Resjudicata--In order to constitute the principle of res judicata, the decision in the former suit must have been on the merits.

Rakesh Kumar Jain, J.

1. By this common order, I shall be disposing of two revision petitions, namely CR No.2105 of 2009 titled as Mulkh Raj and others v. Nisha Jain and others , and CR No.2106 of 2009 titled as Mulkh Raj v. Nisha Jain and another, as the same facts and question of law are involved in these revision petitions.

2. These revisions petitions are directed against the orders dated 20.02.2009 passed by the learned Rent Controller, Chandigarh by which applications filed by the tenants for dismissal of the eviction petition on the ground that it is not maintainable, has been dismissed.

3. For convenience, the facts are being extracted from CR No.2105 of 2009. The landlord filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short "the Act"] in respect of booth No.49, Sector 21-C, Chandigarh, which was allegedly rented out at a monthly rent of Rs.600/- vide rent note dated 02.12.1982, on the grounds that the tenant has not paid the rent since 01.06.1990, has sublet the demised premises, changed the user and caused material additions and alterations without permission. In reply, it was admitted that the demised premises was let out to petitioner No.1 on 02.12.1982 at the monthly rent of Rs.600/-, but subsequently it was given on rent to petitioner Nos.2 and 3 at the monthly rent of Rs.800/- vide rent note dated 04.05.1988 and as such, they are the direct tenants. It was also alleged that the landlord had earlier filed an eviction petition exactly on the same grounds which was dismissed on 27.11.1998 by the learned Rent Controller and the appeal was dismissed by the learned Appellate Authority on 14.11.2002. Therefore, the present petition is not maintainable. From the pleadings of the parties, following issues were framed on 04.04.2007:-

"1. Whether the respondent No.l is liable to be evicted from the demised premises due to non-payment of arrears of rent w.e.f. 01.06.1990 onwards? OPP

2. Whether respondent No.l has sublet the demised premises to respondents No.2 and 3 and thus is liable to be evicted on the ground of subletting? OPP

3. Whether there is no relationship of landlord and tenant between the parties? OPR

4. Whether the petition is not maintainable? OPR

5. Relief."

4. Learned counsel for the petitioners, while assailing the impugned order, has submitted that in the present eviction petition, the landlord has made the averments to the effect that "Sh. Yash Raj Jain filed a rent petition on 21.11.1995 before the Rent Controller, Chandigarh on the ground of nonpayment and subletting. The rent petition was decided on 27.11.1998 without recording of any evidence by the Ld. Rent Controller, against which Sh. Yash Raj Jain filed an appeal against the judgment which is pending before Sh. R.C. Godara, Ld. Addl. Distt. Judge Chandigarh and is fixed for 20.02.2002 and that the petitioners have not filed any such or similar petition." "Sh. Yash Raj Jain filed an eviction petition against the respondents. The same was decided on 27.11.1998 against which appeal is pending before Sh. R.C. Godara, Ld. Additional District Judge, Chandigarh and the present petition is being filed without prejudice to the earlier litigation.

"It is further submitted that the present eviction petition was filed on 30.01.2002. At that time, appeal against the order of the learned Rent Controller dated 27.11.1998 against the eviction petition was pending before the learned Appellate Authority which was decided on 14.11.2002 by which order of the learned Rent Controller was affirmed on merits because in the earlier eviction petition, on the pleadings of the parties, following issues were framed: - "1, Whether the respondents are liable to be evicted from the demised premises on the grounds of sub-letting, non-payment of rent, change of user and material additions and alterations? OPP

2. Whether the petition is not maintainable? OPR

3. Whether the petition is bad for mis-joinder of parties? OPR