Delhi High Court
Rajinder Parshad Jain vs Bal Gopal Das on 24 November, 1998
Equivalent citations: 1998VIIAD(DELHI)589, 77(1999)DLT478, 1999RLR151
Author: R.C. Lahoti
Bench: R.C. Lahoti, Mukul Mudgal
ORDER R.C. Lahoti, J.
1. Three matters are before the Division Bench on reference made by a learned Single Judge of this Court. To appreciate the scope of reference and the question arising for decision it will be necessary to set out the factual background of each of the three cases in brief.
2. SAO 299/80 (Rajinder Prasad Jain Vs. Bal Gopal Dass & Ors) The premises are having municipal No.4896, Dayanand Road, Darya Ganj, Delhi. Rajinder Prasad, the landlord filed an eviction petition against the tenants Shri Balgopal Dass & Ors on the ground available under Section 14(1)(k) of the Delhi Rent Control Act, 1958 (hereinafter 'the Act', for short). According to the landlord, the premises were let out for residential purpose only. However, the same are being used by the tenant for non-residential purpose as well. The user of the premises is in contravention of the terms of the lease on which the landlord is holding the premises from the DDA. The tenant has failed to discontinue such inconsistent user inspite of a previous notice having been given to him.
2.1 It appears that prior to the initiation of these proceedings a petition for eviction of the tenant on the ground available under Section 14(1)(k) of the Act was filed which was dismissed by the Addl. Rent Controller, whose decision was upheld in appeal by the Rent Control Tribunal. The same has achieved a finality. It was submitted on behalf of the tenant that the earlier judgment constitutes res-judicata and in view thereof the present petition is barred by Section 11 of the CPC.
2.2. The certified copies of the judgments of the ARC dated 26.10.64 and of the Tribunal dated 3.5.65 have been brought on record respectively marked as RW-1/1 and RW 1/2. The finding recorded in the previous judgment between the parties is that the Landlord having let out the premises for use residential as well as non-residential, the landlord was estopped from questioning the user of certain portion of the premises by the tenant/subtenant for non-residential purpose and hence the ground under Section 14(1)(k) of the Act was not available to the landlord.
2.3. The plea of the tenant has been upheld by the Addl. Rent Controller as also the Tribunal in appeal, leading to the dismissal of the eviction petition. The aggrieved landlord has come up in the Second Appeal to this Court.
2.4. On 13th July, 1987, the appeal came up for hearing before H.C.Goel, J. (since retired). He noticed conflict of opinion between two sets of Single Bench decisions of this Court and hence felt the need of referring the matter to a Division Bench for resolving the conflict. It will be useful to extract and reproduce the following part of the order of reference dated 13.7.87 :-
"The question for consideration in this case has been as to whether the landlord in such a case is estopped from contending that the premises have been used by the tenant for a purpose which is contrary to the terms of the lease granted by the DDA having himself let the property for commercial purposes or the provisions of Section 14(1)(k) of the Act are still attracted to such a case. The Supreme Court in the case of Faqir Chand Vs. Ram Rattan Bhanot, 1973 RCR 221, held that there is no estoppel against statute and irrespective of the purpose for which the property was let, if the property is used by the tenant contrary to the terms as imposed upon the landlord by the terms of the lease granted by the DDA, it would attract the provisions of S.14(1)(k) of the Act. Yogeshwar Dayal, J. in the case of Dr. Sham Singh Vs. Om Prakash, SAO 355/68 decided on May 21, 1974 held that in view of the finality attached to the earlier decision between the parties, the subsequent petition for eviction would be barred by the principles of res judicata. The decision of the Supreme Court in the case of Faquir Chand (supra) was duly noticed by the learned judge. Following this judgment of Yogeshwar Dayal, J. the Rent Control Tribunal had upheld the judgment of the Addl. Rent Controller.
2.A contrary view has, however, been later taken by the Sultan Singh J. in two cases (i) Rajeshwar Dayal Vs. Nanak Chand, and (ii) Lila Wati Dutta Vs. Karol Bagh Union Club & DDA, . The decision of Yogeshwar Dayal J. in the case of Dr.Sham Singh (supra) was not brought to the notice of Sultan Singh J. while deciding either of the two cases. This conflict of decisions by the two learned Judges of this Court requires to be resolved by referring the matter to a larger Bench."
