G.L. Oza, J.
1. This second appeal has been filed by the appellant-tenant against a judgment and decree passed by XVI Civil Judge Class II, Jabalpur in Civil Suit No. 165-A of 1980, maintained on appeal by Vth Additional Judge to the Court of District Judge, Jabalpur in Civil Appeal No. 14-A of 1981 decided on is for eviction Under Section 12 (1) (a) of the M. P. Accommodation Control Act.
2. The plaintiff-respondent filed a suit against the appellant-defendant alleging that the appellant was a tenant of the respondent in house No. 790, Barat Road, Napier Town, Jabalpur on a monthly rent of Rs. 75/- per month. The tenancy was for residential purpose and the month of tenancy commenced from 1st day of every Gregorian calendar month. It was also alleged that the appellant did not pay rent from March, 1969 and ultimately, a notice for demand was issued on 26-12-1973 which was received by the appellant on 29th of Dec., 1973 and instead of service of this notice of demand, the appellant failed to pay rent as demanded in the notice. It was also alleged that the appellant converted the use of the premises for non-residential purpose also, by opening a small factory for retrading tyres and damaged the tenanted premises and this act of the appellant was inconsistent with the purpose for which the tenanted premises were let out and affected adversely the interest of the respondent. The plaintiff along with the plaint also submitted a map describing the area of the suit house which was used by the appellant for running the factory. It was also alleged that by such use, the house is likely to collapse. The tenancy of the appellant was terminated by the notice dated 26-12-1973 which was a composite notice terminating the tenancy as well is demanding arrears and the tenancy was terminated by the end of Feb., 1974. But as the appellant did not comply with the notice a suit for eviction and also arrears of rent from March, 1971 to Feb., 1974 total-ling Rs. 2,625/- and mesne profits at Rs. 250/-pcr day from 1-3-1974 to 25-3-1974 and future mesne profits at the same rate till the delivery of possession was filed.
3. The defendant-appellant contested the suit and it was contended that the appellant was a tenant on monthly rent of Rs. 75/- but on 1-3-1971, the respondent entered into an agreement with the appellant to sell a piece of land on plot No. 14/5, Block No. 5, Ward No. 28, Civil Lines, Jabalpur with the block of houses on the said piece of land occupied by the appellant and Shri S.L. Jain, counsel for the respondent for a consideration of Rs. 62,000/-. It was agreed that the respondent would provide an approach road to the property agreed to be sold, 15' wide and appellant paid Rs. 5,000/- to the respondent as earnest money and paid Rs. 18,400/- towards part payment of the consideration, The balance of Rs. 38,600/-was to be paid by the appellant at the time of registration of the sale deed on or before 30-7-1971. It was alleged that the respondent went back on his words and did not provide for the approach road. The respondent was served with a notice and called upon to perform his part of the agreement but in vain and in the month of March, 1974, the respondent undertook removal of encroachment work to provide for the approach road. It was, therefore, contended that the appellant continued to be in possession of the suit premises in pursuance of this agreement dated 1-3-1971 and the appellant was always willing to perform his part of the contract and pay to the respondent the balance amount of Rs. 38,000/-without prejudice to his rights to recover interest on the advance.
4. It was contended by the appellant that because of the agreement coming into existence dated 1-3-1971, the relationship between the parties ceased to be that of landlord and tenant. The appellant paid rent from March, 1969 to Feb., 1971 and the respondent was in possession of the amount of Rs. 18,400/- paid by the appellant on 15-1-1971. The appellant asked respondent by notice dated 21-12-1973 to adjust rent for the period 1-2-1971 to 31-12-1973 claimed in the notice dated 8-12-1973. Even without the notice, it was contended, the respondent could adjust the entire arrears of rent up to the date of suit from the amount of Rupees 18,400/- and the notice demanding arrears of rent was uncalled for. It was also alleged that the interest on the said amount of Rs. 18,400/- came to Rs. 184/- per month and the appellant asked the respondent to adjust rent from the interest that accrued to the appellant. The appellant was then not in arrears of rent and the suit under Section 12 (1) (a) of the M. P. Accommodation Control Act could not, therefore, be entertained. The agreement for tenancy when the appellant was inducted in the suit premises was for a composite purpose of residential and non-residential and it was denied that the appellant converted the suit premises for non-residential purpose. It was also alleged that the premises were used for the simple reason that the appellant has ceased to be the tenant of the respondent after 30-7-1971. The appellant filed a suit against the respondent for a specific performance of the contract. The payment of rent by appellant by way of abundant caution could not be used by the respondent and render the appellant liable to consequences under Section 13.
