MULKH RAJ AND OTHERS Vs. ONKAR SINGH

JUDGEMENT

(1.) THIS petition for revision is directed against the decision of the Appellate Authority, Hoshiarpur, reversing on appeal the decision of the Rent Controller ordering eviction of the tenant.

(2.) THE relevant facts are few and simple. On the 30th November, 1968, an application under section 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act) was made for eviction of the tenant on the ground of non -payment of rent. There were other grounds also, but with them we are not concerned. The tenant did not clear the arrears on the first date of hearing. The result was that an order of eviction was passed on the 20th June, 1969. This order was appealed against by the tenant. In the meantime another application was made by the landlord for eviction of the tenant for non payment of rent. That application is dated 20th December, 1969. In that application the period tae first application was also included. The tenant made the payment on the 11th February, 1970, the date of the first hearing. This payment included the arrears for the default of which the first application had been allowed. This application was dismissed as withdrawn. The Appellate Authority while dealing with the appeal in the first application allowed the same on the ground that in the second application all the arrears of rant due including those mentioned in the first application had been said and accepted by the landlord. The Appellate Authority took this view on the basis of the decision of this Court in Messrs Bagarian Armoury v. Rakha Rum (1966) the decision of the Appellate Authority, the present revision has been preferred to this Court.

(3.) MR . Aggarwal, learned counsel for the respondent, has raised two contentions on the basic of the decision in Rattan Chand v. Jagmohan Singh, 1971 RCR 841. His first contention is that the order in the second application is resjudicata so far as the first application is concerned. That would be so if there was a decision in the second application that is the second application was dismissed because the tenant had cleaned the arrears. The only fact established on the record is that a demand was made by the landlord for rent in arrears including those in the first application and these arrears had been deposited. But it is significant that no order as passed by the Rent Controller dismissing that application on account of the tenant having paid the arrears of rent on the first bearing. The question whether the tenant was or was not in arrears or whether the amount that was tendered at the first hearing represented the total arrears clue including costs and interest, was not considered or decided. On the other hand the second application was dismissed as withdrawn. It is well settled rule that only a decision on an issue is res judicata. There being no decision in the second application, the question of res judicata does not arise Therefore, we are not Impressed with she contention of the learned counsel, that the trial of the first application is barred by the rule of res judicata.