(1.)THE idol of Shri Chandra Prabhaji, through its managers Sumatilal and Pooran Chand filed a suit in the court of Munsiff, Deeg, on May 23, 1958, with the allegation that there was a Nohra attached to the temple in Deeg. It had been let out to Sampat Mali on a monthly rental of annas eight, on December 10, 1949. THE plaintiff required this Nohra for personal and bonafide necessity. Some additional construction was also needed for convenience of pilgrims. It was further wanted for the construction of a Jain Pathshalla. In para No. 6 of the plaint it was pointed out that the tenant committed default in payment of rent, as he had not paid rent for more than 3 years. Notice was given to the defendant on March 9, 1958, terminating the tenancy on April 9, 1958. THE plaintiff, in the end, prayed that a decree for ejectment of the Nohra and recovery of arrears of rent for three years, amounting to Rs. 18/-, be passed. In his written statement, filed by the defendant, on August 12, 1958, it was averred that the rent settled for the Nohra was Rs 6/- per year. He, however, contended that the notice was invalid. He further stated that the plaintiff did not require the Nohra for any reasonable and bonafide necessity. He sent money orders from time to time but the plaintiff refused to accept them and, therefore, he was not a defaulter. THE tenancy could terminate on Kartik Sudi 15th and not on the 9th of every month. He also contended that he had spent a sum of Rs. 500/- over certain constructions in the Nohra. THE defendant was examined under O. X R. 1, C. P. C. on November 18, 1958. In that statement he deposed that he had taken the Nohra on the basis of an oral tenancy and it was settled between the parties that he would pay Rs. 6/- per year by way of rent. He also admitted that Pooran was the manager of the temple. He further admitted that rent for a period of three years was due, for the payment of which he had sent money orders thrice. 12 issues were framed by the trial court. THE plaintiff examined 6 witnesses and the defendant produced 4 witnesses. On September 21, 1959, the trial court awarded a decree in favour of the plaintiff for ejectment from the Nohra and for the recovery of the arrears of rent for 3 years amounting to Rs. 18/-, with costs Against this judgment an appeal had been taken in the court of District Judge, Bharatpur, where from it had been transferred to the court of Civil Judge, Bharatpur. THE said Judge had partially allowed the appeal filed by the defendant in respect of ejectment of the suit property. Against that judgment, second appeal had been filed in this Court. On March 6, 1965, the judgment and decree of the first appellate court had been set aside and the case had been remanded to the District Judge, Bharatpur, with the direction that be should himself hear the appeal and decide it afresh according to law. In compliance with the above judgment, the District Judge, Bharatpur by his judgment dated August 24, 1966, heard the appeal and dismissed it with costs.
(2.)AGGRIEVED against the above judgment, the present second appeal has been filed by the defendant Sampat. Learned counsel for the appellant raised the following points: (1) That the plaintiff had filed a suit on March 5, 1956, prior to the institution of the present suit, for the ejectment of the suit property, and in that suit it had been decided that the rent payable to the plaintiff was Rs. 6/- per annum : vide Ex. A. 4, dated October 31, 1967. That decision operates as res judicata and the plaintiff could not have filed the subsequent suit on May 23, 1959, on the basis of the monthly tenancy by virtue of sec. 11 of the Code of Civil Procedure. (2) That the defendant tenant did not commit default in payment of rent and that sec. 13 (l) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, which permits a landlord to file a suit on the basis of default, does not apply to the tenancy for which rent is payable annually. (3) That the tenant in this case should be given benefit of sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act.
As regards the first point, learned counsel for the appellant has argued that in the previous suit it had already been held by the trial court that the tenancy reserved yearly rent, though in the alternative it had also been concluded that even if the tenancy was presumed to be from month to month, the notice was invalid. Learned counsel urged that in the light of such a finding, the decision of the first appellate court that the tenancy is from month to month is erroneous. Learned counsel further argued that even if the previous judgment of the trial court had been wrong that decision having become final would operate as res judicata.