3. SAO 275/78 (H.C. Thukral Vs. Ashok Saran) The premises are old No.8614 present No.40-B, Flat No.6 and Servant Qtr.No.40/14, Pyare Lal Building, Janpath, New Delhi. The only ground of eviction pleaded is under Section 14(1)(k) of the Act. Under the perpetual lease by the Government of India to the landlord Ashok Saran, the second and the top floor have to be used for residential purpose only. However, the tenant is using the property for non-residential purpose which user has not been stopped inspite of a notice of demand for the purpose having been served by the landlord on the tenant.
3.1. Prior to the filing of the present eviction petition, there was an earlier round of litigation. It was also an eviction petition which ultimately terminated in favour of tenant, denying order of eviction to the landlord. The tenant took up the plea of the present eviction petition being barred by res-judicata. The landlord sought to sustain the maintainability of the present eviction petition on two grounds : firstly, that the ground of eviction under Section 14(1)(k) of the Act was not taken in the earlier petition for eviction and hence it was not in issue; secondly, that subsequent to the pronouncement of the earlier judgment there has been a change in the law and so also the earlier decision would not operate as res judicata.
3.2. Copies of the decisions in the earlier proceedings have been brought on record. A perusal of the orders shows that eviction of the tenant was sought for in the earlier eviction petition on the ground that the tenant and his family members have not resided in the tenanted premises for a period of six months immediately preceding the date of the filing of the petition and that the tenant had acquired an alternative accommodation suitable for his residence. It was found that the premises were taken by the tenant for use as office-cum-residence when he was a bachelor. On his marriage he had shifted his residence to some other place and had continued to use the whole of the tenanted premises for non-residential purpose. On these grounds eviction was negatived by the Additional Controller as also by the Rent Control Tribunal.
3.3. It appears that when the matter reached in second appeal to the High Court, the landlord made an alternative arguments seeking eviction of the tenant on the ground of inconsistent user attracting the applicability of Section 14(1)(k) of the Act. However, the plea was not sustained and the dismissal of the eviction petition was upheld by the High Court.
3.4. A perusal of the judgment of the High Court dated 19th August, 1971 passed in SAO 180/72 Raghunandan Saran Ashok Saran Vs. H.C. Thukral (reported as 1972 AIRCJ 289) shows that relief to the landlord by reference to Section 14(1)(k) of the Act was negatived on very many grounds namely :-
(i) the ground was not taken in the eviction petition;
(ii) notice contemplated under Section 14(1)(k) was not served on the tenant prior to the filing of the eviction petition;
(iii) The landlord was estopped from taking the plea in view of his having himself let out the premises for non-residential purpose.
3.5. The plea of the eviction petition being barred by res-judicata has been over-ruled by the Additional Rent Controller forming an opinion that any finding recorded on a ground which was not in issue could not operate as res-judicata. The learned Addl. Rent Controller has also held that subsequent to the date of previous decision between the parties there is available pronouncement of the Supreme Court in Faquir Chand Vs. Ram Rattan Bhanot 1973 RCR 221 negativing the plea of estoppel being attracted to the fact situation like the present one and so also earlier decision would not operate as res-judicata in view of the change in law. The view taken by the Addl. Rent Controller has been upheld in appeal by the Rent Control Tribunal also. However, the operative part of the order of Addl.Rent Controller has been modified a little.
3.6. The tenant has come up in Second Appeal registered as SAO 275/78. The landlord has filed a cross appeal registered as SAO 381/78.
3.7. On 27.3.97, the appeal came up for hearing before Usha Mehra, J. who formed an opinion that the question arising for decision in this appeal was one covered by the order of reference passed by H.C.Goel, J. in SAO 299/80 and hence this matter be also placed before a Division Bench.
4. SAO -380/78 (Ashok Saran Vs. New Zealand Ins. Co. & Anr.) The premises forming subject matter of tenancy are situated on the second floor and third floor described as Flat No.2 and 3 of the property bearing Municipal No.40/6 and 40/7, Janpath, New Delhi.
4.1. According to the lease made by the Government of India in favour of the landlord the second and third floor can be used for residential purpose only while the tenant was using the premises for office purpose i.e. non-residential purpose.
