Sh. Raj Kumar vs Smt. Darshan Kaur

J.V. Gupta, J.—This is tenant''s revision petition against whom eviction order has been passed by both the authorities below.

The landlady Darshan Kaur sought the ejectment of her tenant Raj Kumar from the demised residental premises alleging that it was on a monthly rent of Rs. 20/- besides water-tax with the tenant. He was habitual offender in the payment of the rent and water-tax. The rent for the period from July 1, 1977 to August 31, 1981 amounting to Rs. 1,120/- besides water-tax was due from him. The ejectment application was filed on August 27, 1981. She had also filed an ejectment application earlier for non-payment of rent for the period from January 1, 1977 to February 28, 1979 which was dismissed for default on January 18, 1982.

The tenant contested application. He denied the relationship of landlord and tenant between the parties and also questioned the jurisdiction of the Rent Controller. His case was that in the floods of 1950, his old house somewhere else was effected and as such, he built a kutcha kotha at the present site in which he has been residing and which kotha is outside the limits of Bungalow No. 105. The learned Rent Controller overruled the objection that there was no relationship of landlord and tenant and held that this relationship was established. Since the arrears of rent were neither tendered, nor paid on the first date of hearing, the eviction order was passed on April 9, 1983. In appeal, the learned Appellate Authority affirmed the said findings of the Rent Controller and, thus, maintainted the eviction order. Before the Appellate Authority, an argument was raised for the first time, that the instant ejectment application was barred on the principles of res judicata as the earlier application on those very grounds was dismissed for default on January 18, 1982. That plea was rejected by the Appellate Authority with the observations that the bar of res-judi-cata was not attrached from the dismissal of the previous application for default.

The learned Counsel for the tenant-Petitioner submitted that even if the application was not barred by the principles of res judicata, it was barred under Order IX Rule 9 of the Code of Civil Procedure. In support of the contention, the learned Counsel relied upon Mehtab Singh v. Tilak Raj Arora (1988-1) 93 P.L.R. 269. According to the learned Counsel, since the earlier ejectment application for non-payment of rent was dimissed for default, the second application on the same cause of action was not maintainable.

After hearing the learned Counsel for the parties, I do not find any merit in this revision pedtition. Neither the plea regarding the bar of the principles of res judicata nor the provisions of Order IX Rule 9 of the said Code are applicable to the facts of the presant case. Earlier, the ejectment application was filed for non-payment of arrears of rent with effect from January 1, 1977 to February 28, 1979, whereas in the present ejectment application, the arrears of rent were claimed from January 1, 1977 to August 31, 1982. Consequently, the cause of action in both the ejectment applications was different. Mehtab Singh''s case (Supra), relied upon by the Petitioner has no applicability to the facts of the present case. Not only that, in the present case, the tenant even denies the relationship of landlord and tenant between the parties which has been found against him by both the authorities below, which finding has not been challenged in this Court. Admittedly, no arrears of rent were paid or tendered by the tenant, on the first date of hearing. That being so, there is no illegality or impropriety in the eviction order passed by the two authorities below.

Consequently, this revision petition fails and is dismissed with costs. However, the tenant is allowed three months'' time to vacate the premises, provided all the arrears of rent, and the advance rent at the rate of Rs. 20/- P.M. for three months are deposited with the Rent Controller within one month with a further undertaking, in writing, that after the expiry of the said period of three months, vacant possession will be handed over to the landlady.