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Jawahar Singh Vs. Jai Gopal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 116 of 1968
Judge
Reported inILR1972Delhi63
ActsDelhi Rent Control Act, 1958 - Sections 38 and 50(2); Code of Civil Procedure (CPC), 1908 - Sections 2 - Order 41, Rule 22
AppellantJawahar Singh
RespondentJai Gopal
Advocates: D.D. Chawla,; R.K. Makhija and; H.R. Khanna, Advs
Cases ReferredTarini Charan Bhattacharya v. Kedar Nath Haldar
Excerpt:
a) the case dealt with the determination of resjudicata, on the question of law under section 11of the civil procedure code, 1908 - it was held that whenever an abstract question of law was separate from the matter in issue between the parties, the decision was not resjudicata.b) the court ruled that when ever an abstract question of law was separate from a matter in issue between the parties, a decision thereon would not act as resjudicata - the correctness or other wise of a decision was not relevant to determine whether it was resjudicata or not under section 11of the civil procedure code, 1908. - - the provision nearest to it is the one contained in order xviii, rule 3 of the rules of this court .apart from that we think that while dealing with the appeal before it this court has.....v.s. deshpande, j. (1) this appeal bristles with novel questions of law arising out of undisputed facts. the premises, namely, the first floor of 81, golf links, new delhi, were constructed between 1-6-1952 and 9-6-1955. the respondent jai gopal was the tenant therein, jawahar singh the appellant being the landlord. in 1956 a suit for eviction of the tenant was filed by the landlord on the ground that the tenant was in an arrears of rent and the landlord needed the premises bona fide for his own residence. the tenant admitted the claim of the landlord but prayed for the two years' time to vacate the premises to which the landlord agreed. a decree for eviction was passed in 1958. thereafter the delhi rent control act, 1958 (hereinafter called the act) came into force from 9-2-1959......
Judgment:

V.S. Deshpande, J.

(1) This appeal bristles with novel questions of law arising out of undisputed facts. The premises, namely, the first floor of 81, Golf Links, New Delhi, were constructed between 1-6-1952 and 9-6-1955. The respondent Jai Gopal was the tenant therein, Jawahar Singh the appellant being the landlord. In 1956 a suit for eviction of the tenant was filed by the landlord on the ground that the tenant was in an arrears of rent and the landlord needed the premises bona fide for his own residence. The tenant admitted the claim of the landlord but prayed for the two years' time to vacate the premises to which the landlord agreed. A decree for eviction was passed in 1958. Thereafter the Delhi Rent Control Act, 1958 (hereinafter called the Act) came into force from 9-2-1959. Sub-section (2) and (3) of section 50 for the first time protected the tenants of premises constructed between 1-6-1951 and 9-6-1955 though section 39 of the Delhi and Ajmer Rent Control Act, 1952 had denied protection of the provisions of that Act to them. Under section 50(2) of the Act, proceedings pending for the eviction of such a tenant immediately before the commencement of the Act were to abate. If any such tenant has been evicted from the premises after 16th August 1953 then under section 50(3) on an application by such evicted tenant within six months of his eviction, the Controller may either direct the landlord to put the tenant back into possession of the premises or to pay him such compensation as the controller thinks fit.

(2) When, thereforee, the landlord sought to execute the decree for eviction in 1960, the tenant resisted the execution pleading the bar sub-sections (2) and (3) of section 50 of the Act. The execution application was dismissed by the trial Court and the dismissal was confirmed by the first appellate Court. In Civil Revision No. 318-D of 1965 by the landlord in the High Court, an eminent learned Single Judge, however, expressed the view that the tenant was not entitled to the protection of section 50(2) as no proceeding was pending against him at the commencement of the Act. The learned Single Judge, however, expressed the view that the tenant was not entitled because of two reasons. Firstly, section 2(1) of the Act excluded a person against whom a decree for eviction has been passed from the definition of 'tenant' for the purposes of the Act. Secondly. the tenant had not been evicted from the premises and the question of his being restored to possession did not, thereforee, arise. The revision was, thereforee, allowed and the landlord was held competent to execute the decree for eviction against the tenant.

