Srinivasan by K. Kempu Chettiar vs S.S. Arumugam

Balasubrahmanyan, J.—This revision under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, raises a point about res judicata in the following circumstances.

The Petitioner is the owner of a non-residential building in Arini under the tenancy of the Respondent. In the year 1973, the Petitioner moved the Rent Controller for eviction of the tenant inter alia, on the ground that he required the building for housing a business of his own. The Rent Controller dismissed that petition on the preliminary point that prior to filing the petition no notice to quit u/s 106 of the Transfer of Property Act had been issued to the tenant. In this view, the Rent Controller did not have to go into the merits of any of the grounds of eviction raised in the petition.

Two or three years later the Petitioner came out with another eviction petition before the Rent Controller against the same tenant on the self-same grounds. This time the Rent Controller went into the merits and granted an order for eviction, holding that the Petitioner required the building bona fide for his own business.

The tenant appealed, contending that the present proceedings were barred by res judicata u/s 19 of the Act. The appellate authority upheld the contention and dismissed the eviction petition on that ground, reversing the decision of the Rent Controller.

In this revision, the Petitioner contends that Section 19 does not apply and the appellate authority acted wrongly in dismissing the present eviction petition on the ground of res judicata.

I uphold this contention as well-founded. Section 19 of the Act incorporates the principle of res judicata more or less on the same lines as in the CPC Code. The section enacts that the Rent Controller shall summarily reject an eviction petition if that petition raises between the some parties substantially the same issues as have been finally decided in a former proceeding under the Act. The important requisites must be present for applying this section. One is that there must be identity of issues in the two proceedings. The other is that the former proceedings must have been decided on the very issues which figure in the later proceedings.

The question is whether these two requisites are fulfilled in the present case. The answer, to my mind, must be clearly in the negative. For, while the issue as to bona fide requirement for personal occupation was an issue both in the former proceedings and in the present proceedings, that issue was not decided at all in the former proceeding. And while the disposal of the former proceeding was solely on the issue of notice to quit, no such issue at all figured between the parties in the present proceedings. Either way, therefore, Section 19 does not apply to the present case. The appellate authority was in error in summarily rejecting the present eviction petition as barred by res judicata under that provision.

It may be that the former decision of the Rent Controller on the issue as to quit notice can be assailed as erroneous in point of law, if such an argument were now open. Incidentally, the Supreme Court have recently laid down that the question of quit notice u/s 106 of the Transfer of Property Act is quite alien to the scheme of the Rent Control legislation and is altogether irrelevant in, eviction proceedings before the Rent Controller But, can we go into that question at all now? We cannot, For seeing whether the present proceedings is or is not barred by res judicata, We do not have to, and we cannot, examine the correctness or incorrectness of the decision in the former proceedings. We only have to see whether the same substantial issue raised between the parties had had a disposal on merits in former proceeding. The inquiry, in this sense, might well be regarded as one on a question of fact touching the factum of disposal of the issue in the former proceeding, rather than on a question of law as to whether that decision was correct or not. Res judicata proceedings on the principle that in the interests of the parties themselves it would be expedient to stifle rather than countenance, further discussion of the controversies which had been thrashed out in an earlier encounter.

To come back to the main point of discussion, for reasons I have earlier mentioned, I conclude that the appellate authority in this case was not right in holding that the present proceeding for eviction is barred by res judicata u/s 19 of the Act. It follows that the summary disposal of the appeal before him on this ground was wrong. I accordingly set aside that order, and direct the appellate authority to hear and determine the appeal afresh on the merits. The revision is allowed accordingly, but there will be no order as to costs.