4.2. The tenant pleaded inter alia that the landlord had earlier filed an eviction petition on a similar ground which was negatived and hence the present eviction petition was barred by res judicata. It was also pleaded that the premises having been let out 32 years ago for residence-cum-office purpose and having been so used for that length of time without any objection from the landlord and the superior landlord i.e. Government of India they were estopped from objecting to such user. The Additional Rent Controller found that the previous petition filed by the landlord was simply withdrawn because it was not for the entire premises in dispute and had been filed for bonafide personal necessity. Another petition for eviction filed by the landlord was dismissed by the Addl. Rent Controller on the ground that it was filed without serving a previous notice on the tenant. There was no finding given on merits. In as much as there was no finding recorded on the merits of the case, the order in earlier eviction petition did not constitute res-judicata. The eviction has been ordered upholding availability of the ground under Section 14(1)(k) of the Act to the landlord. The order has been maintained by the Rent Control Tribunal in appeal.
The aggrieved tenant has come up in Second Appeal.
5. This is how these matters are before the Division Bench.
6. As the orders of reference do not formulate any specific question whereon the Division Bench has to express its opinion and answer the questions, we would proceed to formulate the questions for the sake of convenience. In our opinion the questions calling for answers are :-
(i) whether the letting out of premises by a landlord for a purpose other than residence though the terms of lease on which the landlord himself is holding the premises prohibit non-residential user of the premises, constitutes an estoppel on him so as to prevent the landlord availing the right to eject the tenant under Section 14(1)(k) of Delhi Rent Control Act, 1958;
(ii) Whether termination of previously instituted proceedings under Section 14(1)(k) of the Act unfavourably to the landlord constitutes res judicata so as to prevent the filing of fresh petition for eviction under Section 14(1)(k) of the Act.
(iii) What is the effect of the law laid down by the Supreme Court in the case of Faquir Chand Vs. Ram Rattan Bhanot 1973 RCR 221 on the plea of res judicata.
QUESTION -1:-
7. There is no estoppel against statute. It is not necessary to search for authorities on the point as the law laid down by the Supreme Court in Faquir Chand's case (supra) is clear and explicit and is laid down in such set of facts as bear a striking similarity to the facts of the cases at hand. There too the lease of the plot whereon the premises were built was made in favour of the landlord by the Delhi Improvement Trust, succeeded by Delhi Development Authority. One of the terms of the lease prohibited the use of the land and the buildings that may be erected thereon for any purpose other than residential without the consent in writing of the lessor. As the tenant was using the premises for a purpose other than residential, the landlord instituted eviction petition under Section 14(1)(k) of the Act. The availability of the ground was sought to be negatived on the plea of the landlord having himself leased the building for a commercial purpose and therefore being estopped from claiming possession. The Controller dismissed the petition filed by the landlord. In the Second Appeal before the High Court the learned Single Judge referred the question to a Division Bench which formed an opinion in favour of the landlord. The matter reached the Supreme Court.
8. Overruling the decisions in Smt. Uma Kumari 1960 PLR 460 and S.P. Arora Vs. 1970 RCR 628, their Lordships upheld the view of the Division Bench. It will be useful to extract and reproduce a few observations made and the law laid down by their Lordships.
8.1. Their Lordships held that an anamolous position would result if the plea of estoppel was applied against the landlord. Their Lordships observed:-
"The result will be this : The Delhi Development Authority can enforce the conditions of the lease and forfeit the leased land with the buildings thereon. In that case both the landlord as well as the tenant stand to lose. The landlords point out this situation and say that they are not interested in evicting the tenants but are interested only in seeing that the tenants do not use the buildings for commercial purpose with the consequences that they may have to lose the land and the buildings and the tenants also cannot any longer use it for a commercial purpose.
(para 6) The provision of Clause (k) of the proviso to sub-section (1) of section 14 is something which has to be given effect to whatever the original contract between the landlord and the tenant. (para 9) The anxiety of the legislature is to prevent unauthorised user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture. The Development Authority can always resort to the terms of the lease. There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose the property and the tenant also will loose. He cannot, after the Development Authority takes over the building use it for a commercial purpose. We thus reach the conclusion that the lease in its inception was not void nor is the landlord estopped from claiming possession because he himself was a party to the breach of the condition under which the land was leased to him." (para 9 )
9. Following the law laid down by their Lordships in Faquir Chand's case (supra) we are of the opinion that the plea of estoppel is not available to the tenant against the landlord.
