Santokh Singh vs Jaswant Singh and another

J.S. Khehar, J.—Piara Singh, the Respondent-landlord of House No. 409-L, Model Town, Jalandhar City, filed an ejectment application against Santokh Singh, the Petitioner - tenant, on various grounds. It was pleaded that the Petitioner was liable to be ejected on the grounds of non-payment of rent with effect from 1.12.1986. Ejectment was also sought on the ground that the Petitioner - tenant had impaired the value and utility of the premises by effecting constructions thereupon. The real contest between the parties has, however, been on the ground of bona-fide personal necessity.

On the issue of arrears of rent, it was claimed that the tenant had not paid rent from 1.12.1986. The rate of rent was also disputed. The tenant claimed that rent was payable at the rate of Rs. 170/- per month, whereas the landlord asserted that it was payable at the rate of Rs. 250/- per month. On the first date of hearings, the tenant tendered rent for the period from 1.12.1986 to 31.5.1989 at the rate of Rs. 170/- per month i.e. a sum of Rs. 5200/-. Besides tendering rent, the Petitioner-tenant also tendered interest (Rs. 410/- ) and costs (Rs. 100/- ) as assessed by the Rent Controller. The Rent Controller held that the rent payable was at rhe rate of Rs. 170/- per month. In view of the aforesaid finding of fact, the Rent Controller also held that the tender made by the Petitioner-tenant to the Petitioner-landlord was valid.

The Rent Controller also rejected the plea raised by the landlord on the ground of impairment in the value and utility of the premises. The Rent Controller, in arriving at the conclusion, took into consideration the fact that the landlord Piara Singh had earlier filed an ejectment petition on 20.10.1986, which was dismissed on 10.5.1988. In the earlier petition, the plea of impairment on account of having made additions and alterations and not been raised. The Rent Controller concluded that there was no evidence on the record of the case to arrive at the conclusion that any additions or alterations had been made after 10.5.1988 i.e.. the date when the earlier ejectment petition was disissed. Even otherwise, on facts, the Rent Controller deliberated on the issue of impairment in the value and utility of the premises and returned a finding against the landlord.

The plea raised by the Landlord-Piara Singh on the ground of bona fide personal necessity has been the issue of primary contention between the parties. The aforesaid plea has two facets. Firstly, whether the aforesaid plea raised again at the behest of the Respondent-landlord is barred by the principle of res judicata. Secondly, if the aforesaid plea is not barred by the principle of res judicata, is the tenant Santokh Singh liable to be ejected on the ground of the landlords bona-fide personal necessity. The Rent Controller framed the following two issues in this behalf:

(1) Whether the petition is barred by the principle of res judicata ? OPA

(4) Whether the Petitioner bona fide requires the demised premises for his own use and occupation? OPA

On the first facet, the Rent Controller held that the earlier determination between the parties on the filing of ejectment application No. 158/86, instituted on 20.10.1986 (decided on 10.5.1988), operated as res judicata between the parties. The Court, however, held that subsequent events and facts could be taken into consideration for determining the issue of bona fide personal necessity. While deciding issue No. 4, the Rent Controller arrived at the conclusion that the requirement of the landlord at the time of filing of the present ejectment application was lesser than his requirement at the time of the decision of the earlier ejectment application. Having held that the decision rendered earlier operated as res judicata, the Rent Controller, by implication, arrived at the conclusion that the plea of bona fide personal necessity now raised could not be accepted since the present requirement of the landlord was less than the requirement of the landlord at the time of filing the earlier ejectment application.

Dissatisfied with the determination of the Rent Controller, the Respondent-landlord impugned the order of the Rent Controller before the Appellate Authority. The Appellate Authority accepted the plea of bona-fide personal necessity advanced on behalf of Piara Singh. The Appellate Authority reversed the determination on issue No. 1 by holding that the plea of res judicata was not applicable to the facts and circumstances of the present case. On merits, the Appellate Authority concluded that the accommodation in possession of the landlord was insufficient and accordingly upheld the plea of bona-fide personal necessity and thereby allowed the ejectment petition filed by the Respondent -landlord. The Petitioner - tenant was ordered to be ejected from the premises within a period of 90 days.

Santokh Singh has approached this Court impugning the order of the Appellate Authority.

