Judgement

FALSHAW, C. J. :- This is a tenants revision petition under Section 35 of the Delhi and Ajmer Rent Control Act of 1952 which has been referred to a larger Bench.

2. The relevant facts are that the premises in suit consist of part of a house No. 1, Curzon Road, New Delhi, This house is owned by B.D Gupta who built it on a site which he had taken on a perpetual lease from the Government for the purpose of building a house. In July 1951 the landlord instituted a suit for the ejectment of the tenant under Section 9(1)(b)(i) of the Delhi and Ajmer-Merwara Rent Control Act of 1947 on the ground that the premises were leased to the tenant for residential purposes and that he had used them for another purpose by using them in connection with his business. The suit was dismissed on the 30th of June, 1953, on the findings that although the lease deed mentioned it house, it did not specifically state that the premises were being let solely for residential purposes, and that the landlord had gone on accepting rent from the tenant for at least two years from 1949 to 1951 after he had come to know of the tact that the tenant was using the premises for the purpose of storing and felling tractors and other heavy equipment, this being held to amount to waiver even if there had been any misuser of the premises.

3. The suit from which the present revision has arisen was instituted by the landlord on the 12th of June, 195S for the ejectment of the tenant on the ground contained in Section 13(1)(k) of the Act of 1952 the relevant portion of which reads -

"that the tenant has whether before or after the commencement of this Act ............ notwithstanding previous notice used or dealt with tot premises In a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situated"

This was based on the tact that one of the terms of the lease of the plot granted by the Government to the landlord was that the lessee i. e., the plaintiff could not without the consent of the Government carry on or permit to be carried on the said premises any trade or business whatsoever, or use the same or permit the same to be used for any purpose other than for residence.

4. It seems tram the judgment in the previous suit of which a copy was exhibited as D. 1. that a copy of this lease was produced in that case in support of the landlords plea that the tenant was using the premises for business purposes, but it was held that the terms of the landlords lease from the Government did not affect the terms of the lease between the parties to the suit, which was silent on the purpose for which the premises were being let.

5. However, one of the pleas taken by the tenant was that the trial of the issue relating to his liability to eviction under Section 13(1)(k) was barred by the principle of res judicata by reason if the earlier judgment. This plea was rejected by the trial Court which granted the plaintiff a decree for ejectment. This decision was upheld by the learned District fudge in appeal.

6. Before I proceed to deal with two points of difficulty on account of which the learned Single Judge thought it necessary to refer the case to a larger Bench, I may. since the whole case has been referred and not merely questions of law, deal with an argument raised on behalf of the respondent which arises out of the judgment of the learned District Judge before whom the objection was taken that the appeal was barred by time. The case was decided by the trial Court on the 12th June, 1958 and when the appeal was filed it was only; accompanied by an unattested copy of the order of the trial Court on account of the fact that the appeal had to be filed quickly in order to obtain an order for staying the tenants ejectment. The copy of the trial Courts order had been applied for on the 17th of June, 1958, only five days alter the date of the decision. As the copies of the decree and judgment were not supplied for some time further applications were filed to the Copying Agency on the 4th of July and the 2nd of August, 1958, for treating the application as urgent. However, the copies could not be supplied by the Copying Agency by that time because the record had already gone to the Court of the District Judge in connection with the appeal, and the original application was returned to the appellant on the 22nd of September, 1958 with a report to the effect that the file had gone to the appellate Court. Without any delay the appellant filed an application in the Court of the learned District Judge praying either that the file should be sent back to the District Copying Agency so the copies could be prepared or else that copies should be supplied by that Court and also for treating this application as a continuation of the original application. The appellant was directed to file a fresh application for the supply of copies from the Court of the District Judge. The necessary copies were prepared and promptly filed in connection with the appeal.

