A decision on merits in an earlier eviction petition, even if it was dismissed under Order 17 Rule 3 of the Code of Civil Procedure, would operate as res judicata and bar a subsequent eviction petition on the same ground.

V.S.Aggarwal, J.

1. The present revision petition has been filed by Bhagwan Dass and Raj Kumar (both dead and represented through their legal representatives), hereinafter described as "the petitioner", directed against the judgment of the learned Appellate Authority, Faridkot, dated 25.7.1984. By virtue of the same, the learned Appellate Authority had set aside the order passed by the learned Rent Controller, Mukatsar, dated 9.8.1982 and instead petition for eviction filed by the respondent was allowed.

2. The relevant facts are that Ramesh Kumar had filed a petition for eviction against the petitioner asserting that Bhagwan Dass petitioner was a tenant in the property in question. The surviving ground of eviction relevant for the disposal of the present revision petition is that he has asserted that Bhagwan Dass petitioner No. 1. had sublet the premises to Raj Kumar s/o Bhagwan Dass, petitioner No. 2, and that Bhagwan Dass himself had settled at Smalsar where he was running a shop and had delivered possession of the demised premises to Raj Kumar. It was further asserted that Bhagwan Dass petitioner was not in occupation of the demised premises for a continuous period of four months before the filing of the petition.

3. In the written statement filed, petitioners had contested the eviction application. Plea was raised that earlier also an eviction petition had been filed on the same ground which was dismissed by the learned Rent Controller on 16.9.1977. The second petition on the same ground is not maintainable. It was denied that petitioner No. 1 had vacated the shop or was carrying on business at Smalsar. It was asserted that petitioner No. 2 is the son of petitioner No. 1. Petitioner No. 1 had been visiting his other son at Smalsar and had not sublet the property to petitioner No. 2.

4. The learned Rent Controller held that petitioner No. 1 was not in occupation of the property for a continuous period of four months before the filing of the petition and that petitioner No. 2 in fact, was in control of the demised premises and concluded that the property had been sublet to him. However, the learned Rent Controller went on to hold the earlier a petition for eviction was filed on the same ground which was dismissed. It was a decision on merits and would operate as a res judicata. On this ground, eviction application was dismissed.

5. The learned Appellate Authority upset the finding of the learned Rent Controller that the earlier decision would operate as res judicata. It was held that there was no final decision if the property has been sublet or not. With regard to the other findings, the learned Appellate Authority agreed with the learned Rent Controller and in this process the order so passed was set aside. Hence, the present revision petition.

6. The present petition was listed for arguments but non appeared on behalf of the respondent. In these circumstances, the Court did not have the advantage of hearing respondents learned counsel.

7. Learned counsel for the petitioners urged that earlier also inter se parties an eviction petition was filed by the respondent-landlord. The ground of eviction was the same that the property has been sublet by Bhagwan Dass to his son Raj Kumar. The said petition for eviction was contested and was dismissed under Order 17 Rule 3 of the Code of Civil Procedure (for short "the Code"). According to the learned counsel, the said decision operates as res judicata and the ground of subletting is not available to the respondent-landlord.

8. As mentioned above, learned Appellate Authority expressed the opinion that this is decision was not on merits and that the provisions of the Code of Civil Procedure will not strictly apply to these proceedings.

9. To appreciate the said contention, it must be at the outset restated that the earlier petition for eviction was dismissed under Order 17 Rule 3 of the Code. It was respondent-landlord who had failed to produce any evidence which was closed.