Gupta. J. - (1.) : In this appeal. the order dated 12th January. 1994 passed by the learned City Civil Court, Calcutta, (sic) Bench in Title Suit No 2003 of 1992 is assailed by the appellant. The appellant has filled the aforesaid suit in the aforesaid Civil Court and in the be made an application under Order 39 Rules and 2 read with section 151 of the Code of Civil Procedure for grant of temporary injunction restraining the defendant-respondent from evicting him from the suit premises by execution of the decree passed by the learned 2nd Judge, Small Causes Court in S.C.C. Suit No. 961 of 1989. The learned Trial Judge after hearing the parties and on detailed consideration, rejected the prayer for grant of temporary injunction and dismissed the application.
(2.) The appellant's main contention is that the learned Trial Judge wrongly held that the decree passed by the Small Causes Court is S. C. C. Suit No. 963 of 1989 operated as ret Judicata in so far as the question relating to the title of the appellant qua the property in question was concerned. It may he mentioned that the appellant claimed to be a tenant of the suit property. The respondent undoubtedly is the owner. Both the appellant and the respondent are real brothers. The respondent's contention, be never, is that the appellant ti not the tenant of the suit property, hut was only a licensee.
(3.) We agree with the submission of the learned Advocate appearing for the appellant that the learned Court went wrong in holding that in view of the decree passed by the Small Causes Court, the Trial Court cannot go into any issue relating to the title of the appellant qua the property in question. We are of the view that the Civil Court in an independent suit is entitled to go into all such questions irrespective of any order passed by a Small Causes Court because proceedings under Section 41 of the Presidency Small Causes Court Act, 1882 are not in the nature of a suit and an order passed therein does not amount to a decree as might he passed by a Civil Court, in this view of ours, we art fortified by a Division Bench Judgment of this Court in the case of Debabrata Mukherjee v. Koltan Kumar Raj reported in AIR 1983 Cal 241 . To the same effect is a decision of the Supreme Court in the case of Nalinakhya Bysack v. Shyam Sunder Halder & ors. reported in AIR 1983 SC 148 . In the aforesaid Division Bench Judgment of this Court it has clearly been held that the proceedings under Section 41 of the said Act are not to the nature of suit and that the order passed therein does not amount to a decree. The following observations are apposite:- "In this view, we must uphold the contention of Mr. Roy Chowdhury that the decision of the Small Causes Court in the proceeding under Section 41 of the Presidency Small Causes Court Act would not conclude the issue on the question of title claimed by the plaintiff as a tenant and his subsequent suit based on such a claim would not be barred either under Section 11 of the Code of Civil Procedure or under the general principles of res judicata. In this view, it is not necessary for us to consider the other ground taken by Mr. Roy Chowdhury, viz, that on the terms of Section 11 of the Code itself the Court of Small Causes not being a Court competent to adjudicate title between the parties its decision on a question of title would not operate as res judicata in a subsequent suit over title before a competent Court or decide it finally. The learned Judge, however,was carried by the Explanation-VIII added to Section 11 of the Code which merely Incorporates the well settled general principle of ret Judicata independent of Section 11 but the said principle or the provision codifying it cannot override the specific provision made in Sections 47 and 49 of the Presidency Small Causes Court Act. This aspect was unfortunately overlooked by the learned Judge, whom he held that the plaintiff's claim is barred by the principles of res judicata in view of the decision in the Small Causes Court proceeding ";