QUESTION 2
10. Before proceeding to deal with the relevant law, we may first notice the two sets of decisions between which there is a divergence, leading to the present reference. Leelawati Dutta Vs. Karol Bagh Union Club & Delhi Development Authority and Rajeshwar Dayal Vs. Nanak Chand were decided on 30.4.81 and 20.10.81 respectively by Sultan Singh,J.
11. In Leelawati Dutta's case (supra) an eviction petition under Section 14(1)(k) of the Act filed by the landlord was dismissed by the Addl. Rent Controller on 24.9.69 on the ground that though the tenant was using the premises for non-residential purpose contrary to the terms of the lease between the landlord and her authorities (i.e. the Delhi Improvement Trust), the landlord having herself let out the premises for non-residen-
tial purpose was estopped from claiming eviction. The decision by Addl.Rent Controller was upheld by Rent Control Tribunal on 27.8.71 following the judgments in Smt. Usha Kumari (supra) and S.P.Arora (supra). Then came the decision of the Supreme Court in Faquir Chand's case where-upon the landlord on 24.8.73 filed a fresh petition for eviction, having served a notice dated 8.2.73 requiring the tenant to stop the misuser. The eviction petition was dismissed as not maintainable being barred by the principle of res-judicata.
11.1. In an appeal Sultan Singh,J. held that misuser inspite of a service of notice dated 8.2.73 provided a fresh cause of action to the landlord which cause of action would be entirely different from the cause of action available to the landlord in the previous proceedings. Sultan Singh,J. also opined after referring to the Supreme Court decision in Mathura Prasad Vs. Dossibai that the dismissal of the previous petition for eviction was a question of law interpreting the rule of estoppel. A decision on a pure question of law unrelated to facts which give rise to a right cannot be deemed to be a matter in issue so as to attract the rule of res-judicata.
12. The view of the law so taken was followed in Rajeshwar Dayal's case (supra) wherein Sultan Singh,J. reiterated what he had held earlier in Leelawati Dutta's case and further held that the subsequent eviction application under Section 14(1)(k) was not barred by the principles of res judicata especially when there was a change of law brought in by the decision of the Supreme Court in the case of Faquir Chand (supra).
13. Thus three principles have been laid down by Sultan Singh, J. :-
(i) a user by tenant inconsistent with the terms of lease between the landlord and its authority provides a recurring cause of action to the landlord and hence inspite of dismissal of an earlier eviction petition based on the ground under Section 14(1)(k) of the Act (more so when the dismissal is based on an erroneous application of the rule of estoppel) would not bar the maintainability of a fresh eviction petition under Section 14(1)(k) of the Act if the tenant fails to discontinue the misuser after service of a fresh notice by the landlord demanding such discontinuance after dismissal of the earlier eviction petition.
(ii) the declaration of law by the Supreme Court subsequent to a decision and which has the effect of taking away the very foundation on which the earlier decision was based amounts to a change of law excluding applicability of rule of res-judicata to a subsequently instituted proceedings based on the law so declared.
(iii) A pure question of law unrelated to facts which give rise to a right cannot be deemed to be a matter in issue [as already held by the Supreme Court in Mathura Prasad's case (supra)]
14. Dr. Shyam Singh Vs. Om Prakash SAO 355/68 decided on 21.5.74 takes a view of the law to the contrary. Eviction petition was filed on the ground that the premises let for residential purposes were being misused by the tenant for commercial purposes without the written consent of the landlord. The tenant did not stop the misuser inspite of a registered notice dated 16.1.64 from the landlord. The lease granted by Development Authority to the landlord expressly provided that the premises should not be used for a purpose other than residential. The tenant took the plea that earlier eviction petition filed by the landlord on the same ground was dismissed and hence the subsequent petition was barred by the principle of res judicata. The plea was upheld by the Rent Control Tribunal. The landlord tried to wriggle out of the plea of the res judicata by submitting that the earlier decision was based on the judgment in Uma Kumari's case (Supra) which had ceased to be good law in view of the decision of the Supreme Court in Faquir Chand's case (supra). However, the plea of the landlord did not find favour with Yogeshwar Dayal,J. (as his Lordship then was). The dismissal of the eviction petition by the Rent Control Tribunal was upheld. His Lordship held :-
It is true that the judgment of Chopra, J. in the case of Smt. Uma Kumari no longer holds good and is no longer a good law in view of the decision of the Supreme Court in the case of Faqir Chand Vs. Ram Rattan Bhanot wherein the Supreme Court has held confirming the decision of our own Court that the provisions of Section 14(1)(k) for eviction of tenants are based on public policy and even if the landlord had let out the property himself for purposes contrary to the terms of the lease granted by Delhi Development Authority, there was no estoppel against the statute. But that cannot help. In view of the finality attaching to the earlier decision of the Rent Control Tribunal it must be held that the ground of eviction under section 14(1)(k) is barred by the rule of res judicata.
