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Nem Chand Vs. Laxmi Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal No. 85 of 1975
Judge
Reported in13(1977)DLT33
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19; Code of Civil Procedure (CPC), 1908 - Sections 11
AppellantNem Chand
RespondentLaxmi Chand and anr.
Advocates: B.J. Nayyar and; G.N. Aggarwal, Advs
Excerpt:
.....from the order that the competent authority as well as the parties were conscious of the bar of rest judicata by virtue of the dismissal of the earlier application. it was observed that it was for the tenant to establish the true state of his income and that he had failed to do so with the result that the averment of the landlord that the tenant was earning more than rs. (4) it is well settled that the trial of a suit, proceeding or an issue would be barred if the question in controversy has been decided in an earlier proceeding between the parties. it is equally well settled that the plea of rest judicata does not impinge on the jurisdiction of the court, and a party may, thereforee, legitimately waive it. it is also well settled that inspire of the bar created by the principle of..........be accepted on the short ground that the petition of the landlord was barred by the principle of rest judicata, and ought to have been dismissed on that ground alone. (2) the landlord, who had obtained a decree for the eviction of the tenant, sought in 1962 permission, of the competent authority under section 19 of the act to execute the decree. the permission was, however, declined by the competent authority by an order of march 16, 1963, on the ground that with the permission granted to the landlord to execute a similar decree against another tenant the personal need of the landlord would be satisfied as the accommodation that would thus be available to the landlord 'should suffice the requirements of the landlord.' it was further observed that 'the respondent on eviction will be.....
Judgment:

H.L. Anand, J.

(1) This petition under Article 227 of the Constitution of India by a tenant, which is directed against an order of the competent authority under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter referred to as 'the Act'), granting permission to the respondent-landlord to evict the petitioner, must be accepted on the short ground that the petition of the landlord was barred by the principle of rest judicata, and ought to have been dismissed on that ground alone.

(2) The landlord, who had obtained a decree for the eviction of the tenant, sought in 1962 permission, of the competent authority under Section 19 of the Act to execute the decree. The permission was, however, declined by the competent authority by an order of March 16, 1963, on the ground that with the permission granted to the landlord to execute a similar decree against another tenant the personal need of the landlord would be satisfied as the accommodation that would thus be available to the landlord 'should suffice the requirements of the landlord.' It was further observed that 'the respondent on eviction will be rendered shelterless. It would be difficult for him to secure alternative accommodation, at reasonable rate during these days'. The order was upheld in appeal and has, thereforee, become final. Subsequently, the landlord filed a petition in 1974, after a lapse of over 10 years; the second petition was sought to be justified on the ground that the 'status, means and income of the respondent were not considered by the then Competent Authority and the appellate court'. By the impugned order of February 25, 1975, the petition was accepted and the necessary permission was granted to the landlord. It appears from the order that the competent authority as well as the parties were conscious of the bar of rest judicata by virtue of the dismissal of the earlier application. The competent authority apparently accepted the contention of the landlord that the second application should not be treated as barred, because in the earlier proceedings the competent authority had not considered the status and the means of the tenant. On the merits, the competent authority rejected the plea of the tenant, a sweetmeat seller, that his income was less than Rs. 200.00 per month. It was observed that it was for the tenant to establish the true state of his income and that he had failed to do so with the result that the averment of the landlord that the tenant was earning more than Rs. 3,000.00 per month must be accepted.

(3) On behalf of the tenant the impugned order is assailed on a number of grounds, but it is not necessary to go into the other grounds, because, on the admitted facts, the petition of the landlord was barred by the principle of rest judicata.

(4) It is well settled that the trial of a suit, proceeding or an issue would be barred if the question in controversy has been decided in an earlier proceeding between the parties. It is equally well settled that the plea of rest judicata does not impinge on the jurisdiction of the court, and a party may, thereforee, legitimately waive it. It is also well settled that inspire of the bar created by the principle of rest judicata, the matter may, nevertheless, be raised in subsequent proceedings, if there has since been change in the law, or the circumstances or the context in which the earlier determination was made.

