HARI SHANKAR Vs. KAILASHO DEVI

JUDGEMENT

(1.) Hari Shankar plaintiff petitioner is a tenant in house No. 383, Ward No. 6, Khail Bazar, Panipat. Prem Chand and Manu Ram, his landlords, filed an application under S.13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter celled 'the Act'), before the Rent Controller, Panipat, for his ejectment on as many as five grounds, one of them being that he had neither paid nor tendered the rent for a period of three years at the rate of Rs. 51/- per month amounting to Rs. 1836/-. On 1-2-1977 when the application came up for hearing before the Rent Controller, he made at statement that the rate of rent of the demised premises is Rs. 21.25 per month including house-tax. He, however, tendered the amount of Rs. 1836/- besides Rs. 30/- as costs assessed by the Rent Controller and Rs. 239/- towards interest in all Rs. 2105/-. He also filed written statement before the Rent Controller asserting therein that the rate of rent was Rs. 21.25 per month and not Rs. 51/- per month as alleged in the ejectment application. Since he had tendered the amount of rent as alleged in the ejectment application, which had been accepted by the landlords, the Rent Controller proceeded to adjudicate upon the other four grounds for ejectment. While the ejectment application was still pending before the Rent Controller, he filed the instant suit on 26-2-1977 against Prem Chand and Manu Ram for the recovery of Rs. 1790/- on the allegation that he had been made to pay Rs. 1836/- as rent for three years at the rate of Rs. 51/- per month while the defendants were entitled to. receive rent at the agreed rate of Rs. 21.25 per month only.

(2.) It may be mentioned here that during the pendency of the suit Prem Chand defendant died on 26-6-1977 and defendant-respondents 1 to 4 were impleaded as his legal representatives. The Sub Judge Ist Class, Panipat, returned the finding that the rate of rent agreed and settled between the plaintiff and the defendants was Rs. 21.25 per month and consequently decreed the plaintiff's suit for Rs. 1790/- with costs together with interest at the rate of 6% per annum. On appeal by the defendant-respondents, the same was allowed by the learned Additional District Judge, Karnal, vide judgement and decree dt. 6-3-1980 on the ground that the suit was barred by the principle of constructive res judicata as the rent had been tendered by the plaintiff before the Rent Controller unconditionally and he did not claim any issue with regard to the rate of rent before the Rent Controller. The learned Additional District Judge relied on a judgement of R.S. Narula, C.J. in Avtar Singh v. Machhi Ram, (1977) 1 Rent LR 150. The plaintiff consequently filed the present revision petition in this Court.

(3.) This revision petition earlier came up for hearing before my learned brother G.C. Mital, J., on 28-1-1986 when doubt was expressed about the correctness of the law laid down in Avtar Singh's case (supra) and it was considered proper that the matter be decided by a larger Bench. This is how it has been placed before us.