CR No.2105 of 2009 (O&M) -1- CR No.2106 of 2009 (O&M) ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) CR No.2105 of 2009 (O&M) Date of Decision:22.02.2011 Mulkh Raj and others ....Petitioners Versus Nisha Jain and others ....Respondents (2) CR No.2106 of 2009 (O&M) Date of Decision:22.02.2011 Mulkh Raj and others ....Petitioners Versus Nisha Jain and another ....Respondents CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present : Mr. Divanshu Jain, Advocate, for the petitioners. Mr. J.K.Goel, Advocate, for the respondents. * * * * * Rakesh Kumar Jain, J. By this common order, I shall be disposing of two revision petitions, namely CR No.2105 of 2009 titled as `Mulkh Raj and others Vs. Nisha Jain and others ' and CR No.2106 of 2009 titled as `Mulkh Raj Vs. Nisha Jain and another' as the same facts and question of law are involved in these revision petitions. These revisions petitions are directed against the orders dated 20.02.2009 passed by the learned Rent Controller, Chandigarh by which applications filed by the tenants for dismissal of the eviction petition on the ground that it is not maintainable, has been dismissed. For convenience, the facts are being extracted from CR No.2105 of CR No.2105 of 2009 (O&M) -2- CR No.2106 of 2009 (O&M) ****** 2009. The landlord filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] in respect of booth No.49, Sector 21-C, Chandigarh, which was allegedly rented out at a monthly rent of `600/- vide rent note dated 02.12.1982, on the grounds that the tenant has not paid the rent since 01.06.1990, has sublet the demised premises, changed the user and caused material additions and alterations without permission. In reply, it was admitted that the demised premises was let out to petitioner No.1 on 02.12.1982 at the monthly rent of `600/-, but subsequently it was given on rent to petitioner Nos.2 and 3 at the monthly rent of `800/- vide rent note dated 04.05.1988 and as such, they are the direct tenants. It was also alleged that the landlord had earlier filed an eviction petition exactly on the same grounds which was dismissed on 27.11.1998 by the learned Rent Controller and the appeal was dismissed by the learned Appellate Authority on 14.11.2002. Therefore, the present petition is not maintainable. From the pleadings of the parties, following issues were framed on 04.04.2007: - “1. Whether the respondent No.1 is liable to be evicted from the demised premises due to non- payment of arrears of rent w.e.f. 01.06.1990 onwards?OPP. 2. Whether respondent No.1 has sublet the demised premises to respondents No.2 and 3 and thus is liable to be evicted on the ground of subletting?OPP. 3. Whether there is no relationship of landlord and tenant between the parties?OPR. 4. Whether the petition is not maintainable?OPR. 5. Relief.” During the pendency of the petition, tenant filed an application for dismissal of the eviction petition on the ground that in the similar petition earlier filed by the landlord, one of the issues was that there is no relationship of landlord and tenant between the parties which was decided against the landlord and had become final between the parties, therefore, the present CR No.2105 of 2009 (O&M) -3- CR No.2106 of 2009 (O&M) ****** petition is not maintainable for want of relationship as the earlier finding would operate as res judicata. Reply to the application was filed in which preliminary objection was raised that the matter regarding relationship of landlord and tenant between the parties is the subject matter of the present petition, hence the application is liable to be dismissed. This application has been decided by the learned Rent Controller by the impugned order on the ground that the petition was filed in the year 2002 in which issues were framed on 04.04.2007, the case is at the stage of evidence of the petitioner/landlord and the issue with regard to relationship of landlord and tenant between the parties is yet to be decided on the basis of evidence, therefore, it was not the stage to file the application. Learned counsel for the petitioners, while assailing the impugned order, has submitted that in the present eviction petition, the landlord has made the averments to the effect that “Sh. Yash Raj Jain filed a rent petition on 21.11.1995 before the Rent Controller, Chandigarh on the ground of non- payment and subletting. The rent petition was decided on 27.11.1998 without recording of any evidence by the Ld. Rent Controller, against which Sh. Yash Raj Jain filed an appeal against the judgment which is pending before Sh. R.C.Godara, Ld. Addl. Distt. Judge Chandigarh and is fixed for 20.02.2002 and that the petitioners have not filed any such or similar petition.” “Sh. Yash Raj Jain filed an eviction petition against the respondents. The same was decided on 27.11.1998 against which appeal is pending before Sh. R.C.Godara, Ld. Additional District Judge, Chandigarh and the present petition is being filed without prejudice to the earlier litigation.” It is further submitted that the present eviction petition was filed on 30.01.2002. At that time, appeal against the order of the learned Rent Controller dated 27.11.1998 against the eviction petition was pending before the learned Appellate Authority which