Orissa High Court
Shiv Kumar Santuka vs Priti Bhagat And Ors. on 7 May, 2007
Equivalent citations: 2007(II)OLR122
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1. This is an appeal against the order of learned District Judge, Cuttack in R.F.A. No. 40 of 2004 reversing the findings recorded by learned Civil Judge (Jr. Division), 1st Court, Cuttack in Title Suit No. 389 of 2001 (T.S. No. 196 of 1996) and remanding the same to the trial Court for fresh disposal.
2. The present respondent filed H.R.C. Case No. 67 of 1986 before the House Rent Controller; Cuttack Under Section 7 of the Orissa House Rent Control Act (in short "the OHRC Act") for eviction of the tenant appellant from the suit premises on the ground of bona fide requirement of the suit house by the landlord and default in payment of rent by the tenant. Prayer was also made for fixation of fair rent. In that proceeding the prayer for eviction of the tenant was rejected with the observation that the tenant was not a chronic defaulter in payment of rent and that the landlord was not in bona fide requirement of the suit premises. The prayer for fixation of rent was allowed and rent was fixed at Rs. 600/- per month. The landlord-respondent carried appeal, vide H.R.C. Appeal No. 7 of 1992. During the pendency of the H.R.C. appeal, the landlord served a notice Under Section 106 of the T.P. Act on the tenant-appellant about the termination of tenancy and then filed Title Suit No. 389 of 2001 before the learned Civil Judge (Jr. Division), 1st Court, Cuttack seeking eviction of the appellant-tenant on the ground that the appellant-tenant is a chronic defaulter in payment of rent and that the son of the landlord is in bona fide requirement of the suit premises for expanding his book business. The appellant-tenant in his W.S. denied the claim and allegation of the plaintiff-landlord and pleaded inter alia that the suit is not maintainable in view of the pendency of the H.R.C. appeal on the same subject and also on the plea that the findings of the H.R.C. Courts operate as res judicata. Learned Civil Judge after considering the evidence of the parties and the surrounding circumstances held that the suit is hit by the principle of res judicata and is thus not maintainable. He accordingly, dismissed the suit. Being unhappy with the said order, the respondent-landlord preferred appeal being RFA No. 40 of 2004 before learned District Judge, Cuttack. Learned District Judge after hearing the parties held that the suit is maintainable and not hit by the principle of res judicata and accordingly reversed the findings of the trial Court and remanded the suit for fresh disposal according to law. That order is under challenge in this appeal.
3. Mr. R.N. Mohanty, learned Counsel appearing for the appellant submits that two parallel proceedings, one before the HRC authority and the other before the Civil Court on the same subject between the same parties and for the same cause of action are not maintainable. According to him, the issue of bona fide requirement and default in payment of land was sub-judice in the HRC Appeal when the suit was filed and therefore, the suit was not maintainable. He further submits that after disposal of the HRC appeal the findings noted in the H.R.C. appeal about the bona fide requirement and default in payment of rent also operate as res judicata and for that reason the impugned order of the 1st Appellate Court that the suit was maintainable is not sustainable in the eye of law. In support of his submission, Mr. Mohanty relied on the case of Ambalal Sarabhal Enterprises Ltd. v. Amrit Lal & Co. and Anr. .
4. Mr. C.R. Nanda, learned Counsel appearing for the respondents, on the other hand, contends that the findings of the HRC Courts will not operate as res judicata for the simple reason that after repeal of OHRC Act, the landlord had every right to issue notice under Section 106 of the T.P. Act terminating the tenancy and seeking eviction of the tenant. He maintains that the cause of action propagated in the suit is not the same as that in the HRC proceeding and appeal and therefore, the suit was never hit by the principle of res judicata. In substance, he supports the impugned order.
