JASWANT SINGH Vs. ABDUL KAYUM KHAN (DIED) DELETED

JUDGEMENT

(1.) The appellant-review-petitioner has filed this review application under Section 114 read with Order 47, Rule 1 CPC with a prayer to review the judgment dated 4.1.2017 passed by this Court in S.B.Civil Second Appeal No.303/1998 whereby the appeal filed by the review-petitioner was dismissed.

(2.) It was submitted by the learned counsel for the review petitioner that the suit for eviction and recovery of rent, out of which the aforesaid appeal arose, was filed by the review petitioner, apart from others, on the ground of default in payment of rent and the trial Court under the provisions of Sub-Section (3) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 determined the provisional rent to be paid by the respondent-tenant and for determining the provisional rent, the question regarding relationship between the parties as landlord and tenant was also considered and it was decided to the effect that review-petitioner is landlord and respondent is his tenant in respect of the suit premises and that order was not challenged by the respondent in appeal or revision and the same became final and in compliance of the order respondent not only paid the arrears of rent so determined but also the monthly rent during the trial. It was further submitted that as the question of relationship of landlord and tenant between the parties was specifically determined by the trial Court and that order got finality, respondent was not entitled to reagitate that question before the first appellate Court as well as before this Court in this appeal and the Court was also not empowered to re-open that question but first appellate Court as well as this Court reversed the finding of trial Court about relationship of landlord and tenant between the parties. It was submitted that the question of relationship between the parties as landlord and tenant was not liable to be re-agitated and re-opened in this appeal but that question was decided in favour of the respondent and it is a mistake or error apparent on the face of the record requiring review by this Court. It was also submitted that the principle of res-judicata also applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceeding. It was submitted that the question of relationship as landlord and tenant between the parties was decided by the trial Court at the stage of determination of provisional rent under Section 13 (3) of the Act and it was decided against the respondent, he was not entitled to re-agitate this question in the first appeal as well as second appeal more particularly in view of the fact that the finding of the trial Court in this regard was not challenged by him by way of an appeal or revision.

(3.) In support of his submissions, learned counsel for the petitioner relied upon the case of C.V. Rajendran v. N.M. Muhammad Kunhi reported in AIR 2003 SC 649.