JAGAT NARAYAN, C.J.—This is a revision application by the defendant against an appellate order of Additional Civil Judge No. 4, Jaipur City, striking out his defence under sec. 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.

2. The suit for ejectment was filed on 21-5-68 inter alia on the ground of default. 31st July 1968, was the first date of of hearing. On that date the defendant sought an adjournment for filing the written statement. The case was adjourned to 6 8 68. On that date he filed his written statement. He also filed an application under sec. 13(4) and (5). On 14-3-69 an order determining the rent and interest payable by the defendant was passed by the court and two months time was allowed to make the deposit On 15-12-69 the plaintiff filed an application for striking out the defence of the defendant under sec. 13(6) on the ground that the deposit of the amount determined under sec. 13(5) was not made within two months. This application was rejected on 7-2-70. There were two suits pending between the parties. Both were for recovery of arrears of rent and for ejectment, but relating to two different shops. The number of the present suit was 208/1969. The monthly rent was Rs.l6/-.The other suit was No. 298/69 The rent of the premises in that suit was Rs. 32/- per month. By mistake in the tender the defendant had entered suit No. as the suit in which the deposit was being made.

3. The trial court held that there was no default because of this mistake on the part of the defendant. The plaintiff preferred an appeal which was dismissed on 30*7-70 and that order became final

4. It may be mentioned here that the only ground taken by the plaintiff in his application dated 15-12-69 asking the court to strike out the defence of the defendant was that he had not made the deposit of the amount determined under sec. 13(5) within the time allowed by the court for making it. On 16-2-70 the plaintiff filed another application for striking out the defence of the defendant on the ground that he had neither deposited the amount of rent and interest nor made an application as contemplated under sec. 13(4) on the first date of hearing namely 31-7-68. This application was dismissed by the trial court on 19 10-70. The plaintiff preferred an appeal which the appellate court allowed and struck out the defence of the defendant on the ground that he had neither made the deposit nor filed an application as contemplated under sec. 13(4).

5. The contention on behalf of the defendant applicant in this revision application is that the second application of the plaintiff for striking out the defence of the defendant was barred by the principle of constructive res judicata. Having heard the learned counsel for the parties I am of the opinion that this contention roust be upheld.

6. In Satyadhyan vs. Smt. Deorajin Debi(1) it was held that the principle of res judicata applies also as between two stages in the same litigation to this extent that a court whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.

7. The plaintiff filed an application on 15-12-69 in which it was alleged that a default was committed by the defendant in making the deposit in accordance with clauses(4), (5) and (6) of sec. 13 inasmuch as the amount determined by the court was not deposited within two months as allowed by it. This application was dismissed on 7-2-70. That order operated as res judicata and the plaintiff was precluded from reagitating the matter that a default was committed by the defendant which attracted sec. 13 (6). In this application the plaintiff could also have taken the gro-und which he took in the subsequent application dated 16-2-70 and by the principle of constructive res judicata the trial court will be deemed to have decided by its order dated 7-2 70 that no noncompliance of clauses (4)

Click Here to Read the rest of this document