To determine the rival contentions between the parties, it is necessary to notice a few facts. Piara Singh who had filed the instant ejectment application has filed an earlier ejectment application on 20.10.1986, which was decided on 10.5.1988 (hereinafter referred to as (the earlier petition). In the earlier petition, Piara Singh had sought ejectment on pleas available u/s 13 as well as Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ''the Rent Act''). In the earlier rent petition Piara Singh had sought the ejectment of the tenant Santokh Singh u/s 13 of the Act inter alia on the ground of bona fide personal necessity. He had also sought ejectment of the tenant Santokh Singh u/s 13 -A of the Act by claiming that he was a specified landlord. The Rent Controller during the course of the proceedings of the earlier petition had sought Piara Singh''s option i.e. whether he would like to continue the proceedings in the ejectment petition only u/s 13-A of the Act as a specified landlord. The order passed by the Rent Controller in the earlier petition on 10.5.1988 expressly notices that Piara Singh had made a statement by which he had given up his claims u/s 13 of the Rent Act and had elected to continue the petition u/s 13-A of the Rent Act only. It is evident that the controversy before the Rent Controller in the earlier petition was confined to the pleas raised u/s 13-A of the Rent Act Be that as it may, in the order passed in the earlier petition on 10.5.1988, the Rent Controller, not only rejected the claim of Piara Singh u/s 13-A of the Act by .holding that he was not a specified landlord but also declined the plea of bona fide.personal necessity, by deciding the aforesaid issue against him on merits.

The Appellate Authority, vide its judgment dated 19.102000, while accepting the plea raised by the landlord on the issue of res judicata held that the earlier ejectment petition had been dismissed on a technical ground, namely, that Piara Singh was not a specified landlord and thereupon relied upon the decision rendered in Jeewan Kumar Khanna v. Ajudhia Pershad Murgai and others, 1988 (1) R.C.J. 723, for holding that findings given on merits.in the earlier decision dated 10.5.1988, on the issue of bona-fide personal necessity, would not operate as res judicata in the instant ejectment application initiated by Piara Singh. Having removed the shackles of res judicata, the Appellate Authority went on to conclude on merits that the Respondent-landlord required the premises for the bona-fide personal necessity.

Learned Counsel for the parties have only addressed arguments in respect of the issues Nos. 1 and 4 framed by the Rent Controller before the Court.

It is considered appropriate to notice some more facts relied upon by the counsel to agitate the aforesaid issues. It has been brought to the notice of this Court that on the issue of bona fide personal necessity, it was averred by Piara Singh that the accommodation in his possession is insufficient for him and for the members of his family. It was submitted in this behalf that Piara Singh''s family comprised of his sons, daughters-in-law and grand sons. Earlier one of his sons Dr. Jaswant Singh was living at Ambala. His aforesaid son is stated to have shifted to Jalandhar and is presently residing with the landlord i.e. Piara Singh in the same premises from which ejectment of the Petitioner-tenant is sought. The accommodation in possession of Piara Singh is insufficient on account of the fact that Dr. Jaswant Singh and his family has to be accommodated in the premises in question. Not only that, Dr. Jaswant Singh is stated to have commenced private practice at Jalandhar. Additional accommodation was also stated to be required on account of the landlord''s son having commenced private practice in the premises in question. Besides Dr. Jaswant Singh, Piara Singh has another son Daljit Singh who is stated to be settled at Chandigarh. It is pleaded that the second son Daljit Singh keeps on visiting the landlord. Accommodation was also required for the aforesaid son Daljit Singh whenever he visited the landlord. Besides the requirement of additional accommodation on account of the facts narrated above,Piara Singh claims to be of an advanced age having retired on attaining the age of 58 years in 1962. In view of his age, he claims that he requires some close family member at all times to look after him. From the sequence of facts narrated above, it is evident that the ground of bona fide personal necessity raised by the landlord was primarily based on Piara Singh''s own requirement as well as on the requirement of the family of his son Dr. Jaswant Singh who had shifted from Ambala to Jalandhar.

While the controversy between the parties was pending before the Rent Controller, Piara Singh died. Dr. Jaswant Singh was impleaded as Petitioner in his place and his other son Daljit Singh came to be impleaded as Respondent. On the basis of the facts recorded above relating to the earlier litigation between the parties and the facts raised in the instant ejectment petition claiming ejectment on the basis of bona fide personal necessity, it is the endeavour of this Court to record findings on issues Nos. 1 and 4.