(3) The tenant was thereupon evicted from the premises on 16-5-1966. On 17-5-1966 the tenant applied under section 50(3) of the Act for being put back into the possession of the premises. The Controller held that section 50(3) was applicable but declined to give the relief of possession to the tenant on the ground that the landlord could again be entitled to evict the tenant on the ground of bona fide personal necessity inasmuch as in 1958 the tenant had admitted the need of the landlord for the premises for his own residence. Instead, thereforee, he ordered the landlord to pay Rs. 7500.00 as compensation to the tenant. Two appeals were filed against the decision of the Controller. The appeal by the tenant (R.C.A. 1425 of 1966) sought the relief of possession or alternatively enhancement of the amount of compensation. The appeal of the landlord (R.C.A. 1586 of 1966) sought the deletion of even Rs. 7500.00 awarded as compensation. The Rent Control Tribunal dismissed both the appeals. The landlord filed the present second appeal under section 39 of the Act against the award of Rs. 7500.00 as compensation. The tenant has filed cross objections seeking restoration of possession or enhancement of compensation to Rs. 50.000.00.

(4) The contentions advanced by the landlord in his appeal are as follows -

(1)That section 39 of the Act does not contemplate the filing of any cross-objections in an appeal there under and so the cross- objections filed by the tenant in this second appeal are not maintain able.

(2)In these cross-objections the tenant cannot claim the relief of possession and enhanced compensation inasmuch as the negation of these reliefs to him by the Rent Control Tribunal in dismissing the tenant's first appeal R.C.A. 1425 of 1966 acts as resjudicata against the tenant who has filed no appeal against that dismissal.

(3)Further the decision in Civil Revision No. 318-D of 1965 between the parties holding that the respondent tenant was not entitled to the benefit of section 50(3) of the Act acts as resjudicata and bars the tenant from claiming the benefit of section 50(3) again in these cross-objections.

(4)Section 50(3) applies only when the specified kind of tenant is evicted before the commencement of the Act (i.e. 9-2-1959). As the respondent was evicted after the commencement of the Act, he cannot claim its benefit.

(5)The discretion exercised by the Controller and affirmed by the Rent Control Tribunal in refusing the relief of possession and granting compensation in lieu thereof should not be disturbed in the second appeal.

(5) In the light of these contentions, the questions which arise- for decision are as follows :-

(1)Can any cross-objections at all be filed in an appeal under section 39 of the Act?

(2)Does the dismissal of R.C.A. No. 1425 of 1966 act as resjudicata and disables the tenant from filing cross-objections in this second appeal which is against R.C.A. 1586 of 1966 only?

(3)Whether the decision in Civil Revision No. 318-D of 1965 operates as resjudicata against the tenant in this appeal ?

(4)Is sub-section (3) of section 50 applicable to the tenant's application for restoration of possession ?

(5)If so, whether possession or compensation should be awarded to the tenant against the landlord ?

(6) Question NO. 1 :- The concept of 'cross-objections' is peculiar to Order Xli rule 22 Civil Procedure Code. It is because of that provision that cross objections can be filed in appeals against decrees governed by the Code of Civil Procedure. Has this concept been imported into the Act The scheme of the Act in this respect is as follows : The procedure followed by the Controller has to be under section 37(2)) of the Act as far as may be of that of a Court of small causes. Section 38(3) of the Act gives the Rent Control Tribunal in the first appeal all the powers vested in a Court under the Code of Civil Procedure when hearing an appeal. Rule 23 of the Rules framed under the Act also requires the Controller and the Rent Control Tribunal to be guided by the provisions contained in the Code of Civil Procedure. It is clear, thereforee, that the provisions of Order Xli rule 22 Civil Procedure Code apply to the appeals heard by the Rent Control Tribunal. Cross-objections can, thereforee, be filed by a respondent in an appeal before the Rent Control Tribunal. A second appeal against the decision of the Tribunal lies to the High Court under section 39 of the Act. Neither section 39 nor any other provision of the Act or the Rules framed there under, however, makes any provision about the procedure to be followed by the High Court in dealing with the second appeal. The reason for this silence of the Act and the Rules is obvious. The Controller and the Rent Control Tribunal are authorities created by the Act. The procedure to be followed by them had, thereforee, to be specified by the Act and the Rules framed there under. But the High Court exists as & Court of record independently of the Act. The second appeal under section 39 of the Act lies to the High Court in its capacity as a preexisting Court. The intention, thereforee, is that the procedure for dealing with the second appeal is left to be determined by the High Court. In Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, : [1965]1SCR712 the question was whether the respondent in an appeal filed in the Supreme Court under Article 136 of the Constitution could be allowed to support the decision appealed against on grounds with had been found against him (on the analogy of Order Xli rule 22 Civil Procedure Code .). The Supreme Court answered the question in the affirmative with the following observation in paragraph (18) of the report :-

