Hariender Kaur vs Sharan Gurdev Singh

Ranjit Singh, J.—Aggrieved against the order directing ejectment of the petitioner u/s 13-B of the East Punjab Urban Rent Restriction Act (for short, "the Act"), he has filed the present petition to impugn the order of Rent Controller, Jalandhar. The demised shop was given on rent to the petitioner by father of the respondent in the year 1983. Claiming himself to be a landlord and Non Resident Indian, the respondent filed an application for ejectment of the petitioner from the demised shop. In order to prove that the respondent is owner of the shop, he has relied upon an order passed in the year 1973 by Sub Judge, IIIrd Class, Jalandhar. The respondent pleads that he is a practicing Advocate under the Immigration and Human Rights Law and has sought ejectment of the petitioner from the shop on the ground that he has contacted Mangat & Company for their affiliation in India and intends to open an affiliated office of the said Company at Jalandhar. Contention further is that son of the respondent, namely, Amanjot Kalkat, intends to open an office in Canada as an affiliate of Mangat and Company. It is claimed that the respondent is already engaged as an expert by Mangat and Company and, thus, demised shop is required by him for his own use.

The petitioner appeared before the Rent Controller and filed an application, seeking leave to defend the petition, which was granted on 23.9.2002. The petitioner thereafter filed a written reply, raising objection in regard to the maintainability of the petition. It is pleaded that necessary ingredients of Section 13-B of the Act have not been impleaded. It is further urged that the respondent had not approached the Court with clean hands. The rate of rent, as claimed, is also denied. In addition, it is pointed out that the ejectment petition is not maintainable in view of another ejectment petition pending between the parties filed u/s 13 of the Act. On this basis, it is urged that the respondent would have an option either to pursue the present petition or the previous petition under the normal provisions. The status of the respondent as NRI is also challenged and so too the bonafide need on his part of the demised shop. On the basis of pleadings, the Rent Controller framed the following issues:

Whether the petitioner is Non-resident Indian? OPP

Whether petitioner requires the demised premises for his own use and occupation? OPP

Whether the present petition is not maintainable? OPR

Whether petition is barred by estoppel? OPR

Whether petitioner is entitled to ejectment as prayed for? OPP

Relief.

Both the parties then led evidence, which was appreciated by the Rent Controller. Issue No. 1, relating to the respondent being NRI is decided in favour of the respondent and against the petitioner. Other issues were also accordingly decided.

Counsel for the petitioner has made one fold submission before me in regard to the maintainability of this petition. This, according to the counsel, is not correctly decided by the Rent Controller. He submits, that a previous petition filed u/s 13 of the Act is pending. It is noticed by the Rent Controller that there is no bar in moving a petition u/s 13-B of the Act during the pendency of the petition u/s 13. The petitioner had withdrawn this ground, as raised u/s 13 of the Act, on the date when present petition is decided u/s 13-B of the Act simultaneously. This, according to the counsel, would act as resjudicata and as'' such, is enough to set-aside the impugned order.

The counsel has referred to the case of Pawan Kumar Gupta v. Rochiram Nagdeo 1999 (1) R.C.R. (Rent) 483. Counsel would emphasise the observations, which are to the effect that rules of resjudicata prohibits the Court for trying an issue, which has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by that Court.

On the other hand, it is urged that it is not appropriate to strictly apply the provisions of CPC to the proceedings under the Act and the rules of res-judicata would not apply to such proceedings with full rigor as these may otherwise be applicable. Submission is that the Act is a complete Code in itself and the provisions of CPC are not strictly attracted to proceedings under the Act. Reference is made to the cases of Surinder Kaur and Another Vs. Rattan Chand Duggal alias R.R. Duggal, and Basakha Singh Vs. Mani Ram Bhatia, . In Pardeep Kumar''s case (supra), it is observed that if a person chooses to give up the privilege of filing petition u/s 13-A and withdraws that petition and comes under the general category by filing petition u/s 13 of the Act, it would not mean that the petition filed u/s 13 of the Act will not be maintainable. Counsel, thus, contends that petition u/s 13 or 13-A/13-B of the Act, even if withdrawn, can not act as resjudicata.

In Surinder Kaur''s case (supra), this Court has held as under:

It is well settled by now that the Rent Control Legislation is a complete Code in itself and the provisions of the CPC are not attracted. Although there is no dispute that certain principles of CPC would be attracted, but strict provisions of the CPC being not attracted, the rights of the parties cannot be decided on the basis of the application (of) provisions of the Code of Civil Procedure. Accordingly, provisions of Order 9 Rule 9 of the Code of Civil Procedure, being substantive provisions, cannot be attracted to the proceedings under the Rent Act. The learned Counsel for the petitioner has also relied upon a judgment of the Apex Court in N.R. Narayan Swamy Vs. B. Francis Jagan, . Specific attention has been drawn to paras No. 16 and 12 of the judgment which read as under:

In our view, the High Court ought to have considered the fact that in eviction proceedings under the Rent Act the ground of bona fide requirement or non-payment of rent is a recurring cause and, therefore, the landlord is not precluded from instituting fresh proceedings. In an eviction suit on the ground of bona fide requirement the genuineness of the said ground is to be decided on the basis of requirement on the date of the suit. Further, even if a suit for eviction on the ground of bona fide requirement is filed and is dismissed, it cannot be held that once a question of necessity is decided against the landlord he will'' not have a bonafide and genuine necessity ever in future. In the subsequent proceedings, if such claim is established by cogent evidence adduced by the landlord, decree for possession could be passed.

In this view of the matter, in our view it is not necessary to decide the further contention of the learned Counsel for the appellant that the Rent Act is a self contained Code and the provisions of C.P.C. as a whole are not applicable to the proceedings under the Rent Act.

Full Bench of this Court in the case of Amar Singh and Anr. v. Dalip (1981) 83 P.L.R. 649 has held that Section 11 CPC deals with the decisions of the Civil Courts only and the decision 6f the court of exclusive jurisdiction/Tribunals are not covered by that section. The decisions of Tribunals and Courts of exclusive jurisdiction debar the raising of the issues in a civil suit on matters which are exclusively within their jurisdiction not because of Section 11 but because of the provisions contained in the statute creating those Tribunals or Courts. Sometimes, their decisions operate by way of res-judicata under the general principles of res-judicata also but never because of the provisions of Section 11.

Then in Sheodan Singh Vs. Smt. Daryao Kunwar, , it is held that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits. It is observed that:

�for example, the former suit was dismissed by the trial. Court for want of jurisdiction, or for default of plaintiff s appearance, or on the ground of non-joinder of parties or misjoinder 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.

As held in N.R. Narayari Swamy''s case (supra), grounds of bonafide requirement or non-payment of rent is a recurring cause. Even otherwise, the principles regulating the procedure under the CPC are not strictly applicable to proceedings under the Act.

In view of the position as noticed, it is not possible to hold that withdrawing a petition u/s 13 of the Act can act as res-judicata for the petitioner to prosecute his petition u/s 13-B of the Act. No other, point is urged before me. The revision petition is accordingly dismissed.