5. The defendant-appellant received the writ of summons of this suit on 19-4-1974 and it is alleged that on 17-6-1974, the appellant-defendant deposited all the arrears and the defendant-appellant submitted an application that the amount should not be allowed to be withdrawn by the respondent. The matter came to this Court in Civil Revision No. 1253/74 but under orders of this Court, the amount was permitted to be withdrawn. The appellant deposited rent for Aug.. 1974 on 26-9-1974 and thereby committed a default and did not deposit rent from Sept., 1974 to June. 1975 and by an application dated 3-7-1975, the appellant applied for condonation of delay in the deposit of rent for 10 months and also for condonation in depositing the rent of Aug., 1974 late. The trial Court condoned the delay for depositing 10 months' rent but a revision was filed against that order before this Court and this Court in Civil Revision No. 102/76 set aside the order of the trial Court. The appellant did not deposit rent from July, 1976 onwards. Consequently, an application, was filed by the respondent-landlord Under Section 13 (6) of the M. P. Accommodation Control Act for striking out the defence and as the appellant did not comply with the provisions of Section 13 (1) of the M. P. Accommodation Control Act, the application was allowed, as the ease of the appellant was that he was not obliged to deposit rent at all Under Section 13 (1) as according to him from the date of the agreement he ceased to be a tenant. Thereafter, it appears that an attempt was made by the appellant to get that order set aside by depositing the rent from July, 1976 to 31-12-1980 during the pendency of the revision petition before this Court which was Civil Revision No. 1514/80. This revision petition was also Dismissed and the order striking out the defence of the appellant-defendant remained in force.
6. The suit for specific performance was filed by the appellant-defendant against the respondent on the basis of agreement and this suit also was dismissed and the dismissal was maintained by the High Court. The suit was dismissed on 13-3-1979 by the trial Court and the appeal also was dismissed by the High Court on 15-10-1980 and the Supreme Court also maintained the order by its order dated 16-3-1981. After the decision of the High Court, two applications for amendment of the written statement were made by the defendant-appellant -- one on 26-11-1980 and another on 3-12-1980 and paras 2 (a) and 2 (b) have been inserted in the written statement. These amendment applications were allowed and by this amendment a plea was raised that as plaintiff was in possession of Rs. 18,400/- paid on 15-1-1971 and the appellant-defendant by notice dated 21-12-1973 called upon the plaintiff to adjust the rent from 1-1-1971 to 31-12-1973 and even otherwise, it was alleged that the arrears of rent could have been adjusted from the sum of Rs. 18,400/- which were lying in possession of the plaintiff-respondent, the plaintiff is not entitled to any rent. Para 2 (b) which was inserted by a subsequent amendment was that the appellant-defendant was entitled to interest on the amount of Rs. 18,400/- which according to the appellant came to Rs. 184/- per month and as by notice dated 25-11-1971 and 25-12-1973, the plaintiff-respondent was directed to adjust the interest against arrears of rent and rent, there were no arrears. It was also stated that the Additional District Judge in his judgment in the specific performance suit allowed the claim of interest and, therefore, it should have been adjusted by the plaintiff-respondent and, therefore, no arrears remained and consequently, the suit for ejectment could not be decreed.
7. The learned Court below decreed the suit on the ground Under Section 12 (1) (a). Theother ground of having converted the premises to non-residential purpose was given up by the respondent and the judgment and decree have been maintained by the learned Court below and hence this present second appeal.
