The main legal point established in the judgment is the application of the principles of res judicata and the implications of interlocutory orders on subsequent stages of the proceedings.

JAYANT NATH, J.

CM No.27462/2015 (Delay)

For the reasons stated in the petition the delay of 8 days in filing the petition is condoned.

Application is allowed.

CM(M) 1137/2015 & CM No.25211/2016

1. By the present petition filed under Article 227 of the Constitution of India the petitioner seeks to impugn the order dated 13.7.2015 by which an application filed by the petitioner under Order 12 Rule 6 CPC for passing of a decree against the respondent was dismissed.

2. The petitioners have filed a suit against the respondents No.1 and 2 for possession, recovery of rent, mesne profit and damages. The suit pertains to a property measuring 2500 sq.yards situated in Khasra No.14/19, Village Mubarakpur Dabas, Delhi. It is contended in the plaint that respondent No.1 was inducted as a tenant at a monthly rent of Rs.25,000/- by virtue of a registered lease deed dated 1.1.2010. It is admitted that as per the registered lease-deed the lease is for 30 years beginning from 1.1.2010. However, it was alleged that the respondents have caused certain manipulations in clause 4 of the lease deed and played a fraud on the petitioner and hence the petitioner served a legal notice and terminated the lease agreement and filed the present suit.

3. The trial court by the impugned order noted that in the written statement the respondents admit the factum of execution of the lease and the rent. It also noted clause 5 of the agreement whereby an option is given to the petitioner to have the property vacated due to “unavoidable circumstances” before expiry of the lease period. Noting that the petitioner relies upon the alleged alterations in clause 4, it concluded that these are no grounds which can be covered by the term “unavoidable circumstances”, which ground permits premature cancellation of the lease deed. Hence, the application was dismissed.

4. I have heard learned counsel for the parties. The stress of the argument of both the parties is on an order dated 12.2.2016 which was passed by this court in this petition whereby it was directed that the respondent shall clear all arrears of rent of Rs.25,000/- per month within a period of four weeks, failing which the petitioners are at liberty to get the order executed.

5. Learned senior counsel for the respondents points out that the respondent have filed CM No. 25211/2016 in this regard seeking for recall of the order dated 12.2.2016. Learned senior counsel has stressed that the petitioners had also filed an application under Order 39 Rule 10 CPC before the trial court. The said application was disposed of by the trial court holding that the school building which has been constructed by the respondent would be a security against the rent payable by the respondent and further directed the respondent to place on record an FDR of Rs.2 lacs. This order was passed on 28.1.2016. It has been stressed that against this order under Order 39 Rule 10 CPC, no appeal or revision has been filed and it has attained finality. It is urged that the respondent without bringing this order to the notice of this court, on 12.2.2016 persuaded this court to direct payment of entire arrears of rent @ Rs.25,000/- per month. It is urged that the order of this court dated 12.2.2016 has been passed in ignorance of the order of the trial court under Order 39 Rule 10 CPC and hence is liable to be vacated. He further submits that on that date a proxy counsel had appeared who could not apprise this court about the order passed under Order 39 Rule 10 CPC by the trial court on 28.1.2016. He relies upon judgment of the Supreme Court in Bhanu Kumar Jain vs. Archana Kumar and another, AIR 2005 SC 626 to contend that res judicata can also apply at different stages of the proceedings.

6. Learned counsel for the petitioner has submitted that the petitioners are suffering due to the gimmicks of the respondents and no rent is being paid despite admission that as per the lease-deed they are liable to pay Rs.25,000/- per month.

7. I may first deal