1. Both these Civil Revision Applications, which have been heard together and involve identical questions, are being disposed of herewith.
2. The relevant facts, briefly stated, are that the petitioner has got a building consisting of various shop rooms on Hospital Rd. in the town of Daltonganj. Two contiguous shop rooms of the above building were let out to the opposite party under two separate leases, each for a fixed period of 11 months beginning from the 1st July, 1969 to 31st May, 1970, on certain rents. Some time after the expiry of the period of the aforesaid leases, the petitioner filed two applications in the court of the Munsif, Daltonganj under Section 12(3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for eviction of the opposite party from each of the two shop rooms. A claim for damages was also made, but we are not concerned with the same in these applications. The opposite party filed objection and one of the points raised by him in both the cases was that the application was not maintainable, inasmuch as, in this case recourse to the provisions of Section 12, Sub-Secs. (1) and (2) of the Act was not resorted to. Objections on various other grounds were also taken, but they are beside the point.
3. The opposite party then prayed in the trial court to decide the question of maintainability of the applications filed by the petitioner as a preliminary point and the learned Munsif by his orders dated 6-2-1973 held that the applications were maintainable. Against the orders of the Munsif aforesaid, the opposite party came to this Court and filed two Civil Revisions, one of them was ‘dismissed’ in limine. The other application, however, was permitted to be ‘withdrawn’. Both the cases were thereafter fully heard by the trial court and the learned Munsif allowed the same and passed decrees for eviction of the opposite party from the premises in question, besides allowing the claim for damages in part.
4. The opposite party then filed appeals in the court of the learned District Judge, Palamau at Daltonganj. The learned District Judge heard both the appeals analogously and by the impugned judgement allowed both the appeals. The learned District Judge held that the applications filed by the petitioner under Section 12(3) of the Act were not maintainable, inasmuch as, the tenant had not taken recourse to the provisions of Sub-Sections (1) and (2) of Section 12 of the Act, as already indicated earlier. Reliance has been placed by the learned District Judge on a each decision of this Court in the case of Narayan Prasad Tulsian v. Shital Prasad Saha (1975 BBCJ 750) (Pat), in support of his view. The petitioner (landlord) has accordingly filed the present applications under Section 115 of the CPC against the said judgement.
5. I have heard learned counsel for both the parties and find that the view taken by the Court of appeal below is amply borne out by the above Bench decision, where it has been firmly held that in absence of an action taken under Section 12(1) of the Act, the landlord cannot take recourse to Section 12(3) of the Act. It is not necessary to notice the reasonings of the judgement, nor its correctness was challenged before me by the learned counsel for the petitioner.
6. The learned counsel for the petitioner, however, contended that the preliminary point, having been decided by the trial court by its order dated 6-2-1973, it could not be raised by the opposite party at the succeeding stage of the same proceeding. He further contended that the said order could not be challenged more so as the civil revision applications filed by the opposite party in this Court were dismissed/withdrawn. In other words, it is contended that the order dated 6-2-1973 would operate as res judicata against the opposite party, and therefore, the court of appeal below could not interfere with the same. In support of his proposition, learned counsel placed reliance upon my own decision in the case of Dinbandhu Ghosh v. Tasawar Hussain, 1977 BBCJ (HC) 253 : (AIR 1977 Pat 110). In that case, relying upon the decision of the Supreme Court in the case of Satyadhayan Ghosal v. Smt. Deorajin Devi (AIR 1960 SC 941) I had held that “the principle of res judicata applies to the two stages in the same litigation”. The argument of res judicata, advanced in this case, however, is entirely erroneous, inasmuch as, what was decided in the earlier case, was that this principle would apply between the two stages in the same litigation to this extent that thesame Court, whether the trial court or a higher court, having at an earlier stage decided a matter in any way would not allow the parties to reagitate the matter again at a subsequent stage of thesame proceeding.
7. In the cases on hand, however, this argument is entirely misconceived as the order dated 6-2-1973 deciding the question of maintainability as a preliminary point, was not reagitated in the same proceeding i.e in the proceeding pending in the Court of the Munsif. Had it been done so the argument and the decision would have application, but certainly the opposite party had got every right to agitate the correctness of any decision of a subordinate court in an appeal. Although an appeal may be said to be in continuation of the suit, certainly it is a proceeding different from the suit. The argument is entirely misconceived.
8. The objections on the second ground i.e on account of the dismissal or withdrawal of the civil revision applications by the opposite party, against the order dated 6-2-1973 of the court below is also erroneous. It is well recognized that the principle of res judicata or for that matter, even constructive res judicata applies only when the matter is heard and finally decided by a competent court. That being essential to the rule, where there has been no adjudication of the matter, obviously there will be no application of the principle of res judicata. It was observed by the Supreme Court in the case of Daryao v. State of U.P (AIR 1961 SC 1457) that if a petition is dismissed as withdrawn, it cannot be a bar to the subsequent petition, because in such a case there has been no decision on the merits by the Court. A person, when he makes an application under Section 115 of the Code, he evokes a discretionary power of this Court.
9. The Court may refuse to adjudicate upon a matter in its discretion. The order of dismissal or withdrawal passed by this Court against the order of the Munsif did not, in any way, clothe them with any higher authority.
10. I, therefore, do not find any merit in these applications, which are accordingly dismissed. In the circumstances, however, I shall make no order as to cost.
11. Revision dismissed.