On the plea of res judicata, Learned Counsel for the Petitioner-tenant has placed reliance on a decision rendered by the Supreme Court in V.C. Charati v. Hussein Nhanu Jamadar, JT 1988 (8) SC 120, to contend that even if a wrong decision had been rendered by a Court, neither can it be ignored nor can it be considered to be a nullity. It is submitted that even if it is assumed for the sake of argument that the decision rendered in the earlier petition by the Rent Controller on 10.5.1988 was wrong, it would continue to be binding between the parties unless the same is set aside. It is vehemently submitted that the order passed by the Rent Controller dated 10.5.1988 had assumed finality. And, as such the same would be binding on the Respondent-landlord for all intents and purposes. Reliance in this behalf is placed on the following observations made by the Apex Court in the aforesaid judgment:

.....A decision simply because it may be wrong, would not thereupon become anullity. It would continue to bind the parties unless set aside. The effect of the decision of 31.5.1961 on the parties, therefore, cannot be ignored. In the present case, since the tenant could not. complete his purchase by reason of the proceedings u/s 32 G being dropped, he cannot now contend that the decision has no legal effect or that the proceedings u/s 32G ought to have been completed and, therefore, he should be looked upon as a purchaser.

Learned Counsel for the Petitioner-tenant has also relied on the decision rendered by the Supreme Court in Pawan Kumar Gupta v. Rochiram Nagdeo, 1999(1) RCR 483, to contend that the rule of res judicata prohibits the Court from trying an issue which has been adjudicated upon between the same parties and had attained finality. Reliance was placed by the Learned Counsel on the conclusions drawn the Apex Court in paragraph 15 which is extracted hereunder:

The rule of res judicata incorporated in Section 11 of the CPC (CPC) prohibit the court from 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. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on the issue through the suit was ultimately recorded as dismissed. The decree was not in fact against the Plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the Defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues.

On the basis of the aforesaid conclusion, Learned Counsel for the Petitioner-tenant has submitted that the Rent Controller in the judgment dated 10.5.1988 recorded findings not only in respect of the pleas raised u/s 13-A of the Rent Act by holding that Respondent Piara Singh was not a specified landlord. The Court also went on to decide the plea in respect of bona fide personal necessity raised u/s 13 of the Rent Act by expressly arriving at the conclusion that Piara Singh did not require the premises for his persona! necessity. It is submitted that the conclusion drawn by the Rent Controller in the judgment dated 10.5.1988 in respect of the plea of bona-fide personal necessity u/s 13 of the Rent Act having attained finality, was binding upon the Respondent-landlord.

Reliance was also placed on the decision rendered by the Apex Court in Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, to contend that any determination by a Court on a question of fact between the parties would operate as res judicata between the same parties in a subsequent suit. While advancing the aforesaid contention, Learned Counsel for the Petitioner-tenant placed reliance on the following observations recorded therein -

Thus, a decision on an abstract question of law unrelated to facts which give rise to a right cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or proceeding. But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceedings if the cause of action is the same. The Delhi High Court judgments do not decide any abstract question of law and there is also no question of jurisdiction involved. Assuming that the judgments of the Delhi High Court are erroneous, such judgments being on questions of fact would still operate as res judicata between the same parties in a subsequent suit or proceeding over the same cause of action.

In order to explain his aforesaid submission, Learned Counsel for the Petitioner- tenant referred to the narration of facts noticed by the Rent Controller while disposing of the earlier petition:.

.... That Jaswant Singh son of the Petitioner is a doctor by profession and has permanently shifted from Ambala to Jalandhar due to uncertain political situation in Haryana and has started living with the Petitioner. The accommodation with the Petitioner is insufficient and that Petitioner does not own and possess any other residential accommodation in the local limits of Jalandhar and he has not vacated any such accommodation without any reasonable cause after the commencement of the East Urban Rent Restriction Act and, therefore, the Petitioner was entitled to immediate possession in accordance with Section 13-A read with Section 13 of the East Punjab Urban Rent Restrict Act as amended upto date. This petition was supported by an affidavit.

It is submitted that the factual basis to substantiate the plea of bona fide personal necessity in the instant ejectment petition is exactly the same as it was in the earlier petition. It is, therefore, contended that on the facts now in contention between the parties the earlier order of the Rent Controller must hold the field as the earlier order having attained finality must be deemed to be binding.

In order to give a final boost to his plea, Learned Counsel for the Petitioner-tenant has relied upon a Division Bench judgment of this Court in Mehtab Singh v. Tilak Raj Arora and another,'' (1988)93 P.L.R. 269. While relying on the aforesaid decision it is asserted that a second petition for ejectment of the tenant on a ground on which an earlier petition was got dismissed as withdrawn without liberty to file a fresh one would be barred as not maintainable. In this behalf, Learned Counsel relied upon the following observations made by the Division Bench:

