The plea of res judicata is not sustainable against a party who was successful in the previous suit or proceeding and can be waived by a party if it does not raise the plea when an opportunity is given to it.

ORDER :- This revision petition has been preferred by the tenant under Section 15 (5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred as the Rent Act of 1949), and has been directed against the decision of the appellate authority whereby he has allowed the landlords' petition for ejectment and has confirmed the order to the same effect passed by the Controller. M/s. Thakur Dass Mast Ram are the landlords and their case was that they became tenants from one Shri Prem Chand Kuthiala in Shop No. 34. Lower Bazar, Simla together with its "thari". The landlords got permission in writing from Shri Prem Chand Kuthiala to sub-1et a portion of the shop including the 'thari'. Accordingly, the landlords pleaded that they had sub-1et the 'thari' to the petitioner-tenant Charan Dass on 16-11-1964 and a rent-note (Ex. A-1) was executed. According to landlords, the tenant Charan Dass did not pay the rent for the period between 1st March, 1967 and 30-09-1969 and a sum of Rs. 1105/64 p. had fallen due. Because there was default in payment of rent, so the petition for ejectment of Charan Dass was filed before the Controller. The petitioner-tenant contested the case on the plea that there existed no relationship of landlord and tenant between the parties and as such the landlords had no locus standi to file the petition for ejectment. The Controller, however, did not get the plea clarified, by ascertaining from the tenant as to what was the basis for denying the relationship of landlord and tenant between the parties. However, during the course of trial, as it appears from the judgment of the Controller, it was specifically pleaded by the petitioner-tenant, that the landlords had not taken permission in writing for sub-letting the premises and as such the very contract of sub-letting was illegal and the petitioner could not be considered tenant for ejectment, as a result of proceedings under the Rent Act of 1949. The other specific plea taken by the petitioner was, that the landlords Were threatened for eviction by Shri Prem Chand Kuthiala, and the petitioner opened direct negotiation with him and became tenant of the 'thari'. In this manner, the petitioner pleaded for a direct tenancy with Shri Prem Chand Kuthiala. The learned Controller decided both these pleas against the petitioner and accordingly the petition was allowed and eviction was ordered.

Thereafter the petitioner-tenant came in appeal and the appellate authority dismissed the appeal, on the short ground, that the two pleas now taken up by the petitioner-tenant were not taken up by him as grounds of defence in a prior proceeding of ejectment which had started upon a petition filed by these very landlords for ejectment of the petitioner-tenant on the plea that the latter had sublet the 'thari' and as such by the application of Explanation 4 of Section 11 of the Civil P. C. the principle of constructive res judicata applied, and the petitioner-tenant are debarred from taking up these pleas in the present proceedings. On this short ground has the learned appellate authority dismissed the appeal and confirmed the finding of the Controller for ejectment of the petitioner-tenant.

2. The petitioner-tenant has preferred this revision petition, and the learned counsel representing him has contended with much learning and insistence, that the appellate authority has really misconstrued the legal position and the plea of constructive res judicata neither applied to the facts of the case, nor did it survive having been waived by the landlords themselves. It is to be understood, that the learned appellate authority did not enter into the merits regarding the two specific pleas raised by the petitioner-tenant, as he considered himself fortified by the plea of res judicata which directly negatived, according to him, the very inception of these two pleas. The intention of the learned appellate authority is clear from his judgment which I may quote in his own wo