'AS soon as special leave is granted there is an appeal before this Court and while dealing with such an appeal this Court exercise its civil jurisdiction. It is true that the rules framed by this Court in exercise of its rule making powers do not contain any provision analogous to Order Xli, rule 22 of the Code of Civil Procedure which permits a party to support the judgment appealed against upon a ground which has been found against him in that judgment. The provision nearest to it is the one contained in Order xviii, rule 3 of the Rules of this Court ...................... Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like Order Xli, rule 22 of of the Civil Procedure Code it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of general law like the Code of Civil Procedure and adopting such of those provisions as are suitable.'

(7) On the same reasoning, the High Court also as a Court of record can deal with an appeal which comes before it under section 39 of the Act. On the analogy of Order Xli rule 22 of the Civil Procedure Code the High Court may allow cross-objections to be filed in such an appeal.

(8) Secondly, the right of appeal given by section 39 of the Act is available to both the parties. The tenant could have filed an appeal in this Court just as the landlord did. According to Order Xli rule 22, however, 'any respondent though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal'. In so far as the tenant prays in the cross-objections for restoration of possession or enhancement of compensation, his prayer is in the nature of a second appeal against the dismissal of R.C.A. 1425 of 1966 by the Rent Control Tribunal. The nature of cross- objections is, thereforee, the same as that of an appeal. The only difference is that the cross-objections can be filed by respondent who has not filed an appeal within one month from the date of service on him of the notice of the appeal filed by 'his opponent. It may be said, thereforee, that the right to file an appeal under section 39 is the substantive right given to both the parties. Just as the right to appeal has to be given by a statute the right to file cross-objections is also a substantive right which is not available unless the statute provides for an appeal. The right to file the cross-objections are a part of the right to file an appeal. As to when and how the cross-objections should be filed is a matter of procedure. In Collector Varanasi v. Gauri Shanker Misra, : [1968]1SCR372 , the Supreme Court held that in dealing with a second appeal under section 39 of the Act, the High Court must be held to act as a High Court and not as a persona, designata... The procedure of the High Court in a second appeal is governed by Order XLii read with Order Xli Civil Procedure Code. In Shiv Dutt Sharma v. Prem Kumar Bhatia, 1969 D.L.T. 394, thereforee, the procedure laid down in Order Xlii read with Order Xli Civil Procedure Code was held applicable to a second appeal under section 39 of the Act. When an appeal by a statute is provided to a pre-existing Court, the principle governing the procedure of such an appeal was laid down in the House of Lords by Lord Parker in National Telephone Company Limited v. Postmaster General (1913) A.C. 546 in the following words :-

'WHERE by statute matters are referred to the determination of a court of record with no further provision. the necessary implication is, I think, that the court will determine the matters, as a court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction including the right of appeal from its decision, remain the same.'

(9) This decision was reaffirmed after a review of the relevant case-law by a Full Bench of this Court in Municipal Corporation of Delhi v. Kuldip Lal Bhandari and others, : AIR1970Delhi37 . The above reasons would show that the right to file cross-objections is included in the right of appeal given by section 39 and also in the procedure to be followed by the High Court apart from section 39 of the Act and the Rules framed there under.