was decided on 14.11.2002 by which order of the learned Rent Controller was affirmed on merits because in the earlier eviction petition, on the pleadings of the parties, following issues were framed: - “1. Whether the respondents are liable to be evicted from the demised premises on the grounds of sub-letting, non-payment of rent, CR No.2105 of 2009 (O&M) -4- CR No.2106 of 2009 (O&M) ****** change of user and material additions and alterations?OPP. 2. Whether the petition is not maintainable?OPR. 3. Whether the petition is bad for mis-joinder of parties?OPR. 4. Whether there is relationship of landlord and tenant between the petitioner and respondent No.1?OPP. 5. Relief.” However, no evidence was led by either of the parties and issue No.4 was decided against the landlords, meaning thereby it was held that there is no relationship of landlord and tenant between the parties. In appeal, the landlord had alleged that no ample opportunity was given to adduce their evidence. In this regard, the learned Appellate Authority had held that “I have gone through the entire order sheet of the case. In this case, 5 effective opportunities were granted to the petitioner despite that petitioner failed to adduce any evidence. On 25.03.1998, case was adjourned to 18.05.1998 for evidence of the petitioner subject to payment of Rs.100/- as costs. After three opportunities case was adjourned on 24.08.1998 and petitioner was granted last opportunity to conclude his entire evidence. On 24.08.1998, the case was received by transfer in the Court of Sh. Jagnahar Singh, ld. Rent Controller, Chandigarh. On that date, both the parties appeared, but no evidence of petitioner was present. . On the request of the petitioner case was adjourned to 27.11.1998 for evidence of the petitioner. It was made clear that no further opportunity shall be granted. Despite 2nd last opportunity granted on 27.11.1998 also the petitioner could not adduce any evidence. In the order dated 27.11.1998, it is mentioned that no evidence of the petitioner is present today and on the last date of hearing it was made clear to the counsel for the petitioner that no further opportunity shall be granted. As there was no reasonable explanation, the evidence of the petitioner was closed by court orders.” It was also held that the landlord could not adduce any evidence in this case due to his own fault and he cannot blame any other person in this CR No.2105 of 2009 (O&M) -5- CR No.2106 of 2009 (O&M) ****** regard. This order of the learned Appellate Authority dated 14.11.2002 was not further challenged and became final between the parties, meaning thereby the finding recorded on issue No.4 about the relationship of landlord and tenant between the parties became final for all times to come. Learned counsel for the petitioners has further submitted that once it has already been held that there is no relationship of landlord and tenant between the parties, the present petition before the learned Rent Controller on the same cause of action of seeking eviction is not maintainable, but the learned Court below has erred in dismissing the application only on the ground that it would be proved when the evidence is led by the parties. In this regard, it is submitted that it is the averment of the landlord himself in para Nos.5 and 12 of the eviction petition and both the orders of the learned Rent Controller and the learned Appellate Authority are on record, it would be wastage of time for the learned Rent Controller to proceed any further if the finding on issue No.4 is proved to operate as res judicata and the present eviction petition is not maintainable. In support of his submissions, learned counsel for the petitioners has relied upon the following judgments: - i) Chaman Lal (dead) by LRs Vs. Bachittar Singh, 2001 (1) R.C.R.(Rent) 425; ii) Mehtab Singh Advocate Vs. Shri Tilak Raj Arora and another, 1988(1) PLR 269; iii) Bhagwan Dass (died) through LRs Vs. Ramesh Kumar, 1999(2) R.C.R.(Rent) 586; iv) Smt. Padma Sharma and another Vs. Madan Lal Khanna and others, 2000(1) PLR 853; and v) Vir Chand Vs. Hakam Chand and another, 1992(1) PLR 556. In reply, learned counsel for the respondents has submitted that issue No.3 involved in the present petition also pertains to the relationship of landlord and tenant between the parties which could be decided only after leading evidence which is still in progress, therefore, this is not the stage where the application could have been filed and allowed by the learned Rent CR No.2105 of 2009 (O&M) -6- CR No.2106 of 2009 (O&M) ****** Controller who has rightly dismissed the same. It is also submitted that the earlier eviction petition was dismissed because the landlord did not lead any evidence and as a matter of fact it was not decided on merits, therefore, the order does not operate as res judicata. In support of his submissions, he has relied upon a decision of the Supreme Court rendered in the case of Sheodan Singh Vs. Daryao Kunwar, AIR 1966 Supreme Court 1332 and a decision of this Court rendered in the case of Surinder Kaur and another Vs. Rattan Chand Duggal alias R.R.Duggal, 2005(2) HRR 573. I have heard both learned counsel for the parties and have perused the record with their able assistance. Admitted