14.1. The two decisions by Sultan Singh, J. referred to hereinabove though available were not brought to the notice of the learned Single Judge deciding Dr.Ashok Singh's case. If only these decisions would have been so brought to the notice, the Bench deciding Dr.Shyam Singh's case would have felt bound by the view of the law taken in two earlier Single Bench decisions and the decision in Dr.Shyam Singh's case would not have been what it is.
15. It is well settled that a decision on pure question of law does not amount to res judicata. If questions of law were to be considered to have been decided conclusively by a decision, then the erroneous decision would assume the status of a special rule of law which neither the law nor the principles of justice equity, fairplay and public policy permit or countenance. Reference may be had to the decisions of the Supreme Court in Smt. Isa Bella Johnson Vs. M.A. Susai and Mathura Prasad Vs. Dossi Bai .
15.1 A question of law decided as an abstract proposition of law or with a doctrinaire approach does not constitute res judicata. Whether the law applies to the facts of a case and if so, how and in what manner- are the issues finding whereon may constitute res judicata. If the law itself undergoes a change the very foundation attracting applicability of res judicata in such cases vanishes.
16. The general principles of res judicata are based firstly on public policy and secondly on private justice. The plea of res judicata is not one of jurisdiction of the court. It is a rule of convenience. Nobody shall be vexed twice on the same issue. The rule of res judicata cannot be so applied as to make it an oppressive instrument guided towards defeating the public policy itself.
17. So also the question of recurring cause of action assumes significance in the context of the doctrine of res judicata, more so when it is sought to be applied to the suits for eviction from premises based on landlordtenant relationship. In Surajmal Vs. Radhey Shyam , a suit for eviction from premises comprising of shop on ground of bona fide need was dismissed. The second suit on the same ground was held to be competent. Their Lordships held that 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 against the landlord, it has to be assumed that he will not have a bona fide and genuine necessity forever in future.
18. The above said principles may now be applied to a case of successive suits for eviction filed under Section 14(1)(k) of Delhi Rent Control Act, 1958 and tested. Section 14(1)(k) provides for the recovery of possession of the premises on the ground that the tenant has notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the DDA or the MCD while giving him a lease of the land on which the premises are situate. The ingredients of the provisions are : (i) user or dealing with the premises in a manner contrary to any condition imposed on the landlord by the lease of the land on which the premises are situate; (ii) service of notice on the tenant in that regard; (iii) the user or continued user by the tenant inspite of the service of the notice.
19. We revert back to what has already been held and succinctly dealt with by there Lordships in the case of Faquir Chand (Supra). The landlord can neither use nor permit such user of the premises as may be inconsistent with the lease on which he himself holds the land. The tenant makes an inconsistant user. The landlord serves a notice requiring the tenant to discontinue such user. The tenant does not yield to the mandate of the landlord. The suit for eviction filed by the landlord is dismissed. The DDA was not a party to the suit obviously because it was not needed to be joined. It is not bound by the decision. If res judicata were held to govern the parties, then the tenant cannot be sued, but the landlord can certainly be sued by the DDA and in that event, the tenant would be liable to be evicted but alongwith him he would take the landlord also to sink. A reasonable view of the law would therefore be that a decision in an eviction petition under Section 14(1)(k) of the Act results into finding that on the date of the institution of that suit the landlord was not entitled to evict the tenant. Inspite of the dismissal of the suit, if the landlord serves a fresh notice on the tenant and is in a position to substantiate that the user by the tenant was inconsistant with the terms of the lease on which the landlord was holding the land on which the premises are situate then the tenant would be liable to be evicted without regard to the earlier suit having been dismissed. The court in the later suit would examine the applicability of Section 14(1)(k) on the date of the institution of the later suit. After all, the dismissal of a suit under Section 14(1)(k) does not mean and cannot be allowed to be construed as a licence in favour of the tenant to continue with such unauthorised user.