(10) Lastly it would be incongruous if cross-objections could be filed in an appeal before the Rent Control Tribunal under section 38 which expressly applies the provisions of Civil Procedure Code to such an appeal but cross-objections could not be filed in a second appeal in the High Court even though the Code of Civil Procedure provides for the pre-existing procedure of the High Court. I have, thereforee, no hesitation in holding that the tenant respondent in this second appeal under section 39 of the Act is entitled to file cross-objections in accordance with the provisions of Order Xli rule 22 Civil Procedure Code.

(11) -QUESTION NO. 2:- The principle of resjudicata has two aspects. Firstly is - the general principle which exists apart from section 11 Civil Procedure Code that there must be an end to litigation and a matter once finally decided should not be allowed to be reagitated. Second is the narrower principle embodied in section 11 of the Civil Procedure Code that a. decision of an issue in a former suit operates as res-judicata in respect of the same issue raised in a subsequent suit. In this case, we are concerned with the former aspect and not with the layer one. The right of appeal given by a statute such as sections 38 and 39 of the Act is to be exercised by a party against a decision adverse to it. The singleness of the decision depends upon the unity of its subject- matter. Even a single suit may have different subject-matters which may be differently decided, some in favor and some against the same party. The right of appeal is available only in respect of those subject-matters which are decided against a party. Unless an operative part of the decision is against a party, no appeal can be filed. This is why an adverse finding as such is not appealable unless it leads to a decision which operates against a party. It is in the light of these principles that we have to examine the rights of the parties in the present case.

(12) The application under section 50(3) of the Act by the tenant against his landlord originally signified only one subject-matter, namely, whether possession should be restored to the tenant or not. But Section 50(3) itself envisages two distinct reliefs either of which could be given to the tenant by the Controller, namely, either possession or compensation. Even if the relief of possession is refused, the relief of compensation can be given. The Controller could, thereforee, decide the application under section 50(3) in three distinct ways, namely:-

(1) dismissing it altogether without any relief,

(2) granting relief of possession, or

(3) granting relief of compensation.

(13) The Controller held that section 50(3) was applicable but he denied the relief of possession and granted the alternative relief of compensation. The original unity of the subject-matter, namely, the prayer for the relief of possession, thereforee, no longer continued when the decision of the Controller was given. This was why two separate appeals were filed by the tenant and the landlord. The tenant was aggrieved because he did not get possession. His appeal Rca 1425 of 1966 was concerned only with possession or enhancement of compensation. On the other hand, the landlord was aggrieved by the grant of even Rs. 7500.00 as compensation. His appeal Rca 1586 of 1966 was concerned exclusively with the prayer that the relief of compensation should be altogether denied. There were only two links between the subject-matters of these two appeals. Firstly the applicability of section 50(3) was necessary for the grant of the relief of possession as well as the relief of compensation. Secondly, the claim by the tenant for the enhancement of compensation in his appeal Rca 1425 of 1966 was in direct opposition to the claim of the landlord in Rca 1586 of 1966 for the total deletion of compensation. But the two appeals were entirely distinct insofar as possession was claimed in the tenant's appeal and payability of compensation was denied in the landlord's appeal. In dismissing the tenant's appeal, the Rent Control Tribunal denied two reliefs to the tenant, namely, possession and enhancement of compensatioti. The subject of possession was restricted to the tenant's appeal. The subject of compensation was common to the appeals of the landlord and the tenant. thereforee, the dismissal of the relief of possession in tenant's appeal Rca 1425 of 1966 finally acted as resjudicata against the tenant when the tenant did not file any appeal against that dismissal. But the dismissal of the landlord's appeal Rca 1586 of 1966 for the deletion of the relief of compensation altogether was not only a decision against the landlord but was partly a decision against the tenant insofar as the Tribunal stopped at affirming the amount of compensation at Rs. 7500.00 but did not agree to .enhance it as claimed by the tenant in his own appeal. The two appeals were consolidated and decided by one judgment though two orders were drawn up on the analogy of two decrees which could be executable under section 42 of the Act.

