Showing posts with label res judicata. Show all posts
Showing posts with label res judicata. Show all posts

16 September 2020

Mamalatdar's decision in respect of existence or use of customary way does not operate as res judicata to a suit in civil court on the same issue

However, simultaneously, it is important to note that admittedly, may be during pendency of the proceeding before the lower authorities, the petitioners have initiated a substantive civil suit against the respondent Nos. 1 and 2 in the form of Regular Civil Suit No.57/2018 in respect of the self same dispute touching existence of the disputed way. It is important to note that in view of the scheme of the Act, the decision of Mamlatdar is not conclusive as can be seen from the provisions of Section 22 and particularly the Second Proviso which reads thus:
22. Subject to the provisions of section 23, sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment of the party to whom the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to have the surface water upon his land flow unimpeded on to adjacent land or continue in possession or use, as the case may be, until otherwise decreed or ordered, or until ousted, by a competent Civil Court :
Mamalatar's decision in respect of existence or use of customary way does not operate as res judicata to a suit in civil court on the same issue
Provided, firstly, that nothing in this section shall prevent the party against whom the Mamlatdar's decision is passed from recovering by a suit in a competent Civil Court mesne profits for the time he has been kept out of possession of any property or out of enjoyment of any use:
Provided, secondly, that in any subsequent suit or other proceeding in any Civil Court between the same parties, or other persons claiming under them, the Mamlatdar's decision respecting the possession of any property or the enjoyment of any use or respecting the title to or valuation of any crop dealt with under the proviso to sub-section (1) of section 21, shall not be held to be conclusive.[P
ara No.16]

30 April 2020

No bar of res judicata to second suit for eviction of tenant

Landlord filed suit for eviction on the grounds of bona fide requirement, erection of unauthorized permanent structures, change of user, and unlawful subletting - Suit dismissed - Appeal  was also unsuccessful - After less than three months, the landlord issued a "notice for possession" to the tenant and again filed second suit for eviction on the grounds of bona fide requirement, arrears of rent, and permanent construction on the suit premises

Is the second suit stand barred by res judicata and Section  12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Bombay Rent Act")?

True, subsequent events may affect the suit outcome. For that, either party to the suit should bring to the court's notice those later developments. For that even the amended Order 6, Rule 17 of CPC provides. Otherwise, the court itself, in the interest of justice and to avoid multiplicity of proceedings, may take note of those developments. But law does not compel a person to invariably bring on record all the later developments through amendment. If the later developments provide an independent cause of action, the party's right to a fresh legal remedy remains intact. This proposition applies with more rigour if the cause of action is recurring.[Para No.54]


res-judicata

   Default in rent remittance provides recurring cause of action. Every successive default provides an independent cause of action.

Later developments may affect that cause of action if they are duly brought on record; otherwise, they provide further independent cause of action. Even the doctrine of lis pendens does not defeat the suitor's independent right to sue. It is only a matter of prudence and convenience that all the related facts are brought under one umbrella of adjudication. More particularly, if the cause of action is recurring, each instance of recurrence provides an independent cause of action.
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