20. We are, therefore, of the opinion that termination of the proceedings under Section 14(1)(k) of the Delhi Rent Control Act, 1958 unfavourably to the landlord does not constitute res judicata so as to prevent the filing of a fresh petition for eviction under Section 14(1)(k) of the Act if the ingredients of Section 14(1)(k) are shown to be available to the landlord on the date of the institution of the later suit and subsequent to the decision in earlier suit.
QUESTION 3:
21. In view of what we have stated hereinabove, while dealing with questions nos. 1 and 2, it is not necessary to deal with question no.3 separately. Suffice it to say that with the pronouncement of the Supreme Court in the case of Faquir Chand (Supra), the law was settled that letting of the premises by the landlord to the tenant for an inconsistant purpose or permitting such user does not operate as estoppel against the landlord taking away his right to institute proceedings for eviction under Section 14(1)(k) of the Act. Such law became available to govern the legal relationship of the parties as was not when the earlier suit was filed, heard and decided.
22. Therefore, we do not agree with the view taken in the single bench decision of the Delhi High Court in Dr. Sham Singh Vs. Om Prakash (SAO 355/68 decided on 21st May, 1974). The same is overruled. The view of the law taken in Delhi High Court decisions in Rajeshwar Dayal Vs. Nanak Chand (Supra) and Leelawati Dutta Vs. Karol Bagh Union Club and DDA (Supra) is approved and confirmed.
23. With the above said statement of law, we proceed to record findings whether res judicata was applicable in any of the three cases assigning brief reasons for the opinion which we propose to express.
24. In SAO 299/80 Rajinder Prasad Jain Vs. Bal Gopal Dass and others, it is clear that the earlier suit was filed on 21st January, 1963 . It was dismissed on 26th October, 1964. DDA was not a party to the case and hence not bound by the decision. The inconsistent user offensive of Section 14(1)(k) of the Act continued. Then came the judgment of the Supreme Court in the case of Faquir Chand. The landlord served a fresh notice on 1st March, 1971, but the tenant did not desist. The application for eviction was filed on 3rd March, 1972. In the later suit, the rent controller was called upon to record a finding whether there was an inconsistant user offensive of Section 14(1)(k) of the Act, commenced or continued inspite of a previous notice. The availability of this cause of action and right to institute the suit is to be decided by reference to 3rd March, 1972, the date of commencement of later proceedings and not by reference to 21st January, 1963, the date of institution of the earlier proceedigs. For the reasons we have already stated hereinabove, we are of the opinion that the decision dated 26th October, 1964 in suit no. 585/63 by Additional Rent Controller, Delhi and maintained in appeal by the Rent Control Tribunal does not constitute res judicata for the subsequent eviction proceedings instituted on 3rd March, 1972 after serving the notice dated 1st March, 1971.
25. In SAO 275/78 H.C. Thukral Vs. Ashok Saran and SAO 381/78 Ashok Saran Vs. H.C. Thukral, the bar of res judicata does not even prima facie apply. One of the essential ingredients of res judicata enacted in Section 11 of the CPC is that the issue must have been heard and decided. The ground under Section 14(1)(k) of the Act, was not even taken in the eviction petition and obviously a decree could not have been passed on a plea for which no foundation was laid in the pleadings. Secondly, the suit was premature inasmuch as the previous notice contemplated by Section 14(1)(k) was not served on the tenant. There was no occasion for recording a finding on the issue as to estoppel. As anyone of the first two findings would have been enough to non-suit the plaintiff/landlord the finding on the plea of estoppel was not called for. The finding being one beyond the pleadings of the parties and not heard and decided, does not constitute res judicata for the subsequent i.e. the present suit.
26. So is the case with SAO 380/78 Ashok Saran Vs. New Zealand Insurance Company and Others. The earlier petition was simply withdrawn inasmuch as it was not for the entire premises in dispute. There was no decision on merits. No issue was heard and decided. The order in earlier petition would not therefore constitute res judicata for the later suit.
27. The reference are answered accordingly. Let one copy each of this order be placed on the records of SAO 299/80, SAO 275/78 and SAO 380/78.
28. All the cases shall now be listed before appropriate Single Benches for directions on 7th December, 1998.