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2017 DIGILAW 1013 (RAJ)

Jaswant Singh S/o Shri Daulatram v. Abdul Kayum Khan (Died) Deleted

2017-04-19

PRASHANT KUMAR AGARWAL

body2017
ORDER : Prashant Kumar Agarwal, J. The appellant-review-petitioner has filed this review application under Section 114 read with Order 47, Rule 1 CPC with a prayer to review the judgment dated 4.1.2017 passed by this Court in S.B. Civil Second Appeal No.303/1998 whereby the appeal filed by the review-petitioner was dismissed. 2. It was submitted by the learned counsel for the review petitioner that the suit for eviction and recovery of rent, out of which the aforesaid appeal arose, was filed by the review petitioner, apart from others, on the ground of default in payment of rent and the trial Court under the provisions of Sub-Section (3) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 determined the provisional rent to be paid by the respondent-tenant and for determining the provisional rent, the question regarding relationship between the parties as landlord and tenant was also considered and it was decided to the effect that review-petitioner is landlord and respondent is his tenant in respect of the suit premises and that order was not challenged by the respondent in appeal or revision and the same became final and in compliance of the order respondent not only paid the arrears of rent so determined but also the monthly rent during the trial. It was further submitted that as the question of relationship of landlord and tenant between the parties was specifically determined by the trial Court and that order got finality, respondent was not entitled to reagitate that question before the first appellate Court as well as before this Court in this appeal and the Court was also not empowered to re-open that question but first appellate Court as well as this Court reversed the finding of trial Court about relationship of landlord and tenant between the parties. It was submitted that the question of relationship between the parties as landlord and tenant was not liable to be re-agitated and re-opened in this appeal but that question was decided in favour of the respondent and it is a mistake or error apparent on the face of the record requiring review by this Court. It was submitted that the question of relationship between the parties as landlord and tenant was not liable to be re-agitated and re-opened in this appeal but that question was decided in favour of the respondent and it is a mistake or error apparent on the face of the record requiring review by this Court. It was also submitted that the principle of res-judicata also applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceeding. It was submitted that the question of relationship as landlord and tenant between the parties was decided by the trial Court at the stage of determination of provisional rent under Section 13 (3) of the Act and it was decided against the respondent, he was not entitled to re-agitate this question in the first appeal as well as second appeal more particularly in view of the fact that the finding of the trial Court in this regard was not challenged by him by way of an appeal or revision. 3. In support of his submissions, learned counsel for the petitioner relied upon the case of C.V. Rajendran v. N.M. Muhammad Kunhi reported in AIR 2003 SC 649 . 4. On consideration of submissions made on behalf of the review-petitioner in the light of the material available on record as well as the relevant legal provisions and the case law relied on behalf of the review-petitioner, the submissions made on his behalf are not acceptable being merit-less. As per sub-section (3) of Section 13 of the Act the trial Court is to determine the provisional rent to be paid or deposited by the tenant and if at this stage of the proceedings the relationship of landlord and tenant between the parties is questioned by the tenant, the same is also required to be prima facie decided by the Court but that does not mean that the question so determined cannot be re-agitated or re-opened by the tenant in a case in which such order has not been challenged by him at that stage by way of appeal or revision. I am of the considered view that such question decided at a preliminary stage can never get finality and it can be agitated not only at the subsequent stage of the suit itself but also in appeal. Therefore, it cannot be said that this Court wrongly decided the question of relationship of landlord and tenant against the review-petitioner and the same is a mistake or error on the face of the record liable to be reviewed. According to Hon'ble Supreme Court interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decision of the dispute between the parties by way of a decree or a final order. In the opinion of this Court an order under sub-Section (3) of Section 13 of the Act determining provisional rent including the question of relationship between the parties as landlord and tenant is an interlocutory order which is a step towards the decision of the dispute between the landlord and tenant by way of a decree. 5. In view of the above, the review petition being merit-less is, hereby, dismissed. 6. During the course of hearing of this review petition learned counsel also invited attention of the Court towards some typographical errors occurred in the judgment dated 4.1.2017 passed by this Court. 7. In view of the submissions made, it is ordered that on Page No.1 of the judgment date 12.11.1995 may be read as 22.11.1995, date 22.1.1985 on Page No.6 may be read as 22.11.1995 and on Page No.8 of the judgment date 25.8.1961 may be read as 25.8.1966.