Supreme Court: In an appeal filed under the provisions of the Delhi Rent Control Act, 1958 (‘the Act 1958’) and directed against the judgment and decree passed by the Delhi High Court, wherein the High Court allowed the revision petition filed by the defendant (tenant) thereby rejecting the plaint under the provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 (‘CPC’) on the ground that the eviction petition was barred by the principles of res judicata, the division bench of Sudhanshu Dhulia and J.B. Pardiwala*, JJ. held that the High Court committed an error in taking the view that the order passed by the Additional Rent Controller could be said to be one passed in exercise of powers under Rule 3 of Order 17 of the CPC, thereby taking the view that the findings as regards the relationship of landlord and tenant could be said to be on merits.
The Delhi High Court viewed that the first suit i.e., eviction petition could be said to have been dismissed under the provisions of Rules 2 and 3 of the Order 17 of the CPC, 1908 and, therefore, the findings recorded therein as regards the relationship of landlord and tenant could be said to be on merits and thus, binding in the subsequent proceedings.
Issue:
Whether the finding recorded by the Rent Controller while dismissing the eviction petition that, the eviction petition deserves to be dismissed as the plaintiff had failed to establish the relation of landlord and tenant between the parties, could be said to be on merits to render the second eviction petition not maintainable on the principles of res judicata?
Analysis:
The Court took note of Order 7 Rules 11(d) CPC and said that it provides that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law”. Hence, to decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed. Thus, whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case.
Further, the Court took note of Section 11 CPC, that enunciates the rule of res judicata, and various cases based on it, and said that the defence in the written statement cannot be gone into. One has to look into the plaint for the purpose of deciding application under Order 7 Rule 11 of the CPC.
After placing reliance on Srihari Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9 SCC 99 , wherein the guiding principles for deciding an application under Order 7 Rule 11(d) of the CPC were provided, the Court said that:
The general principle of res judicata contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. The suit should have been decided on merits and the decision should have attained finality.
Further, it was said that, where the former suit is dismissed by the Trial Court for want of jurisdiction, or for default of the plaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties , or the suit was badly framed, or for a technical mistake, or for failure on the part of plaintiff to produce probate or letter of administration or succession certificate, or for failure to furnish security for costs, or for improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit.
The Court said that before examining the defendants’ ground of res judicata to oppose the eviction petition, several aspects may have to be looked into, like whether such an issue was substantively at issue in the previous suit and similar such other questions may crop up. Powers under Order 7 Rule 11 of CPC under such circumstances would not be available. Thus, it was held that the High Court committed an error in rejecting the plaint.
Placing reliance on Prakash Chander Manchanda v. Janki Manchanda, (1986) 4 SCC 699 wherein it was held that it will be within the discretion of the Court to proceed under Rule 3 even in the absence of evidence, but such discretion is limited only in cases where a party which is opposing has led some evidence or has examined substantial part.
The Court said that after the first eviction petition was instituted, the tenant filed their written statement denying the relationship of landlord and tenant. After the written statement came on record, no further evidence was led by the landlord. All that was on record was in the form of pleadings in the plaint. The Additional Rent Controller took the view that after the written statement came on record, it was the duty of the landlord to establish or prove the landlord tenant relationship and having failed to adduce any evidence, the suit was liable to be dismissed and accordingly was dismissed. The High Court interpreted the order of the Additional Rent Controller as one under Rule 3 of Order 17 of the CPC and, therefore, took the view that the findings as regards the relationship of landlord and tenant could be said to be on merits.
Thus, the Court held that the High Court committed an error in taking the view that the order passed by the Additional Rent Controller could be said to be one passed in exercise of powers under Rule 3 of Order 17 of the CPC. Further, revived the suit to be again heard and decided on merits.
[Prem Kishore v. Brahm Prakash, 2023 SCC OnLine SC 356, decided on 29-03-2023]
Judgment Authored by: Justice J.B. Pardiwala
