Form No. J(2) In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side Present: The Hon‟ble Justice Sabyasachi Bhattacharyya And The Hon‟ble Justice Supratim Bhattacharya FA 236 of 2024 IA No: CAN 1 of 2026 Pradip Chimanlal Shah and others Vs. Mrs. Mangala Dhur For the appellants : Mr. Abhijit Roy, Mr. Santu Nandy, Mr. Sayantan Mullick For the respondent : Mr. Debraj De, Mr. Satyam Mukherjee, Ms. Richa Jha Heard on : 20.07.2026 Judgment on : 20.07.2026 2 Sabyasachi Bhattacharyya, J.:- 1. The appeal and the application are taken up for hearing together due to the short ambit of the same. 2. The appeal arises out of the dismissal of the plaintiffs/appellants‟ suit for declaration of their tenancy rights in respect of two shop rooms, for permanent injunction and for mandatory injunction, on the allegation that the appellants have been subsequently dispossessed from the suit property. 3. Learned counsel for the appellants argues that although a previous suit had been dismissed, where apart from two shop rooms, tenancy was claimed by the appellants in respect of a100 sq. ft. adjoining space as well, the learned Trial Judge had come to the finding that insofar as the two shop rooms are concerned, it was the admitted position from the written statement of the defendant/respondent that the appellants are tenants in respect of the same. 4. Thus, the said issue was settled. 5. Moreover, a subsequent (second) suit which was filed for similar relief as the present suit, of declaration regarding two shop rooms as well as permanent injunction, was dismissed for default; but the same cannot operate as a bar under Order IX Rule 9 of the Code of Civil Procedure, since in the present suit, an additional relief of mandatory injunction has been sought. 6. Learned counsel for the respondent, on the other hand, places reliance on Most. Rev. P.M.A. Metropolitan and Ors. vs. Moran Mar 3 Marthoma and Ors., reported at AIR 1995 SC 2001, for the proposition that even if a finding was rendered against the successful party in a suit, the said party shall not be barred by res judicata due to such finding, simply because the said party having succeeded in the suit on the other plea, did not have an opportunity to prefer an appeal merely against the adverse finding. 7. Thus, it is contended that the finding in the first suit as to the appellants being tenants in respect of the two rooms is not binding on the respondent by operation of the principle of res judicata. 8. Moreover, it is argued that in the previous suits, the relief of declaration of tenancy rights in respect of the two shop rooms was sought but not specifically granted. 9. In such view of the matter, going by Explanation-V to Section 11 of the Code of Civil Procedure, it should be deemed that the said issue was decided against the plaintiffs/present appellants. Thus, learned counsel for the respondent argues that the self-same relief, having been turned down previously, cannot be re-agitated at the present stage. 10. Insofar as the first question is concerned, we find that the first suit between the parties was dismissed insofar as the claim of tenancy rights of the appellants with regard to the 100 sq. ft. adjoining plot was concerned. Although the issue of declaration of tenancy rights of the appellants regarding the two shop rooms was not specifically decided in the said suit, the learned Trial Judge, on the said occasion, clearly narrated the pleadings in the written statement made by the 4 present respondent to the effect that the tenancy of the appellants regarding the two shop rooms was an admitted position and went on to observe that the further extension of the tenancy regarding the 100 sq. ft. plot could not be granted. 11. ft. plot could not be granted. 11. Thus, although the principle of res judicata might not operate squarely, the issue having not been decided, in view of the categorical stand taken by the respondent in her written statement in the first suit, which was recognized and accepted by the Trial Court on the said occasion, the respondent is, nevertheless, barred by the principle of „issue estoppel‟ insofar as the tenancy of the appellants regarding the two shop rooms is concerned. 12. Such issue, thus, although does not come within the purview of Section 11 of the Code of Civil Procedure or its Explanations, by application of the doctrine of „issue estoppel‟, the same cannot be reagitated by the respondent now. After having taken the stand in her written statement in the first suit that the appellants are tenants in respect of the two rooms, the respondent cannot now resile from such position. 13. Coming to the next question, the second suit of the plaintiffs on an apparently similar cause of action was dismissed, thereby supposedly attracting the bar under Order IX Rule 9 of the Code of Civil Procedure. 14. However, the conspicuous difference between the two is that in the second suit, declaration of tenancy right regarding the two shop rooms as well as merely permanent injunction protecting the 5 possession of the appellants was sought, whereas, in the current suit, it was further alleged that subsequently the appellants had been dispossessed from the suit premises and a relief of mandatory injunction, which is in the nature of a continuing cause of action, was also sought. 15. The cardinal difference between the concept of res judicata and a bar under Order IX Rule 9 of the Code of Civil Procedure is that whereas the former pertains to adjudication on the subject-matter of the dispute, the latter pertains strictly to the bar of filing a fresh suit on the self-same cause of action. 16. Hence, for the purpose of considering the bar under Order IX Rule 9 in the present case, this Court is to look only to the cause of action pleaded in the current suit. Since the cause of action for mandatory injunction is a subsequent cause of action and also is a continuing one, it cannot be said that the current (third) suit is on the “self- same” cause of action as the second suit, thus precluding the operation of the bar under Order IX Rule 9 of the Code of Civil Procedure at least insofar as the relief of mandatory injunction is concerned. 17. As held above, since the issue of declaration of tenancy rights of the appellants with regard to the two shop rooms is no longer res integra, having already been admitted by the respondent in the first suit, the same is rather a non-issue/a redundant issue and the current suit shall be heard primarily on the issue of mandatory injunction. 6 18. Thus, the current suit is neither barred by res judicata nor under Order IX Rule 9 of the Code of Civil Procedure insofar as the claim of mandatory injunction is concerned. 19. The learned Trial Judge, by the impugned judgment and decree, erroneously dismissed the suit as a whole only on the ground of res judicata which, according to us, is contrary to law. 20. Hence, FA 236 of 2024 is allowed on contest, thereby setting aside the impugned judgment and decree dated July 12, 2024 passed by the learned Judge, Eleventh Bench of the City Civil Court at Calcutta in Title Suit No. 156 of 2022. 21. The suit is now remanded to the learned Trial Judge for an adjudication on its merits in accordance with law, in the light of the above observations, by giving adequate opportunity to both parties to lead evidence and argue their respective cases. 22. It is expected that in view of the long pendency of the matter, the learned Trial Judge shall make all endeavour to dispose of the suit as expeditiously as possible, preferably within eight months from the date of communication of this judgment to the Trial Court. 23. CAN 1 of 2026 stands disposed of accordingly. 24. Needless to say, all questions are kept open for being argued by the parties on their own merits and, if so raised, the learned Trial Judge shall decide those independently in accordance with law without being influenced unnecessarily in any manner by any of the observations made above. 25. There will be no order as to costs. 7 26. Interim order, if any, stands vacated. 27. Urgent certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. (Sabyasachi Bhattacharyya, J.) I agree. (Supratim Bhattacharya, J.) AD-15 TN