7. The learned District judge held on these facts that the time from the date of the original application to the date of the supply of the co pies from his Court was to be excluded in calculating the period of limitation under Section 12 of the Limitation Act, or in the alternative that there were grounds for condoning the delay in my opinion it was perfectly proper in the above circumstances to treat the application filed in the Court of the District Judge on which the copies were actually supplied as a continuation of the original application and therefore it was rightly held that the appeal was not barred by time

8. The two questions which arise in the case are whether the doctrine of constructive res judicata applies in this case and whether the landlord, having permitted the premises to be used for business purposes from 1949 to 1958 before he claimed the ejectment of the tenant on the ground contained in Section 13(1)(k) is estopped by his conduct from ejecting the tenant on that ground. Section 11 of the Code of Civil Procedure reads -

"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court Explanation IV. which is relied on by the tenant, reads -

"Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

It is pointed out that a similar ground for ejectment existed in the Act of 1947 under which the previous suit was brought in section 9(1)(i), and therefore it was obviously open to the landlord to base his suit on that ground, indeed it appears to be rather surprising that this ground was not taken in view of the fact that the landlord in the earlier suit relied on his own lease from the Government as a piece of evidence in support of his allegation that the tenant was using the premises for a purpose other than that for which they were let. In fact the use of the premises for business purpose would have formed a common basis for both the pleas, that the tenant had used the premises for a purpose other than that for which they were let to the tenant, and also that he was dealing with the premises in a manner contrary to a condition imposed by the Government on the landlord while giving him the lease of the land to which the premises are situated. It is therefore contended that the case is clearly covered by the Fourth Explanation since the landlord might and ought to have based his suit on the second plea as well as the first and particularly so in view of the fact that both pleas are based on the same ground of fact.

9. At first sight it would be hard to imagine a clearer case for the application of the Fourth Explanation, since where a plaintiff bases his claim for ejectment on what amounts to, a breach of contract regarding the use to which the premises are to be put and the law permits him to base his claim both on the terms of his own contract with the tenant and on the terms of his own building lease with the Government, he not only can but ought to include both grounds in his suit.

10. It is however contended on behalf of the landlord that in fact he could not at that time have based his previous suit on the second ground. In this connection he relied on the words not withstanding previous notice which occur both in Section 9(1)(i) of the Act of 1947 and Section 13(1)(k) of the Act of 1952. It is contender that when the earlier suit was instituted the landlord had not given any notice to the tenant to desist from misusing the premises for business purposes and calling on him to confine their use to residential purposes, and the serving of such a notice and the giving to the tenant an opportunity to comply with it is evidently; necessary preliminary to a suit based on this ground. It is pointed out that the later suit was only filed after such notice had been given to the tenant and he had failed to Comply with it and it was only after tins had been done that the suit could be brought. It is thus contended that the previous suit could not have been based on this ground and therefore the question does not arise whether it ought to have been

11. It might certainly be argued on behalf of the tenant that the landlord could and ought to have also included this ground in the earlier suit and that therefore he ought to have paved the way for it by serving the required notice, and reliance was placed on the decision in Ganga Singh v. Lachmi Narain, 10 Oudh Cas 145, in which a certain suit was held to be barred by res judicata after a reference to a third learned judge on difference of opinion between the two learned fudges who first heard the appeal. It seems that before the learned Single fudge in this case the learned counsel for the tenant had relied on passage from one of the judgments in the Oudh case cited by Chitaley in his commentary. This passage reads -

"It is contended that he could have a cause of action had he expressed in the plaint his willingness to redeem the former mortgage or had he paid it off, but in my opinion the words ground of do fence or attack, in Sec. 13 do not include a ground of defence or attack which may come into existence by some act of the plaintiff, such as the payment of money to another"

It turns out, however, that this passage comes from the learned Judge who found himself in the minority. Briefly the facts of that case were that a such had been brought by a mortgagee to bring a village to sale for the realisation of his mortgage debt and that suit was dismissed because the plaintiff had no right to bring the village to sale without first redeeming an existing prior mortgage He then brought another suit for the purpose of bruising the village to sale and merely included an offer to redeem the previous mortgage in his plaint, and it was held by the majorily that the second suit was barred by the principle of res judicata I cannot see any difference in principle between that case and the present one in which the landlord was only barred from taking the second ground of ejectment by reason of the fact that he had not brought the terms of his own lease from the Government to the notice of his tenant, which in my opinion he might and ought to have done. In other words, when two grounds for the ejectment of a tenant based on the same act of facts are open to a landlord and he chooses to bring a suit based only on one of the grounds, he cannot bring a second suit based on the other ground merely on the plea that that ground was not open to him in the first suit by reason at the omission on his part to perform some formal act like serving a notice and I am therefore of the opinion that the plaintiffs suit was barred by the Fourth Explanation in Section 11 Civil Procedure Code.

