Punjab-Haryana High Court
Mehtab Singh vs Tilak Raj Arora And Anr. on 13 October, 1987
Equivalent citations: AIR1989P&H12, AIR 1989 PUNJAB AND HARYANA 12, 1988 REV LR 150, 1988 HRR 99, (1988) 93 PUN LR 269, ILR (1988) 2 P&H 50, (1988) ILR 2 P&H 50, (1988) 1 RENCR 159, (1987) 3 RENTLR 690
JUDGMENT S.P. Goyal, J.
1. The question of law referred for consideration and decision by this Bench is as to whether a second petition for the ejectment of the tenant would be competent on a ground on which earlier petition was got dismissed as withdrawn without liberty to file a second petition.
2. The facts leading to the said question are that the flat in dispute was leased out to the respondents by Miss Sarvjit Kaur through rent note dt. 8th Jan., 1972. About two months thereafter she gave this flat in exchange to the petitioner vide exchange deed 30th March, 1972. In spite thereof she joined with the petitioner in the filing of the petition for the ejectment of the respondent from the demised premises in the year 1973, on three grounds, out of which the only one which subsists for the purposes of this petition is that of subletting. During the trial of that petition, the petitioner got his name deleted from the array of parties and the proceedings were carried on by Miss Sarvjit Kaur alone. The allegations made in that petition were that the tenant had transferred his rights under the lease and sublet the Barsati portion of the shop-cum-flat to respondent No. 2 Inder Singh. The plea was turned down and the petition dismissed by the Rent Controller. His order was affirmed by the Appellate Court as well, as is evident from the copy of the judgment, Exhibit R-2, dt. 13th March, 1980.
The petitioner thereafter instituted the present petition on 7th Aug., 1980, seeking ejectment of the respondents, on the ground of subletting, based on the same set of facts as pleaded in the earlier petition. The Rent Controller ruled out the plea on the ground that it was barred by the principles of res judicata. The Appellate Court affirmed its findings on the ground that the petitioner being successor-in-interest of Miss Sarvjit Kaur, was bound by the findings recorded in the earlier proceedings. The reason given by the Appellate Authority for holding that the petitioner was bound by the decision in the earlier proceedings was wholly misconceived, because the demised premises stood exchanged on 30th March, 1972 whereas the petition was filed by Miss Sarvjit Kaur in the year 1973. She having no interest in the demised premises when the earlier petition was filed, any finding recorded against her could not bind the petitioner. However, the learned Counsel for the tenant contended that the petitioner was also a party in the earlier petition and he having withdrawn from the same, the position in law could be that the earlier petition, so far as he was concerned, was got dismissed by him as withdrawn. As no permission was sought to file a fresh petition nor there is any change of circumstance providing a fresh cause of action, a second petition on the same set of facts would be barred.
3. The learned Counsel for the landlord contended that there being no provision in the East Punjab Urban Rent Restriction Act, which debars the filing of the second petition on the same ground on which an earlier petition was filed and dismissed as withdrawn, the provisions of Order 23, Rule 1 of the C.P.C. could not be invoked to debar the maintenance of a second petition. As there was no direct decision of this Court governing the question involved, which is of general importance and arising frequently, the matter was referred to a larger Bench.
4. More than three decades back it was authoritatively held by a Full Bench of this Court in Pitman's Shorthand Academy v. Lila Ram & Sons, AIR 1950 East Punjab 181, that the Rent Controller and the Appellate Authority under the Act are persona designata and not Courts and its correctness has not been doubted till today. Recently, in Ram Dass v. Smt. Sukhdev Kaur, (1981) 83 Pun LR 440 : (AIR 1981 Punj & Har
301) a Division Bench of this Court held that the Authorities under the Act being not Courts, the provisions of Order 23, Rule 1(3) as such were not applicable to the proceedings before them. However, no considered opinion was expressed as to whether the Rent Controller or the Appellate Authority could invoke the principle contained in Order 23 or various other provisions of the C.P.C. in deciding such petitions and the matter was left for the discretion of the Authorities under the Act, with the observations that they could devise their own procedure. This decision, therefore, provides no guidance in the matter in issue. There are two other decisions of this Court in Ram Prakash v. Nathu Ram, 1984 Cur LJ (Civ & Cri) 96 and Raghbir Kaur v. Gurmej Singh, (1985) 87 Pun LR 266, wherein it was held that the second application would not be barred if the first one was dismissed as withdrawn because of the absence of any provision in the Act. The matter, however, was not considered and discussed in detail in either of these decisions.
