Ms. Usha Mehra ( 1 ) DETERMINATION of a lease in accordance with thetransfer of Property Act (hereinafter called the T. P. Act) is a mere surplusageand unnecessary in order ro seek eviction of a tenant under the Rent Controlact. " But an interesting question has arisen as to whether in an evictionpetition a tenant would be entitled to a notice in terms of the agreement oftenancy as a double protection, even though no notice under Section 106 ofthe T. P. Act is required. ( 2 ) IN order to determine the same, the relevant facts are that therespondent No. 1 herein filed a petition for eviction being a widow undersection 14-D read with Section 25-D of the Delhi Rent Control Act (hereinafter called as the d. R. C. Act ) against the present petitioners. Respondentno. 2 was also impleaded as respondent in the said eviction petition. Thepetitioner/tenants filed the leave to defend application seeking leave onvarious grounds. One of the ground was that a notice under Section 106 ofthe Transfer of Property Act had not been served before filing of the evictionpetition and that the landlady had agreed to give a notice of termination forone month before filing the eviction petition. In the absence of the same thepetition was not maintainable. Other grounds taken were that the premisesin question was meant for commercial purposes and not for residential andthat she does not require the premises for bona fide use as she was not theowner of the premises. She is only a co-owner. The premises were let out forcommercial purposes. That the earlier petition filed under Sec. 14 (1) (j) and (k) of the DRC Act was dismissed for want of notice and that judgment is ares judicata between the parties. That the petitioner has also filed an eviction petition under Sections 14 (1) (e) (g) (h) (j)and (k) of the Act. During thependency of the said petition, the present petition is barred. The Additional Rentcontroller dismissed the leave to defend application finding that no triableissue has been raised. It is against the impugned order that the presentrevision has been filed. ( 3 ) MR. Mukul Rohtagi appearing for the petitioner conceded at thebar that the petitioner was not pressing the service of a notice under Section 106 of the T. P. Act. His argument is that under the tenancy agreementthe respondent was to serve a month s notice. It is against the impugned order that the presentrevision has been filed. ( 3 ) MR. Mukul Rohtagi appearing for the petitioner conceded at thebar that the petitioner was not pressing the service of a notice under Section 106 of the T. P. Act. His argument is that under the tenancy agreementthe respondent was to serve a month s notice. The fact that one monthnotice was required to be served before filing eviction petition had beenadmitted by the landlady when she appeared in the witness box in an earliereviction petition. As per her own admission the agreement required onemonth s notice to be given at the time of terminating the tenancy. In theabsence of the notice her earlier petition filed under Section 14 (1) (k) and (j) ofthe D. R. C. Act was dismissed. Appeal against that order was also dismissedby Shri V. S. Aggarwal. Rent Control Tribunal vide order dated 24/05/1983. The second appeal to the High Court was also dismissed and so wasthe Special Leave Petition. That judgment will prevail as res judicata between the parties. Even now one month s notice has not been served beforeinstituting this petition. Hence the Trial Court ought to have allowedthe leave to defend application because it raises triable issue as towhether previous judgment inter se the parties regarding non issuance ofone month s notice would operate as res judicata. He then contendedthat even though the Supreme Court has set at rest the controversy thatnotice under the T. P. Act is unnecessary in a petition filed under the Rentcontrol Act, yet protection given to a tenant under the rent agreement willprevail, it being a double protection to the tenant. The notice required to beserved per the rent agreement, has not been effected because of Supremecourt holding that notice under Section 106 of the T. P. Act is not necessaryin rent matters. Notice as per agreement is an added protection given to thetenant by the law. It is so held by the Supreme Court in the case ofmanujendra Dutt v. Purnedu Prosad Roy Chowdhury and Ors. , reported ina. I. R. 1967, Supreme Court, page 1419. In the absence of notice as per theterm of rent deed and there being a judgment operating between the partiesholding that one month s notice is necessary, the Court below erroneouslydismissed petitioner s application seeking leave to defend. ( 4 ) MR. , reported ina. I. R. 1967, Supreme Court, page 1419. In the absence of notice