MEHTAB SINGH Vs. TILAK RAJ ARORA

JUDGEMENT

(1.) The question of law referred for consideration and decision by this Bench is as to whether a second petition for the ejectment of the tenant would be competent on a ground on which earlier petition was got dismissed as withdrawn without liberty to file a second petition.

(2.) The facts leading to the said question are that the flat in dispute was leased out to the respondents by Miss Sarvjit Kaur through rent note dt. 8th Jan., 1972. About two months thereafter she gave this flat in exchange to the petitioner vide exchange deed 30th March, 1972. In spite thereof she joined with the petitioner in the filing of the petition for the ejectment of the respondent from the demised premises in the year 1973, on three grounds, out of which the only one which subsists for the purposes of this petition is that of subletting. During the trial of that petition, the petitioner got his name deleted from the array of parties and the proceedings were carried on by Miss Sarvjit Kaur alone. The allegations made in that petition were that the tenant had transferred his rights under the lease and sublet the Barsati portion of the shop-cum-flat to respondent No. 2 Inder Singh. The plea was turned down and the petition dismissed by the Rent Controller. His order was affirmed by the Appellate Court as well, as is evident from the copy of the judgment, Exhibit R-2, dt. 13th March, 1980. The petitioner thereafter instituted the present petition on 7th Aug., 1980, seeking ejectment of the respondents, on the ground of subletting, based on the same set of facts is pleaded in the earlier petition. The Rent Controller ruled out the plea on the ground that it was barred by the principles of res judicata. The Appellate Court affirmed its findings on the ground that the petitioner being successor-in-interest of Miss Sarvjit Kaur, was bound by the findings recorded in the earlier proceedings. The reason given by the Appellate Authority for holding that the petitioner was bound by the decision in the earlier proceedings was wholly misconceived, because the demised premises stood exchanged on 30th March, 1972 whereas the petition was filed by Miss Sarvjit Kaur in the year 1973. She having no interest in the demised premises when the earlier petition was filed, any finding recorded against her could not bind the petitioner. However, the learned Counsel for the tenant contended that the petitioner was also a party in the earlier petition and he having withdrawn from the same, the position in law could be that the earlier petition, so far as he was concerned, was got dismissed by him as withdrawn. As no permission was sought to file a fresh petition nor there is any change of circumstance providing a fresh cause of action, a second petition on the same set of facts would be barred.

(3.) The learned Counsel for the landlord contended that there being no provision in the East Punjab Urban Rent Restriction Act, which debars the filing of the second petition on the same ground on which an earlier petition was filed and dismissed as withdrawn, the provisions of O.23, R.1 of the C.P.C. could not be invoked to debar the maintenance of a second petition. As there was no direct decision of this Court governing the question involved, which is of general importance and arising frequently, the matter was referred to a larger Bench.