12. In view of this finding it is not necessary to go into the question of estoppel on grounds other than that of constructive res judicata, but since the matter was raised before the learned Single Judge, before whom reliance was placed in a decision of this Court subsequent to the appellate order of the learned District fudge, I feel that I had better deal with the point. The decision referred to is in Smt Uma Kumari v. Jaswant Rai Chopra. 1960-62 Pun LR 460.

13. The facts in that case were that one Dina Math had taken a long lease of land situated on Baird Road. New Delhi, from the Delhi Improvement Trust for the purpose of building thereof one of the terms of his lease was that the premises constructed by him were not to be used for residential purposes and were only to be used for business purposes. The landlord at the time of the litigation, Smt. Uma Kumari, had purchased the premises from Dina Math in 1956 and in the same year the instituted suits for the ejectment of the two tenants occupying different portions Jaswant Rai Chopra and Raj Narain, on the ground contained in Section 13(1)(k) of the Act of 1952. It was found as a matter of fact that his predecessor-in-interest, the original owner, bad leased parts of the premises to the two tenants for residential purposes from the commencement of their tenancies in 1943 and 1950 respectively In these circumstances it was held by Chopra that the landlord was estopped from tiling for ejectment under Section 13(1)(k) The main part of his argument contained in the Following paragraph in the judgment :-

Mr Vogeshwat Dayal, learned counsel for the petitioner, contends that there can be no weiver against a statute. The argument is that the above provision in the Act contains a clear prohibition of the use of the premises contrary to the conditions imposed on the landlord by the Government or the Delhi Improvement Trust while giving him the lease Any agreement between the landlord and the tenant in contravention and disregard of this inhibition would be illegal and unenforceable under Section 23 of the Contract Act. The Provision in the Act is based on public policy and public policy demands that contravention of the express prohibition should not be allowed even though it was consented to by the landlord and agreed upon between the parties. The entire argument in my view is based upon a wrong hupothesis and is Fallacious As I read it cause (k) of the proviso in Section 13(1) of the Act does not contain any express or even an implied prohibition to the letting out of the premises by a landlord contrary co the terms and conditions imposed on him by the Government or the Delhi Improvement Trust while giving him the lease. The clause merely contains a provision for the protection of a personal right of the landlord and is meant for his benefit. The landlord as given the right to sue for ejectment of the tenant and get him evicted if the tenant, in spite of notice uses or deals with the premises contrary to the terms and conditions of the lease by the Government. This right was refused to him by Sub-Section (1) of Section 13, but an exception to it was created by clause (k) of the proviso. The statute does not impose any duty or obligation on the landlord or the tenant; it merely imposes a penalty on the tenant and creates a right in the landlord, which he may or may not exercise. There being no express prohibition in the Act, there was nothing wrong in the agreement being a personal one. It could he waived by the landlord. Once it is waived the landlord would be estopped from enforcing that right."

An appeal was filed in the Supreme Court by special leave against that judgment, but unfortunately the learned Judges who dismissed the appeal did not think it necessary to decide whether the view of Chopra, J., was correct or not since on the assumption that it was open to a landlord to take advantage of clause (k) even where he might himself have been originally a party to the breach of the condition of the lease in his favour, it was held that the service of notice was necessary under that clause, and no notice had been served on the tenant in that case. It seems to me that the present case is distinguishable on facts from that decided by Chopra, J., in that it was found in that case that the breach of the terms of the landlord lease from the Improvement Trust had been present from the start of the tenancy of the tenant, to whom parts of the building had been leased for residential purposes at the outset. In the present case the point at which the user was converted of the tenant from residential to business purposes was not in issue, but it would appear from the judgment in the earlier suit that the tenancy started in 1942 and that the use for business purposes at any rate to the knowledge of the landlord was only proved from 1949 i.e., about two years before the suit was instituted. In such a case it could not possibly be said that the landlord was estopped from basing his suit on the provisions of Section 13(1)(k). On this finding it ceases to be necessary for me to discuss further whether the view taken by Chopra, J., was correct and on the finding that the landlords suit was barred by the principles of constructive res judicata I would accept the revision petition and set aside the decree for ejectment. I consider it to be a fit case in which the parties may be left to bear their own costs.

14. MEHAR SINGH, J. :- I agree.

Revision allowed.