JUDGMENT [ENTITY], J.
1. The instant appeal has been preferred against the judgment and decree passed by the First Appellate Court dated 10.5.02 by which it has affirmed the judgment and decree of the trial court dated 25.8.99 by which the suit of the respondents for eviction of the appellant on the ground of bonafide need under the provisions of [ACT] has been allowed.
2. The main contention of the appellant before the court below as well as before the First Appellant Court had been that on the ground of bonafide need an earlier suit had been filed which was dismissed in default under [SECTION] of the [ACT] (hereinafter called 'the Code'). Respondents' application for restoration of the same under [SECTION] Rule of the Code also stood dismissed by the Court. Therefore, the suit was barred by the provisions of [SECTION] of the Code Moreso, the principle of res judicta was also attracted.
3. Before the First Appellate Court the application under [SECTION] was filed which was accepted and the parties were permitted to lead additional evidence. The learned First Appellate Court, in order to examine the appellant's contention compared the factual averments made by the respondent/plaintiff in the earlier suit and in the subsequent suit and recorded the finding of fact that in the earlier suit cause of action i.e. need had been that the suit premises was required for his son [ENTITY], while in the subsequent suit the need was entirely different i.e. that the respondent/plaintiff had five sons out of which, four got married and three of them were living in the rented houses, thus, the suit premises was required for having appropriate accommodation for their families and thus the case of action was different. Hence, provisions of [SECTION], [SECTION] of the Code were not attracted.
4. So far as the application of the provisions of [SECTION] of the Code is concerned, position remains that the earlier suit had not been decided on merit. A simple and plain reading of [SECTION] of the Code reveals that it puts an embargo to try a suit or issue, where the issue in question had been directly and substantially an issue in the earlier suit between the same parties and the Court, dealt with the earlier suit, had jurisdiction to try it and the same stood finally decided after adjudication. In absence of fulfilment of all these aforesaid conditions, it cannot be held that the provisions of [SECTION] of the Code are attracted.
5. The issue of res-judicata, being a principle of equity based on public policy, is applicable even in writ jurisdiction. ([PRECEDENT] (1).
6. In [PRECEDENT]. (2), the Hon'ble Supreme Court placed reliance upon its earlier judgment in [PRECEDENT], and held that before an earlier decision can be considered as res-judicata, the same must have been heard and finally decided. Unless the earlier matter had finally been disposed of on merit, the plea of res-judicata cannot be entertained.
7. In [PRECEDENT], the Hon'ble Supreme Court held that where the suit had been dismissed in default by the Court or for want of jurisdiction, the earlier order does not operate as res-judicata.
8. In [PRECEDENT], the Hon'ble Apex Court held that the issue of res-judicata is applicable even in writ jurisdiction, but it does not operate where the earlier writ had been dismissed in limine without speaking order. While deciding the said case, the Court placed reliance upon its earlier judgments in [PRECEDENT]; [PRECEDENT]; [PRECEDENT] (8); and [PRECEDENT] (9); and observed that it would be incorrect in such a situation to dismiss the petition on the ground that earlier the matter had been dismissed by the Court, though by a non-speaking order, for the reason that where the court does not give the reason, it becomes difficult, or atleast it could not be easy to decide as what factor weighed in the mind of the Court and that makes it difficult to hold that such a summary dismissal is dismissal on merit and as such constitutes a bar of res- judicata against a similar petition dismissed earlier.
9. In [PRECEDENT], the Hon'ble Supreme Court held that the Code is not merely procedural but is also a part of substantive law as it deals with the jurisdiction of the courts also. Therefore, the question as to whether the doctrine of res-judicata is applicable in a case or not, should be considered consciously.
10. In [PRECEDENT] (11), the Hon'ble Supreme Court held that dismissal of Special Leave Petition, in exercise of power under [SECTION] of the [ACT] by the Supreme Court in limine, does not operate as res-judicata for the reason that it has been dismissed by a non-speaking order, this might have not been decided on merit. Similar view has been reiterated in [PRECEDENT], observing in respect of dismissal of writ petition in [ENTITY], and in [PRECEDENT]. (13); and [PRECEDENT] (14), observing that if dismissal of prior suit was on the ground affecting maintainability of the suit, any finding in the judgment adverse to the defendant would not operate as res-judicata in a subsequent suit, but if dismissal of the suit was on account of, extinguishment of cause of action or any other similar cause, a decision made in the suit on a fact- issue involved therein would operate as res-judicata in a subsequent suit between the same parties and in such a situation, the defendant should choose whether the judgment should be appealed against or not and in case it does not choose to file an appeal, he cannot be permitted to raise the plea of res-judicata in a subsequent suit. While deciding the said case, the Apex Court placed reliance upon the judgment of Privy Council in [PRECEDENT].
11. In [PRECEDENT], the Hon'ble Supreme Court held that in order to raise the plea of res-judicata, it is necessary to examine the question with reference to; (i) forum or the competence of the Court; (ii) parties and their representatives; (iii) matters in issue; (iv) matters which ought to have been made ground for defence or attack in the former suit; and (v) the final decision.
12. In a case where the matter has been decided by a Court having no jurisdiction, the plea of res-judicata is not maintainable for the reason that the judgment remains nullity. ([PRECEDENT] (17); [PRECEDENT]; [PRECEDENT] (19); and [PRECEDENT] (20).
13. A decision beyond the plea taken by the parties has also been held not to operate as res-judicata on that plea ([PRECEDENT].
14. In the instant case, as the earlier suit had not been decided on merit, the provision of [SECTION] of the Code are not attracted.
15. In the second appeal, as there are concurrent Findings of facts and the same cannot be held to be perverse as the same are based on the evidence on record and no substantial question of law is involved, no interference is required by this court under [SECTION] of the Code. Thus, the appeal is dismissed.
16. However, considering the facts and circumstances of the case and particularly that the appellant/defendant has been residing in the suit premises for more than four decades, it is desirable that he may be given some time to vacate the same. Thus, he shall vacate and hand over the peaceful possession of the premises by 31st December, 2003. He shall not induct any person in the suit premises and he shall pay the rent before 15th of every month and shall not make any alteration in the premises. Appellant shall also file the usual undertaking in this regard before the learned trial Court.