1. This revision petition has been preferred by the tenant under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred as the Rent Act of 1949), and has been directed against the decision of the appellate authority whereby he has allowed the landlords' petition for ejectment and has confirmed the order to the same effect passed by the Controller. Thakur Dass Mast Ram are the landlords and their case was that they became tenants from one Shri Prem Chand Kuthiala in Shop No. 34. Lower Bazar, Simla together with its “thari”. The landlords got permission in writing from Shri Prem Chand Kuthiala to sub-let a portion of the shop including the ‘thari’. Accordingly, the landlords pleaded that they had sub-let the ‘thari’ to the petitioner-tenant Charan Dass on 16-11-1964 and a rent-note (Ex. A-1) was executed. According to landlords, the tenant Charan Dass did not pay the rent for the period between 1st March, 1967 and 30-9-1969 and a sum of Rs. 1105/64 p. had fallen due. Because there was default in payment of rent so the petition for ejectment of Charan Dass was filed before the Controller. The petitioner-tenant contested the case on the plea that there existed no relationship of landlord and tenant between the parties and as such the landlords had no locus standi to file the petition for ejectment. The Controller, however, did not get the plea clarified, by ascertaining from the tenant as to what was the basis for denying the relationship of landlord and tenant between the parties. However, during the course of trial as it appears from the judgment of the Controller, it was specifically pleaded by the petitioner-tenant that the landlords had not taken permission in writing for sub-letting the premises and as such the very contract of sub-letting was illegal and the petitioner could not be considered tenant for ejectment, as a result of proceedings under the Rent Act of 1949. The other specific plea taken by the petitioner was that the landlords Were threatened for eviction by Shri Prem Ghand Kutihiala and the petitioner opened direct negotiation with him and became tenant of the ‘thari”. In this manner, the petitioner pleaded for a direct tenancy with Sim Prem Chand Kuthiala. The learned Controller decided both these pleas against the petitioner and accordingly the petition was allowed and eviction was ordered.
2. Thereafter the petitioner-tenant came in appeal and the appellate authority dismissed the appeal, on the short ground, that the two pleas now taken up by the Petitioner-tenant were not taken up by him as grounds of defence in a prior proceeding of ejectment which had started upon a petition filed by these very landlords for ejectment of the petitioner-tenant on the plea that the latter had sublet the ‘thari’ and as such by the application of Explanation 4 of Section 11 of the CPC the principle of constructive res judicata applied, and the petitioner-tenant are debarred from taking up these pleas in the present proceedings. On this short ground has the learned appellate authority dismissed the appeal and confirmed the finding of the Controller for ejectment of the petitioner-tenant.
3. The petitioner-tenant has preferred this revision petition, and the learned counsel representing him has contended with much learning and insistence, that the appellate authority has really misconstrued the legal position and the plea of constructive res judicata neither applied to the facts of the case, nor did it survive having been waived by the landlords themselves. It is to be understood, that the learned appellate authority did not enter into the merits regarding the two specific pleas raised by the petitioner-tenant, as he considered himself fortified by the plea of res judicata which directly negatived, according to him, the very inception of these two pleas. The intention of the learned appellate authority is dear from his judgment which I may quote in his own words:—
“In case this Question could not be determined by the application of principles of res judicata. I might have considered the advisibility of holding further enquiry into be matter, but in view of my discussion in the preceding part. I have no doubt that this plea is not open to the appellant being barred by the principle of res judicata”.
4. I have taken precaution to quote the language used by the appellate authority because I wish to lend support to my observation that but for the plea of res judicata the learned appellate authority would have entered otherwise into the merits of the controversy.
5. There can be no doubt that powers of revision to be exercised by High Court under Section 15(5) of the Rent Act of 1949 are wider as compared to the power which can by exercised by it under Section 115 of the CPC. Under Section 15(5), the High Court has jurisdiction to examine the legality or propriety of the order under revision. If it is considered that the plea of res judicata has been wrongly decided by the appellate authority, it would be a ground for interference under Section 15(5).