If the various provisions noticed above are held to be not applicable to the proceedings before the Rent Controller, it would necessarily result in the violation of the maxim that no man should be vexed twice over the same cause of action and the landlord or the tenant as the case may be, would be able to harass time and again on the same cause of action and for the same relief. For example, a landlord after the stage of arguments feeling that the petition is likely to fail, would get it dismissed as withdrawn and institute a fresh one again if the principles underlying the provisions of 0.23, R. 1 (4) are held to be not applicable to the proceedings before the Rent Controller. Similarly if the provisions of 0.2, R.2 of the CPC are held to be not applicable, a landlord would be able to file ejectment application on one ground although many other grounds may be available for the same relief at a given time. After having failed on that ground till the highest Court he would be able to institute another petition on the second ground and thus go on fighting litigation and harassing the opposite party, Same would be the situation with regard to the provisions of 0.9, R.9 of the CPC. and the landlord would be able to get his petition dismissed in default at any stage of the proceedings and file a fresh one on the same cause of action resulting in the abuse of the process of the Court and harassment of the opposite party. All these principles as held in Lal Chand (Dead) by Lrs. and Others Vs. Radha Krishan, are conceived in the larger public interest and founded on equity, justice and good conscience, which require that no man should be vexed twice on the same cause of action. We are, therefore, of the considered view that even though the CPC is not applicable as such to the proceedings before the Rent Controller, but the general principles contained in the Code, including the one noticed above which are based on justice, equity and good conscience would govern those proceedings and the decisions relied upon by the Learned Counsel for the Respondents in Ram Parkash v. Nathu Ram, 1984 Cur.L.J. (Civ & Cri) 96 and Raghbir Kaur v. Gurmej Singh, (1985) 87 PLR 266, accordingly overruled.

While expressing the relevance of the aforesaid decision, Learned Counsel for the Petitioner has submitted that by electing to opt to press only the plea raised in the earlier petition u/s 13 -A of the Rent Act and by making a statement that he had given up his claim based on the pleas u/s 13 of the Rent Act which included the plea of bona fide personal necessity, the Respondent-landlord must be deemed to have withdrawn his claim based on bona-fide personal necessity without liberty to file a fresh petition on the said cause of action. As such, even if no findings had been recorded by the Rent Controller while disposing of the earlier petition vide order dated 10.5.1988, the Petitioner would be barred from raising the same plea. Additionally, it is submitted that the rule of resjudicata has been held to be applicable to proceedings under the Rent Act by the aforesaid decision.

To controvert the contentions advanced on behalf of the Petitioner-tenant, Learned Counsel for the Respondent-landlord has placed reliance on a decision of a Division Bench of the Allahabad High Court in Jhamman Lal and Others Vs. Deputy Custodian General and Others, . Following observations made therein were relied upon:

..... In paragraph 8 of the counter-affidavit it was stated that the previous application by the Petitioners was dismissed by the Assistant Custodian on the ground that the application was not maintainable. If the previous application was dismissed on the ground that it was not maintainable, any observations by the officer on the merits of the controversy cannot operate as res judicata in a subsequent proceeding. For all these reasons, Respondent Nos 1 and 7 cannot be permitted to raise the plea of res judicata in the present proceedings before the Court.

It is submitted that in the instant case also while adjudicating upon the matter, the Rent Controller dismissed the previous petition filed by the Respondent-landlord vide order dated 10.5.1988 by holding that the same was not maintainable in view of the fact that the Respondent - landlord was not a specified landlord in terms of Section 13-A of the Rent Act. The claim made by the Respondent-landlord having been declined as not maintainable, it is submitted that the adjudication of the controversy in respect of the plea of bona-fide personal necessity on merits cannot operate as res judicata against the Respondent-landlord.

Learned Counsel for the Respondent has also relied upon the decision rendered by a Division Bench of the Bombay High Court in Laxman Shivashankar Vs. Saraswati and Another, to assert that a finding can operate as res judicata only if it has resulted in a particular decree or order and that a finding cannot operate as res judicata if it has not gone into making of a decree and order. In this behalf reliance was placed by the Learned Counsel for the Respondent on the observations made in paragraph 13 of the judgment. It is submitted by the Learned Counsel for the Respondent-tenant that in the previous litigation between the parties decided vide judgment/order dated 10.5.1988, the only issue on the basis of which the decree is liable to be passed is the issue emerging out of the claim made by the Respondent-landlord on the basis of plea raised u/s 13 -A of the Rent Act. Since the aforesaid plea was declined on the technical ground that Piara Singh was not a specified landlord, the other findings recorded by the Rent Controller in the judgment/order dated 10.5.1998 cannot operate as res judicata.

