Punjab-Haryana High Court
Parkash Chand vs Nanhu Mal on 29 July, 1993
Equivalent citations: (1993)104PLR735
JUDGMENT V.K. Jhanji, J.
1. This order of mine Will dispose of Civil Revisions No. 2139 and 2140 of 1980.
2. These are tenant's revisions. Nanu Mal, respondent filed petition against, his tenant (petitioner herein) for his ejectment from two shops on the ground of non-payment of rent with effect from 1.11.1972 to 30 11.1973. According to the landlord, one shop was let out for Rs. 150/- p. m. and the other for Rs. 72/- p.m. Ejectment petition which was filed on 12.12.1973 was dismissed on 3.11.1976 by the S.D.O. (Civil) exercising the powers of Rent Controller under the Act. The Rent Controller found that there was no relationship of landlord and tenant and, therefore, Nanu Mal was not entitled to file ejectment petition. This finding was given on the basis of the plea taken by the tenant in the written statement that the shops were let out to him by Lachhman Das son of Nanu Mal. The order of the Rent Controller was challenged before the Appellate Authority and by the impugned order, the appeal of the landlord was allowed and in consequence thereof the order of ejectment was passed against the tenant. Tenant has preferred these two civil revisions i.e. Civil Revisions No. 2139 and 2140 of 1980 in this Court.
3. Mr. Arun Nehra Advocate, counsel for the petitioner has raised the following contentions :--
(i) that the landlord has failed to prove his title to the property. According to him in the municipal records, Ex. D-1 and D-2, Lachhman Dass is recorded as owner;
(ii) that Nanu Mal made admission in some judicial proceedings in the year 1961 that in family settlement, he had given alt the property to his sons. From this admission, Mr. Nehra wanted me to infer that these shops had fallen to the share of Lachhman Dass and, therefore, Nanu Mal was not competent to eject him;
(iii) that the objection is barred under Section 14 of the Act which provides for summarily rejection of a petition under Section 13 of the Act on the ground that issues in these proceedings have been finally decided in the other proceedings;
(iv) finally, he argued that the Appellate Court ought to have allowed the petitioner to produce additional evidence for which he made application.
4. Mr. V. K. Jain, Sr. Advocate, learned counsel for the respondent, in reply, contended that the Appellate Authority, on the appreciation of the evidence brought on the record, has returned a finding of fact which calls for no interference by this Court. He further contended that the plea of res judieata is not available to the petitioner.
5. Having heard the learned counsel for the parties at length, I find no merit in these revision petitions.
6. Nanu Mal, in his petition, categorically stated that he as owner let out two shops to the petitioner. In reply to this, the tenant in his written statement, stated that the shops in partition had fallen to the share of Lachhman Dass. Once the tenant admitted Nanu Mal to be owner, onus was on him to prove that in some partition proceedings, shops had fallen to the share of Laehhman Dass who in turn let out the same to the tenant. Neither any partition deed nor any memo-randum of partition or any document evidencing the partition between the father and sons has been brought on record. During trial before the Rent Controller, petitioner summoned Lachhman Dass as witness, but for the reasons best known to him, Laehhman Dass was not examined. So far as documents, D-1 and D-2, entries in the house-tax assessment register maintained by the Municipal Committee are concerned, the same are not helpful to the petitioner. Petitioner has not been able to establish, that these two documents relate to the property in dispute. In the ownership column, Laehhman Das is shown to be the owner but in the column of occupier, it is shown that the premises are lying vacant. Ex. D-1 and D-2 relate to the period 1973-74 when admittedly the petitioner was in occupation of the shops. If these documents related to the shops in dispute, then the petitioner would have been shown in occupation of these shops. So far as admission of Nanu Mal in some judicial proceedings in the year 1961 is concerned, suffice it to say, it only showed that some property was given by Nanu Mal to his sons, but the same in no way proves that the shops in question were given to Lachhman Dass in partition. Apart from this, the Appellate Authority on the appreciation of evidence brought on record, has returned a finding of fact and from the reading of the evidence which has been read in extenso by the counsel for the patties, I find that this finding calls for no interference.
7. Learned counsel invoking the principle of res judicata, made reference to the order passed in subsequent proceedings between the parties, in which the appellate Authority had stayed its hands to decide the question of relationship of landlord and tenant. In that, petition for ejectment had been filed by Nanu Mal and Lachhman Dass, claiming rent for the same period as claimed in these petitions. Petitioner, on appearance, stated that he cannot tender rent as he does not know as to who is his landlord. On his statement, petition was dismissed, leaving the father and son to get the matter determined. I fail to understand as to how the decision in subsequent proceedings can operate as res judicata or barred under Section 14 of the Act. Section 14 of the Act provides for the rejection of the application by the Collector if the issues raised had been finally decided in any former proceedings. Firstly, subsequent proceedings cannot be termed as former proceedings and secondly, issues raised in these petitions were not finally decided in the proceedings referred to by counsel for the petitioner, otherwise also, I am of the view that the petitioner is not entitled to raise the plea of res judicata. The plea is dependent upon proof or disproof of so many facts. If a party not to plead such facts, it can be stated to have waived the plea. The plea of res judicata is not one of the jurisdiction of the Court, but is one which a party may waive, Conced dly, this plea, as contended by the counsel, had become available to the petitioner during the pendency of the appeal before the appellate Authority, but he did not choose to make an appropriate application for the amendment of the written statement. Petitioner for the first time, cannot be permitted in revision to raise the plea which in turn is dependent upon proof of so many facts. There are no pleadings or issues raised in the subsequent proceedings, help of which is now being sought for the pursose of raising the plea of res judicata. Finally, I find that the appellate Authority was absolutely justified in saying that the additional evidence sought to be produced by the petitioner was not relevant for the decision of the controversy or the issues involved in the proceedings. The additional evidence sought to be produced was the judgment rendered by the Authorities under the Act in the subsequent proceedings between the parties. I have already held that the plea of res judicata is not available to the petitioner, therefore, these documents are totally irrelevant.
8. For the reasons recorded above, both the revision petitions, i.e. Civil Revisions No. 2139 of 1980 and 2140 of 1980 are dismissed but with no order as to costs. However, the petitioner is allowed three months time from today to vacate the premises provided the entire arrears of rent, as claimed by the landlord in his petition, are paid, within one month from today, including that of three months, and also an undertaking is filed in the Court of Rent Controller to the effect that on expiry of the aforesaid period, he would hand over the vacant possession of the premises to the landlord. The undertaking is also to be filed within one month from today. However in case the arrears of rent as well as the undertaking are not filed within one month, the landlord would be entitled to execute the order forthwith.