6. There was much discussion at the Bar as to the availability of the plea of res judicata in ejectment proceedings under the Rent Act of 1949. Assuming that the plea of res judicata was open to the landlords, what I find from the record is that constructive res judicata could not be inferred and further that the plea of res judicata was deemed waived by the landlords. Since the plea of constructive res judicata was neither taken up by the landlords, nor any issue was framed in respect thereof, none of the parties took care to produce the relevant material including the documents relating to the previous ejectment proceedings. There is, however, a judgment on record delivered by I.D Dua, C.J in Civil Revision No. 72 of 1967 supposed to be preferred in the previous proceeding and from this judgment the learned appellate authority concluded that the petitioner-tenant had not taken the two pleas which they have at present set up in the present proceedings. He, therefore, concluded that the petitioner-tenant having failed to take up the two pleas, is now debarred from taking up such pleas, as these might and ought to have been made grounds of defence in such former proceedings.
7. As evident from the decision of the Court in that Civil Revision, the Controller had allowed the ejectment petition of the landlords but the appellate authority had rejected the same. The result was that the petitioner-tenant got over the plea regarding creation of subtenancy on the basis of which his ejectment was sought for. The petitioner-tenant having won the case before the appellate authority did not obviously care to go in revision before the High Court. Rather the landlords went in revision and, as clear from the judgment of the High Court, the revision petition was dismissed and ejectment was not allowed. It is therefore, evident that the Petitioner-tenant having won the case and having defeated the plea of the landlords that they had sub-let the premises, was not really called upon to rake up the other pleas to the effect, that they were not even tenants under the landlords as no permission in writing for creating a subtenancy was taken from the paramount landlord or that the petitioner-tenant had opened direct negotiations with the paramount landlord and created fresh tenancy in his favour. A successful tenant was not required to take up any other plea to defeat the claim of the landlord for ejectment. Therefore, the plea of constructive res judicata did not arise and it could not be stated that any other ground of defence might and ought to have been taken up by the tenant. He confined his case by defeating the plea already taken up by the landlords and there was no occasion for him to have raked up any other plea to defeat the claim of ejectment. Therefore, the learned appellate authority was decidedly wrong to hold that the plea of constructive res judicata was at all sustainable.
8. The learned counsel referred to AIR 1922 PC 241 (Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy). It was a case wherein a tenant was sought to be ejected, and he had taken two pleas 11) that he had acquired occupancy right, and (2) that the suit was premature. The trial Court held that there was no occupancy right, but the suit was premature. The High. Court affirmed the trial Court judgment. Subsequently the zamindar brought another suit for possession over the land. The tenant again claimed occupancy rights. It was held that the question regarding occupancy rights was not res judicata in the subsequent suit for the tenant, having succeeded on the other plea, had no occasion to go further as to the finding against him. A similar situation has arisen in the present case, because the petitioner-tenant had no occasion to go further from the finding of the learned appellate authority and it was the landlords who preferred revision before the High Court.
9. In Debi Dayal v. Annu Singh. (AIR 1943 Oudh 231) a similar proposition was held to be correct. The principle of constructive res judicata applies only to a case in which the party against whom it is sought to apply was unsuccessful in the previous suit or proceeding. It cannot be applied against a person who in the previous suit or proceeding had been successful. In the instant case, the petitioner-tenant had been successful in the previous proceeding and the plea of constructive res judicata cannot be availed against him. Therefore, in my opinion, the plea of constructive ires judicata was not at all open in favour of the landlords. The petitioner-tenant could not be debarred from raising the two specific pleas whereby he sought to defeat the claim of the landlords for ejectment.
10. There are yet other circumstances to prove that the plea of res judicata was even waived by the landlords. As I have remarked above, no such plea was taken up by the landlords. They did not press for any issue on this plea. The Controller did not even give a finding on res judicata. A perusal of his judgment discloses, that the point that mattered before him was that no such pleas were taken up by the tenant in the previous proceeding and, therefore;, he inferred that there was no merit in such pleas which, according to him, were not supported by proper evidence. That was a totally different reasoning and indeed it cannot be stated that the Controller even considered the plea of constructive res judicata and upheld it against the petitioner-tenant. It appears, the Plea was taken for the first time before the appellate authority and the circumstances do indicate that the plea was waived before the Controller and could not be raked UP before the appellate authority.
