IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5516 OF 2008 (Arising out of S.L.P. (C) No.5500 of 2008)

Gautham Bhavan represented by  Managing Parter     ...Appellant(s)

Versus

Sakuntala Sahu represented by GPA Holder and Anr.     ...Respondent(s)

O  R  D  E  R

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.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, September 05, 2008.