In CR No.282 of 2014 (O&M)-PUNJ HC- Subsequent eviction petition filed on dual grounds of arrears of rent and requirement of premise by landlord for upgrading building is not barred by res judicata when previous petition was filed only on ground of bona-fide requirement: P&H HC Justice Arvind Singh Sangwan [28-07-2022]

Read Order: Shri Jainendra Gurukul Panchkula through its Secretary v. Dev Raj

Monika Rahar

Chandigarh, August 1, 2022: The High Court of Punjab and Haryana has reversed the finding of the lower appellate court and upheld the decision of the Trial Court holding that the second eviction petition was not barred by the principle of res judicata because the fresh application was filed on changed circumstances, which were non-existent and not pleaded in the previous case.

Also, the Bench of Justice Arvind Singh Sangwan further held, “In the instant case, the petitioner has prayed for eviction on two grounds. Firstly, the premises is required for upgrading the building; and secondly, the tenant is a defaulter and had not paid the arrears of rent, whereas in the earlier petition there was only one requirement of bona fide necessity.”

Brief facts of the case are that the landlord (petitioner) filed an eviction petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973, on the ground of arrears of rent and the requirement of the premises for the personal necessity of the petitioner. 

The respondent/tenant contested the suit on various grounds including the plea that the petitioner/landlord earlier filed a rent petition which was decided in 2007 and therefore, the present petition was barred by res judicata under Section 11 of Code of Civil Procedure.

The Rent Controller decided that the petitioner/ landlord was entitled for eviction of the respondent. Regarding the maintainability of the petition, it was held that the petition was not barred by the principle of res judicata as on appreciation of the earlier ejectment petition and written statement and on perusal of the judgment, a finding was recorded that the rent petition was dismissed for want of evidence as the petitioner failed to lead any evidence in the said case. 

It was held by the Rent Controller that the said judgment, which did not decide the inter-se dispute between the parties, was not binding and therefore, the principle of res judicata does not apply.

The respondent/tenant filed an appeal before the Lower Appellate Court which reversed the findings of the Rent Controller on the issue of maintainability, and accordingly, the eviction petition filed by the petitioner was dismissed.

The Counsel for the petitioner submitted that the earlier petition was filed only on the ground of personal necessity whereas in the present case it is on 02 grounds i.e. personal necessity as well as non-payment of rent. It was also submitted that the earlier petition was dismissed on account of non-production of the petitioner’s evidence whereas in the instant case, the petitioner has led the evidence to prove both the grounds i.e. personal necessity as well as non-payment of rent. 

Further, the Counsel contended that the principle of res judicata will not apply in this case as the matter was never adjudicated on merits by the Courts as the petition was dismissed on account of the fact that the petitioner/landlord could not lead the evidence. Next the Counsel made reference to the Supreme Court to submit that if a suit under the Rent Act is dismissed, the subsequent petition can be dismissed only if the issue in the subsequent petition is identical.

Lastly, the Counsel for the petitioner also contended that since in the present case, there was an additional ground for non-payment of rent, therefore, provisions of Section 11 CPC will not apply

After hearing the counsel for the petitioner and perusal of the record, the Court found merit in the present petition for the reason that the Rent Controller rightly recorded findings to the effect that the requirement of the petitioner/landlord was bona-fide and the respondent/tenant failed to pay the arrears of rent.

Also, the Court noted that the Trial Court also recorded a correct finding on the maintainability issue to the effect that the principle of res judicata will not apply in this case as the fresh application was filed on changed circumstances, which were non-existent and not pleaded in the previous case.

It was also observed that in the instant case, the petitioner prayed for eviction on two grounds, the first of which was that the premises was required for upgrading the building; and secondly, on the ground that the tenant was a defaulter and had not paid the arrears of rent, whereas in the earlier petition there was only one requirement of bona fide necessity.

The Bench further added that fact that the earlier petition was not adjudicated upon on merits of the case as it was summarily dismissed as the petitioner failed to lead the evidence and therefore, the present petition, in which both the parties have led the evidence, the Lower Appellate Court fell in error in reversing the finding on the issue of maintainability that the present petition was barred by principle of res judicata.

Thus, the present revision petition was allowed. Since a period of 10 years already elapsed when the judgment of the Rent Controller was passed in 2012, the respondent/tenant was directed to vacate the premises within a period of 2 months from the date of passing of this order.