Smt. Ram Kumari and Others vs Additional District Judge and Others

K.N. Goyal, J.—This is tenants'' writ petition arising out of proceedings u/s 21 of U.P. Act XIII of 1972. The landlord was opposite party No. 2 who filed a consolidated application u/s 21 against two sets of tenants. One being the Petitioners and the other being opposite parties 3 and 4, in respect of different premises. The application u/s 21 was dismissed by the Prescribed Authority as barred by res judicata on the ground that a similar application had been dismissed earlier, and that dismissal had been upheld on appeal on 20-9-1975, vide judgment, annexure 1. The appellate court, however, took the view that in accordance with the relevant rules a fresh application u/s 21 can always be filed after the expiry of six months from the dismissal of the earlier application. As such the questions of the need and comparative hardship can be agitated afresh. Aggrieved by this decision of the appellate court, the Petitioners have come to this Court under Article 226 of the constitution.

I have heard learned Counsel for the parties.

Learned Counsel for the Petitioners, Sri S.K. Srivastava, fairly concedes that the questions of need and comparative hardship can be reagitated in an application given more than six months after the dismissal of the earlier application. His contention, however, is that in the earlier proceedings an alleged private partition of 1973 between three owners of the building had been found to be sham, and that the said finding should operate as res judicata. Although Section 11, Code of Civil Procedure, does not apply, in terms, to proceedings under U.P. Act XIII of 1972, the principle of res judicata as a general principle of finality of judgments should govern these proceedings as well. This is also supported by the decision of Sita Ram Gandhi v. IV Additional District Judge 1983 ARC 782, delivered by Hon''ble K.C. Agarwal, J. with whom I respectfully agree.

The Appellant court has, however, not said anything on this question.

In the result, the remand order cannot be assailed, but it is clarified that the Prescribed Authority, while considering the question of bona fide need and comparative hardship afresh, will bear in the mind the principle of res judicata in respect of matters finally decided earlier. Subject to this clarification, the writ petition is dismissed, but no order is made as to costs.