(14) The learned counsel for the tenant Shri H. R. Khanna contends that a unity of subject-matter is conferred on the two appeals of the landlord and the tenant when the appeals were consolidated and disposed of by one judgment. In my view, the nature of the subject-matter of each suit or each appeal does not change merely because the suit or .appeal is consolidated with another suit or another appeal and the two are disposed of by a common judgment. Just as more than one subject- matters could be comprised in one suit or appeal even though a single decree is drawn up disposing of all these subject-matters, similarly a judgment disposing of consolidated suits or appeals may also contain distinct subject-matters. The real test is whether the .subject- matter of the two appeals or of the two suits is the same and not whether they are decided by the same judgment.

(15) In Narhari and others v. Shanker and others, : [1950]1SCR754 (decided by the Supreme Court in the arrangement made under Article 374 of the Constitution), the plaintiff claimed title to the whole of the property, one-third each of which was in the possession of the two sets of defendants and got a decree for possession against both the sets of defendants. The two sets of defendants filed two separate appeals which were disposed of by one judgment by the first appellate court but two decrees were drawn up. The appeals were allowed and the suit of the plaintiff was totally dismissed. This is a classic instance of unity of subject-matter. The plaintiff claimed one title to the whole of the property. He did not claim separate title to the portions of the property in the possession of the two sets of defendants. His claim had, thereforee, to succeed either against both of them or had to fail against both of them. The drawing up of two decrees by the first appellate Court could not split up this indivisible subject-matter. This was why when the plaintiff filed one appeal in time against one of the two decrees drawn up by .the first appellate Court he was held to have appealed against the decision of the first appellate Court as a whole. The decision was one indivisible in respect of both the portions of the property.

(16) On the other hand, in Badri Narayan Singh v. Kamdeo Prasad Singh, : [1962]3SCR760 an election petition was filed by Kamdeo Prasad Singh who had lost the election against Badri Narayan Singh who was declared elected. The Election Tribunal set aside the election of Badri Narayan Singh but refused to declare Kamdeo Prasad Singh as deemed to have been duly elected. Both filed separate appeals in the High Court. The High Court dismissed Badri Narayan Singh's appeal and allowed the appeal of Kamdeo Parasad Siagh and held him to be deemed to be elected. Two separate decrees were drawn by the High Court. An appeal by special leave was filed by Badri Narayan Singh against the order of the High Court holding that Kamdeo Prasad Singh was duly elected. But no appeal was filed by him against the order of the High Court setting aside Badri Narayan Singh's election. The Supreme Court held that the appeal by Badri Narayan Singh against the declaration of Kamdeo Prasad Singh as having been duly elected was not competent inasmuch as no appeal was filed against the setting aside of his own election. For, the subject-matter of each of the two appeals in the High Court was different. Badri Narayan Singh's appeal was concerned with the setting aside of his election. Kamdeo Prasad Singh's appeal was concerned with the declaration that he was the duly elected candidate. The decision of the High Court in the two appeals though stated in one judgment, really amounted to two decisions and not to one decision common to both the appelas. The decision in Narhari v. Shanker, referred to above, was distinguished on the ground that the point of contention was common in that case to both the appeals. The decision of both the appeals by one judgment only meant that the decision in one appeal could not be said to be the decision in a former suit and the decision in the second appeal a decision in a subsequent suit and the former did not act as rest judicata under section 11 Civil Procedure Code. But the failure of Badri Narayan Singh to appeal against the setting aside of his own election meant that the decision setting aside his election had become final not in the sense of section 11 Civil Procedure Code but under the general principle of resjudicata that a question which was finally decided and not appealed against cannot be allowed to be agitated in the appeal against a different decision.

(17) On facts the present case is governed by the decision of the Supreme Court in Badri Narayan Singh v. Kamdeo Prasad Singh and not by the decision in Narhari v. Shanker insofar as the tenant failed to file a second appeal to this Court against the dismissal of his claim to possession by the Rent Control Tribunal. But in respect of the claim of the tenant to enhancement of compensation, the subject matter of the first appeals was common. thereforee, the tenant is entitled to file cross-objections in the second appeal of the landlord only in respect of his claim to enhancement of compensation but not in respect of his claim to possession,

(18) Question NO. 3 :- The decision in Civil Revision 318-D of 1965 denied the benefit of section 50(3) of the Act to the tenant on two grounds, namely :-

(1)that the tenant was not a 'tenant' for the purposes of the Act in view of the definition in section 2(1) of the Act after an order for eviction had been passed against him, and

(2)that he could not ask for restoration of possession until he is first evicted from the premises.

