Punjab-Haryana High Court
Sharwan Kumar Nagpal vs Mohan Lal Bhatnagar on 24 July, 2008
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL REVISION NO.2513 OF 2006 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JULY 24 ,2008
Sharwan Kumar Nagpal
.....Petitioner
VERSUS
Mohan Lal Bhatnagar
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Sanjay Majithia, Sr.Advocate with
Ms. Anita Singh, Advocate,
for the petitioner.
Mr. C. B. Goel, Advocate,
for the respondent.
****
RANJIT SINGH, J.
On a petition filed by the respondent-landlord, the Rent Controller directed eviction of the petitioner from the demised premises. The Court found the need of the landlord to be bonafide as projected. The tenant remained unsuccessful in his appeal and has now filed the present revision petition to impugn the order of his eviction from the demised shop.
While issuing notice of motion, this Court had stayed the eviction of the petitioner from the demised shop. The record was CIVIL REVISION NO.2513 OF 2006 :{ 2 }:
requisitioned and is referred to during the course of arguments.
The facts, in brief, are that the petitioner was a tenant in the shop at a monthly rent of Rs.550/- alongwith house tax. The respondent filed eviction petition for his ejectment on the ground that premises in question was needed by the landlord for his son to start business of computer. Necessary averments that the petitioner has not sold any property nor has vacated any property etc. were also made. It is also disclosed that the tenant had constructed a shop in Sadar Bazar, Karnal and hence, an added reason for him to vacate the shop in dispute.
The tenant-petitioner contested the plea raised by the respondent-landlord. He also challenged the locus of the landlord to file and maintain the petition. On merits, the tenant pleaded that the landlord has another 7 to 8 more shops near the demised premises, which are in his occupation. The bonafide need of the landlord for the requirement of a shop was also contested. The landlord is stated to be a co-owner in a Imperial Hotel at Karnal situated on G.T. Road and accordingly it is pleaded that he can get the same vacated to open an office for his son.
The parties went to trial, leading to order of eviction, which is now impugned in the present revision petition.
Mr.Sanjay Majithia, learned senior Counsel, appearing for the petitioner, has mainly relied upon a plea of resjudi-cata. He would point out that during the pendency of the present petition, the landlord had filed another Rent petition No.7/2 of 2003 on 5.8.2003.
CIVIL REVISION NO.2513 OF 2006 :{ 3 }:
In the said Rent Petition, the landlord has pleaded the same ground of personal necessity and sought eviction of the petitioner on the grounds of bonafide need of his son and arrears of rent. The said rent petition filed by the landlord was dismissed on 11.8.2005. It is submitted that this petition, though filed subsequently, was decided by the Rent Controller on 11.8.2005 whereas the present rent petition was decided on 8.12.2005. It is on this premise, counsel submits that the decision rendered in Rent Petition No.7/2 of 2003 would operate as a resjudi-cata and, thus, the present rent petition would not be maintainable.
It is seen that the Rent Petition No.7/2 of 2003 was dismissed under Order 17 Rule 3 CPC as the respondent herein had failed to lead any evidence. Mr.Majithia has referred to some judgments to contend that even then this decision will be considered to be a decision on merits and shall operate as resjudi-cata. He has mainly relied upon the cases of Bhagwan Dass (died) through L.Rs and others Vs. Ramesh Kumar,, 2000(1) PLR 110 and Vir Chand Vs. Hakam Chand and another, 1992 (1) PLR 556. In Bhagwan Dass's case (supra), this Court has taken a view that where earlier petition for eviction was dismissed under Order 17 Rule 3, then it would be taken as a decision on merits because it was the landlord who had failed to produce any evidence, which was closed. It is further observed that when a person is given an opportunity to lead evidence and he does not produce any such evidence in the Court, then the decision has to be taken as one on merits. In Vir Chand's case (supra), it is held that the provisions of Section 11 of CIVIL REVISION NO.2513 OF 2006 :{ 4 }:
CPC regarding resjudi-cata are of universal application and the principle underlying would be applicable to Rent Petition, though the Section itself may be inapplicable.
Mr.C.B.Goel, counsel for the respondent, however, would contest the contention raised by counsel for the petitioner and would point out that the petition filed by the respondent-landlord, which was dismissed was subsequent to the present petition and as such, it can not be said that this was a former proceeding to attract the principle of resjudi-cata. As per the counsel, the plea of resjudi-cata, would not strictly apply to the rent petitions, which is a special legislature and this aspect would be governed by the provisions of Section 14 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short, "the Rent Act").
