1.This is a landlord's Revision Petition under Section 115 of the C.P.C.
2. The landlord sought for eviction of the tenants from the non-residential premises in question on the ground under Section 21(l)(h) of the Act. On an appreciation of the evidence the Trial Court allowed the landlord's claim and ordered eviction of the tenant. Being aggrieved by the said order ofeviction the Respondents herein, who are stated to be the tenant and subtenant respectively, challenged the same by filing separate Revision Petitions under Section 50 of the Act before the District Court, Dharwad. The Learned District Judge while concurring with the findings of the Trial Court on the question of bona fides and reasonableness of the landlord's requirement of the premises on the grounds under Section 21(l)(h) of the Act, dismissed the eviction Petition on the ground that the relationship of landlord and tenant between the parties has not been established.
3. The admitted and established facts in the case are that the property in question originally belonged to one Arvind and Nirmalabai, who mortgaged the same in favour of one Laxminarayanabhat for a sum of Rs. 10,000/- by a registered deed of mortgage dated 26th May 1950.Subsequently the said mortgagee assigned .his interest in the mortgage in favour of respondent-1 Srinivasa Bhat by a registered document dated 23rd September 1954. Thereafter it was re-assigned by respondent-1 in favour of one Smt. Nazimunnisa Savanur under a registered deed dated 24th February 1964. However, respondent-1 - assignor obtained a lease of the premises in his favour under lease deed Ex.P.5 on a monthly rent of Rs. 100/-. Subsequently under two registered sale deeds dated 10th December 1973 and 8thFebruary 1974, the petitioner herein purchased the said property from the original owners Arvind and Nirmalabai. He also discharged the mortgage liability and redeemed the mortgage from Smt. Nazimunnisa under the document dated 8th February 1974.
4. While the above facts are not disputed, it was contended by the respondents herein that since they had taken the lease of the premises from a subsequent mortgagee, there was no attornment of tenancy in favour of the petitioner, who is a subsequent purchaser of the property. In the Trial Court this question regarding relationship of landlord and tenant was tried as a preliminary one and a clear finding was given by the Learned Munsiff that respondent-1 herein did attorn his tenancy in favour of the petitioner and became his tenant. The said order was taken up in revision by the tenant under Section 50 of the Act before the District Judge, Dharwad, in HRC.R.P No. 216 of 1980. The District Judge has after hearing the parties and on consideration of the material on record confirmed the order of the Trial Court. Later on, as stated earlier the Trial Court also allowed the landlord's claim for possession of the premises under Section 2l(l)(h) of the Act and directed eviction of the tenant.
5. The tenant questioned the correctness and legality of the Trial Court's order in revision under Section 50 of the Act, The Learned District Judge has taken the view that the proceedings in the earlier stage of the same case could not be treated as 'former proceedings' within the purview of Section 45 of the Act and hence, it was open for him to deal with the matter and decide the same once again. The District Judge has held that having regard to the dictionary meaning of the words 'former proceedings' and 'latter proceedings' used in Section 45 of the Act, there must be two independent proceedings and not two stages in the same proceedings to attract the said provision. He has further held that the decision of the Supreme Court in A.I.R. 1977 S.C. 392 and other decisions cited on behalf of the landlord were rendered under Section 11 of the C.P.C. and hence not applicable to the instant case.
6. Mr. K.S. Savanur, Learned Counsel for the landlord contends that the Trial Court having held that question in favour of the landlord and the same having been confirmed by the District Court in revision, the said finding on the question ofjournal relationship between the parties became final and binding on the parties and it could not be allowed to be raised once again.
7. The view taken by the learned District Judge, in my opinion, is erroneous and cannot be sustained. It is now well settled that interlocutory applications in a suit cannot themselves be regarded as suits but for the purpose of Section 11 of the C.P.C. a finding thereon which has become final at an earlier stage of the proceeding would become resjudicata and cannot be re-agitated at a subsequent stage of the same proceedings. This is a general principle of resjudicata which is applicable not only to the cases coming within the purview of Section 11 of the C.P.C. but also to eviction proceedings contemplated under Section 45 of the Act. In the circumstances, the order of the Learned District Judge cannot be sustained.
8. But it is contended by Sri V.K. Kulkarni, the Learned Counsel for the tenants, that although there is concurrent finding of fact regarding the landlord's bona fide and reasonable requirement of the premises which cannot bereagitated in this revision, the District Judge's order is silent regarding the Trial Court's finding on the question of comparative hardship. In this connection it is also, submitted that while considering the question of comparative hardship the Court has to further consider the question whether any hardship would be caused to the landlord or the tenant byordering eviction of the tenants only from a part of the premises. Mr. Kulkarni's submission is well founded. The Learned District Judge has in fact not considered the said question while dismissing the eviction petition. In the circumstances it has become necessary to call for a finding from the District Judge on this question.
9. In the circumstances the matter is remitted to the District Judge, who shall consider the question ofcomparative hardship that may be caused to the parties either in the event of granting or refusing the order of eviction, including the question of ordering partial eviction of tenant as provided under Section 21(4) of the Act in accordance with law. The District Judge shall give his findings after hearing the parties on the question and forward the same to this Court within six months from this date.
10. The parties are at liberty to adduce such further evidence as they may consider necessary regarding the, feasibility of directing partial eviction of the tenant from the premises.