SUBHASH CHANDER OBEROI Vs. SHIV RAM

JUDGEMENT

(1.) The short point involved in this appeal iswhether the earlier petition under Section 14(l)(k) of the Delhi Rent ControlAct (hereinafter called the D.R.C. Act) which was dismissed would operateas res Judicata to a second petition under Section 14(l)(k) of the D.R.C. Act,between the same parties.

(2.) Admitted facts are that the appellant filed a petition for evictionunder Section 14(l)(k) of the D.R.C. Act against the respondent allegingthat the lease of the respondent on which the premises is situated had beengranted by the Delhi Development Authority (in short D.D.A.) for thepurposes of constructing a residential house. The respondent notwithstanding the previous notice, has been using the premises in question for commercial purposes and is running cloth business in the garrage room. Since thepremises is being used by the respondent contrary to the conditions imposedon the appellant by the D.D.A. therefore, the eviction petition. Respondentraised the plea that the petition was barred by the principle of resJudicatabecause earlier also the appellant had sought eviction of this premises on thesame ground. That the said petition was dismissed on 10.6.70, therefore,bringing a fresh petition of eviction on the same cause of action was barredby res judicata. By the impugned order the Rent Controller as well as theRent Tribunal dismissed the eviction petition. Rent Tribunal relied on thedecision of this Court in the case of Shyam Singh v. Om Prakash, S.A.O. No.355/86 decided on 21/05/1974, where it was observed that in view of thefinality attached to the earlier decision dismissing the petition for evictionunder Section 14(1 )(k) of the D.R.C. Act, the second petition on the samecause of action was barred by the principle of res judicata.

(3.) I am afraid the Rent Tribunal neither appreciated the facts ofthis case nor the correct position of law. The lease deed of the D.D.A. hasbeen exhibited as Ex. A-1. The terms of Ex. A-1 clearly indicate that thepremises has to be used for residential purposes and not for commercialpurposes. Earlier petition of the appellant was dismissed on 10.6.70. Subsequent thereto appellant received another notice from the D.D.A., which isEx. A-2, dated 13.3.73, asking him to stop the misuser of the garrage roomin question. This notice was received by the appellant on 16.3.73. Thereafter, another notice was issued by the D.D.A. which is Ex. A-3 dated23.4.73 asking the petitioner to stop the misuser. As the D.D.A. issuedfresh notice after 10.6.7U, therefore, fresh cause of action accrued in favourof the appellant. The earlier petition having been dismissed, to my mind,that will not operate as res judicata because it was a continuous cause ofaction particularly when the D.D.A. served a second notice Ex. A-2 dated13.7.73. The lease deed has been proved on record as Ex. A-1 and therespondent admitted using this premises for commercial purposes which isagainst the terms of the lease. D.D.A. filed the written statement in whichit pleaded that it would not condone the misuser by the landlord or histenant. Therefore, to my mind, the appellant made out the ground underSection 14(1 )(k) of the D.R.C. Act.