Leave granted.
Heard learned counsel for the parties.
The respondent No.1 filed a suit, which was registered as O.S. No.73/1996
(old No.617/1993) for eviction of respondent No.2, Ramesh Chandra Goutham. The
same was decreed by II Addl. District Judge, Visakhapatnam vide judgment dated
24.9.1999 on the ground that respondent No.2 had committed default in payment of
rent. During the pendency of that suit, the appellant, which is a partnership firm
consisting of the wife and son of respondent No.2 filed a suit (O.S. No 1835/1997) for
declaration that the firm is statutory tenant of the suit premises and for grant of
perpetual injunction restraining respondent No.1 herein from forcibly evicting it. By
judgment dated 3.5.2000, Principal Junior Civil Judge, Visakhapatnam dismissed the
suit. The Lower Appellate Court reversed the judgment and decree passed
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by the trial Court and decreed the suit by declaring the firm to be the statutory tenant
of respondent No.1. The Lower Appellate Court also granted permanent injunction
restraining respondent No.1 from evicting the appellant. Second Appeal No.876/2003
preferred by respondent No.1 against the judgment of the Lower Appellate Court was
dismissed by the High Court on 5.9.2003.
In the meanwhile the appellant-firm applied for and was granted leave to
appeal against judgment and decree dated 24.9.1999 passed in O.S. No.73/1996. The
appeal was registered as A.S. No.642/2000. During the course of hearing, attention of
the High Court was drawn to judgments passed in O.S. No.1835/1997, A.S.
No.128/2000 and S.A. No.876/2003 and it was submitted that the declaration granted
by the Lower Appellate Court, which was confirmed by the High Court that appellant
is the statutory tenant of the premises in question is binding on the parties and,
therefore, the decree of eviction is liable to be set aside. The learned Single Judge
referred to the judgments relied upon by the counsel for the appellant, but declared
that the same are inadmissible because neither the plaintiff nor the defendant were
parties to the proceedings.
In our opinion the reason assigned by the learned Single Judge for
discarding the judgments and decrees of the Lower Appellate Court and High Court
in A.S. No.128/2000 and S.A. No.876/2003 respectively is ex-facie, erroneous because
it is based on a misreading of the two judgments. Undisputedly, respondent No.1 was
a party to the suit filed by the appellant for declaring it to be statutory tenant of the
premises in question. The trial Court dismissed the suit but the Lower Appellate
Court decreed the same and declared
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that the appellant is the statutory tenant of the premises and granted perpetual
injunction against respondent No.1. The finding recorded by the Lower Appellate
Court was confirmed by the High Court. Respondent No.1 did not challenge the same
by filing petition for special leave to appeal. Therefore, the finding recorded by the
Lower Appellate Court that the appellant was statutory tenant of the premises in
question will be deemed to have become final and the learned Single Judge was bound
to consider the same while deciding the appeal preferred by the appellant against the
judgment and decree dated 24.9.1999. In our view, the High Court should have
allowed the appeal of the appellant-firm and set aside the decree of eviction passed in
respect of the premises in question because the appellant was declared as statutory
tenant and there was neither any allegation nor any evidence was produced by
respondent No.1 that the appellant had defaulted in payment of rent.
In the result, the appeal is allowed, the judgments and decrees passed by
the trial Court as well as the High Court are set aside and suit for eviction filed by
respondent No.1 is dismissed.
Needless to say that this order shall not in any manner affect the right of
respondent No.1 to file a properly constituted suit for eviction against the appellant in
case grounds for eviction are made out.
[G.S. SINGHVI] New Delhi, September 05, 2008.