11. There can be no doubt that the plea of res judicata can be waived by a party. The plea is decidedly dependent upon proof or disproof of so many facts. If a party chooses not to plead such facts, it can be stated to have waived the plea. In Firm Sansarchand Lachhman Dais v. Dina Nath Dube, (AIR 1935 All 645), the plea of res judicata was deemed waived and it was observed that the basis of this salutary rule is that if a party who could raise the plea of res judicata does not raise the same when an opportunity is given to him he must be deemed to have waived it.
12. In Jagadish Chandra Deo v. Gour Hari Mahato. (AIR 1936 PC 258), it was held that a party raising a plea of res judicata is not entitled to go into the question of res judicata, when it has not been properly raised by the pleadings or in the issues, particularly in the issues. In the instant case, neither any plea has been taken, nor any issue was sought for. In Neelakanta Pillai Mathevan Pillai v. Neelamma Pillai. (AIR 1952 Trav-Co 452), the plea of res judicata was considered waived as it was not properly raised in the pleadings. It was further held that ordinarily, it is not permissible to allow a plea of res judicata to be raised for the first time in appeal. To invoke the doctrine of res judicata, the ingredients contemplated by Section 11 of the CPC should be satisfied. The Court has to see whether the elements that constitute res judicata are present in a given case, which means an investigation Into the facts bearing upon the several aspects, contemplated by that section. It is not a pure question of law which could be debated at any stage. (See Anjaneyulu v. Ramayya. (AIR 1965 Andh Pra 177 (FB)). Similarly in Smt. Sukhmi v. Smt. Sukhbasi, (AIR 1967 All 423) and Girdhari Lal v. Guranditta Mal. (1967) 69 Pun LR 1062 para 5 — it was held that a plea of res judicata not pressed should be deemed to be waived. I have therefore, no hesitation in holding that the plea of res judicata. In the circumstances, of the case, can be stated to have been waived by the landlords.
13. It was also contended by the learned counsel for the petitioner-tenant Shat the plea of res judicata was not even open to the landlords to debar the tenant from taking up the defence, because the Rent Act of 1949 is a complete code and its Sections 14 and 16 do not bring in the principle of res judicata as incorporated in Section 11 of the CPC. Section 14, deals with the grounds which a landlord can take up for ejectment of a tenant and does not deal with the defence which the tenant can take against the landlord. Section 16, deals with specific powers of a Civil Court which can be exercised by the appellate authority or the Controller. The argument is that Section 11 of the CPC has not been brought in for application, under any provision of the Rent Act of 1949, with the result that the plea of res judicata is not sustainable at all. On the other hand the learned counsel for the respondent urged that the plea of res judicata is neither confined to a “suit” nor to a “Court”, but upon general principles the said plea can be set UP before any tribunal, namely the Controller or the appellate authority under the Rent Act of 1949 so that a finality is reached in the decisions which are made. I do not consider it necessary to enter into this controversy in order to give an effective decision. As I have stated before, the plea of res judicata was deemed waived by the landlords and further that the plea of constructive res judicata could not even be raised in the circumstances, and that is sufficient to decide this revision. I therefore, leave this question open, as to whether the plea of res judicata as based on the principles laid down Under Section 11 of the CPC can or cannot be taken up in a proceeding Under the Rent Act of 1949.
14. The result of my finding is that I set aside the decision of the appellate authority and remand the case to the said authority for rehearing the appeal on merits upon the pleas taken up by the petitioner-tenant for defending himself against ejectment claimed by the landlords. This I do because as I have held above, the learned appellate authority has yet to give a decision on merits on such pleas. Whether the petitioner-tenant is debarred from raising such pleas in view of Section 116 of the Evidence Act, is again a question which I leave open for decision by the appellate authority.
15. In the result. I allow the petition and set aside the decision of the appellate authority, and remand the case for fresh decision, as stated above. I leave the parties to bear their own costs in this revision.
16. Revision petition allowed.