It is true that even an erroneous decision on a question of law operates as res judicata between the parties and the correctness of a judicial pronouncement has no bearing upon the question whether or not it operates as res judicata: vide Mohanlal Goenka vs. Benoy Kishana Mukherjee (l), and State of West Bengal vs. Hemant Kumar Bhattacharjee (2 ). It is also well settled that if the final judgment in any case depends on the decision of more than one point, decision on each point would operate as res judicata : vide Vithal Yashwant Jather vs. Shikandarkhan Makhtumkhan Sardesai (3), and Chiranjilal vs. L. I. Corporation (4 ). It is thus clear that under sec. 11, C. P. C. not only the suit itself but decision on an issue may also be barred. In that context what is to be considered here is whether the particular issue which the plaintiff seeks to be decided in this case was directly and substantially the same in the earlier suit. In para No. 3 of the plaint, dated May 20, 1958, it was mentioned by the plaintiff that the rent of the property was 8 annas per month. In his written statement filed by the defendant, on August 12, 1958, it was averred in para No. 3 that the rent was Rs. 6/- per year. In para No. 8 it was stated that the notice was invalid and contrary to law. The defendant has no where specifically said that the notice ought to have been for six months' duration as the tenancy was from year to year. He has also not specifically contended that the principle of res judicata was operative in view of the previous decision of the court. A perusal of the judgment of the trial court does not show that a clear finding was given on the point of res judicata. In the present case cause of action is different and, therefore, the earlier decision would not operate as res judicata. In this connection, a reference is made to Mahadevappa Somappa Bhusaraddi vs. Dharmappa Sanna Ningappa Bhusaraddi (5), in which it has been laid down that where the cause of action is different, an earlier decision on the interpretation of law would not operate as res judicata. Similarly in Bejoy Gopal Mukherji vs. Pratul Chandra Ghose (6), it was held that where there was no specific issue regarding the nature of the tenancy in the previous suit either directly or indirectly, decision in the previous suit would not operate as res judicata. Under sec. 106, Transfer of Property Act, in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes would be deemed to be a lease from year to year, terminable, on the part of the either lessor or the lessee, by six months' notice expiring with the end of the tenancy and a lease of immovable property for other purposes shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by 15 days' notice, expiring with the end of the month of the tenancy. Under Sec. 107, Transfer of Property Act, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument and other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
In this case it is an admitted position of the parties that an oral lease was agreed between them and it is also an admitted position of the parties that the immovable property acquired by the defendant is not for agricultural or manufacturing purposes. Therefore, under the law such a lease would be deemed to be a lease from month to month, terminable on the part of either lessor or lessee by 15 days notice expiring with the end of the month of the tenancy. The stipulation as to payment of annual rent raises a presumption that the tenancy was from year to year, but that stipulation not being contained in any document would not come in the way of raising a presumption under sec. 106, Transfer of Property Act. A lease from year to year could not be inferred from the payment of the annual rent because to do so would be to substitute a new agreement for the purpose, which was never intended to do : vide Ram Kumar vs. Jagdish Chander (7 ). In the decision of the previous suit there was no clear and specific finding that the tenancy was from year to year. A mere reference to the pleadings and a vague finding regarding thereto could hardly invoke the assistance of sec. 11, C. P. C. Sec. 11 would only apply when the matter has been directly and substantially in issue bet-ween the same parties in a court of competent jurisdiction to try such subsequent suit and that issue has been heard and finally disposed of by such court. But, as I have already stated, there is no positive and specific finding with regard to the nature of the tenancy in the previous suit. Therefore, the principle of res judicata would not come to the aid of the appellant.