Learned Counsel for the Respondent has also relied upon the decision rendered by the Single Bench of this Court in Basti Ram Vs. Ved Parkash and Others, , wherein it was held:

...... It was held by the Subordinate Judge, in his judgment dated March 16. 1953. (Exhibit P-13) that the question did not strictly speaking, arise in that case. After making the said observations, he observed that the will and not create an estate unknown to Hindu Law. Section 11 of the CPC says that no Court shall try any suit or issue in which the matter in issue has been directly and substantially in issue in a former suit between the same parties, or their representatives, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally, decided by such Court. The matter, according to the said section, should be directly and substantially in issue in the earlier suit. The word substantially means a matter of some importance and value. If the matter is not of importance for deciding the case, then it cannot be said to be a substantial question. As the Subordinate Judge himself held that the question did not strictly arise, therefore, any finding given by the Court would not operate as res judicata in the present case. For the reasons recorded above, I am of the view that the decision in the earlier suit, copy of which is Exhibit P-13, will not operate as res judicata in the present case.

While relying upon the observations recorded above, Learned Counsel for the Respondent-landlord submitted that the question of bona fide personal necessity had ceased to be the subject matter before the Rent controller when a statement was made by Piara Singh giving up his claim u/s 13 of the Rent Act and having to continue the petition u/s 13-A of the Rent Act. Consequently, any observations made on the pleas raised u/s 13-A of the Rent Act cannot be a binding on the Respondent - landlord as the aforesaid plea ceased to be an issue after Piara Singh had made a statement to opt to continue the petition only u/s 13-A of the Rent Act.

In view of the decisions rendered by the Apex Court in V.C. Charati''s case (supra) and Pawant Kumar Gupta''s case (supra), it is not possible to ignore any part of the order passed by the Rent Controller on 10.5.1988. That being so, the aforesaid order dated 10.5.1998 must be deemed to have also adjudicated the controversy in respect of the claim raised by the landlord on the ground of bona-fide personal necessity u/s 13 of the Rent Act. Since the landlord did not challenge the aforesaid order, the same must be deemed to have assumed finality between the parties. It is, therefore, no longer open to the Respondent-landlord to re-agitate the same issue in view of the rule of res judicata incorporated in Section 11 of the Code of Civil Procedure, specially in the back ground of the decision rendered by this Court in Mehtab Singh''s case (supra), wherein it has been held that the rule of res judicata applies to the proceedings under the Rent Act. The decisions relied upon by the Learned Counsel for the Respondent-landlord lead to the conclusion contrary to the decision rendered by the Apex Court in V.C. Charati''s case (supra) and in Pawan Kumar Gupta''s (supra). Since the decisions relied upon by the Learned Counsel for the Respondent-landlord are decisions rendered by the various High Courts, the same cannot be considered to have laid down good law in view of the decisions referred to above rendered by the Supreme Court.

So far as the questions of personal bona-fide necessity is concerned, I am of the considered view that the Rent Controller has determined the aforesaid issue correctly. After the death of Piara Singh, the requirements of the landlord diminished. The Rent Controller, in the earlier order dated 10.5.1988 had examined the plea of bona-fide persona! necessity when Piara Singh was alive. Since as already noticed above, the decision rendered by the Rent Controller dated 10.5.1988, is binding between the parties, the requirement of the landlord in the earlier ejectment application filed on 20.10.1986 (decided on 10.5.1988), there is no escape from the conclusion that the plea of bona-fide personal necessity raised in the ejectment application (out of which the instant petition has arisen) is bound to be rejected.

For the reasons recorded above, the instant petition is allowed and the order of the Appellate Authority, is dated 19.10.2000 is set aside.

It would not be fair to the Learned Counsel for the Respondent-landlord if reference is not made to the decisions rendered by this Court in Joginder Singh v. Nahar Singh (1989)96 P.L.R. 40. and S.K. Sharma v. Pran Nath 1992(2) Rent L.R. 521, which were relied upon by the Learned Counsel for the Respondent-landlord to assert that the ingredients of the plea u/s 13-A of the Rent Act of a specified landlord are separate and distinct from the ingredients of the ground of bona-fide personal necessity envisaged u/s 13 of the Rent Act. Learned Counsel also relied upon the decision of this Court in Dr. Dina Nath v. Smt. Santosh Kaur, (1987)91 PLR 171 and Joginder Singh v. Nahar Singh, 1992 (2) RCR 520, to assert that a determination u/s 13-A of the Rent Act will not operate as res judicata for a plea u/s 13 of the Rent Act. It is not necessary, insofar as the present controversy is concerned, to examine the aforesaid niceties in view of the conclusions recorded above that the order of the Rent Controller dated 10.5.1988 passed in the earlier ejectment application duly examined the claim of the Respondent-landlord on the ground of bona-fide personal necessity u/s 13 of the Rent Act, and that, the same is binding between the parties.