8. It was contended by the learned counsel for the appellant that the defendant-appellant denied the relationship of landlord and tenant and dispute would fall within the ambit of Section 12 (3) and without passing a provisional order deciding this dispute, the operation of Section 13 remained suspended and, therefore, it was contended that the decree on the grounds under Section 12 (1) (a) could not have been passed. It was also contended that although the default was committed by the appellant but delay was condoned by the trial Court and the High Court in Civil Revision No. 102/76 decided on 18-9-1976, no doubt, set aside the order passed by the trial Court and held that delay could not be condoned and thereby virtually held that a default was committed. But It was contended that this order in revision is only an interlocutory order. Consequently, it is not binding on this Court hearing in second appeal. Reliance was placed on decisions reported in Pichu Ayyengar v. Ramanuja, AIR 1940 Mad 756, Ram Kumar v. Smt. Sarti Devi, AIR 1977 Madh Pra 110 and Sukhrani v. Hari Shankar, AIR 1979 SC 1436. It was also contended that although defence was struck off under Section 13 (6) of the M. P. Accommodation Control Act and in the Civil Revision No. 1514/80 decided on 30-6-1981, the question was incidentally considered but the question of order under Section 13 (6) was not specifically challenged and therefore, it is open to the appellant to challenge the order passed by the Courts below under Section 13 (6) striking out the defence of the appellant. It was also contended that although the written statement was amended after the judgment in the specific performance case by two applications dated 26-11-1980 and 3-12-1980 but as has been laid down by this Court, the amendment will date back to the date of the written statement itself and by these amendments a dispute about the quantum of rent payable is raised and it was contended that as this amendment relates back to the date of the filing of the written statement, the order passed striking out the defence of the appellant by the trial Court in itself washed off. Reliance was placed on a decision reported in Siddhnath v. Kaluram, 1981 MPLJ 53 : (AIR 1981 Madh Pra 244) as a dispute was raised about the amount of rent payable in absence of a provisional order under Section 13 (2), an order under Section 13 (6) could not he passed. It was also contended that the plea introduced by amendment about adjustment of arrears of rent and rent out of the advance paid towards the price and adjustment of it from the interest which was payable to the appellant, raises such a dispute which will fall within the ambit of Section 13 (2) of the M. P. Accommodation Control Act and as this raises a dispute under Section 13(2), without a provisional order being passed, an order under Section 13 (6) could not be passed nor a decree for eviction on the ground under Section 12 (1) (a) could be passed against the appellant. Learned counsel plated reliance on the decisions reported in Tarachand v. Kapurchand, 1980 MPRCJ (Note) 107, Jinendra Kumar v. Hemant Kumar, 1981 MPRCJ (Note) 71, Surajprasad v. Ganpatrai, 1968 MPLJ 168, Babulal v. Jiwanlal, 1980 MPRCJ (Note) 54. Smt. Rampiyari v. Ramautar, 1968 MPLJ 1 : (AIR 1968 Madh Pra 87) (FB), Shyamcharan v. Dharmdas, AIR 1980 SC 587 and Miss Santosh Mehta v. Om Prakash, AIR 1980 SC 1664.
9. Learned counsel for the respondent, on the other hand, contended that the dispute which was raised purporting to the relationship of landlord and tenant does not fall within the ambit of Section 13 (3) of the M. P. Accommodation Control Act as has been laid down by a decision of this Court in Kewalram v. Surjeetsingh, 1981 MPRCJ (Note) 193, Shambhoo Narain Trivedi v. Kishantal Agarwal, 1968 MPLJ 692, Chandra Prakash v. Jiwan Ram Mehra, 1981 MPRCJ (Note) 70 and Inderlal v. Mahngibai, AIR 1967 Madh Pra 163. It was also contended that orders passed in revisions, viz. Civil Revision No. 102/76 and Civil Revn. No. 1514/ 80 could not be re-examined by this Court in this second appeal. It was contended, that the decision on which reliance is placed by the learned counsel for the appellant, i. e. Pichu Ayyangar v. Ramanuja (AIR 1940 Mad 756) (supra), has not been followed in the subsequent decision of the Madras High Court itself. As has been observed in Laxminarayan v. Sultan Jehan Begum, AIR 1951 Hyd 132 and also in Satyadhyan Ghosal v. Smt. Deorajin Debi. AIR 1960 SC 941, Smt. Bela Das v. Semarundra Nath Bose, AIR 1975 SC 398, V.B. Patil v. Y.L. Patil, AIR 1977 SC 392 and Smt. Krishnabai v. Laxmibai, AIR 1970 Madh Pra 280. It was contended that so far as this Court is concerned the decision given in these revision petitions are final. They can only be considered in the superior Court and not in this Court itself. It was also contended that under these circumstances, a default in fact was committed and the defence having been struck off under Section. 13 (6), a decree under Section 12 (1) (a) was the only consequence.
