BHANDARI, J. - (1.) THIS is a Civil Second Appeal in a suit for ejectment. There is no dispute between the parties that the defendant-appellant is the tenant of the plaintiff-respondents of a house situate in Chat Darwaza in Jaipur City more particularly described in Para. No. 1 of the plaint. The plaintiffs in order to get over the disability imposed on them in getting a decree for ejectment under sec. 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, pleaded inter alia that they required the said house for their own use and occupation. The suit was contested by the defendant-appellant mainly on the grounds that the plaintiffs did not require the house reasonably and bona fide for their own use and that this plea must be deemed to be res judicata as their earlier suit for the ejectment of the defendant had been dismissed on 27th April, 1962 by the Additional Munsiff, Jaipur City - a copy of the judgment of that court - Ex. A/1 is on record. Both the courts below have decided these points against the defendant and decreed the suit of the plaintiffs. Hence this second appeal.
(2.) IN this appeal, learned counsel for the defendant-appellent has urged that the question that the plaintiffs required the house in dispute reasonably and bonafide for their own use and occupation which must be deemed to have been decided against the plaintiffs by virtue of Ex. A/1 cannot be re-agitated. He has also challenged the finding of fact arrived at by the lower appellate court on this point. The last contention cannot be urged in this second appeal as it is a question of fact. The only point therefore for decision of this appeal is, whether the case of the plaintiff-respondents that they required the house in dispute reasonably and bonafide for their own use must be deemed to be res judicata. In order to examine this point, it is necessary to mention the circumstances under which the judgment in the previous suit was pronounced. There is no doubt that in the previous suit for the ejectment of the defendant the plaintiffs had also mentioned that they required the house in dispute reasonably and bonafide for their own use. They had taken another plea of ejecting the defendant that he had defaulted in the matter of the payment of rent which disentitled him to take advantage of sec. 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. A number of issues were framed in that case. The first issue related to the bonafide and reasonable necessity of the plaintiffs and the second related to default. On 27th April, 1962, the plaintiff filed an application relevant part of which is, as follows - "in the above case the defendant has alleged that he has paid rent up to 16. 3. 59. The rent for two months from 16. 1. 59 is in dispute. The defendant also agreed to vacate within six months which the defendant denied. If he swears in open court that he paid the rent up to 16. 3. 59 and also inform the court to vacate within six months, the suit of the plaintiffs for ejectment be dismissed and the suit for rent for 16. 3. 59 be decreed. " The defendant agreed to this. Special oath in terms mentioned above was administered by the court and the court dismissed the suit for ejectment and decreed it for rent for 16. 3. 59. The contention urged by the learned counsel for the defendant-appellant is that the question of reasonable and bonafide necessity of the plaintiffs must be deemed to have been heard and finally decided by the judgment (Ex. A/1) against plaintiffs and it operated as res judicata. This contention is sought to be met by the learned counsel for the plaintiff-respondent by advancing two arguments. The first is that the plaintiff's right of ejectment was a recurring cause of action (there being no dispute about the tenancy), and the previous decision, therefore, cannot operate as res judicata. The second is that Ex. A/1 did not decide the question of reasonable and bonafide necessity of the plaintiffs and that matter cannot be said to have been heard and finally decided within the meaning of sec. 11 C. P. C. I take up the first argument of the learned counsel for the plaintiff-respondent. The right of the plaintiff to eject the defendant under the provisions of Transfer of Property Act was not in controversy in the previous suit. What was in controversy was whether the plaintiffs could not eject the defendant because of sec. 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 which in a way prohibited a court to pass a decree in favour of landlord evicting a tenant so long as the tenant was ready and willing to pay rent therefor unless the conditions mentioned in sub-sec. (1) (a) to (1) were fulfilled. In such cases the landlord has a right to show that though he could not satisfy the court in the previous suit, yet he fulfilled the said conditions when he filed the subsequent suit. A decision in a previous suit against a landlord would not bar him from filing another suit if at the time of the filing of the suit he could satisfy the court that he fulfilled the conditions mentioned in sec. 13 (1) and that that section did not operate as a bar for the ejectment of the tenant. To meet the argument of the learned counsel for the defendant-appellant it has been argued that one of the plaintiffs Faiyaz Ahmed admitted in cross-examination in this case that there was no increase in the members of the family after the filing of the previous suit and whatever necessity was there at the time of the filing of the previous suit, the same necessity existed even on the date when he gave the statement. It is urged that this statement showed that no new circumstance had come in existence in between the period the first suit was filed and the date when Faiyaz Ahmed gave statement in the court. Therefore what was decided by the court in the previous suit expressly or by implication on the point of reasonable and bonafide necessity cannot be reagitated. On this argument, it is to be examined as to what was decided or can be taken to be decided in the previous suit. The judgment makes no mention that issue No. 2 which related to reasonable and bonafide necessity was decided against the plaintiffs. Thus, there is no express decision on this point by the Court and it is to be seen whether any decision on this point by implication against the plaintiffs can be inferred. The proper procedure for the Munsiff for disposing of the previous suit was to examine what matters were concluded by the special oath by virtue of sec. 11 of the Indian Oaths Act, and then to see what should be the fate of the case. The scheme of secs. 7,8,9, 10 and 11 of the Indian Oaths Act is that all oaths and affirmations are to be administered in such form as the High Court may from time to time prescribe but any party or witness in a judicial proceeding may offer to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person. The Court may, if it thinks fit, tender such oath or affirmation