Wasiruddin vs Ram Kuwar Bai - 1986 Supreme(MP) 580

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Advocate Appeared:
For the Applicant : Naval Bahadur
For the Respondent: M.L. Dhuper

Headnote:(1) Civil Procedure Code, 1908 – S.115 – Accommodation Control Act, 1961 (M.P.) – S.23E – revisional powers under the Act – are wider than those provided under the Code.
       (2) Civil Procedure Code, 1908 – S.11 – res judicata – principle not limited to suits only – it applies to rent litigation as well.
       (3) Res judicata – can be determined on seeing plaint, written statement, issues and judgment in previous suit.
       (4) Accommodation Control Act, 1961 (M.P.) – S. 23 – A and 12 – eviction litigation under – res judicata does not apply if circumstances have changed.
        Short Note
       Circumstances giving rise to this petition are these. The petitioner, earlier to his retirement on 1 – 7 – 82, had filed an eviction suit (C.S. No. 123 – A/79) in the Court of 6th Civil Judge Class II Indore against the non – applicant in respect of the accommodation in question on the ground of bona fide requirement under section 12(1)(e) of the Act. The same was decreed by the learned trial Court. However, in Civil Appeal No. 235/81 decided on 2 – 8 – 82, the judgment and the decree of the trial Court were set aside After the lapse of more than 15 months the petitioner filed the aforesaid application under section 23 – A (a) and (b) of the Act on 18 – 11 – 83 praying for non – applicant's eviction on the ground that the said accommodation is required bona fide for the residence of himself and his family and also for busineS.
       2. The non – applicant contested the application denying the grounds on which the petitioner sought to evict him. It was also contended that the application is barred by res judicata.
       3. In view of the previous litigation the Authority held that the application under section 23 – A of the Act is barred by the principle of res judicata.
       4. Held: The point for consideration is whether the revision petition deserves to be allowed in exercise of the revisional powers under section 23E of the Act. As held in Mahendra Kuwar's case (1985 MPRCJ Note 115) the powers under the provision are wider than those under section 115 of the CPC.
       5. The doctrine of res judicata is based on public policy that there should be an and to litigation and no person is vexed twice over the same matter. Section 11 of the Code of Civil Procedure embodies this doctrine in respect of suits. It is not, however, exhaustive of the principles of res judicata. The general principles of res judicata are equally applicable to proceedings under the Rent Act.
       6. In applying the principles of res judicata matters relating to title to property and matters relating to grounds of eviction under the Rent Laws cannot be placed on the same pedestal. It may be stated that a landlord may not have an existing ground for eviction on a particular date but the ground may be come assailable to him at a subsequent date due to change of circumstances. Therefore, it cannot be urged that once a landlord loses his eviction suit on the ground of bona fide requirement, he is, on principles of res judicata, debarred from suing the tenant a second time on the ground of bona fide requirement despite change of circumstances became the cause of action is not the same but is a different one. When the plea of bona fide requirement is founded on events subsequent to the previous litigation, it cannot be said that the matter was in issue in the previous litigation.
       7. A plea of res judicate can properly be determined with reference to the plaint, the written statement, the issues and the judgment. In the instant case, the plaint in the previous suit has not at all been filed.
       8. The certified true copy of the judgment of the appellate Court in the earlier litigation is on the record of the case before the Authority. In paragraph 6 of the judgment it has been stated that according to the petitioner's own evidence there were only three members in his family. In the application under Section 23 – A of the Act, it has been stated that the petitioner has eight members in his family. Therefore, it was certainly not open to the learned Authority to dispose of the issue as barred by res judicata in the manner it has been done.
       9. Further, the petitioner's application under Section 23 – A of the Act is founded on the grounds of bona fide requirement for residence as well as busineS. It does not appear that the previous litigation was on the ground of bona fide requirement for business as well. Therefore, on the facts and in the circumstances of the case, the impugned order is clearly not sustainable and has, therefore, to be set aside. 1985 MPRCJ Note 115 relied on. Revision allowed.