10. As regards the question of dispute which is alleged to have been raised by amendment in the written statement, it was contended by learned counsel for the respondent that these amendments have been incorporated after the suit for specific performance filed by the appellant-defendant had been decided by the trial Court and the High Court and also by the Supreme Court. But it is clear from the judgment of the suit filed by the appellant under Specific Relief Act which has been produced as evidence in the case that the appellant went on pursuing his relief of specific performance. It is only when the suit was ultimately decided that, and it was held that it was the appellant-defendant himself who was responsible for the breach of that contract the earnest money was forfeited and the equitable relief of return of the advance paid by the defendant-appellant was granted and on this amount, interest also was decreed which the respondent has already deposited in the Court and satisfied the decree. It was therefore, contended that the pleas which have been raised by way of amendment could only be raised after the suit of specific relief was disposed of and so long as that was not disposed of the amount of rupees eighteen thousand and odd which was paid by the appellant could not have been adjusted as it was paid towards advance of the price stipulated in the agreement. Under these circumstances, therefore, although it could be said that an amendment dates back to the date of the written statement but it is not always the rule. It will depend upon the circumstances of each case. As has been observed by their Lordships of the Supreme Court and in the facts of this case, it could not be disputed that on the date on which the written statement was filed the right of the appellant-defendant to seek the relief for specific performance of the contract was not given up and so long as that right continued, and in fact was pursued by the appellant-defendant, such an adjustment could not be suggested. It is, therefore, clear that in the circumstances as they stand, this amendment could only be made after the judgment of the High Court and it was, in fact, made after the judgment of the High Court which was passed on (5-10-1980 and, therefore, by no stretch of imagination this amendment could not date back to a date earlier than 15-10-1980. It was, therefore, contended that even if this could be said to be a dispute covered under Section 13 (2), it could not have been raised earlier than 15-10-1980 and it was contended that as before this an order under Section 13 (6) was passed striking out the defence of the appellant-defendant, this plea which only is a plea of protection under the M. P. Accommodation Control Act could not be considered as that is the direct consequence of an order under Section 13 (6) of the M. P. Accommodation Control Act.
11. It was also contended by learned counsel for the respondent that the dispute which has been raised by these amendments are in the nature of claiming a set off or adjustment but this does not fall within the ambit of the dispute about the quantum of rent payable to the plaintiff-respondent. Admittedly, the quantum of arrears or quantum of rent and rate of rent are not at all in dispute. What has been introduced by the amendments is that the appellant-defendant is entitled to get the amounts which he has deposited under some contract to be adjusted against the arrears which are payable by the appellant-defendant to the respondent and dispute, according to the learned counsel for the respondent, is such which will not be covered under Section 13 (2) of the M. P. Accommodation Control Act. The learned counsel relied on decisions reported in Siddhnath v. Kaluram, 1981 MPLJ 53 : (AIR 1981 Madh Pra 244), Gafoorshah v. Sadatshah, 1978 MPU (Note) 13, Inderlal v. Mahngibai, AIR 1967 Madh Pra 163 (supra), Champalal v. Bhojrai, 1979 MPRCJ (Note) 39, State of Rajasthan v. Raghubir Singh, AIR 1979 SC 852 and Mathura Prasad v. Dossibai, AIR 1971 SC 2355.
12. It was also contended by the learned counsel for the respondent that the respondent gave up his claim for seeking eviction on the ground that the appellant-tenant has changed nature of tenancy by using it for starting a factory which is detrimental to the plaintiff-respondent, not because he was not in a position to pursue the relief on that ground but merely because after the order under Section 13 (6) was passed the plaintiff-respondent was entitled to a decree under Section 13 (1) (a) and in order to cut short the litigation, as about 10 years have elapsed since the suit was pending, the respondent chose not to press that ground. It was also contended by the learned counsel for the respondent that during the pendency of the suit, the respondent's son had, returned after his studies in medicines and wants to start his own clinic and requires the premises and the respondent had not chosen to amend the plaint only because the suit was being decreed as a result of orders under Section 13 (6). It was, therefore, contended that it was not that the respondent had no other ground for seeking the eviction but merely a ground under Section 12 (1) (a).
