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(i) Whether the suit of the respondent No.1-plaintiff was barred under Order XXII, R.9 of CPC ?

(ii) Whether the suit of the respondent No.1-plaintiff was barred by the principles of res-judicata or constructive res-judicata ?

(iii) Whether the suit of the respondent No.1-plaintiff invoking the provisions contained in the Rajasthan Rent Control Act was not maintainable ?

(iv) Whether the tenancy rights had devolved upon the sons of Smt. D. Lawrie after her death as contemplated under Section 3(vii)(b) of the said Act ?

7. So far as the facts of the present case are concerned, as transpiring from the record, the earlier suit was filed by M/s. Phool Chand Virendra Kumar against the original tenant Smt. D. Lawrie, and alleged subtenant Smt. Sheela Khanna, in which the eviction was sought on the ground of bona fide necessity and sub-letting, whereas the present suit was filed by M/s. O.R. Properties against the sons of Smt. D. Lawrie and Smt. Sheela Khanna. Apart from the fact that the cause of action in earlier suit and in the subsequent suit was absolutely different, even the parties in both the suits were different. Evenif it is construed that M/s. O.R. Properties was the successor in title after M/s. Phool Chand Virendra Kumar and the decision of earlier suit was binding on M/s. O.R. Properties, then also it could not be said by any stretch of imagination that causes of action in both the suits were same for the reasons set out hereinafter. No doubt, it might prima facie appear that the earlier suit was filed seeking eviction on the ground of bona fide necessity and sub-letting and the subsequent suit was also filed on the ground of bona fide necessity and sub-letting, over and above on the ground of arrears of rent and therefore the causes of action in both the suits were same. However, the most important aspect in the subsequent suit was that the plaintiff M/s. O.R. Properties had alleged in the suit in question that after the death of original tenant Smt. D. Lawrie, the tenancy rights had not devolved upon any of her sons i.e. the defendant Nos. 1,2 and 4. Therefore, the filing of subsequent suit by the plaintiff M/s. O.R. Properties was on the subsequent event having taken place i.e. death of original tenant Smt. D. Lawrie, and the material issue in the subsequent suit was as to whether the tenancy rights had devolved upon the sons of Smt. D. Lawrie after her death, as contemplated in Section 3(vii)(b) of the said Act, which was not the matter in issue in the earlier suit.

13. There is also no substance in the said submissions made by the learned counsel Mr. Agrawal. Though the principles of res-judicata would apply as between the two stages in the same litigation, it may be noted that the issue must have been heard and decided by the court at the earlier stage so as to preclude the party from re-agitating the same at the subsequent stage in the same proceedings. When the application filed by Mr. Neon Lawrie for being impleaded him as party-defendant under Order I Rule 10 of CPC was decided by the trial court, the only issue in the said application was whether the said applicant was a necessary or proper party in the suit or not as contemplated under Order I Rule 10 of CPC. The issue whether the tenancy rights had devolved upon him for being considered him as tenant under Section 3(vii)(b) of the said Act or not was neither heard nor decided by the trial court at the relevant stage of deciding the said application. It is also pertinent to note that a specific issue i.e. the issue No.1 was also framed by the court from the pleadings of the parties, as to whether the tenancy rights had devolved upon the defendant No. 1, 2 and 4 after the death of Smt. D. Lawrie, however no such objection against framing of such an issue was raised by the appellant No.1, as is now being sought to be raised in the present appeal. Not only that, both the parties had led the evidence keeping in view the said issue framed by the court. The court also does not find any substance in the submission made by the learned counsel Mr. Agrawal that the plaintiff had not carried out substantive amendment in the plaint after impleading Mr. Neon Lawrie as the party-defendant No.4. The plaintiff at the time of instituting the suit had already made allegations in the plaint that the tenancy rights in respect of the suit premises had not devolved upon the sons of the original tenant Smt. D. Lawrie after her death, and the prayers seeking recovery of possession of the suit premises against the defendants were also made. After impleading Mr. Neon Lawrie as the party-defendant No.4, the plaintiff had amended the cause-title of the suit and incorporated para 11(ka) in the plaint. As rightly submitted by the learned counsel Mr. Mehta for the respondent No.1, when the parties went to the trial with full knowledge of ambit of the case of each other, in such circumstances the pleadings were required to be construed liberally. In this regard a very pertinent observations made by the Apex Court in case of Ram Sarup Gupta Vs. Bishun Narain Inter College AIR 1987 SC 1242 are required to be reproduced as under :-

14. The learned counsel Mr. Agrawal further developing his arguments on the issue of devolvement of tenancy rights upon the defendant Nos. 1,2 and 4 and on the issue of maintainability of the suit had submitted that when the plaintiff had denied the relationship of the parties as that of landlord and tenant, the suit was not maintainable under the provisions of the Rent Act and that the plaintiff was required to file a regular suit for recovery of possession of the suit premises by making payment of court fees based on the market value of the property. Mr. Agrawal has placed heavy reliance on the decision of the Supreme Court in case of Laxmidas Morarji(Dead) by LRs. Vs. Miss Behrose Darab Madan, JT 2009 (12) SC 291 to buttress his submission. However, the said decision has no application to the facts of the present case. The Apex Court, while considering the issue of jurisdiction under Section 28 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947, had observed interalia that by Section 28 of the said Act, the legislature has designated certain courts to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of the premises to which the said Act applies. In the light of the said provision it was held that that suit before such designated court would be maintainable, if a landlord-tenant relationship is established. Now, so far as the Rajasthan Rent Control Act, 1950 applicable to be instant case is concerned, there is no provision contained therein like Section 28 of the Bombay Rent Act, designating special courts/Tribunals for deciding the disputes between the landlord and tenant. The suits therefore seeking recovery of possession of the disputed premises, whether invoking the provisions of Rajasthan Rent Control Act, 1950 or not, or whether landlord-tenant relationship had existed or not, were being filed and entertained by the civil courts only. In absence of any special courts having been established under the said Act of 1950, the question of civil court not having jurisdiction would also not arise. Mr. Agrawal had also failed to point out any provision from the said Act of 1950, ousting the jurisdiction of the civil court from entertaining the suit for recovery of possession filed invoking the provisions of the said Act. It is also pertinent to note that it was not a matter of dispute that the demised premises was let out to Smt. D. Lawrie, the mother of the defendant Nos 1, 2 and 4, and therefore the issue whether the tenancy rights had devolved upon them or not after her death, was an issue to be decided by the trial court under Section 3(vii)(b) of the said Act. It was also alleged in the suit by the respondent No.1-plaintiff that during the life time of Smt. D. Lawrie, the possession of the suit premises was parted with the defendant No.3 Smt. Sheela Khanna for running the school, and that the suit premises was sublet to her. The respondent No.1-plaintiff therefore had rightly invoked the provisions of the said Act for the recovery of the possession of the suit premises and the suit was maintainable before the trial court.