BINAY KUMAR Vs. SUNIL KUMAR

JUDGEMENT

(1.) The principal question that falls for consideration in this case is as to whether the appeal filed under S.13 of the Orissa House Rent Control Act for short 'the Act') against the order of the House Rent Controller refusing to decide the question of res judicata as a preliminary issue was maintainable or not.

(2.) The scope of S.13 of the Act and its correct interpretation with respect to the maintainability of appeals were raised from time to time, and, in order to decide it authoritatively, O.J.C. No. 840 of 1981 was referred to a larger Bench. Accordingly, when this case was listed before a Division Bench, it was also ordered to be heard along with the aforesaid writ application. The question has been discussed in extenso in the judgment of that case, which has been delivered just now. The ratio of the decision in that case fully applies to this case also.

(3.) The facts in brief : The petitioner filed a case for eviction of O.P. 1 from the premises in question before the House Rent Controller, inter alia, on the ground of wilful default and bona fide requirement. Several pleas of defence including the plea of res judicata were raised by O.P.1 in the written statement. It is, however, not necessary to dilate on any of the pleas. On 5-9-1985, O.P.1 made an application before the Controller to decide the plea of res judicata as a preliminary issue. The Controller, by his order (Annexure-1), rejected the prayer although some observations on the merits of the plea were also made the tenant took the matter in appeal before the appellate authority who, instead of deciding as to whether the plea of res judicata should have been decided as a preliminary issue or not, himself went into the merits of that issue. Discussing the facts elaborately, he held that the finding in an earlier House Rent Control case that the relationship of landlord and tenant did not exist between the parties operated as res judicata and the parties were bound by the same. Therefore, the eviction application before the Controller was not maintainable. He accordingly allowed the appeal and not only set aside the order of the Controller, but also dismissed the main application for eviction. The landlord has therefore come to this Court.