to him. Such an oath for the purposes of brevity may be called special oath. Now in a case any party to a judicial proceeding may offer to be bound by any special oath made by the other party or by any witness in a proceeding, whether or not he will make the oath or affirmation. If such a party agrees to take such an oath, the court may administer it or get it administered. Sec. 11 of the Indian Oaths Act lays down that the evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated. These provisions, therefore, lay down that if special oath has been administered, with regard to a particular matter, that matter must be deemed to have been conclusively proved as against a person who has offered to be bound by the statement of a person male on special oath. That statement becomes a conclusive piece of evidence with regard the to the particular matter stated therein. Now in a given case, such a conclusive proof of a matter may be sufficient to dispose of a case in its entirety, but there may be cases where such a statement may not be comprehensive enough to dispose of case in its entirety but may only furnish conclusive evidence with regard to any particular matter in controversy in that suit. The court is to examine the effect of a statement made on special oath and then proceed to dispose of the case pending before it. | In the instant case, the statement made by the defendant on 27. 4. 1962 conceded two matters (1) Whether the rent had been paid for the two months referred to therein or not, and (2) whether the defendant had agreed to vacate the house in dispute within six months. This statement could not be taken to be an evidence on the point that the plaintiffs did not require the the house in dispute reasonably and bonafide for their own use, but the learned Munsiff dismissed the entire case presumably for the reason that the plaintiff had offered to get his suit dismissed if the statement referred to above was made by the defendant. What the learned Munsiff did was beyond the provisions of the Indian Oaths Act. The agreement between the parties was in the form of sec. 3 of Regulation No. III of 1802. History of that Regulation is given in Vasudeva Shanbog &c. vs. Naraina Pai (l ). That Regulation gave legal validity to the usage which prevailed in the contry of deciding the case by special oath, whatever the nature or contents of the oath may be. But with the coming of the Civil Procedure Code and the Indian Oaths Act, the law was altered inasmuch as the matters stated on special oath only furnished conclusive evidence of that matter and did not dispose of the case. There is some controversy on the point whether such an agreement can be given effect to after a special oath had been made in accordance with that agreement as an estoppel binding the parties. In this connection, Sulaiman, C. J. in Mst. Akbari Begam vs. Rahman Hussain (2) observed, as follows - "a party cannot be allowed to retract his solemn promise for consideration made before that Court after he has come to know the nature of the statement by which he had agreed to abide. It is no longer a question of carrying out of a promise or the specific performance of a contract. The compromise must be deemed to have been carried out and accordingly the claim already adjusted The Court cannot therefore entertain an application to withdraw from the previous agreement and to resile from it unless fraud, misrepresentation, coercion, influence, or mutual mistake were established. " It appears that the Nagpur High Court in Janimal Budharmal vs. Girdharidas Pokhardas (3) distinguished this view on the ground that it relates to an agreement to abide by the statement of a referee and that the Indian Oaths Act was a complete Code in itself and matters covered by that Act must be governed by the provisions of that Act and the courts should not go outside it. Whatever be the merits of this controversy, it is clear that in the previous suit, the court did not give any decision on the point of reasonable and bonafide necessity of the plaintiff, but proceeded to decide the matter presumably on the ground that the plaintiff himself had offered to get his suit dismissed if certain conditions were fulfilled and these conditions were fulfilled Under these circumstances, it would be proper to hold that the court left un-decided the question about the reasonable and bonafide necessity of the plaintiffs. Now a matter which has been left open by a court either expressly or even by implication, cannot be said to have been heard and decided within the meaning of sec. 11 simply because the plaintiff's suit had been dismissed. Learned counsel for the defendant-appellant has contended that this case must be treated to be one in which a decree for dismissal of the suit was passed with the consent of the plaintiffs and a consent decree operates as res judicata. It has been pointed out by their Lordships of the Supreme Court in Sunderabai w/o Devrao Deshpande vs. Devaji Shankar Deshpande (4), that sec. 11 C. P. C, does not apply to a consent decree because it cannot be said that the matters in issue between the parties had been heard and decided within the meaning of that section. Their Lordships, however, quoting Mulla's Code of Civil Procedure observed that - ''a consent decree, however, has to all intents and purposes the same effect as 'res judicata as a decree passed 'in invitum'". The same view is taken by the Supreme Court in Sailendra Narayan Bhanja Deo vs. The state of Orissa (5 ). The following observations from that judgment may be quoted - "the truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which resuits from the decision of the Court after the matter has been fought out to the end, And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action. " There could be no doubt that had the matter of reasonable and bonafide necessity of the plaintiffs been covered by the special oath, the matter would have been res judicata, and Sec. 11 would have been directly attracted, as has been pointed out in Sanyasi Baritya vs. Artaswaro &c. (6 ). In the instant case, the question of estoppel by implication or by agreement cannot be urged unless I take the view that the plaintiffs did intend that the question of their bonafide and reasonable necessity for the disputed house was concluded by the special oath which the other side offered to take. I am reluctant to draw such an inference in the facts and circumstances of the case and there is no other evidence to lead me to such an inference. For the aforesaid reasons, in my opinion, the question of reasonable and bonafide necessity is neither res judicata under Sec. 11 C. P. C. nor does the principle of estoppel bar the plaintiffs from bringing a suit on the ground that they required the house reasonably and bonafide for their own use and occupation. In this view of the matter, the appeal has got no force and is dismissed with costs. . ;