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2015 DIGILAW 1094 (DEL)

Rama Shanker v. Prithvi Narain Berry & Sons (HUF)

2015-04-22

V.K.SHALI

body2015
JUDGMENT : 1. This is a regular second appeal filed by the appellant against the judgment dated 20.1.2015 passed by the first appellate Court in RCA No. 07 of 2007 in case titled Rama Shanker vs. M/s. Prithvi Narain Berry & Sons (HUF). 2. Before dealing with the submission made by the learned Counsel for the appellant, it may be pertinent here to give a brief background of the case to understand the submission made by the learned Counsel for the appellant. 3. The respondent-M/s. Prithvi Narain Berry & Sons (HUF) filed a suit for eviction on the ground of bona-fide requirement against late Sh. Narain Dass, father of the present appellant under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act, 1958 on the ground of bona-fide requirement. 4. The evidence of the parties was concluded. It was at this stage that Sh. Narain Dass died and an application was filed and the claim of the present appellant Sh. Rama Shanker s/o Sh. Narain Dass was brought on record. The respondent took the plea that the tenancy of Sh. Narain Dass was terminated vide notice dated 17.3.1978 and therefore he had become statutory tenant and his son Sh. Rama Shanker the present appellant had inherited tenancy rights only for a limited period of one year because he was not financially dependent on his father Sh. Narain Dass. 5. So far as the plea of eviction on the ground of bona-fide requirement is concerned, the Additional Rent Controller held that the respondent/landlord was not able to prove bona-fide requirement. Accordingly the eviction petition was dismissed. 6. The respondent/landlord filed Civil Revision No. 480 of 1998 in the High Court under Section 25B(8) of the Delhi Rent Control Act, 1958. This revision petition was not pursued and consequently the same was dismissed for non prosecution. While dismissing the revision petition for non-prosecution, the High Court observed that the petitioner may continue his proceedings in the civil Court as by that time, the respondent/petitioner had filed a suit for possession against Sh. Rama Shanker. 7. The respondent/plaintiff continued with the suit for possession against the appellant/ defendant Sh. Rama Shanker contending that under Section 2(1) of the Delhi Rent Control Act, 1958 the original tenant having died and the present appellant being financially not dependent on his father Sh. Rama Shanker. 7. The respondent/plaintiff continued with the suit for possession against the appellant/ defendant Sh. Rama Shanker contending that under Section 2(1) of the Delhi Rent Control Act, 1958 the original tenant having died and the present appellant being financially not dependent on his father Sh. Narain Dass had inherited the tenancy rights only for a limited period of one year. It may be pertinent here to reproduce Section 2(1) of the Delhi Rent Control Act, 1958, which reads as under: “Tenant” means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable and includes — (i) A sub-tenant. (ii) Any person continuing in possession after the termination of his tenancy. (iii) In the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and to this clause, such of the aforesaid persons:- (a) Spouse. (b) Son or daughter, or, where there are both son and daughter. (c) Both of them, parents. (d) Daughter-in-law, being the widow of his pre-deceased Son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death but does not include:- Any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso of Section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976): (B) Any person to whom a licence, as defined by Section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted. Explanation I - The order of succession in the event of the death of the:- (a) Firstly, his surviving spouse. (b) Secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death. (c) Thirdly, his parents, if there is no surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death. (c) Thirdly, his parents, if there is no surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death. (d) Fourthly, his daughter-in-law, being the widow of his predeceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death. Explanation II - If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished. Explanation III - For the removal of doubts, it is .hereby declared that:- (a) Where, by reason of Explanation II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguished shall not affect the right of any other succession of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termina­tion of the tenancy shall not, on such extinguishment, pass on to any other successor, specified in any lower category or categories, as the case may be. (b) The right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, develop on any of his heirs.” 8. The Civil Court accepted the plea of the respondent/plaintiff and negatived the defence of Sh. Rama Shanker vide judgment dated 21.5.2007 that principle of res judicata would be applicable. It accepted the plea that the appellant Rama Shankar had inherited the tenancy rights only for limited period of one year as he was residing with Sh. The Civil Court accepted the plea of the respondent/plaintiff and negatived the defence of Sh. Rama Shanker vide judgment dated 21.5.2007 that principle of res judicata would be applicable. It accepted the plea that the appellant Rama Shankar had inherited the tenancy rights only for limited period of one year as he was residing with Sh. Narain Dass, his father, but was not financially dependent on him. 9. Sh. Rama Shanker, feeling aggrieved, preferred the first appeal before the Court of learned ADJ bearing RCA No. 7 of 2007. The first appellate Court upheld the judgment and decree of possession passed against Sh. Rama Shanker. The trial Court as well as the first appellate Court had also negatived the plea of the suit being barred by doctrine of res judicata. 10. The learned Counsel for the appellant had taken the plea before the civil Court as well as before the first appellate Court that the question of Mr. Narain Dass having become statutory tenant was decided against the respondent/plaintiff and the Court of Rent Controller having chosen not to accept this plea of limited heritability of the appellant, it foreclosed the rights of the respondent/plaintiff to re-agitate the said issue before the civil Court. 11. This question is sought to be raised afresh by the appellant before this Court. For this purpose, the learned Counsel had relied upon the following judgments:- (i) Ms. Madhvi Amma Bhawani Amma & Others vs. Kunjikutty Pillai Meenakshi Pillai & Others, (2000) 4 SLT 188 : (2000) 2 CLT 207 (SC) : AIR 2000 SC 2301 . (ii) Mr. Kishori Lal vs. Sh. Krishan & Others, (1996) 63 DLT 577 . 12.I have gone through both these judgments. None of them renders any help to the appellant. The question has been dealt with in detail by the learned first appellate Court and it has observed one of the important ingredients for bringing the doctrine of res judicata into operation is that the issue which is involved in the subsequent suit should be directly and substantially in issue in the first suit which ought to be decided on merits. 13. 13. Assuming that all the other ingredients i.e. of the parties being the same either directly or through their successors, the decision having been given by a competent Court and the issue having been decided in the first matter on merits, still the doctrine of res judicata would not be applicable to the second suit which has given rise to filing of the present regular second appeal. This is on account of the fact that in the first suit, the issue which was directly and substantially in issue was as to whether the respondent/plaintiff was entitled to eviction of his tenant on the ground of bona-fide requirement while as in the civil suit, the issue was as to whether the tenancy rights are inherited for a limited period or not. It may also be pertinent here to mention that according to Section 2(1) of the Delhi Rent Control Act, 1958, the inheritance of tenancy rights for a limited period is given in case the successor is living with the tenant, but is not financially dependent on him. Accordingly, in the instant case, the issue which was raised between the parties was not, directly or substantially, the same and the doctrine of res judicata did not apply. 14. For the reasons mentioned above, I am of the considered opinion that no question of law much less a substantial question of law is involved in the matter. The present regular second appeal is accordingly dismissed. Second Appeal dismissed.