(19) The second reason cannot act as resjudicata as it expressly left it open to the tenant to ask for the possession after he is evicted. The present appeal is filed by the tenant after he is evicted. The second reason does not bar it. The first reason, with the greatest possible respect to the eminent learned Single Judge, is based upon an in- adequate reading of section 50(3). The relevant words of section 50(3) are 'the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit'. It would be seen, thereforee, that the Legislature has deliberately used the expression 'evicted tenant' to denote the person who is competent to make the application under section 50(3). It is no argument, thereforee, against him to say that such a person is not a tenant within the meaning of the Act. The application is made by an 'evicted tenant' and not by a 'tenant'. The Controller has to direct the landlord to put 'the tenant' in possession or to pay him compensation. The expression 'the tenant' means 'such evicted tenant'. If the expression 'evicted tenant' used in section 50(3) had been brought to his Lordship's notice, the first reason would not have been given by his Lordship to negative the benefit of section 50(3) to the tenant.

(20) Learned counsel for the appellant, however, argues that even a wrong decision on a question of law is resjudicata. It is true that the correctness or otherwise of a decision is not relevant to determine whether it is resjudicata or not. But it cannot be said that all decisions on questions of law are always resjudicata. The first exception to the rule that a decision on a question of law is resjudicata is this : If a question of law is wrongly decided then it is resjudicata only in the case in which the decision is given. But. in a subsequent case arising out of different cause of action, it is not resjudicata. This exception was recognized by the Supreme Court in M/s. Anwar Khan Mehboob & Co. v. State of Madhya Pradesh and others : [1966]2SCR40 and in Mathura Prasad Bajoo Jaiswal and others v. Dossibai N.. B. feejeebhoy, : [1970]3SCR830 . The best illustration of different causes of action is provided by annual assessments by taxing authorities The cause of action in each year is different. thereforee, the decision regarding the assessment of one year on a question of law wrongly decided does not act as resjudicata in a subsequent assessment based on a different cause of action. This was first recognized by the judicial committee of the Privy Council in Broken Hill Proprietary Company Ltd. v. Municipal Council of Broken Hill, (1926) A C 94, Curiously enough, a contrary view was taken by a differently constituted judicial committee of the Privy Council in Hoy stead v. Taxation Commissioner, (1926) A C 155('). The conflict between these two decisions was not noticed at first and we find in foot-note (d) on page 182 of 15 Halsbury's Laws of England (Third Edition), both these decisions cited without any mention of the direct conflict between them. In 1960, however, the House of Lords in Society of Medical Officers of Health v. Hope, (1960) Appeal Cases 551, finally laid down that 'It is not in the nature of a decision given on one rate or tax that it should settle anything more than the bare issue of that one liability, and that, consequently, it cannot constitute an estoppel when a new issue of liability to a succeeding year's rate-or tax comes up for adjudication'. In view of this decision of the House of Lords the Privy Council was compelled to choose between its two former dectsions. In Caffoor v. Colombo Income Tax Commissioners, (1961) A C 584, they expressly adopted the principle laid down in the Broken Hill case and disapproved Hoystead v. Federal Taxation Commissioner case.

(21) As pointed out by Spencer Bower and Turner in their books on 'Res Judicata' Second Edition, p. 15, a wrong decision on a question. of law may operate as a judicial precedent by virtue of the doctrine of stare decisis. But in a subsequent case on a different cause of action it will not act as resjudicata. The second exception was pointed out by Rankin C. J. long ago in a five Judges' decision in Tarini Charan Bhattacharya v. Kedar Nath Haldar, I.L.R. 56 Calcutta 723 at 736, in the following words:-

'THIS phrase 'matter directly and substantially in issue' has to be given a sensible and businesslike meaning. .... As a rule parties do not join issue upon academic or abstract questions but upon matters of importance to themselves. The section requires that the doctrine be restricted to matters in issue'.

