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2012 DIGILAW 610 (ALL)

R. P. Yadgy (Dr. ) v. D. K. Sharma

2012-03-13

DILIP GUPTA

body2012
Dilip Gupta, J.;- The landlord-respondent, filed an application dated 6th April, 2009 for release of the tenanted premises under Section 12 read with Section 16(1)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the 'Act') which was registered as P.A. Case No. 10 of 2009. The petitioner, who is the opposite party, filed an application dated 18th August, 2011 that the aforesaid application filed by the landlord should be rejected as the Act will not apply to the building for the reason that the monthly rent exceeded Rs.2,000/-. This application has been rejected by the Prescribed Authority by the order dated 21st November, 2011. This petition seeks the quashing of said order dated 21st November, 2011. It transpires from the records of the case that the respondent-landlord had earlier filed an application on 23rd September, 2005 under Section 21(1)(a) of the Act for release of the building as it was bona fide required by the landlord. In the said application it was stated that the building was earlier let out to the tenant at the rate of Rs.1400/-, but later on the rent was enhanced to Rs.3500/-. Subsequently an application was moved by the landlord for making amendment in the plaint that Rs.3500/- per month was mistakenly mentioned and the actual rent that was paid was Rs.1400/-. This Amendment Application was rejected and ultimately the application filed by the landlord was also rejected on 5th February, 2010 for the reason that the Act will not apply in view of the provisions of Section 2(1)(g) of the Act as the monthly rent exceeded Rs.2,000/-. Feeling aggrieved, the landlord filed an appeal under Section 22 of the Act, which is pending disposal. It transpires from the records of the case that the landlord also filed SCC Suit No. 16 of 2005 for ejectment of the defendant (present petitioner) and for recovery of arrears of rent which is pending disposal. Subsequently the landlord filed the application under Section 12 read with Section 16(1)(b) of the Act for declaration of the vacancy and release of the shop in favour of the landlord. In this application the landlord stated that the monthly rent was Rs.1400/-. Subsequently the landlord filed the application under Section 12 read with Section 16(1)(b) of the Act for declaration of the vacancy and release of the shop in favour of the landlord. In this application the landlord stated that the monthly rent was Rs.1400/-. The petitioner opposite party moved an application that since in the earlier proceedings filed under Section 21(1)(a) of the Act the landlord had come out with a case that the monthly rent was Rs.3500/-, the present application should be rejected as the finding in the earlier order dated 5th February, 2010 will operate as res judicata in the subsequent application. This application has been rejected by the order dated 21st November, 2011 holding that since it has been stated in the application that the monthly rent is Rs.1400/-, it cannot be said that the Act will not apply to the building. Learned counsel for the petitioner submitted that the finding recorded by the Prescribed Authority in its earlier order dated 5th February, 2010 will operate as res judicata in the subsequent application and in support of his contention he has placed reliance upon a decision of the Supreme Court in Md. Nooman & Ors., Vs. Md. Jabed Alam & Ors., 2010 AIR SCW 5979. Learned counsel for the respondents, however, submitted that the order dated 21st November, 2011 was assailed by the petitioner by filing a Revision, but subsequently the Revision was dismissed on 9th December, 2011 as not pressed. The present petition cannot be entertained as permission was not granted by the Revisional Court to the petitioner for assailing the order in subsequent proceedings. It is also his submission that in any view of the matter, the impugned order does not suffer from any illegality. The first issue that arises for consideration in this petition is whether any finding was recorded by the Prescribed Authority in its order dated 5th February, 2010 by which the application filed by the landlord under Section 21(1)(a) of the Act was rejected so as to operate as res judicata in the subsequent application filed by the landlord under Section 12 read with Section 16(1)(b) of the Act. In order to appreciate this contention, it will be appropriate to refer to Section 11 of the Code of Civil Procedure which is as follows:- "11. In order to appreciate this contention, it will be appropriate to refer to Section 11 of the Code of Civil Procedure which is as follows:- "11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." In Md. Nooman (supra) it was held :- "We have carefully examined the pleadings of the parties in the two suits and the evidences led by them in support of their respective claims regarding title in the two suits and, we are satisfied that the issue of title was expressly raised by the parties in the earlier eviction suit and it was expressly decided by the eviction Court. The question of title was directly and substantially in issue between the parties in the earlier suit for eviction. Hence, the High Court was right in holding that the finding recorded in favour of the plaintiff in the earlier suit for eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession between the parties." It is for the same premises that the landlord had earlier filed the release application with the averments that the monthly rent was initially Rs.1400/- which was enhanced to Rs.3500/- at the time of filing of the application and the Amendment Application moved by the landlord that the rate of monthly rent was wrongly mentioned as Rs. 3500/- was rejected and ultimately, as the monthly rent exceeded Rs.2000/-, it was held that the Act will not apply to the building. Subsequently an application was filed by the landlord under Section 12 read with Section 16(1)(b) of the Act for release of the building in favour of the landlord after declaring vacancy and in the said application, the landlord came out with a case that the monthly rent was Rs.1400/-. It cannot be said that the matter was directly and substantially in issue in the former suit and so the order dated 5th February, 2010 will not operate as res judicata. It cannot be said that the matter was directly and substantially in issue in the former suit and so the order dated 5th February, 2010 will not operate as res judicata. This apart, the Prescribed Authority has recorded a finding that the opposite party had admitted that the monthly rent was Rs.1400/- only. There is, therefore, no illegality in the order passed by the Prescribed Authority which may call for any interference under Article 226 of the Constitution. It will, therefore, not be necessary to decide the other issue raised by learned counsel for the petitioner as to whether the writ petition would be maintainable after the Revision filed to assail the impugned order was dismissed without giving any liberty to the Revisionist to initiate further proceedings. The writ petition is, accordingly, dismissed.