RAMESHWAR DAYAL versus BANDA (DEAD) THROUGH HIS LRS. AND ANR.

Citation: [1993] 1 S.C.R. 198 · Decided: 13-01-1993 · Supreme Court of India · Bench: P.B. SAWANT · Disposal: Dismissed

Judgment (excerpt)

A 
RAMESHWAR DAYAL 
v. 
BANDA (DEAD) THROUGH HIS LRS. AND ANR. 
JANUARY 13, 1993 
B 
[P.B. SAWANT AND G.N. RAY, JJ.] 
Res Judicata-Suit on basis of title by sub-tenant for nullity of eviction 
decree and injunction from dispossession-Decision binding inter. par-
ties-Held, to operate as res judicata, the first finding must be on issue which 
C was directly and substantially, and not incidentally, in issue in that 
suit-Decision of Small Causes Court not referring to issue, nor giving any 
finding, cannot operate as res judicata--{!uestion of jurisdiction of Small 
Causes Court to decide issue of title to property merely academic--Provincial 
Small Causes Court Act, S.23. 
D 
Code of Civil Procedure, 1908-S.2(9), (2), (14), Order XX Rules 4(1) 
and (5), Order XIV Rules 1 and 3-l'rovincial Small Causes Court Act 
-S.17(i)-Held, to be binding order of the court disposing of suit must 
amount to a decree-Held, further, in a controversy between the parties, 011/y 
judgment could give rise to decree-Where point for determination of finding 
E not even stated, it is not a judgment within S.2(9). 
The appellant claimed to have let out the property in dispute as 
owner in 1966. In 1974, he filed a suit for eviction of the tenant Habib and 
the sub-tenant Banda, first respondent in this case. This suit was decreed 
F 
against both Habib and Banda. With the respondent's application for 
setting aside the eviction decree, and thereafter his revision petition being 
dismissed, according .Ao the appellant the eviction dee""' against Habib 
and the respondent became final on that date. 
However, Banda filed the present suit on the basis of his title as 
G owner of the property and claimed two reliefs : that the eviction decree was 
a nullity, and for an injunction that the present appellant be restrained 
from dispossessing him from the property. The Trial Court dismissed the 
suit. On appeal the Civil Judge, District Mazalfarnagar decreed the suit. 
A second appeal by the present appellant to the High Court was dis-
H missed. 
198 
•
-
-~ 
RAMESHWAR DAYALv. BANDA 
199 
In the Supreme "court, the appellant contended that the decree A 
passed by a court of competent jurisdiction could not be declared as not 
binding on a person who was a party to the suit; and the view that the 
judgment of the Small Causes Court did not operate as res judicata 
between the parties because the Small Causes Court had no jurisdiction 
to decide title to the suit property, is erroneous in law. 
Dismissing the appeal, this Court, 
HELD : 1. The bar of the res judicata is not applicable to the 
determination of the issue with regard to the title to the property in the 
B 
present suit. (p.9) [204E] 
C 
To operate as res judicata the first finding must be on an issue which 
has been directly and substantially in issue in the former suit. If the finding 
given is incidentally while determining another issue which was directly and 
substantially in issue, such finding cannot be said to be on an issue which was 
directly and substantially in issue In the former suit.(p.10) [20SC] 
D 
Gangabai w!o Rambi/as Gilda v. Chhabubai w/o Pukharajji Gandhi, 
(1982] 1 SCR 1176, followed. 
---4. 
The so-called decision of the Small Causes Court does not refer to 
the present respondent or to the written statement filed by him where he E 
had contended that he was the owner of the property and the suit was 
decreed ex parte. [20SD] 
Not only has the Small Causes Court not given any finding, it has not 
even referred to the said issue in its so called decision. (pp.8 and 11) [20SD] 
2. In order to be binding, the order of the court disposing of the suit 
must amount to a decree. The definitions of decree, order and judgment 
given in the Code show that decree or order as the case may be, can come 
into existence only if there is an adjudication on the relevant issues, which 
conclusively determines the rights of the parties. (pp.11 and 12) 
[205D, 206A) 
F 
G 
"Points for determination" in rule 4(1) are issues contemplated by 
Rules 1 and 3 of Order XIV of the Code. Since the matters were in 
controversy between the parties, it is only a judgment which could_ have 
given rise to a decree. The decision of the Small Causes Court which has H 
200 
SUPREME COURT REPORTS 
(1993) 1 S.C.R. 
A not stated the points for determination and given a finding thereon is not 
a judgment with S.2(9) of the CPC.(p.13) [206G-H] 
B 
3. Under S.17(1) of the Provincial Small Causes Court Act al

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