SURINDER MOHAN RAI Vs. ONKAR NATH

JUDGEMENT

(1.) THIS order will also dispose of Civil Revision Nos. 2563 of 1985 and 2306 of 1988, as the question involved is common in all these cases.

(2.) SURINDER Mohan Rai, the landlord, sought the ejectment of his tenant Onkar Nath from the three shops Nos. 3, 4 and 5, by filing an ejectment application giving rise to Civil Revision Petition No. 2562 of 1985. He filed another ejectment application for vacation of Shop No. 2 which given on rent subsequently in February, 1974, on a monthly rent of Rs. 225/ -. The earlier three shops were given on rent at the rate of Rs 400/- per month vide rent notes, Exhibits, AW3/1 and AW 4/1. The ejectment was sought inter alia on the grounds of non payment of arrears of rent and the building having be-come unfit and unsafe for human habitation etc. One of the pleas taken on behalf of the tenant was that the petition was bad for partial ejectment. According to the tenant, the tenancy with respect to the four shops was one whereas the landlord was only claiming ejectment from three shops Nos. 3, 4 and 5 and, therefore, it was bad for partial ejectment. The learned Rent Controller negatived this plea of the landlord and passed the eviction order on the grounds takes in the ejectment application. In the appeal filed on behalf of the tenant, he brought on the record, by way of additional evidence, the Judgment of the civil Court between the parties. The landlord in order to seek possession of shop No. 2, had filed a civil suit on September 26, 1978, alleging that the tenant Onkar Nath had taken illegal possession thereof. The (sic)plea taken by the tenant defendant was that he was the tenant on the shop, in dispute, and, therefore, the 'question' of illegal possession did not arise The tenant, as a defendant, also took the objection that the suit was bad for partial possession as the other three shops were not included in the shop. The trial Court decided the suit on the ground that the possession of the shop No. 2, was illegal. Issue with regard to partial possession was decided in favour of the plaintiff and against the defendant. In the appeal filed by the tenant against the said decree of the trial Court. the plaintiff's suit was dismissed on the ground that shop No. 2 was given on rent to the tenant and his possession was not illegal. The finding given in paragraph 8 of the lower appellate Court's Judgment, copy Annexure A reads that as a natural corollary to the firm finding recorded by this Court on Issue No. 3, Onkar Nath, defendant-appellant would be found to have been proved to be in possession of the shop in dispute, as a tenant. As observed earlier, the finding on issue of partial possession by the trial Court, was not contested in appeal. Ultimately in paragraph 12 of the Judgment, the learned Additional District Judge observed that in view of the findings recorded by this Court on issues Nos. 1 and 3 vide which Onkar Nath defendant appellant, has been held to be in possession of shop No. 2 as a tenant since February 1974 and the cumulative amount of all these four shops including shop No. 2 to be Rs. 625/- per month the cross objections preferred by the plaintiff-respondent would thus also be found to be of no avail and the same are dismissed. The appellate authority relying upon the said findings and observations of the learned Additional District Judge came to the conclusion that the ejectment application was liable to be dismissed on the ground that it suffered from partial ejectment as shop No. 2 was not included in the ejectment application. The merits of the ejectment application and the findings of Rent Controller were not gone into.

(3.) THE learned counsel for the landlord petitioner submitted that the view taken by the appellate authority that the findings by the civil Court in, Exhibit A. 1, dated December (sic)0,1983, did operate as res judicata was erroneous According to the learned counsel, no such finding was necessary to decide the suit filed by the landlord. The only issue in that suit was as to whether the possession of the shop No. 2, by the tenant, was illegal or not. Thus, argued the learned counsel, any observations made in the Judgment besides this issues are of no consequence In support of the contention, the learned counsel relied upon Full Bench Judgment of this Court in Pritam Kaur v. State of PEPSU, A. I. R 1963 Punj. 9 and Ragho Prasad Gupta v. Shri Krishna, A. I. R. 1969 S. C. 316.