as per theterm of rent deed and there being a judgment operating between the partiesholding that one month s notice is necessary, the Court below erroneouslydismissed petitioner s application seeking leave to defend. ( 4 ) MR. Ishwar Sahai Counsel for respondent contended that thepresent eviction petition, was based on a new cause of action which becameavailable to Smt. Sita Bijai Singh on the basis of the amendment of thed. R. C. Act and she filed the petition within the limitation prescribed underthe statute. It is an admitted case that prior to filing the present petition onthe basis of the D. R. C. (Amendment) Act, 1988 which introduced this newground of eviction covered by Section 14-D, the respondent had filed aneviction petition under Section 14 (1) (k) and (j) which was dismissed for wantof notice and second petition under Section 14 (1) (e) (h) (j) and (k) is still pending. He, therefore, argued that no notice is required to be served undersection 106 of the T. P. Act or as per the term of the agreement. Eventhough on the previous petition filed by the respondent under Sec. 14 (1) (k)and (j), the Court held that notice was necessary but that judgment wouldnot operate as res judicata in the present case. Present petition is based on afresh cause of action, hence the earlier decision will not operate as resjudicata. His further limb of the argument is that if the Court in the earlierease took a wrong view of the law that judgment may be good so far as thatcase was concerned, but that wrong view of law will not operate as resjudicata between the parties in a subsequent case. In this regard he placedreliance on the decision of our own High Court in the case of Jawahar Singhv. Jai Gopal, reported in RCR, 1972 Vol. 4, page 242, where it was held : "it is true that the correctness or otherwise of a decision is notrelevant to determine whether it is res judicata or not. But it cannot be said that all decisions on questions of law are always resjudicata. The first exception to the rule that a decision on a question of law is res judicata is this. But it cannot be said that all decisions on questions of law are always resjudicata. The first exception to the rule that a decision on a question of law is res judicata is this. If a question of law is wronglydecided then it is res judicata only in the casein which the decisionis given. But in a subsequent case arising out of different cause ofaction, it is not resjudicata. A distinction is, therefore, drawn between a matter in issuebetween athe parties and an abstract question of law which maybe relevant for the decision of the matter in issue but it is notin itself matter in issue. Whenever an abstract question of law isseparate from a matter in issue between the parties, a decision thereon will not act as res judicata. " ( 5 ) HE further contended that as an abundant precaution the noticebad in fact, been served on the petitioner and it is so pleaded in para 18 (b)of the petition which reads as under : "18 (B) Whether notice : No notice is required. How-required has been given, ever, notice dt. 16. 2. 73 is dulyand if so, particulars served on the respondent/thereof (copies of such tenant and also notice dt. notice and tenant s 6 2. 84 copies enclosed. "reply, if any should befurnished) ( 6 ) IN the leave to defend application the tenant never denied thefactum of service of notice dated 16. 2. 83 or of 6. 2. 84. He has drawn myattention to para 11 of the leave to defend application, which reads asunder: "11. That no notice of termination of tenancy as requiredunder Section 106 of the Transfer of Property Act was served before filing this petition for eviction as in this case, the petitioneragreed to give the notice of termination of tenancy for one monthbefore filing the petition for eviction. No copy of the alleged noticedated 16. 2. 1973 has been supplied to the respondents No. 1 and2alongwith the copy of the petition. " ( 7 ) THE only objection which the petitioner took, that copy of thenotice dated 16. 2. 73 was not supplied. There is no denial of the receipt ofnotice dated 16. 2. 73 of the service of notice or of 6. 2. 84. 2. 1973 has been supplied to the respondents No. 1 and2alongwith the copy of the petition. " ( 7 ) THE only objection which the petitioner took, that copy of thenotice dated 16. 2. 73 was not supplied. There is no denial of the receipt ofnotice dated 16. 2. 73 of the service of notice or of 6. 2. 