LALBIHARI TIWARI Vs. SHEO SHANKAR PRASAD

JUDGEMENT

(1.) This appeal by the plaintiff arises out of concurrent decisions of the Courts below dismissing his suit for a declaration that the order of eviction passed against him under Section 11 of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as 'the Act') was without jurisdiction.

(2.) The appellant is the owner of a holding consisting of a building within the Dinapore Cantonment area. On the 17th of July, 1951, he executed a registered rehan deed for a term of two years in respect of this holding in favour of the defendant-respondent and put him in possession of the same. On the 25th of July, 1951, the respondent let out the building to the appellant on a monthly rent. On the 3rd of February, 1953, the respondent made an application under the Act before the House Controller for eviction of the appellant on the ground that he had made default in payment of the rent since May, 1952. The appellant resisted the claim mainly on, the ground that there was no relationship of landlord and tenant between the parties. On, the 16th of March, 1953, the Controller overruled the objection and passed an order in favour of the respondent for eviction of the appellant. On appeal by the appellant, the order of the Controller was affirmed by the appellate authority and a revision application filed before the Commissioner was summarily rejected on the 13th of August, 1953. The appellant, thereafter, moved this Court under Art. 226 of the Constitution, and the respondent resisted the writ petition. On the 11th September, 1956, this Court overruled the contention of the appellant and dismissed the writ application upholding the order of eviction passed by the House Controller. Thereafter, on the 13th of September, 1956, the appellant instituted the suit for a declaration that the order of the Controller was ultra vires mainly on the ground that it was incompetent of the Bihar Legislature to enact the Act so far as it was made applicable to the Dinapore Cantonment area. The suit was contested by the respondent on several grounds, one of which, with which we are concerned in this appeal, was that the suit was barred by the principles of constructive res judicata. Both the Courts below gave effect to the contention raised on behalf of the respondent and held the suit to be barred by res judicata. The plaintiff has, therefore, filed this second appeal which was heard by a Division Bench of this Court. Their Lordships rejected the plea of res judicata raised on behalf of the defence. So far as the contention raised on behalf of the appellant in regard to the vires of the Act, so far as it was made applicable to the Dinapore Cantonment area, was concerned, their Lordships held that the question raised was of great general importance, inasmuch as a large number of proceedings under the Act in respect of buildings in the Cantonment area will have to be rendered invalid if the contention of the appellant was to be accepted. They therefore, passed an order referring the question, at issue to be decided by a larger Bench. Accordingly, this Full Bench has been constituted to dispose of the appeal.

(3.) Before Mr. Balsbhadra Prasad Singh, appearing for the appellant, could start his argument on the vires of the Act, Mr. Lalnarayan Sinha, appearing for the respondent, submitted that it was not necessary in the present case to decide the constitutional point about the vires of the Act, inasmuch as the suit of the appellant is barred by the principles of res judicata. He has, therefore, urged that the question of res judicata should be decided first so that, if it succeeds, the question about the vires of the Act will not have to he decided by this Full Bench. We, therefore, heard Counsel on both sides on the question of res judicata.