The main question, thus, which requires determination in this case is the one relating to the applicability of principle of resjudi- cata to the rent petitions. It is noticed that the present rent petition was instituted on 21.3.2002, raising the need of a bonafide requirement of the premises for use of his son. This was decided on 8.12.2005. Another rent petition No.7/2 of 2003 was instituted on 5.8.2003 and was decided on 11.8.2005. In this Rent Petition, the landlord had sought eviction of the petitioner-tenant on the grounds of arrears of rent for the period from 1.4.2002 to 31.7.2003. In Para 3
(ii) of this petition, the landlord had pleaded that this premises is needed by him for the use by his son who wanted to start work of computer. It is, thus, clear that the Rent Petition No.7/2 of 2003 is a subsequent petition but was decided earlier. If one is to see the CIVIL REVISION NO.2513 OF 2006 :{ 5 }:
provisions of Section 11 of CPC to determine as to which is the former suit, it may be said that expression former suit shall donote a suit which is decided prior to the suit in question whether or not it is instituted prior thereof. But if one have a look at Section 14 of the Rent Act, then some different meaning may appears. Section 14 reads as under:-
"Decisions which have become final not to be re-opened- The controller shall summarily reject any application under sub-Section (2) or (3) of Section 13 which raises substantially the issues as have been finally decided in any former proceedings under this Act."
As per this Section, the Court of Rent Controller shall summarily reject any application, which raises substantially the issue as has been finally decided in any former proceedings. No explanation in the line as contained in Section 11 of CPC is added under Section 14 of the Rent Act to define former proceedings. As per the settled proposition of law, the provisions made in the special statute would prevail over the general law. In this regard, reference can be made to the case of Parkash Chand Vs. Nanu Mal, 1993-2 PLR 735. it was held that the subsequent proceedings can not be termed as a former proceeding.
There can't be any dispute with this proposition of law that strict provisions of CPC may not be applicable to the rent proceedings but the general principles underlying the Code of Civil Procedure would govern the proceedings under the Rent Act. Such a situation, however, may differ when there is any specific provision CIVIL REVISION NO.2513 OF 2006 :{ 6 }:
made in the special statute like Rent Act, which would then override any general principle as legislated in the Code of Civil Procedure. I am, thus, of the view that the Courts have rightly appreciated the same and have observed that the principle of resjudi-cata would be applicable to the rent petitions but would be regulated by Section 14 of the Rent Act and if it is so, then the Rent Petition No.7/2 of 2003 can not be termed as a subsequent proceeding. Accordingly, I am not inclined to accept the submission made by learned counsel for the petitioner that the decision rendered in Rent Petition No.7/2 of 2003 would act as resjudi-cata for the purpose of decision in the present rent petition. This is more so, when one would notice that the intention of the respondent-landlord to file the subsequent rent petition was only to recover rent. It may need a notice that this rent petition filed in the year 2003 is for recovery of rent from 1.4.2002 onwards and the present rent petition was instituted on 23.3.2002. Accordingly, the purpose of the present rent petition was mainly to recover the rent which the tenant was not paying. In Rent Petition No.7/2 of 2003 it was categorically mentioned by the respondent- landlord that the present rent petition was pending in the Court of Rent Controller. It was also disclosed that the said rent petition was filed on the ground of personal necessity. Accordingly, there was in fact no need for the respondent-landlord to file the second petition and apparently he made a mention to the ground of personal necessity only to be over conscious, lest he was confronted with objection that his personal necessity had ended as he had failed to mention the need in the subsequent petition filed by him. It has, thus, CIVIL REVISION NO.2513 OF 2006 :{ 7 }:
been rightly observed that the ground of personal necessity was added in the petition filed subsequently only to see that no disadvantage accrue to the landlord and a chance for the tenant to urge that personal necessity had vanished. This can further be seen from the fact that the respondent-landlord had led evidence in regard to personal necessity in the present petition filed by him. If he could do so in the present petition, nothing stood in his way to lead the same evidence in Petition No.7/2 of 2003, which was filed subsequently. This petition was dismissed only on the ground that no witness was examined by the respondent-landlord despite availing opportunities and hence, would explain the conduct of the respondent-landlord in not seriously prosecuting the subsequent petition. It appears that the subsequent petition filed has been decided prior to the present petition may be, because the evidence was led in this case. It is also required to be kept in view that the ground of personal necessity has been held to be a cause which is a reoccurring one and observation made by the Hon'ble Supreme Court in the case of Suraj Mal Vs. Radhey Sham, AIR 1988 Supreme Court 1345 can be noticed in this regard. It is held as under in this case:-
"Where a suit for eviction from premises comprising of shop on ground of bonafide need was dismissed, the second suit on the same ground would be competent. The bonafide need must be considered with reference to the time when a suit for eviction is filed and it cannot be assumed that once the question of necessity is decided CIVIL REVISION NO.2513 OF 2006 :{ 8 }:
against the landlord it has to be assumed that he will not have a bonafide and genuine necessity ever in future." Similar were the observations of the Hon'ble Supreme Court in the case of N.R.Narayan Swamy Vs. B.Francil Jagan, 2001-3 C.C.C. 359. Nothing much otherwise was stated before me to challenge the bonafide need of the respondent-landlord to have this shop for the business of his son. I have otherwise also perused the evidence in this regard and find that respondent-landlord had sufficiently established the personal need of the shop for bonafide requirement of his son.
Accordingly, I find no merit in the revision petition and would dismiss the same.
July 24 ,2008 ( RANJIT SINGH ) khurmi JUDGE