SHIV KUMAR SANTUKA Vs. PRITI BHAGAT

JUDGEMENT

(1.) This is an appeal against the order of learned District Judge, Cuttack in R.F.A. No. 40 of 2004 reversing the findings recorded by learned Civil Judge (Jr. Division), 1st Court, Cuttack in Title Suit No. 389 of 2001 (T.S. No. 196 of 1996) and remanding the same to the trial Court for fresh disposal.

(2.) THE present respondent filed H.R.C. Case No. 67 of 1986 before the House Rent Controller; Cuttack Under Section 7 of the Orissa House Rent Control Act (in short 'the OHRC Act') for eviction of the tenant appellant from the suit premises on the ground of bona fide requirement of the suit house by the landlord and default in payment of rent by the tenant. Prayer was also made for fixation of fair rent. In that proceeding the prayer for eviction of the tenant was rejected with the observation that the tenant was not a chronic defaulter in payment of rent and that the landlord was not in bona fide requirement of the suit premises. The prayer for fixation of rent was allowed and rent was fixed at Rs. 600/ - per month. The landlord -respondent carried appeal, vide H.R.C. Appeal No. 7 of 1992. During the pendency of the H.R.C. appeal, the landlord served a notice Under Section 106 of the T.P. Act on the tenant -appellant about the termination of tenancy and then filed Title Suit No. 389 of 2001 before the learned Civil Judge (Jr. Division), 1st Court, Cuttack seeking eviction of the appellant -tenant on the ground that the appellant -tenant is a chronic defaulter in payment of rent and that the son of the landlord is in bona fide requirement of the suit premises for expanding his book business. The appellant -tenant in his W.S. denied the claim and allegation of the plaintiff -landlord and pleaded inter alia that the suit is not maintainable in view of the pendency of the H.R.C. appeal on the same subject and also on the plea that the findings of the H.R.C. Courts operate as res judicata. Learned Civil Judge after considering the evidence of the parties and the surrounding circumstances held that the suit is hit by the principle of res judicata and is thus not maintainable. He accordingly, dismissed the suit. Being unhappy with the said order, the respondent -landlord preferred appeal being RFA No. 40 of 2004 before learned District Judge, Cuttack. Learned District Judge after hearing the parties held that the suit is maintainable and not hit by the principle of res judicata and accordingly reversed the findings of the trial Court and remanded the suit for fresh disposal according to law. That order is under challenge in this appeal.

(3.) MR . C.R. Nanda, learned Counsel appearing for the respondents, on the other hand, contends that the findings of the HRC Courts will not operate as res judicata for the simple reason that after repeal of OHRC Act, the landlord had every right to issue notice under Section 106 of the T.P. Act terminating the tenancy and seeking eviction of the tenant. He maintains that the cause of action propagated in the suit is not the same as that in the HRC proceeding and appeal and therefore, the suit was never hit by the principle of res judicata. In substance, he supports the impugned order.