1960 (4) TMI 49 - SC - Indian Laws

The Calcutta Thika Tenancy Act, 1949, came into force before the appellant-landlords could obtain possession in execution of their decree for ejectment against the respondent- tenants. Failing to get the decree set aside under 0. 9, r. 13 of the Code of Civil Procedure the tenants made an application under S. 28 of the said Act praying that the decree against them be set aside on the ground that they were Thika tenants, but the Munsif holding that they were not Thika tenants dismissed their application. - Held, that the appellants were not precluded from raising before this Court the question that S. 28 of the Original Thika Tenancy Act was not available to the tenants after the Thika Tenancy Amendment Act came into force merely because they had not appealed from the High Court s order of remand. An interlocutory order which did not terminate the proceedings and which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order.

Summary

Issues Involved:
1. Applicability of Section 28 of the Calcutta Thika Tenancy Act after the 1953 Amendment.
2. Principle of Res Judicata in the context of interlocutory orders and final judgments.
3. Jurisdiction of the Munsif in rescinding the ejectment decree.

Issue-wise Detailed Analysis:

1. Applicability of Section 28 of the Calcutta Thika Tenancy Act after the 1953 Amendment:

The landlords obtained a decree for ejectment against the tenants on February 10, 1949. Subsequently, the tenants applied under Section 28 of the Calcutta Thika Tenancy Act, 1949, to rescind the decree, claiming they were Thika tenants. The Munsif dismissed this application on November 12, 1951, holding that the applicants were not Thika tenants. The tenants then moved the High Court under Section 115 of the Code of Civil Procedure. By the time the revision application was heard, the Calcutta Thika Tenancy Ordinance, 1952, and the Calcutta Thika Tenancy (Amendment) Act, 1953, had come into force, which omitted Section 28 of the original Act.

The High Court held that Section 1(2) of the Thika Tenancy Amendment Act did not affect the operation of Section 28 of the original Act and decided the matter on the basis that Section 28 was applicable. They found the petitioners to be Thika tenants, set aside the Munsif's order, and remanded the case for disposal in accordance with the law. After remand, the Munsif rescinded the decree. The landlords' subsequent application under Section 115 of the Code of Civil Procedure was rejected by the High Court, which held that the question of the applicability of Section 28 was res judicata.

The Supreme Court, in Mahadeolal Kanodia v. The Administrator-General of West Bengal ([1960] 3 S.C.R. 578), decided that Section 28 of the original Act is not applicable to proceedings pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance, 1952. Thus, the argument that Section 28 could not be applied after the amendment was upheld, and the Munsif's order rescinding the decree was set aside.

2. Principle of Res Judicata in the context of interlocutory orders and final judgments:

The principle of res judicata is based on the need for finality in judicial decisions. It applies to both questions of fact and law decided between two parties in one suit or proceeding, preventing them from being re-litigated in future suits or proceedings. This principle is embodied in Section 11 of the Code of Civil Procedure but is also applied by courts to achieve finality in litigation.

The Supreme Court considered whether the landlords were barred by res judicata from raising the question of the applicability of Section 28 due to the High Court's earlier decision. The Court referred to several Privy Council decisions, including Maharaja Moheshur Singh v. The Bengal Government ([1859] 7 M.I.A. 283), which allowed appellate courts to investigate grievances related to interlocutory orders in an appeal from the final decision. The Court emphasized that interlocutory orders not appealed from could be challenged in an appeal from the final decree or order, except for orders of remand where an appeal lay but was not taken.

The Supreme Court held that the order of remand by the High Court was an interlocutory judgment that did not terminate the proceedings, and thus, its correctness could be challenged in an appeal from the final order. The principle of res judicata did not preclude the landlords from raising the issue of Section 28's applicability.

3. Jurisdiction of the Munsif in rescinding the ejectment decree:

The Supreme Court concluded that the Munsif acted without jurisdiction in rescinding the ejectment decree based on Section 28 of the original Thika Tenancy Act, which was no longer applicable after the 1953 Amendment. The High Court's view that Section 28 was still applicable was deemed incorrect.

Conclusion:

The Supreme Court allowed the appeal, set aside the High Court's order, and the Munsif's order rescinding the ejectment decree. The parties were ordered to bear their own costs due to the uncertainty in the state of the law regarding the applicability of Section 28.