Coming to the second point, learned counsel for the appellant has argued that this suit is not maintainable under sec. 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, as admittedly the rent was payable annually and sub-clause (a) laid down that the court can pass a decree if the tenant has neither paid nor tendered the amount of rent due from him for six months. According to learned counsel, a tenancy from year to year is not covered by subclause (a) as it envisages a monthly tenancy. Learned counsel has further argued that money was sent by the appellant through money orders, but they were not accepted by the landlord. In this connection, it may be pointed out that it has already been held, while discussing point No. 1 that the tenancy being an oral one is from month to month and not from year to year. There is no definite finding on the record to suggest that the nature of the tenancy was from year to year and not from month to month. The tenancy according to the plaint of the present case has been mentioned as monthly tenancy. It is true that in the previous suit it was stated that the rent payable annually was Rs. 6/-, but that plaint Ex. A. 5 has not been proved by examining the scribe or the person who signed it. Puranmal has no doubt admitted in the previous case by stating that the rate of rent was mentioned as Rs. 6/- per annum, but he was not questioned as to whether the rent was payable annually. All that could be gathered from the statement of Puranmal is that the rate of rent was Rs. 6/- per annum. From this it cannot be inferred that the rent was not payable monthly but only annually. In his statement recorded under O. X, R. 1, C. P. C. , Sampatmal has categorically admitted that the rent for a period of more than 3 years was due from him. That shows that the default was committed by the defendant. Sampat's contention that he sent money orders 3 time first on December 14, 1967, for Rs. 38/-, second for Rs. 12/- and third for Rs. 18/ -. No dates are available in respect of the last two money orders. The first amount of Rs. 18/-is alleged to have been sent on 14-12 1957. A perusal of the acknowledgement shows that the word "refused" is written therein. Who scribed this word has not been proved, nor is there any seal or designation of the person who put the word "refused". The original receipt for Rs. 18/- which was sent by the appellant has also not been produced. Learned counsel for the appellant has cited a decision of this Court reported in Ganga Sahai vs. Smt. Govindi (8 ). In that case it was held that under sec. 114, illustration (f) of the Indian Evidence Act, a presumption that registered notice was tendered to the addressee and refused by him arises out of the endorsemet by the post man. In that case the question was whether a registered letter reached the addressee or not. No question of remitting the money order was involved therein. Since the address was properly given on the registered letter, it was presumed that it was properly sent. It is very doubtful whether any post-man put the word "refused" on this acknowledgement. That authority, therefore, will hardly come to the assistance of the appellant. In the matter of Perl Cargo ex-steamship "belgia" (9), it was observed by Lord Parker that as a general rule the court would presume unless the contrary was proved, that the letters which were proved to have been mailed, did arrive in ordinary course at the port and it was on those who disputed that inference to show the contrary. In this case there is no evidence worth the name that the money order was at all sent by the defendant. With regard to the other two acknowledgements, referred to above, no dates are available thereon. It cannot, therefore, be said that those money orders were sent towards the payment of the arrears of rent in question by the appellant. Therefore, the second point raised on behalf of the appellant is also devoid of merit.
I now switch on to point No. 3 regarding giving benefit of sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, as amended by sec. 2 (b) of the Rajasthan Act No. 12 of 1965. Sec. 13 (4) reads as follows - "in a suit for eviction on the ground set forth in clause (a) of sub-sec. (1) with or with out any of the other grounds referred to in that sub-section, the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it, fix in this behalf or within such time, not exceeding two months, as may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate. " A perusal of the above sub-section shows that the tenant can on the first date of hearing or on or before such date as the court may, on an application made, fix in this behalf or within such time not exceeding two months as may be extended by the court, deposit in court or pay to the landlord arrears of rent together with interest at the rate of 6% per annum. Here the tenant contested the suit right from the trial court upto the High Court. Had he not contested the suit and the court would have determined the rent, interest and the costs due and passed an order for payment, the position would have been different. At this stage he cannot come forward and claim benefit of sec. 13 (4) of the Act in view of what sec. 13 (6) lays down. Sub-sec. (6) provides that if a tenant fails to deposit or pay any amount referred to in sub-sec. (4) or sub-section (5) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out, and shall proceed with the hearing of the suit. Therefore, when the tenant does not make any application in the course of the trial of the case, he cannot claim the benefit of sub-sec. (4) and the suit has to be disposed of according to its merits. Had such not been the intention of the Legislature, it would not have enacted sec. 13a, which deals with special provisions relating to pending matters. Sec. 13a lays down that if the tenant makes an application within 30 days of the commencement of the Amendment Act, the court would determine the amount of arrears upto the date of the order as also the amount of interest thereon and the costs; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the court. If sec. 13 (4) had met the requirement for a like case, there was hardly any necessity for enacting special provision embodied in sec. 13a of the Act. In that context, the very object of enacting the special provision would have been frustrated. In this connection, a reference may also be made to Shambhooram vs. Mangal Singh (10 ). Thus the third contention of learned counsel for the appellant has also no force.
In the result this second appeal fails and is accordingly dismissed with costs. .