5. There is no dispute that the respondent is the landlord of the suit premises and the appellant is the tenant therein. There is also no dispute that the landlord filed HRC proceedings for eviction of the tenant, but the H.R.C. Courts rejected the plea of bona fide requirement and default in payment of rent and consequently rejected the prayer for eviction of the tenant. It is also not disputed that during the pendency of the H.R.C. proceeding, the OHRC Act was repealed, but the H.R.C. proceedings and appeal continued in view of the saving provision of Section 5 of the Orissa General Clauses Act. It is further not disputed that the respondent-landlord, for eviction of the tenant-appellant, filed the suit on the ground of default in payment of rent and bona fide requirement and that the suit was filed when the HRC appeal was pending. It is also not in dispute that the H.R.C. appeal was dismissed and the order in the H.R.C. proceeding was confirmed when the suit was pending. The moot question before the Court was therefore, whether the suit for eviction was maintainable during the pendency of the HRC appeal and subsequently whether the suit was hit under the principle of res judicata in view of the findings recorded in the HRC appeal ?
6. Section 11, C.P.C. clearly says that an issue between the same parties relating to the same subject matter and same cause of action decided by a Court of limited jurisdiction will operate as res judicata in a subsequent suit. Section 5 of the Orissa General Clauses Act clarifies that when a State Act is repealed, the pending proceeding under that Act would continue despite the repeal of the Act till such, proceedings comes to a logical end and any order passed in such proceedings or appeal would be deemed as if the order was passed during the continuance of the repealed Act. That being the legal position, the order passed by the Courts of limited jurisdiction even after repeal of a State Act in a pending proceeding would be legal and valid and would operate as res judicata in respect of any issue in a subsequent suit involving the same parties, same subject matter and same cause of action. On a reference of the judgments of the Courts below it can be gathered that the landlord-respondent in the HRC proceeding sought for eviction of the tenant-appellant from the suit premises on the ground of bona fide requirement of the landlord and default in payment of rent, but those pleas were negatived by the H.R.C. Courts. In the subsequent suit the respondent-landlord sought for eviction of the tenant-appellant after serving a notice Under Section 106 of the T.P. Act taking the plea that the tenant appellant is a chronic defaulter in payment of rent and that the son of the landlord requires the suit premises for expansion of his business. According to learned Counsel for the appellant, in view of the ratio in the case of Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co. and Anr. (supra), the suit which was a parallel proceeding to the HRC appeal was not maintainable as the proceedings were between the same parties, for the same subject-matter and on the same cause of action. In the case of Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co. and Anr. (supra), the apex Court observed that although after repeal of the Rent Control Act a suit for eviction under the provisions of the T.P. Act was maintainable, yet two parallel proceedings; one under the General Law and the other under the Rent Control Act cannot be continued and that the landlord has to withdraw one of the proceedings. In view of this observation, during the pendency of the HRC appeal, the respondent landlord could not have maintained two parallel proceedings if the cause of action was same in both the proceedings. The ratio noted by the apex Court in the above noted case would, however, not be applicable, if the causes of action in the HRC proceeding and the suit were different even though the parties, the subject-matter and the ground for eviction might be same in both the proceedings. Learned trial Court dismissed the suit on the ground that the findings in the HRC appeal operate as res judicata in the suit. The first appellate Court reversed the said finding by simply observing that the suit was not hit under the principle of res judicata. Neither the trial Court nor the appellate Court examined or gave any finding as to whether the cause of action noted in the HRC proceedings and the suit was one and the same. As has been observed earlier, even if the parties, the subject-matter and the ground of eviction are same, yet a subsequent suit may not be hit under the principle of res judicata if the causes of action are different. It is worthwhile to note that the HRC case was filed in 1986 and the subsequent suit was filed in 1996. So, it was essential on the part of the Courts below to examine whether the suit had been brought for any fresh cause of action. Without examining this aspect, it was not legally correct on the part of the Courts below to observe that the suit was hit by the principle of res judicata or otherwise. That being the situation, the matter has to go back to the learned trial Court to decide from the materials on record as to whether the cause of action in the HRC proceedings and the suit was one and the same. If the cause of action is one and the same in both the proceedings, then the suit would be hit under the principle of res judicata. But if the cause of action was not one and the same, then the suit would be maintainable and the Court has to adjudicate the issue of bona fide requirement from the materials available on record and decide the suit accordingly. Since the matter is very old, learned trial Court would do well to dispose of the suit as early as possible preferably within a period of four months from the date of receipt of this order.
7. The impugned order is modified accordingly and the appeal is allowed in part. No cost.