Sultan Singh, J.
(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 by the landlady has arisen out of the following circumstances.
(2) The appellant took on lease plot No. 6-B/3 Northern Extension Area, RajinderNagar, New Delhi for the purpose of constructing a residential house from the Delhi Improvement Trust, a body corporate under the United Provinces Town Improvement Act (Act Viii of 1919) as extended to Delhi in terms of the deed dated 8/11/1954. She constructed
(3) The question : Whether a landlord who had himself let out the premises in violation of the terms of lease deed, was estopped from claiming eviction of her tenant under Section 14(1)(k) of the Act came up for consideration before the Supreme Court in Faqir Chand vs . Ram Rattan Bhanot, : 3SCR454 and it was held that the landlord was not estopped as there can be no estoppel against statute. The appellant on 24/8/1973 filed another petition for eviction out of which this appeal has arisen claiming respondent's eviction under Section 14(1)(k) of the Act alleging that she served a notice dated 8/2/1973 requiring the respondent to stop the misuse and it, having failed to stop the misuser, is liable to be evicted. The Additional Controller on 10/9/1976 dismissed her application on the ground that a similar application filed by her previously was dismissed and that the previous judgment operated as res-judicata. The appeal before the Tribunal was also dismissed on 25/10/1979 on the same ground.
(4) The admitted facts are that the plot of land was taken on lease by the appellant from the Delhi Improvement Trust now succeeded by the Delhi Development Authority; the building erected thereon is to be used as a residential bungalow; she let out the premises in suit to the respondent for use as a club; a notice dated 8/2/1973 was served by her upon the respondent requiring it to stop the misuse of the premises. T crucial question for decision is whether the present eviction proceedings are barred is : by the doctrine of rest judicata.
(5) Learned counsel for the appellant submits that there is change in law by the judicial pronouncement of the Supreme Court after the dismissal of previous eviction case, that the present eviction application is based on a cause of action different from the cause of action in the previous proceeding for eviction. He says that there is no estoppel against the appellant although she herself let out the premises for use as a club and that misuse of the property contrary to the terms of lease granted to her by the authorities is a recurring cause of action. He submits that notice dated 8/2/1973 Ex.A.W. 1/4 requiring the respondent to stop the misuses- under Section 14(l)(k) of the Act was served upon the respondent and as it has failed to stop the misuser, that the appellant is entitled to claim eviction otherwise the lease of the appellant with the D.D,A is bound to be determined and she would loose her property. His contention is that the previous eviction case was based on a notice dated 18/12/1963 under Section 14(l)(k) of the Act and a fresh notice dated 8/2/1973 has been served upon the respondent and as the Supreme Court in Faqir Chand (Supra) has held that the landlord was not estopped from claiming eviction under Section 14(1)(k) of the Act in .spite of the fact that the landlord himself had let out the premises for a purpose contrary to the terms of his lease, the appellant is entitled to an order of eviction. He further contends that the principle of estoppel is a procedural law and if there has been different interpretation laid down by the Supreme Court, the previous decision between the parties based on principle of estoppel, does not operate as rest judicata, and that the Rule of procedure does not affect the rights of the parties and cannot supersede substantive law contained in Section 14(l)(k) of the Act.
(6) Section 11 of the Code of Civil Procedure deals with the principle of rest judicata. It lays down that a matter directly and substantially in issue in a previous suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title and had been heard and finally decided by a competent court shall not be tried again. In Mathura Prasad Sarjoo Jaiswal and othes v. Dossibal N.B.JeeJeebhoy, : 3SCR830 , the Supreme Court has observed, 'The doctrine of rest judicata belongs to the domain of procedure, it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent court on a matter in issue may be rest judicata in another proceeding between the same parties : the 'matter in issue' may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is rest judicata : the reasons' for the decision are not resjudicata. Amatter inissue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is rest judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is rest judicata. A previous decision on a matter in issue is a composite decision : the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as rest judicata in a subsequent procecding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since earlier decision been altered by a competent authority, nor when the decision relates to the; jurisdiction of the court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law.' The Supreme Court after discussing various authorities on the question whether a decision on a question of law operates as rest judicata, further observes, 'A question of jurisdiction of the court, or of procedure, or apure question of law unrelated to the right of the parties to a previous suit, is not rest judicata in the subsequent suit'.
(7) The appellant submits that issues may be of fact, of law and of mixed questions of fact and law. As regards the issue of law in case they are pure questions of law having no relation to the circumstances, decision regarding such an issue will not operate as resjudicata. He again relies upon the said Supreme Court case in Re: Mathuia Prasad Sarjoo Jaisawal and others (supra). In that case before the Supreme Court the facts briefly were that the trial court had held that the provisions of a particular Act did not apply to the property in suit which decision was upheld by the High Court. Subsequently the High Court changed its decision in another case and held that the provisions of the Act applied in .similar circumstances. The Supreme Court also upheld the application of those provisions of the Act. When the petitioner in that case moved another petition in respect of the same property and between the same parties for the application of the provision. of the Act, the trial court held that it was barred by rest judicata. The contention was negatived by the Supreme Court in the words reproduced above. The Supreme Court in the said case had observed that the previous decision does not operate as resjudicata when the cause of action is different or when the earlier decision has been altered by the competent authority. When the previous eviction application of the appellant was dismissed the law as laid down by this Court was that the landlord was estopped from claiming eviction if he himself had let out the premises for a purpose contrary to the terms of his lease. This law has since been differently interpreted by the Supreme Court in Faqir Chand (supra) and thereforee it seems that judgment and order rejecting the previous application of the appellant does not operate as rest judicata in the preseat proceedings, In Ratanlal Kishandas v. Bajirao Ganpat Mahaiasne and two others, 1975 M.L.J. 65 it was held that where there was an alteration in statute or judicial pronouncement that runs counter to an earlier order, such earlier order would not be rest judicata. Similarly, it is observed in Alimiya Mahmadmya and another v. Sayed Mohomed Baguir El-Edroos Valde Sayed Jaffer El-Edroos and another, : AIR1968Guj257 that if the effect of the law has been differently interpreted by judicial decisions or altered by statute, the previous decision between the same parties cannot have the binding effect for all time and it cannot thereforee operate as rest judicata with regard to the same question in a subsequent proceeding. Learned counsel for the respondent however, submits that the law declared by the Supreme Court is not subsequent change in law capable of removing the 'Res Judicata' effect of an earlier judgment and relies upon State of Madhya Pradesh v. Mulamchand, : AIR1973MP293 .