(5) Mr. G.N. Aggarwal, who appears for the landlord, does not dispute that the earlier order would, prima facie, bar the trial of the question if the landlord is entitled to permission to evict the tenant. He, however, sought to get over the bar of rest judicata on a number of grounds.

(6) In the first instance, he contends that the bar of rest judicata would not defeat the second petition, because rest judicata being a mixed question of fact and law must be specifically raised in resisting the proceedings. This contention, however, does not stand a closer scrutiny because even though the tenant did not set up the bar in the manner in which an ordinary litigant was expected to do, the parties as well as the competent authority were throughout conscious of the bar and the competent authority sought to justify the second petition on the ground that the means and status of the tenant had not been gone into in the earlier proceedings, a contention raised on behalf of the landlord. Even in his own petition, the landlord was conscious of the bar, and sought to justify the second petition on the aforesaid ground. The objection as to the maintainability of the second petition having thus been overruled it could not be said that the tenant had waived the objection.

(7) Secondly, it was urged that the second petition was not barred because the question as to the status and means of the tenant, on the basis of which permission was sought, had never been gone into in the earlier proceedings. This contention cannot be sustained. The conclusion of the authority in the earlier proceedings that it would be difficult for the tenant to secure alternative accommodation at reasonable rate is an implied finding, howsoever unsatisfactory it may be, as to the question if having regard to the status and means of the tenant he was in a position to obtain alternative accomodation and would not, thereforee, creat a slum if allowed to be evicted. In any event, assuming that there was no such finding the petition would still be hit by the principle of constructive rest judicata as incorporated in Explanationn 4 to Section 11 of the Code of Civil procedure.

(8) It is next contended that the second petition could be filed notwithstanding the bar of rest judicata because there was a change in the law after the earlier decision of the authority. This contention is misconceived. It is true that Section 19 of the Act was amended after the earlier decision but the amendment did not bring about any change in the law inasmuch as the amendment merely made explicit what had been found by the Supreme Court to be implicit in the unamended section in the case of Jyoti Pershad and others v. Administrator for the Union Territory of Delhi and others, : [1962]2SCR125 . The amendment was, thereforee, elucidatory and did not represent any change in the law.

(9) Lastly, it was contended that the second petition could be justified inview of the fact that a lapse of 10 years between the order in the earlier proceedings and the second petition had altogether changed the circumstances or the context in which the earlier order had been made. The abstract proposition of law that notwithstanding the earlier decision a subsequent petition may be filed if there had been change in the law or the circumstances since the first order was not disputed. It was, however, contended on behalf of the tenant, and rightly in my view, that there was no averment in the second petition that the lapse of over 10 years had brought about any change in the circumstances of the tenant so as to justify the second petition and that in the absence of such an averment, the landlord was not entitled to make out a case at the hearing of the petition of any such change. The landlord's second petition is absolutely silent on the alleged change in the circumstances. Now, passage of time may bring about a change in the situation of a tenant, but it is r.ot every change that justifies a fresh petition. It must be a change which from the point of view of the status and means of the tenant must be favorable to him, so that it could be said that what could not be justified in the context of the status and means of the tenant then, would bejustified in his changed situation. Jt was, thereforee, incumbent on the landlord to allege how the situation of the tenant had favorably changed as to constitute a change in the context so as to justify a fresh petition, and it is for the landlord to establish that there has been such a change before the bar of rest judicata could be said to have been lifted. This contention must, thereforee, be rejected.

(10) In the result, the petition succeeds. The impugned order of the competent authority granting permission to the landlord to evict the petitioner is quashed. The petition of the landlord is dismissed with costs throughout. Counsel's fee in the present petition is assessed at Rs. 250-00. The landlord would, however, be at liberty to file a fresh petition with the necessary averments with regard to the change in the situation of the tenant in accordance with the law.


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