13. Learned Counsel for the appellant contended that it is not correct to say that a dispute denying the relationship of landlord and tenant is a dispute which does not fall within the ambit of Section 13 (3) of the M. P. Accommodation Control Act. It was contended that the decision on which reliance has been placed by learned counsel for the respondent i.e. 1981 MPRCJ (Note) 193 could not be accepted as the Note itself indicates that there was a controversy on this question and the observations made in this judgment by Hon'ble the Chief Justice are 'Gafoorshah's case cannot be taken to have laid down the correct law', as according to the learned counsel this decision noted in Gafoorshah v. Sadatshah (1978 MPU (Note) 39) (supra) is also a decision of a single Bench of this Court and it could not be said as has been observed above by another single Judge that it does not lay down the correct law and it was, therefore, contended that, at best, it is a matter on which there are conflicting decisions of this Court which needs to be decided. But the learned counsel also submitted that the view taken in Gafoorshah's case (supra) also finds support from decisions of other High Courts and he relied on Maqsood Ali v. Shamsher Khan, AIR 1979 All 182. But the learned, counsel for the respondent stated that this controversy is without consequence as the view that has been taken by the Hon'ble the Chief Justice in 1981 MPRCJ (Note) 193 is also the view of Division Bench of this Court reported in Inderlal v. Mahngi Bai (AIR 1967 Madh Pra 163) (supra).
14. It was also contended by the learned counsel for the appellant that the dispute of adjustment as has been raised by the amendment in the written statement clearly falls within the ambit of Section 13 (2) of the M. P. Accommodation Control Act. Learned counsel for the parties frankly conceded that the substantial questions of law that have been framed in this case are exhaustive and except what has been framed as substantial questions of law, there is no other question that could be raised.
15. The questions that arise for consideration, therefore, in this appeal are:--
(1) Whether the amendment made in the written statement will relate back to the date of filing of the written statement and, therefore, nullifying the order dated 26-8-1977, striking off the defence of the defendant under Section 13 (6) of the M. P. Accommodation Control Act ?
(2) Whether the averments made in the amended written statement amounted to a dispute under Section 13 (2) and, therefore, cast a duty on the Court to pass a provisional order under Section 13 (2) and in absence of such an order, the operation of Section 13 is suspended?
(3) These questions not having been raised at any time before this appeal, whether the appellant is entitled to raise these questions now ?
(4) In view of the amendment in the written statement whether it could be said that a dispute under Section 13 (2) was raised. But this question did not survive as this was not raised earlier and, therefore was waived ?
(5) Whether in spite of this amendment in the written statement, the question under Section 13 (2) does not arise as the plea of the defendant was that relationship of landlord and tenant does not exist ?
(6) Whether the contention about the question of condonation of delay which was setaside by this Court in revision will be barredby res judieata
16. Originally in the written, statement the plea of the defendant-appellant was that when the agreement was entered into between the parties for transfer of the property in favour of the appellant-defendant the relationship of landlord and tenant came to an end, and thereafter the defendant-appellant was not bound to pay rent. It is also clear that the defendant-appellant under the agreement claimed a right of specific performance of the contract and that right he pursued till the suit was ultimately dismissed and the dismissal was maintained by the High Court and also by the Supreme Court. It is, therefore, clear that so long as the defendant-appellant was pursuing his remedy for specific performance, the question of adjustment of the advance amount which was paid by the defendant-appellant in pursuance of the agreement to transfer could hot be raised nor the appellant could say that he adjusted against rent as originally the plea of the defendant-appellant was that he was not bound to pay rent after this agreement. The judgment in this case ultimately was pronounced by the High Court on 15-10-1980 and, therefore, the amendment applications were made after the judgment of the High Court in the specific performance case. It is, therefore, clear that these amendments which were incorporated on the basis of applications dated 26-11-1980 and 3-12-1980 could not have been made before 16-10-1980 when the High Court disposed of the suit filed by the appellant-defendant for specific performance of the contract. It is, therefore, clear that although ordinarily the amendment will date back to the date of the written statement but in the peculiar circumstances of this case, it could not be said that this amendment could have been made on any date before 16-10-1980 and if this amendment could not have been made before 16-10-1980, it could not be contended that although this was made subsequently but it should be deemed