DHIREN KIRI Vs. SURAJ BALRAM SAHNI

JUDGEMENT

(1.) It is the distinction between the general principle of res judicata (not confined to section II Civil Procedure Code) and the statutory finality of an order of remand under section 105(2) Civil Procedure Code which has to be spelt out and applied to the facts of the present case which are briefly as follows :-

(2.) Messrs. Suraj Balram Sahni and Sons, & firm registered under the Indian Partnership Act (respondent herein) is the landlord and Dr. Dhiren Kiri is the tenant of the premises in question. The lease had been given in April 1958. An application for eviction was filed by the landlord against the tenant in 1962. The tenant filed a written statement in 1963 praying that standard rent of the premises be fixed. The landlord thereupon absented himself and the eviction petition was dismissed for his, default. The Controller latter dismissed the prayer of the tenant for the fixation of standard rent also on the ground that the petition for eviction having been dismissed the tenant's prayer made in the written statement could not be considered. The decision of the Controller was, however, set aside by the Rent Control Tribrnial who passed an order of remand directing the Controller to fix the standard rent inasmuch as the dismissal of the landlord's petition could not be the ground for refusing to consider the prayer of the tenant. In the appeal to the then Circuit Bench of the Punjab High Court at Delhi, the landlord expressly urged against the order of the Rent Control Tribunal that the application of the tenant for the fixation of standard rent was barred by limitation under section 12 of the Delhi Rent Control Act, 1958 inasmuch as it had been made more than two years after the date on which the premises were let by the landlord to the tenant and also more than two years after the commencement of the Delhi Rent Control Act, 1958. Gurdev Singh, J., however, held that the application was not barred by limitation and upheld the order of remand which had been made by the Rent Control Tribunal. The decision of Gurdev Singh J., is reported in J 965 P.L.R. 1197- No appeal was taken to the Supreme Court against that decision under Article 136 of the Constitution.

(3.) remand, when the Controller proceeded to fix the standard rent of the premises, the landlord challenged the correctness of the finding of Gurdev Singh, J., and contended that the application for fixation of standard rent was barred by time. The Controller, however, held following Satyadhyan Ghoshal v. Smt. Deorajin Debi, AIR 1960 S.C. 941, that the decision of Gurdev Singh, J., had become final between the parties and its correctness could not be challenged before him. The Controller thereupon fixed the standard rent at Rs. 210.00 per month. In the landlord's appeals to the Rent Control Tribunal, however, the decision of the Tribunal was two-foM :- (a) Following the Supreme Court decision in Mathura Prasad Sarjoo Jaiswal v. Dossibai, AIR 1971 S.C- 2355, (2) it was. held that a wrong decision on a question of law did not operate as res judicata. The decision of Gurdev Singh, J., on the question of limitation (which was a pure question of law on the admitted facts) was disapproved by the Supreme Court in M. M. Chawla v. J. S. Sethi, (1970) 2 S.C.R. 390 (3). The said decision on a question of law being wrong was not res judicata even between the same parties in the same proceeding after remand. The application for fixation of standard rent was, therefore, dismissed as barred by time; (b) If the said application had to be considered on merits, then the standard rent would come to Rs. 198.00 per month. The tenant has filed this second appeal attacking both the above findings.