84. Therefore, the objection of the petitioner that notice as per the terms of tenancy agreement wasnot served is belied from his own admission made in para 11 of the leave todefend application. As regards notice under Section 106 of thet. P. Actthat as already conceded by the Counsel for the petitioner, nonotice undersection 106 of the T. P. Act is necessary in an eviction petition filed underthe D. R. C. Act. Therefore, I am in confirmity with the view expressed bythe Court below that no triable issue arises on this score. ( 8 ) AS regards double protection that question arose in the case ofmanujendra Dutt v. P. P. Roy Chowdhury and Ors. , reported in AIR 1967 (SC)1419--111 DLT (1967) 665 (SC ). It was a case under the "thika Tenancyact". In that case under Clause 7 of the lease the tenant was to be servedwith six months notice before asking him to hand over vacant possession ofthe land in the absence of any renewal of the lease or on determination ofthe same. Clause 7 in that agreement required that on determination of thelease by afflux of time or on determination the lessee was to handover vacantpossession of the land in its original position after removing the superstructures, constructed thereon. If the superstructures were not removed thelessee had to sell them to lessor at a valuation to be fixed by lessor s engineer. The Supreme Court while interpreting Clause 7, posed a question as to "whatwould happen in a case where the tenant is not informed and does not knowwhether his lease which is for a fixed term would be extended by a renewalor otherwise ?" While answering this question the Supreme Court observedthat when the lease is not renewed or extended then of course the lessee hasto vacate on the expiry of the term. But where the lease provides for anoption of the tenant s exercise the option it is but fair and equitable that hemust know in good time whether the lessor agrees to renewal or not. But where the lease provides for anoption of the tenant s exercise the option it is but fair and equitable that hemust know in good time whether the lessor agrees to renewal or not. It wasto provide against tenancy where the lessee would have to equate without afair opportunity to dispose of the structures he bad put up that the proviso was added in Clause 7 of the lease and that proviso must be effected to. Sixmonths notice ending with the expiry of the term was made in order toenable the lessee to remove the structures, if need be, if the lease was notrenewed or extended. The object behind was to protect the interest of thetenant, because he had in the meantime constructed the superstructure. Butthat is not the case in hand. Therefore, the theory of double protection doesnot apply to the facts of this case. ( 9 ) LOOKING from another angle, once the petitioner admits that therespondent has also filed a petition under Section 14 (1) (e) (g) (h) (j) and (k)on15. 7. 88, to my mind. that petition itself will amount to a notice. Per termsof the agreement because this notice is not to be a notice under Section 106of the T. P. Act. Hence, the procedure required to be followed for a noticeunder Section 106 of the T. P. Act need not be complied with. Therefore,also I find no merit in the contention of the petitioner. ( 10 ) AS regards the question of house being used for commercialpurposes this Court in the case of B. M. Chanana v. U. O. I. and Ors. , reportedin 40 (1990) DLT, 113, has "held that if the premises is residential in natureand the Rent Controller comes to the conclusion that it is required by thelandlord for his residence then the landlord can regain possession even if thesaid house was leased out for a composite or for a commercial purpose orfor commercial-cum-residential purposes. " The object of Section 14-D ofthe D. R. C. (Amendment) Act, 1988 is to assist the vulnerable and needysection of the society to recover possession, without the usual trial and turbulence. This is an admitted fact on record that the landlady is about 77 yearsof age. She is residing in a tenanted premises and requires this house for heruse. " The object of Section 14-D ofthe D. R. C. (Amendment) Act, 1988 is to assist the vulnerable and needysection of the society to recover possession, without the usual trial and turbulence. This is an admitted fact on record that the landlady is about 77 yearsof age. She is residing in a tenanted premises and requires this house for heruse. The Additional Rent Controller rightly came to the conclusion that sherequires it bonafidely for her residence because presently she is residing in atenanted premises. She is tenant of barsati floor of this house and being oldcannot climb 50 steps every day. She has to keep a Nurse and servant tolookafter her, and therefore, she requires this premises bonafidely. This isbeing a single dwelling unit cannot be divided and, therefore, I am in confirmity with the view expressed by the Trial Court that the petitioners havenot made out any triable issue for granting the leave. No merits in thepetition. Dismissed.