(22) A distinction is, thereforee, drawn between a matter in issue between the parties and an abstract question of law which may be relevant for the decision of the matter in issue but it is not in itself a matter in issue. Whenever an abstract question of law is separate from a matter in issue between the parties, a decision thereon will not act as resjudicata.

(23) Both the above reasons show that the decision in Civil Revision No. 318-D of 1965 is not resjudicata in the present case regarding- the construction of section 50(3). Firstly, the present application by the tenant is based on a different cause, of action, namely, on his eviction, while the former application had been made before his eviction. Secondly, the observation of the learned Single Judge was on an abstract question of law regarding the interpretation of section 50(3). It was not a decision on a matter in issue between the parties.

(24) The decision in Civil Revision 318-D of 1965, thereforee, does not act as resjudicata in this case

(25) Question NO. 4: Learned counsel for the appellant argued that the words 'has been evicted after the 16th day of August, 1958' in section 50(3) means that the tenant should have been evicted before the commencement of the Act if he is to be entitled to the benefit of sub-section (3) of section 50. He stresses on the present perfect tense and infers there from that the eviction must have been after 16-8-1958 but before the commencement of the Act. His argument is that the Act speaks from the date of the commencement. thereforee, the use of the pre- sent perfect tense shows that the eviction must have been completed before the commencement of the Act. I am unable to agree. The present perfect tense has been used in the Act at numerous places to denote things which have taken place before the cause of action for an application etc. arises. For instance, several provisos to section 14(1) of the Act set out the various causes of action which arise in favor of the landlord for the .eviction of the tenant. In most of them, the present perfect tense has been used to denote that the cause of action has arisen before the presentation of the petition by the lanlord. If the present perfect tense used therein were to mean that cause of action should arise before the commencement of the Act then the Act would become totally inapplicable to all the causes of action arisen after the commencement of the Act. Such an interpretation would defeat the operation of the Act after its commencement. It is clear, thereforee, that the use of the present perfect tense in sub-section (3) of section 50' also merely requires that the eviction should have taken place before the application for restoration of the possession is made under sub-section (3) of section 50. The application by the tenant was made after he was evicted from the premises. The application was, thereforee, maintainable under sub-section (3) of section 50.

(26) Question NO. 5:- I have already held that the cross-objections of the tenant insofar as they claim the relief of possession in second appeal are not maintainable. Secondly, the Controller had the discretion to decide whether possession or compensation should be given to the tenant. The discretion in favor of possession exercised by him and upheld 'by the Rent Control Tribunal is sustainable on a ground not men- tioned by the Controller. The tenant has admitted in his evidence in 1966 that as many as sixteen suits had to be filed by the landlord against him to recover arrears of rent from him. Even the original suit for eviction in 1956 had been filed against the tenant by the landlord as the tenant had failed to pay arrears of rent. The payment of rent punctually is the first duty of every tenant. The conduct of the tenant has been so outrageous that no reasonable person would countenance placing him back into possession and driving the landlord to file suits for recovery of rent endlessly. If the excuse of the tenant driving the landlord to file suits for the recovery of rent was that the landlord was not prepared to accept payment of rent as rent but only as damages for use and occupation then the excuse is untenable. Firstly. after the passing of the order of eviction, the tenant had ceased to be a tenant and the landlord was entitled to recover damages for use and occupation. The tenant could not insist that the landlord should receive payment of rent as such from him. Secondly, the tenant could have deposited the damages for use and occupation into Court for payment to the landlord or sent them to him by money order or by cheque. The Controller was, thereforee, justified in granting compensation instead of possession to the tenant. The loss of the premises to the tenant was a substantial one. For, the Golf Links is a very prized residential locality of New Delhi. It is now impossible for the tenant to get such a fine residence at such a low rent. The amount of compensation granted to the tenant was not thereforee, excessive nor was it too small.

(27) The appeal of the landlord and the cross-objections of the tenant are, thereforee, both dismissed without any order as to costs.


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