Court, Ernakulam and by judgment delivered on 29.6.2007, the District Court set aside the finding of the trial court that the defendant is entitled to get protection under section 106 of the Kerala Land Reforms Act and held that they are not entitled to get that benefit, but dismissed the appeal on the ground that it was premature as the lease period was not over confirming the finding of the trial court on that aspect. Now the period of lease expired on 31.3.2006 by efflux of time.
4. The plaintiff sent a notice dated 22.8.07 to the defendant calling upon them to pay arrears of rent at the rate of Rs.1,900/- till 31.3.2006 and thereafter at the rate of Rs.15,000/- per mensum being the damage for un-authorised use and occupation of the premises and to remove the structures and to surrender vacant possession of the property to him. After the expiry of the lease, the defendant is not entitled to keep possession of the property. The property is situated in a commercially important area in Ernakulam and it will fetch a rent of Rs.15,000/- per month. So plaintiff is entitled to get rent at the rate of Rs.1,900/- per month from 1.4.2001 to 31.3.2006 and thereafter from 1.4.2006 till 30.09.2007 at the rate of Rs.15,000/- per month as damages for unauthorised use occupation. Since the defendant did not vacate the premises, the plaintiff filed the above suit claiming recovery of possession and for recovery of Rs.36,100/- towards arrears of rent for the period from 1.4.2001 to 31.3.2006, Rs.2,70,000/- towards damages for use and occupation from 1.4.2006 to 30.9.2007 and damages for use and occupation at the rate of Rs.15,000/- per month from the date of suit till surrender possession of the building with12% interest.
5. The defendant entered appearance and filed written statement contending as follows:
The suit is not maintainable. The allegation that plaintiff is the owner of the plaint schedule property is admitted. But the averment that the property was leased out to the defendant in 1981 for a period of twenty years is not correct. The defendant is in possession of the property on the basis of the lease agreement of the year 1966 and it was taken for the purpose of construction of a petrol pump and service station and on the basis of the lease having constructed the building and conducting the service station since 1966, they are entitled to get the protection under section 106 of Kerala Land Reforms Act. The lease deed dated 20.7.1981 is only a continuation of earlier lease deed of 1966 and it cannot be treated as a separate lease. The allegation that further extension of five year period after expiry of 20 years of lease was fraudulently added without the knowledge of the plaintiff etc., is not correct. Those things were found against the plaintiff in the earlier suit. Against the finding of the District Court in A.S.No.376/2005, they are going to prefer appeal before this court and therefore, the finding in the earlier suit will not operate as res judicata as the findings has not become final. There is no willful default on their part in not payment of the rent. It cannot be said that their possession is unauthorised one and they are not liable to pay damages for use and occupation and the rate as claimed by the plaintiff. The plaintiff is not entitled to get any relief and they prayed for dismissal of the suit.
6. On the basis of the rival pleadings court below framed following issues for consideration: