DAYA CHAND JAIN Vs. RAKESH KUMAR

JUDGEMENT

(1.) The petitioner has filed this Revision Petition assailing the order dated 20.8.1991, hereinafter referred to as the impugned order, passed by Shri D.R. Jain, Sub Judge, First Class, Delhi. The Trial Court by the impugned order decided the preliminary issue in favour of the respondent, holding that the findings given by Sh. M.S. Rohilla, Sub Judge and Shri Prem Kumar Additional Rent Controller, that one Smt. Ram Kali alone was the tenant, would not operate as res judicata and it would be open to the respondent to raise the plea of his being a tenant.

(2.) The revision petition raises an interesting question as to whether the rule of constructive resjudicata can be applied to an omission to raise a defence or plea, which was not available at the time of institution of the suit but became available during the pendency of the suit?

(3.) That for a proper appreciation of the contentions raised in the Civil Revision Petition, the facts may be recapitulated :- (i) The petitioner is the landlord and one Smt. Asharfi Devi, widow of late Shri. Moti Lal, was a tenant in respect of a room on a ground floor and mezanine over the garage in H. No. 4698, Sumer Building, Ansari Road, Darya Ganj, at a monthly rent of Rs. 12.00. (ii) Smt. Asharti Devi died issueless in February. 1980 leaving behind two sisters, namely Smt: Ram Kali and Smt. Nanhi Devi (iii) The petitioner filed a Suit No. 519/80 for possession against Smt. Ram Kali and the present respondent, Shri Rakesh Kumar, claiming that Smt. Asharfi Devi had died issueless and Smt. Ram Kali and the present respondent were unauthorised occupants. The suit was filed for possession and recovery of mesne profits. It was also the case of the petitioner that the tenancy of Smt. Asharfi Devi had been terminated vide a legal notice during her lifetime. Smt. Ram Kali and the present respondent contested the suit claiming that they were tenants in respect of the demised premises. Objections as to the non-joinder of all the legal heirs of Smt. Asharfi Devi and the suit being beyond pecuniary jurisdiction of the Court were raised. (iv) The suit was dismissed vide judgment dated 21.10.1992 of Shri M.S. Rohilla, Sub Judge. He held that the plaintiff i.e. petitioner herein, had failed to prove the notice of termination of tenancy. Accordingly the Law of general succession applied and all the legal representatives of late Smt. Asharfi Devi would inherit the tenancy rights. It was further held that as the second sister of Smt. Asharfi Devi namely Smt. Nanhi Devi had also died in January, 1982, the sister Smt. Ram Kali being a Class II heir had a right to succeed. Accordingly defendant No. 2 Smt. Ram Kali only became a tenant in the suit premises. The suit for possession was held as barred against her by virtue of Section 50 of the Delhi Rent Control Act. The learned Judge, however, held that though present respondent could not be stated to have any right in the premises in suit, but no decree could be passed against him, as he was not a trespasser. Even otherwise he was son of the daughter of the sister of defendant No. 2, who had been adjudged to be a tenant in the premises. The above suit had been contested by the present respondent claiming himself to be a Co-tenant with Smt. Ram Kali, on his own right.