RAM SWAROOP Vs. XITH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) PETITIONER Ram Swaroop has filed this writ petition against the judgment dated 23rd April, 1991, passed in Rent Appeal No. 184 of 1990 and the judgment dated 25th September, 1990, passed in Prescribed Authority Case No. 77 of 1987. The petitioner is a tenant in house No. 288 belonging to Smt. Kanta Devi respondent No. 3. The case set up by Smt. Kanta Devi in her application under section 21(1) of the U.P. Act No. 13 of 1972 before the Prescribed Authority was that she got four houses, namely, houses Nos. 288, 289, 290 and 291 through a Will executed by her husband Om Prakash. It is further alleged that the houses are let out and the petitioner is living in house No. 288. It is further alleged that the houses Nos. 289, 290 and 291 are one room houses. She applied for the release of house No. 288 on the ground that she needs the said house for her own living and her son Man Mohan as well. It is further alleged that her other sons Chandra Mohan and Raj Mohan who were born prior to 1954, were given separate houses being Nos. 287 and 293 by the father of her husband Babu Ram by a partition deed executed in the year 1954. It is further pleaded that the respondent No.3 was living with Raj Mohan one of her sons and her relations with the wife of Raj Mohan were strained as such it was difficult for her to pull on with her. It is also averred that on the other hand the relations of the wife of Chandra Mohan and Man Mohan were strained which required living of Chandra Mohan and Man Mohan separately. It was further stated that Chandra Mohan was living in house No. 287 and he has given only one room to Man Mohan and it was not Possible for Man Mohan to live comfortably with his wife and tow sons aged 4 years and 2 years in one room Consequently, they require a require a separate house. It was further pleaded that the earlier applications were filed in 1965 and 1983 for release of the said house No. 288 but those applications were ultimately rejected but this fresh application after a lapse of 2 years and 3 months was ruled due to change in the circumstances in as much as Man Mohan has got two sons, one aged 4 years and the other aged 2 years. The Preacribed Authority as well as the Appellate Court have recorded concurrent findings of fact regarding genuineness of the need of the house No. 288 and have directed for the release of the said house in favour of the respondent No. 3 Hence this writ petition by the tenant Ram Swaroop.

(2.) SRI V.K. Goel learned Counsel for the petitioner has presued only one ground in support of the writ petition. It is contended that the application filed under Section 21(1) of the U.P. Act No. 13 of 1972 in 1987 from which the present writ petition arises, is virtually on the same facts and circumstances on which earlier two applications of respondent No. 3 were filed and were rejected. Accordingly, the findings given in the earlier proceedings decided against the respondent No. 3 will operate as a bar against recording of contrary findings by the Court Below and the findings recorded contrary to the findings in the earlier cases are, therefore, liable to be quashed. In support of his contention he pressed into service two judgments of this Court reported in Bangali v. District Judge, Allahabad and others, 1985 ARC Vol. 2 4 5, paras 8, 9 and 11 Raj Kumari Kapoor v. Civil Judgh Kanpur and others, 1986 ARC Vol. 2 pare 469. Learned Counsel was, however, fair in citing judgment against him, Jugdish Prasad v. IVth Addl. District Judge, Meerut and another, 1986 ARC Vol. 1 page 377. In the first two cases cited by the learned Counsel, the proceedings were than under Section 21(1) of the Act whereas in the third case the proceedings were under Section 21(1) of the Act. The relevant case in the circumstances cited by the learned Counsel was the third case in which it has been held that the principles of res judicata and Section 11, CPC. are not applicable in the proceedings under Section 21(1) of the Act if the second application is filed beyond period of one year as provided by Rule 18 framed under the Act. In the case of Bangali (supra) the proceedings arose from Section 33 of the Act whereas in the case of Raj Kumari Kapoor (supra), the proceedings arose form Section 3 thereof Rule 18 applies exclusively to the proceedings under Section 21 and not to any other proceedings. Rule 18 is an exception to the principle of res judicata as well as to the bar created by the principle. The Civil Procedure Code is a General Act whereas the U.P. Act No. 13 of 1972 as a Special Act. It creates and deals with the rights of the landlords and tenants and is an exhaustive Code in itself. All the provisions of the Civil Procedure Code and principle enunciated in that Code are not made applicable to the proceedings under the Act. Rule 18, therefore, is an exception to the principles enuneiated by Section 11, C.P.C. Rule of res judicata is rule of public policy. It discourages multiplicity of proceedings whereas Rule 18 contemplates filing of other application after the one has been disposed of finally. Obviously for the reasons that the circumstances in respect of rights of the tenant and landlord are changed with the passage of theme. I am, there, not in agreement with the argument of the learned Counsel that the judgment in earlier proceedings arising cut of suit filed in the years 1965 and 1983 were binding on the Court below and the findings recorded by them contrary to the findings recorded in the earlier proceedings are vitiated. Faced with this, learned Counsel tired to press into service the observation made in the case of Jagdish Prasad to the effect that the earlier judgment and findings recorded are piece of evidence and in the circumstances according to him the Court below were bound to consider those findings as the piece of evidence while deciding the case in hand. This argument again, in my opinion, is misconceived. As will appear from para 16 of the judgment, it has been laid down in the case of Jagdish Parsad (supra), that the only relevant piece of evidence from the earlier proceedings is that a case under Section 21 of the Act was filed and dismissed. Nothing more can be said to be a piece of evidence. Thus, the contention of the learned Counsel that the findings recorded in the earlier proceedings will be a piece of evidence, is not correct. For the sake of convenience Rule 18 which is important in this aspect is reproduced below :

(3.) THE learned Counsel, however, in the end meekly argued that the finding regarding genuine need for the release of the house in dispute was not supported with good reasons. According to him, the finding of the genuine need has to be based on other supporting evidence regarding existence of facts contemplated by Section 21(1) of the Act. These facts, according to him, are regarding strained relations between the wife of Man Mohan and Chandra Mohan and the respondent No. 3 and the wife of Raj Mohan No specific finding in this respect in my opinion was needed in view of the fact that these averments made in the application were not disputed by the petitioner. On an over all consideration of the facts and evidence abailable on the record, the Court below were justified in ariving at the finding that the respondent No. 3 was in genuine need for the release of the house in dispute.