Bhagwan Dass (Died) through L.Rs. and Others vs Ramesh Kumar

V.S. Aggarwal, J.—The present revision petition has been filed by Bhagwan Dass and Raj Kumar (both dead and represented through their legal representatives), hereinafter described as "the petitioner", directed against the judgment of the learned Appellate Authority, Faridkot, dated 25.7.1984. By virtue of the same, the learned Appellate Authority had set aside the order passed by the learned Rent Controller, Mukatsar, dated 9.8.1982 and instead petition for eviction filed by the respondent was allowed.

The relevant facts are that Ramesh Kumar had filed a petition for eviction against the petitioner asserting that Bhagwan Dass petitioner was a tenant in the property in question. The surviving ground of eviction relevant for the disposal of the present revision petition is that he has asserted that Bhagwan Dass petitioner No. 1. had sublet the premises to Raj Kumar s/o Bhagwan Dass, petitioner No. 2, and that Bhagwan Dass himself had settled at Smalsar where he was running a shop and had delivered possession of the demised premises to Raj Kumar. It was further asserted that Bhagwan Dass petitioner was not in occupation of the demised premises for a continuous period of four months before the filing of the petition.

In the written statement filed, petitioners had contested the eviction application. Plea was raised that earlier also an eviction petition had been filed on the same ground which was dismissed by the learned Rent Controller on 16.9.1977. The second petition on the same ground is not maintainable. It was denied that petitioner No. 1 had vacated the shop or was carrying on business at Smalsar. It was asserted that petitioner No. 2 is the son of petitioner No. 1. Petitioner No. 1 had been visiting his other son at Smalsar and had not sublet the property to petitioner No. 2.

The learned Rent Controller held that petitioner No. 1 was not in occupation of the property for a continuous period of four months before the filing of the petition and that petitioner No. 2 in fact, was in control of the demised premises and concluded that the property had been sublet to him. However, the learned Rent Controller went on to hold the earlier a petition for eviction was filed on the same ground which was dismissed. It was a decision on merits and would operate as a res judicata. On this ground, eviction application was dismissed.

The learned Appellate Authority upset the finding of the learned Rent Controller that the earlier decision would operate as res judicata. It was held that there was no final decision if the property has been sublet or not. With regard to the other findings, the learned Appellate Authority agreed with the learned Rent Controller and in this process the order so passed was set aside. Hence, the present revision petition.

The present petition was listed for arguments but non appeared on behalf of the respondent. In these circumstances, the Court did not have the advantage of hearing respondent''s learned counsel.

Learned counsel for the petitioners urged that earlier also inter se parties an eviction petition was filed by the respondent-landlord. The ground of eviction was the same that the property has been sublet by Bhagwan Dass to his son Raj Kumar. The said petition for eviction was contested and was dismissed under Order 17 Rule 3 of the CPC (for short "the Code"). According to the learned counsel, the said decision operates as res judicata and the ground of subletting is not available to the respondent-landlord.

As mentioned above, learned Appellate Authority expressed the opinion that this is decision was not on merits and that the provisions of the CPC will not strictly apply to these proceedings.

To appreciate the said contention, it must be at the outset restated that the earlier petition for eviction was dismissed under Order 17 Rule 3 of the Code. It was respondent-landlord who had failed to produce any evidence which was closed. Thus, the said decision had become final inter se parties. When a person is given an opportunity to lead evidence and he does not produce any evidence in the Court, it would be taken as a decision on merits. The learned Appellate Authority was patently in error in coming to the conclusion to the contrary.

Reference in this connection can well be made to the decision of the Lahore High Court in the case of Nila v. Punun AIR 1936 Lah 385. It was held that if the earlier decision is under Order 17 Rule 3 of the Code and had been conducted without any negligence then it is a decision on merits and would operate as res judicata. Same opinion was expressed by a Division Bench of Oudh High Court in the case of AIR 1944 39 (Oudh) . It was held that once the suit is dismissed under Order 17 Rule 3 of the code, it must be taken to be a decision on merits.

There is no plea herein that there was negligence in conduct of the earlier petitioner. It must, therefore, be taken to be a decision on the merits of the matter.

Reliance by the learned Appellate Authority on the decision rendered by this Court in the case of Mrs. Harmohinder Kaur alias Mohinder Kaur v. Shri Hari Singh 979(2) R LR 455, must be stated to be totally misplaced. In the cited case, earlier the ejectment petition was dismissed in default. It was not dismissed on merits. The subsequent ejectment application on the ground of bona fide personal necessity was held to be maintainable. It was in this backdrop that it was held that this was not a decision earlier rendered on merits. On facts, the cited decision is distinguishable because herein the petition had not been dismissed in default.

In fact, it is true that the provisions of CPC strictly are not applicable to the proceedings before the learned Rent Controller. But even if the strict provisions of Code are not applicable, still the rule of the game has necessarily to be observed. If earlier a petition had been filed and dismissed, indeed, the landlord cannot harass the tenant more often than once for the same cause. It was held that the property has not been sublet. The finding became final. Unless there is any fresh act of subletting-the property, a second petition would not be maintainable. To that extent, the finding of the learned Appellate Authority must be set aside restoring that of the learned Rent Controller.

Even on merits, in the facts it cannot be held that the property was sublet or that petitioner No. 1 had ceased to occupy the premises for a continuous period of four months before filing the petition for eviction.

While going into the said controversy, it must be admitted that it is a finding, of fact as to whether a person is residing in the property for a continuous period of four months before filing the petition or not. But if the finding is absurd and is not based on evidence, necessarily under sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949, this Court shall upset the finding.

Petitioner No. 1 is the father and petitioner No. 2 is his son. Both the learned Rent Controller and the learned Appellate Authority were swayed by the fact that notice was served on petitioner No. 1 at his address at Smalsar and not at the suit premises. They also opined that summons were received by petitioner No. 1 at Smalsar. The contention of petitioner No. 1 was that he had gone to Smalsar to meet his son. Service of a notice at a particular place may be a factor to be taken note of but by no stretch of imagination it can be taken that it is a conclusive evidence. At best, it would be corroborative. In the evidence, it had transpired that petitioner No. 2 was working with petitioner No. 1. There is precise little on the record to indicate that petitioner No. 1 has totally ousted himself and had given legal possession to respondent No. 2. If the tenant retains the legal possession and his son helps him in the work then it cannot be termed that it amounts to subletting. Both the Courts were patently in error in coming to the conclusion to the contrary. Once petitioner No. 1 was a legal possession then temporary absence from the said place to Smalsar does not imply that he had ceased to occupy the property for a period of four months before filing the eviction petition. It is in evidence that he has been visiting the suit premises.

The net result would be that even on these counts, the findings of the learned Rent Controller and the learned Appellate Authority cannot be sustained.

For these reasons, the revision petition is allowed and the impugned judgment of the learned Appellate Authority is set aside. Instead, the eviction petition is dismissed.