9911796707
TMI Blog1928 (9) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 per cent, per annum, i.e., ₹ 108-2-0, making a total claim of ₹ 174-2-0. The tenant nevertheless contends that the case comes within Clause (a), Section 153, in that the amount claimed in the suit does not exceed ₹ 100. The terms of the section are well known: An appeal shall not lie from any decree or order passed whether in the first instance or in appeal in any suit instituted by a landlord for the recovery of rent where (a) the decree or order is passed by a District Judge, Additional District Judge or Subordinate Judge and the amount claimed in the suit does not exceed ₹ 100...unless the decree or order has decided...a question of the amount of rent annually payable by a tenant. 4. The contention is that the section contemplates a suit for the recovery of rent and that the amount claimed in the suit cannot be read so as to include interest at a high contractual rate such as 75 per cent. It is conceded that a claim for statutory interest at 12 1/2 per cent, under Section 67, Ben. Ten Act, or a claim for statutory damages not exceeding 25 per cent, on the amount decreed as provided for by Section 68 of the Act, are ordinary incidents of a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff. In 1898 the plaintiff's predecessor caused this ryoti holding to be sold in execution of a decree for rent and it was purchased at auction by the defendant's father. The plaintiff purchased the superior interest in 1920 and the present suit was brought in 1924 for rent due in respect of the years 1920-23. 8. In 1915 the plaintiff's predecessor brought a suit against the present defendant for rent and for interest thereon at the rate of 75 per cent, per annum on the basis of the kabuliyat of 1880. That suit was contested, inter alia upon the ground that the kabuliyat was not valid or binding upon the defendant. In support of this defence it was maintained that Sitala was an ignorant person and not in her right mind, that the contract as to interest was hard and unconcionable and in the nature of a penalty and that the defendant being an auction purchaser was not bound by its terms, the plaintiff not having caused those terms to be stated in the sale proclamation. The judgment of the Munsif who tried the case discloses all these defences and that they were all overruled. He held that there was no evidence that Sitala Dasi was not in her right mind; he held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. The matter directly and substantially in issue was a sensible and concrete question as to the rights of the parties and the conditions and terms of the defendant's tenancy. To decide it correctly it was necessary to find the facts and to apply the law. If the Munsif did not succeed in ascertaining the exact facts or in applying the law correctly, the remedy of the defendant, if he had a remedy, was to challenge the Munsif's decision in a superior Court. But Section 11, Civil P.C. and the principle which it embodies would be brought to nothing if it were held that it was open to him to litigate again the question of the validity of the terms as to interest, or his obligation to comply with it. 14. The arguments which have been addressed to us on behalf of the defendant are really three: In the first place it is said that the Munsif's decision in the previous case was erroneous upon a pure question of law and cannot therefore conclude the matter, The idea seems to be that the matter directly and substantially in issue in the previous suit was a pure question of law and that the doctrine of res judicata would not apply, at all events if it could be made out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law are in no way authorized to alter the rights of parties. They profess, at all events, to ascertain the law, and if the binding character of a decision upon a concrete question as to the terms of a particular holding is to fluctuate with every alteration in the current of authority the Courts will become an instrument for the unsettlement of rights rather than for the ascertainment thereof. The principle relied upon is abhorrent to Section 11, Civil P.C. and to the general intention of the doctrine of res judicata, If authority be wanted for its rejection a very plain authority can be found in the case of Gowri Koer v. Audh Kuar [1884] 10 Cal. 1087. 18. The third point argued for the defendant is that while the previous decision may be conclusive as to the binding character upon the defendant of the stipulation in the kabuliyat for interest at 75 per cent, per annum, it is open to the defendant to contend in this appeal that the stipulation, though binding, is a stipulation for a penalty and that it is accordingly open to the Court under Section 74, Contract Act, or the principle embodied therein, to refuse to give judgment for more than a reasonable compensation to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a previous decision. In these circumstances it must necessarily be wrong for a Court to try the suit or issue, come o its own conclusion thereon, consider whether the previous decision is right and give effect to it or not according as it conceives the previous decision to be right or wrong. To say, as a result of such disorderly procedure, that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that therefore it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party. (2) In India, at all events, a party who takes a plea of res judicata has to show that the matter directly and substantially in issue has been directly and substantially in issue in the former suit and also that it has been heard and finally decided. This phrase matter directly and substantially in issue has to be given a sensible and businesslike meaning, particularly in view of Ex. 4, Section 11, Civil P.C., which contains the expression grounds of defence or attack. Section 11 of the Code says nothing about causes of action, a phrase which always requires careful handling ..... X X X X Extracts X X X X X X X X Extracts X X X X
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