The foundational facts and cause of action must remain unchanged for res judicata to apply, and the earlier adjudication must have been on merits.

ORDER

1. This hearing has been done through hybrid mode.

2. The present second appeal arises out of the impugned judgment and decree dated 31st August, 2018 passed by ld. ADJ, Dwarka Court, New Delhi (hereinafter "Appellate Court"). By the said judgement, the Appellate Court had upheld the decree of possession granted by the trial court, on 30th May, 2017 except in respect of damages, where there was some modification.

3. The brief background is that Shri G. L. Oberoi - Appellant/tenant (hereinafter "tenant") had taken Shop No. 28, Ground Floor, Vishal Tower, District Centre, Janakpuri, New Delhi-110058 (hereinafter "suit shop") on rent, vide lease deed dated 25th February, 2003. A suit was filed by the landlord - Respondent herein (hereinafter "landlord") seeking possession after termination of the said tenancy. Vide judgment dated 6th June, 2012, the trial court had dismissed the first suit of the landlord on the ground that the rent was Rs.3500/- and, therefore, the correct remedy was to approach the Rent Control Tribunal. The operative portion of the said judgment reads as under:

"19. It is also crystal clear that the law for eviction of tenants in respect of premises whose monthly rent is Rs.3500/- or less is contained in Delhi Rent Control Act and therefore, the proper remedy for the plaintiff lies in Delhi Rent Control Act and the correct forum is the Rent Control Tribunal."

4. Subsequent to the said judgment, the landlord relied upon Section 6A of the Delhi Rent Control Act, 1958 (hereinafter "DRC Act") which provides enhancement of 10%, every 3 years. Thereafter, he served notice dated 28th July, 2012 on the strength of Section 6A of the DRC Act and terminated the tenancy. A fresh suit was filed by the landlord now on the enhanced rent of Rs.3850/- per month. The issues framed by the trial court in the said suit were as under:

"1. Whether the plaintiff is entitled to the decree of possession as prayed for? OPP

2. Whether the plaintiff is entitled to recovery of arrears as mentioned in Order dated 09.11.2011 passed by the Ld. Addl. District Judge-06, West, Delhi? OPP

3. Whether the plaintiff is entitled to decree of damages @ Rs.25,480/- p.m. as prayed for? OPP

4. Whether the plaintiff is entitled to the decree of permanent injunction? OPP

5. Whether the suit of the plaintiff is hit by Section 11 CPC? OPD

6. Whether the suit of the plaintiff is hit by Section 50 and Section 3 of DRC Act? OPD

7. Whether the suit of the plaintiff is hit by Section 54 of Transfer of Property Act? OPD

8. Whether the plaintiff has not affixed the proper court fees? OPD

9. Whether the suit of the plaintiff is not maintainable in the present form? OPD

10. Relief."

5. One of the issues was relating to whether the second suit was barred by res judicata under Section 11 CPC. The trial court held that the second suit was based on a completely new cause of action and, accordingly, decreed the suit of the landlord in the following terms.

"18. The above facts clearly demonstrates that this suit has been filed by plaintiff on the basis of second legal notice Ex. PW1/15 regarding termination of tenancy and after increasing the rent to Rs.3,850/- per month though notice Ex PW 1/8, As such a fresh cause of action arose in favour of plaintiff after increase in rent and issuance of the second legal notice Ex. PW1/15. Under such circumstances, it cannot be held that the suit is barred by the doctrine of Res Judicata when the second suit has been filed on a subsequent cause of action.

This issue is decided in favour of plaintiff and against the defendant.

XXX

46. Relief.

With these observations and findings, the suit of the plaintiff stands decreed. Defendant is directed to hand over the peaceful and vacant possession of suit shop i.e. shop No. G-28, Ground Floor, Rishal Tower, District Centre, Janak Puri, DeIhi-110058, as shown in red colour in the site plan Ex. PW 1/1, to plaintiff within one month from the date of drawing of decree sheet. Plaintiff is further entit