5. As observed by Bose, J., in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, the laws of procedure are grounded on principles of natural justice. The procedure embodied in these rules is designed to facilitate justice and further its ends and enacted with a view that endeavour should be made to avoid swamp decisions and to afford litigants a real opportunity in fighting out their cases fairly and squarely. One of the maxims which governs all judicial or quasi-judicial proceedings whether in a Court, Tribunalor before persona designata, is nemo debet bis vexari pro una Et Eadem Causa, i.e. no man should be vexed twice over the same cause of action. The provisions contained in Section 11, Order 2, Rule 2, Order 9, Rule 9, and Order 23, Rule 1(4) of the C.P.C., are, inter alia, the various manifestations of the same maxim. Even, though, the provisions of Section 11 of the C.P.C. would not apply in terms to the proceedings before any Tribunal or a persona designata, which is not a Court, still the trial of any matter or any issue which has been previously settled between the parties, would be barred by the general doctrine of res judicata which is of universal application and governs all judicial and quasi-judicial proceedings, as has been repeatedly held by the Supreme Court and was reiterated in Lal Chand (dead) by L.Rs. v. Radha Kishan, AIR 1977 SC 789, in the following terms :--
"By the present suit, the respondent is once again asking for the relief which was included in the larger relief sought by him in the application filed under the Slum Clearance Act and which was expressly denied to him. In the circumstances, the present suit is also barred by the principle of res judicata. The fact that Section 11 of the C.P.C. cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extention of the principle underlying that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sought to be raised was decided finally by a competent quasi-judicial tribunal. The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue."
6. If the various provisions noticed above are held to be not applicable to the proceedings before the Rent Controller, it would necessarily result in the violation of the maxim that no man should be vexed twice over the same cause of action and the landlord or the tenant as the case may be, would be able to harass time and again on the same cause of action and for the same relief. For example, a landlord after the full trial of his petition for ejectment at the stage of arguments feeling that the petition is likely to fail, would get it dismissed as withdrawn and institute a fresh one again on the same cause of action. He would be able to repeat the same process time and again if the principles underlying the provisions of Order 23, Rule 1(4) are held to be not applicable to the proceedings before the Rent Controller.
Similarly if the provisions of Order 2, Rule 2 of the C.P.C. are held to be not applicable, a landlord would be able to file ejectment application on one ground although many other grounds may be available for the same relief at a given time. After having failed on that ground till the highest Court, he would be able to institute another petition on the second ground and thus go on fighting litigation and harassing the opposite party. Same would be the situation with regard to the provisions of Order 9, Rule 9 of the C.P.C. and the landlord would be able to get his petition dismissed in default at any stage of the proceedings and file a fresh one on the same cause of action resulting in the abuse of the process of the Court and harassment of the opposite party. All these principles as held in Lal Chand's case (AIR 1977 SC 789) (supra), are conceived in the larger public interest and founded on equity, justice and good conscience, which require that no man should be vexed twice on the same cause of action. We are, therefore, of the considered view that even though the Code of Civil Procedure is not applicable as such to the proceedings before the Rent Controller; but the general principles contained in the Code, including the one noticed above which are based on justice, equity and good conscience would govern those proceedings and the two decisions relied upon by the learned counsel for the respondents in Ram Parkash v. Nathu Ram, 1984 Cur LJ (Civ & Cri) 96 and Raghbir Kaur v. Gurmej Singh, (1985) 87 Pun LR 266 are, accordingly overruled.
7. Before parting with the judgment, we may notice two more decisions which were relied upon by the learned counsel for the respondents. In Dev Pal Kashyap v. Sant Ram Narinder Mohan Cloth Marchants, (1983) 2 Ren CR 6 (Pun & Har), the question involved was as to whether an appeal would be barred by the provisions of Section 96(3) of the C.P.C. against a consent decree or not. The right of appeal is a substantive right and not a procedural one, and as such the provisions of the Code of Civil Procedure were rightly held to be not applicable. In the other case Punjab Chemi Plants Ltd. v. G. S. Malhotra, (1982) 1 Rent LR 130 (Punj & Har), it was held that the provisions of Order 8, Rule 10 of the Code being penal in nature could not be invoked to shut out the defence of the respondents. The case is obviously distinguishable and has no bearing on the issue in hand because the provision involved does not relate to any general principle of law governing the judicial or quasi-judicial proceedings.
8. In the result, the question of law referred to us is answered in the affirmative and it is held that a second petition for the ejectment of the tenant on a ground on which an earlier petition was got dismissed as withdrawn without liberty to file a fresh petition would be barred and not maintainable. The case would now go back to the learned single Judge for disposal of the petition on merits.