facts in this case are that the landlords claimed that the demised premises was let out to petitioner No.1 at the monthly rent of `600/- vide rent note dated 02.12.1982 who has sublet it to petitioner Nos.2 and 3. Tenants claimed that the landlord had earlier let out the demised premises to petitioner No.1 vide rent note dated 02.12.1982 at the monthly rent of `600/-, but subsequently their predecessors-in-interest Smt. Sukantala Devi let it out to petitioner Nos.2 and 3 at the monthly rent of `800/- vide rent note dated 04.05.1988., therefore, they are the direct tenants. The landlord had earlier filed eviction petition on the same grounds in which one of the grounds was about the relationship of landlord and tenant between the parties. The said eviction petition was dismissed by the learned Rent Controller because the landlord did not lead any evidence which was challenged by way of appeal but during the pendency of appeal, the present eviction petition was filed on the same cause of action and the appeal, in the earlier eviction petition, was ultimately dismissed. Now the question is as to “whether the finding recorded in the earlier eviction petition about the relationship of landlord and tenant would operate as res judicata and the application should have been allowed at this stage. In the case of Chaman Lal (dead) by Lrs (supra), this Court had held that principle of res judicata is not confined to Section 11 of the Code of Civil Procedure, 1908 [for short “CPC”] but the Rent Courts also have trappings of the Civil Court and the learned Rent Controller is competent to adjudicate that the subsequent petition is not maintainable. In Mehtab Singh CR No.2105 of 2009 (O&M) -7- CR No.2106 of 2009 (O&M) ****** Advocate's case (supra), the landlord had withdrawn first petition without liberty to file a fresh petition. Therefore, in terms of Order 23 Rule 1(4) of CPC, the second petition was not held to be maintainable. In the case of Bhagwan Dass (died) through LRs (supra), the landlord had not produced evidence despite the opportunity given by the Court. The learned Rent Controller dismissed the eviction petition on the ground that there was no subletting. It was held that it is a decree under Order 17 Rule 3 of CPC and could be taken to have been passed on merits and would operate as res judicata. In the case of Smt. Padma Sharma and another (supra), it was held that the Rent Controller can invoke the principle of res judicata and in the case of Vir Chand (supra), the finding of the authorities under the Rent Act that the defendants are the direct tenants would operate as res judicata and the aggrieved party could only assail the finding before the Appellate Authority if it is alleged to be erroneous. In the judgment cited by learned counsel for the respondents, namely Sheodan Singh (supra), the Supreme Court had held that in order to constitute the principle of res judicata, the decision in the former suit must have been on the merits. For example, if the earlier suit was dismissed by the Trial Court for want of jurisdiction, or for default of appearance, or on the ground of non-joinder of parties or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit. In the case of Surinder Kaur and another (supra), it was held that if the ejectment petition is dismissed in default and not on merits, the subsequent suit on the same ground was held to be maintainable and not barred under Section 11 of the CPC. CR No.2105 of 2009 (O&M) -8- CR No.2106 of 2009 (O&M) ****** In all the authorities which have been relied upon by both learned counsel for the parties, the judgment rendered in the case of Bhagwan Dass (died) through LRs (supra) answers the question involved in this case because in that case, the earlier eviction petition was dismissed under Order 17 Rule 3 of CPC and that order was confirmed by the Appellate Authority after appreciating the reasons assigned by the landlord leading to his failure to produce his evidence. To my mind, in the present case since the issue was that whether there was a relationship of landlord and tenant between the parties which was raised before the learned Rent Controller and the landlord had failed to lead his evidence to prove that petitioner Nos.2 and 3 were not his direct tenants and were the sub-tenants, the said finding which had become final between the parties as the appeal has been dismissed and no further revision has been filed, would operate as res judicata and for that this is the only evidence, namely the orders of the Rent Controller and the Appellate Authority already on record, from which the Court could take a view, therefore, the application filed by the tenants should have been allowed. No doubt that the question of res judicata is a mixed question of law and facts, but since it depends upon the previous orders which have already been brought on record, hence the Court of learned Rent Controller had the material before it to form an opinion even at this stage. In view of the above discussion, both the revision petitions are allowed and the impugned orders are set aside, though without any order as to costs. A photocopy of this order be placed on the file of another connected case. (Rakesh Kumar Jain) Judge February 22 , 2011. vinod*