(8) It is not disputed by the learned councel for the respondent that if, there is change in law by amendment of the statute by the legislature, the previous decision between the parties will not operate as rest judicata. Similarly when the Supreme Court interprets a statute in a manner different from the interpretation of the statute by the High Court, I think, it amounts to change in law. Many landlords let out the premises themselves for use contrary to terms of their lease deed and in view of the law contained in Section 14(1)(k) of the Act as interpreted by this court they are also estopped from evicting their tenants under the principle of estoppel and are likely to forfeit lease of their land with building thereon. This would be a great hardship to them. The law laid down in Faqir Chand (supra) must be available to such landlords to enable them to protect their lease and building. The legislature is not supposed to amend the provision of Section 14(l)(k) of the Act to protect all such landlords when the Supreme Court has interpreted the said provision holding that the landlords are not estopped from claiming eviction under Section 14(l)(k) of the Act even if they themselves had let out the building for a purpose contrary to terms of lease deed executed between the landlords and the authority concerned. I have given my careful consideration to the argument of the respondent's counsel but I do not agree with his view.
(9) It also appears that where the cause of actions in the two suits are different, it often happens that the matter in issue in the two suits is not the same. It seems that the cause of action in the present eviction proceeding was not in existence on the date of the former eviction case. The cause of action in the previous eviction case consisted of the statutory notice dated 18/12/1963 under section 14(1)(k) of the Act requiring the respondent to stop the misuse and its failure to comply with the said notice while in the present eviction proceeding the cause of action consists of a fresh statutory notice dated 8/2/1973 under Section 14(l)(k) of the Act requiring the respondent to stop the misuse and its failure to comply with it. The cause of action to a landlord under Section 14(l)(k) of the Act accrues when the tenant uses the tenanted premises in a manner contrary to the conditions imposed on the landlord by the concerned authorities and fails to stop the misuse in spite of previous notice. It is a recurring cause of action. Admittedly, the tenant-respondent used the premises as a club, the landlady-appellant served a notice dated 18/12/1963 in the previous case and notice dated 8/12/1973 in the present case requiring it to stop its misuse but the respondent failed to respond. Notice requiring the tenant to stop the misuse required to be given under section 14(1)(k) of the Act is a very essential part of the cause of action for claiming eviction.
(10) It, thereforee, seems that the cause of action of the present eviction proceeding is entirely different from the cause of action available to the appellant in the previous proceedings. In Jawahar Singh v. Joi Gopal. (1972) 1 Del 63 it was held that incorrect finding on a issue of law does not operate as resjudicata in a subsequent case arising out of different cause of action.
(11) The rule of estoppel is not a rule of substantive law but a rule of evidence. In the previous litigation between the parlies, the eviction application was dismissed merely on the ground that she herself had let out the premises for use as a club, a purpose contrary to the terms of lease. Her right to claim eviction within the meaning of Section 14(l)(k) of the Act was not determined in the previous litigation. It appears that a question of procedure unrelated to the rights of the parties to a previous suit is not rest judicata in the subsequent suit. In the instant case, when the previous eviction application of the appellant was dismissed on the principles of estoppel, it meant, in other words, that Section 14(l)(k) of the Act was not applicable on account of the conduct of the appellant. Thus in the previous case the court did not exercise jurisdiction vested in it and refused to grant relief under Section 14(l)(k) of the Act to the appellant although she was entitled to such a relief on a true interpretation of Section 14(l)(k) of the Act as finally interpreted by the Supreme Court in Faqir Chand (supra) and the court had jurisdiction to grant such relief.
(12) After giving my careful consideration to the respective contention of the parties, I am of the view that the earlier judgment between the parties dismissing the appellant's application for eviction of the respondent under Section 14(l)(k) of the Act does not operate as rest judicata. The respondent- tenant in spite of notice dated 8/2/1973 requiring it to stop the misuse has used the premises in a manner contrary to the conditions imposed by the Delhi Development Authority upon the appellant.
(13) The Controller and the Tribunal were, thereforee, not correct in holding that the previous judgment between the parties operated as rest judicata. The appeal is, therefofe, accepted. The judgment and order of the Rent Control Tribunal dated 25/10/1979 confirming the order of the Additional Controller dated 10/9/1976 dismissing the appellant's application for eviction is set aside. The matter, however, will have to go back to the Additional Controller for deciding the question under sub-section (11) of Section 14 of the Act whether he should exercise the one or the other of the two alternatives mentioned therein. The Delhi Development Authority is a party to the present proceedings. The Controller shall after affording the opportunity to the parties determine the questions arising under Section 14(11) of the Act. Parties are directed to appear before the Additional Controller on 15/5/1981. There will be no order as to costs in this appeal.