to have been made much earlier. A contention was advanced that once this amendment was allowed and a dispute about the quantum of arrears of rent payable was raised an order passed earlier under Section 13 (6) of the M. P. Accommodation Control Act will automatically be deemed to have been set aside. This contention is without any substance as it is clear that once an order under Section 13 (6) striking out the defence of the defendant-appellant against the eviction is passed, the defendant-appellant is not permitted to raise any defence against eviction available under the M. P. Accommodation Control Act and, therefore, when this application for amendment was allowed it only meant that it was a plea with regard to the ultimate decree about payment of rent but it could not be construed or used as a defence, against eviction under the M. P. Accommodation Control Act and, therefore, on the basis of this amendment, the contention that a dispute contemplated under Section 13 (2), is raised which calls for a provisional order itself is not permissible to be raised by the appellant when his defence against eviction under Section 13 (6) has already been struck out. It is, therefore, clear that by allowing this amendment, there is no question of automatically setting aside the order of striking out the defence but on the contrary, it is clear that this amendment only pertained to the determination of the question of the amount payable to the plaintiff which is to be decreed and if this amendment could be used to raise any defence against eviction like a plea under Section 13 (c), such a plea could not be allowed to be raised in view of Section 13 (6) of the M. P. Accommodation Control Act. It is, therefore, clear that this amendment in no manner could be said to have washed out the order passed under Section 13 (6).
17. A controversy was raised about the dispute which was initially raised that the relationship of landlord and tenant is not admitted by the defendant and, therefore, it will be a dispute under Section 13 which calls for a provisional order. A perusal of the written statement clearly shows that it was not a case where the relationship of landlord and tenant was not accepted at all. The plea raised was that by impact of the agreement of transfer of the property in favour of the appellant-defendant, the relationship of landlord and tenant came to an end. It was plainly admitted that originally the relationship of landlord and tenant did exist and such a plea, it could not be said, was a plea disputing the relationship of landlord and tenant. Apart from it, such a dispute could not be said to be a dispute under Section 13 as has been clearly held by this Court.
18. A controversy was raised by the learned counsel for the appellant that the observations made by Hon'ble the Chief Justice in the decision noted in Kewalram v. Surjeetsingh, 1981 MPRCJ (Note) 193 could not be accepted but it is clear that the view taken by Hon'ble the Chief Justice was the view of a Division Bench of this Court reported in Inderlal v. Mahngi Bai, (AIR 1967 Madh Pra 163) and in view of that it is clear that the decision noted in Gafoorshah v. Sadatshah, 1978 MPLJ (Note) 13 could not be accepted in Inderlal v. Mahngi Bai (supra) it was held as under :--
'... ... ... Where the defendant in a suit for eviction denies the relationship of landlord and tenant, then the Court must first determine that he is a tenant before applying to him Section 13 of the Act, then we must say that such a view is not correct.'
And in view of the decision of the Hon'ble the Chief Justice in Kewalram's case (supra), it is not necessary for me to further go into the decision reported in Maqsood Ali v. Shamsher Khan, AIR 1979 All 182. It is, therefore, clear that even if such a plea in the written statement is considered to be a dispute, it will not be a dispute falling within the language of Section 13 (3) of the M. P. Accommodation Control Act. Sub-section (3) of Section 13 reads:--
'(3) If, in any proceeding referred to in Sub-section (1), there is any dispute as to the person or persons to whom the rent is payable, the Court may direct the tenant to deposit with the Court the amount payable by him under Sub-section (1) or Sub-section (2), and in such a case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same.'
This clearly talks of a dispute as to the person or persons to whom the rent is payable. Admittedly, in this case the plea raised by the defendant was not that the rent is payable not to this plaintiff but to any one else but the plea was that because of the contract for transfer of the property, the relationship of landlord and tenant came to an end and, therefore, it is clear that such a plea will not be a dispute as contemplated under Section 13 (3) and, therefore, there was no question of any order to be passed by the Court with regard to this dispute. It is also clear that in a suit filed by the landlord for eviction, the operation of Section 13 does not depend on the admission of the defendant and, therefore, the contention that on this ground itself, Section 13 would not be attracted also is not correct as has been held in Inderlal's case (AIR 1967 Madh Pra 163) (supra). This contention advanced by the learned counsel for the appellant, therefore, could not be accepted.
19. As regards the question as to whether this Court hearing an appeal could reconsider the order passed in revision refusing to condone the delay and holding that the appellant has committed a default although the learned counsel for the appellant placed reliance on the decision of the Madras High Court reported in Pichu Ayyangar v. Ramanuja, AIR 1940 Mad 756. But it is clear that this decision was not followed subsequently in that High Court itself as is clear from the decision reported in Laxminarayan v. Sultan Jahan Begum, AIR 1951 Hyd 132. In Satyadhyan Ghosal v. Smt. Deorajin Debi, AIR 1960 SC 941, the question of res judicata vis-a-vis interlocutory orders has been considered and it is observed :--
'The principle of res judicata is based on the need of giving a finality to judicial decisions, what it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter --whether on a question of fact or a question of law -- has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct.
The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation consider the matter again ?' (Paras 7 & 8)
20. It is, therefore, clear that when questions like default or condonation of delay has been finally disposed of in a revision by this Court hearing an appeal, it is not open to me to re-examine the question nor it is permissible for the appellant to re-agitate. And thus, it is clear that the appellant has committed default and delay was not condoned and ultimately a decree under Section 12 (1) (a) was passed.
21. A question is also raised that as the plea which has now been introduced in the written statement by amendment pertaining to Section 13 (2) was not raised earlier, had amounted to waiver. In fact in view of what has been discussed above, it is not necessary to be considered as it is apparent that the question about the amended written statement and the plea has been considered and it is clear that in view of the order passed under Section 13(6) this plea now could not be raised suggesting that a dispute has been raised about the quantum of arrears of rent and, therefore, also it is not necessary to go into that question.
22. By the amendment of the written statement it is significant that what is pleaded is not that the amount of arrears as claimed by the plaintiff-respondent is not correct but what is pleaded is that this amount should have been adjusted against interest or principal paid towards the advance under the agreement and this it was contended will fall within the ambit of the dispute under Sub-section (2) of Section 13. It is clear that Sub-section (2) contemplates a dispute with regard to quantum of rent payable by the tenant and the rate of not payable by the tenant. The plea which is now sought to be raised in the written statement is by way of claiming a set off and, therefore, as there was no dispute raised about the quantum of arrears of rent payable, apparently this will not even fall within the ambit of a dispute under Section 13 (2) of the M. P. Accommodation Control Act. But as decided earlier, as this plea was raised at a late stage when an order under Section 13 (6) had already been passed, a plea under Section 13 (2) which could only be said to be a plea under eviction available under M. P. Accommodation Control Act and such a plea after the defence of the appellant was struck out could not be allowed to be raised and, therefore, in that view of the matter it is not even necessary for me to decide as to whether this kind of plea will fall within the ambit of Section 13 (2) of the M. P. Accommodation Control Act or not.
23. The order under Section 13 (6) striking out the defence of the appellant, although was challenged before me but it is plain that order was passed when default had been committed and the defendant-appellant refused to deposit rent as his defence at that stage was that after the agreement he was no longer a tenant and, therefore, not bound to deposit the rent. Apparently, when, the default was committed and the defendant-appellant refuses to deposit the rent, it could not be said that the order passed by the learned Court below striking out the defence of the appellant is incorrect. It is not disputed that the facts on the basis of which this order was passed were not correctly found nor it is contended that on the facts found an order striking out the defence of the appellant against eviction could not be passed in law. It is therefore, clear that the trial Court in the circumstances rightly passed the order under Section 13 (6) striking out the defence of the appellant and, therefore, granted a decree under Section 12 (1) (a).
24. Learned counsel for the appellant lastly contended about a reasonable time being granted for vacating the premises. He undertakes to vacate the premises within a reasonable time. It is, therefore directed that the appellant shall vacate the premises and hand over the vacant possession to the respondent within two months from today failing which the respondent shall be entitled to execute the decree for eviction. The respondent shall be entitled to withdraw the rent deposited in the Courts below and the withdrawal of rent shall not be considered as a waiver of his rights for decree for eviction.
25. I, therefore, see no reason to entertain this appeal. It is, therefore, dismissed with costs. The respondent shall be entitled to costs of this appeal. Counsel's fee as per schedule, if certified.