Prajith v. Poornima Tourist Home

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935 OP (RC).No. 30 of 2014 (O) --------------------------- AGAINST THE ORDER IN I.A.860/14 IN RCP 43/2010 of RENT CONTROL COURT,CHAVAKKAD DATED 30-01-2014 PETITIONER(S)/RESPONDENT: ------------------------------------------------ PRAJITH AGED 29 YEARS S/O. THAIVALAPPIL PRAKASAN, GURUVAYUR AMSOM DESOM CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADVS.SRI.RAJIT SRI.C.RAJAGOPALAN RESPONDENT(S)/PETITIONER: -------------------------------------------------- POORNIMA TOURIST HOME GURUVAYUR AMSOM DESOM, CHAVAKKAD TALUK THRISSUR DISTRICT. - 680 502 REPRESENTED BY MANAGING PARTNER SOORAJ SOMAN. BY ADV. SRI. G. SREEKUMAR (CHELUR) THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 14-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC).No. 30 of 2014 (O) ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------EXHIBIT P1. TRUE COPY OF THE ORDER DATED. 19-8-2013 IN RCP NO. 1/2010. EXHIBIT P2. TRUE COPY OF THE PETITION DATED 20-1-2014. EXHIBIT P3. TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P2 APPLICATION. EXHIBIT P4. TRUE COPY OF THE DATED 30-1-2014 I.A. NO. 860/2014 IN RC.P NO. 43/2010 OF THE RENT CONTROL COURT CHAVAKKAD. ## RESPONDENT(S)' EXHIBITS --------------------------------------- NIL // TRUE COPY // P.A. TO JUDGE sou. **K. M. JOSEPH & A.K. JAYASANKARAN NAMBIAR, JJ -------------------------------------------------------------------** O.P.(RC). No. 30 OF 2014 **-------------------------------------------------------------------** Dated this the 14[th] day of March, 2014 ## J U D G M E N T ## K.M. Joseph, J Petitioner is the respondent in RCP No.43 of 2010 and petitioner in I.A. No.860 of 2014. He challenges Ext.P4 which is an order passed by the Rent Control Court, Chavakkad, rejecting the I.A. filed by him contending that RCP filed by the respondent is not maintainable. 2. The contention in the application was that respondent has filed RCP.No.1 of 2010, against the petitioner seeking eviction of the petitioner under section 11(2)(b) and 11(4)(i) of Kerala Building (Lease and Rent control) Act (hereinafter referred to as 'the Act'). By Ext.P1 the petition was allowed. The appeal filed against the same by the petitioner is pending consideration before the Appellate authority. It is during the pendency of RCP.No.1 of 2010 the respondent filed RCP.No.43 of 2010 seeking eviction of petitioner under section 11(3) and section 11(8) of the Act. It is thereupon, the petitioner filed application seeking the ruling on the O.P(R.C).30/2014 2 maintainability of the petition on the ground that grounds which are set out in the second Rent Control Petition were available at the time of filing the first RCP. The second RCP is filed only after the first RCP was allowed. The interlocutory Application was filed by the petitioner after allowing RCP.No.1/2010. 3. Rent Control Court found that there is no provision in the Act barring the respondent to file another petition claiming eviction on another ground of eviction and that the argument of the learned counsel for the respondent is that as the evidence and documents produced in both the cases are different there is no bar in filing another petition. 4. Learned counsel for the petitioner would point out that he does not rest his case on the basis of provision 15 of the Act. Section 15 reads as follows: " **15. Decisions which have become final not to be reopened** .- The Rent Control Court shall summarily reject any application under subsections (2),(3), (4), (5), (7) or sub-section (8) of section 11 which raises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided or purports to have been finally decided in a former proceeding under this Act or under the corresponding provisions of any law in force prior to the commencement of this Act or the corresponding provisions of any law repealed or superseded by such law." O.P(R.C).30/2014 3 In other words, he does not have a case that the issue that is sought to be projected in the second RCP was decided by the court and therefore the matter is res judicata. On the other hand he seeks to invoke the principle of constructive res judicata and also Order II Rule 2 of CPC. 5. On the other hand, the argument of learned counsel for the respondent is that the Rent Control Act is a self contained Act and section 15 incorporates res judicata and that is about all what is applicable to proceedings under the Act. There is no scope for importing the principle under Order II Rule 2 or constructive res judicata, it is submitted. 6. We would think that this issue is not res integra as it is the subject matter of decision reported in **Govindan v. Subaida Beevi [1997 (1) KLT 910].** There the court was dealing with a situation where the landlord has claimed eviction initially under 11(2) and 11(3). Later 11(4)(iii) was invoked. The tenant pointed out that an earlier RCP had been filed wherein it is contended that the landlady's husband wanted a godown and a shop room was to be opened in the petition scheduled building and he needed the building. It was pointed out by the tenant that the matter is barred by res- judicata. A Division Bench of this Court considered the matter elaborately and held inter alia as follows : O.P(R.C).30/2014 4 “12. The earlier application in this case was one filed admittedly under S. 11(2) and 11(3) of the Act alone. There was no claim for eviction put forward under S. 1 l (4)(iii) of the Act or under any of the sub-clause of subs. (4) of S. 11 of the Act in the earlier application, though a claim under S. 11 (4)(iii) could have been included by the landlady in that application. As no claim for eviction on the ground mentioned in S. 11 (4)(iii) was made in the earlier petition there was no occasion for the tenant also to controvert the same and invite a decision on that ground one way or other. In fact also no decision was rendered on the question whether eviction is liable to be ordered or not under S. 11 (4)(iii) of the Act also. A mere reading of the various provisions contained in S. 11 of the Act especially those contained in sub-ss. (2), (3), (4), (5), (7) & (8) mentioned specifically in S. 15 would,show that each of the grounds mentioned in those sub-sections would constitute separate causes of action for claiming eviction. Sub-s. (4) further deals with 5 separate grounds for eviction each of which may again furnish separate and independent cause of action to the landlord to claim eviction. It is important to note in this connection that though the landlord may be entitled to get eviction on the basis of all or any of the grounds mentioned in the various subsections the nature and content of the relief of eviction is not identical in all the cases. Orders of eviction on different grounds mentioned under different sub-clauses of S. 11 can be passed only subject to different conditions mentioned under various provisions of the Act itself. For example, an order of eviction passed on the ground of arrears of rent sub-s. 2(a) is liable to be vacated under S. 11 (2)(c) of the Act. Similarly in the case of eviction ordered on the ground of reconstruction, the evicted tenant is entitled to get the reconstructed building leased out to him on payment of fair rent In the case of eviction ordered on the ground of bonafide need under S. 11(3) of the Act, the tenant is entitled to apply to the Rent Control Court to put him back in possession of the building in case the landlord fails to comply with the requirements of sub-s. (12) of S. 11 within the prescribed time mentioned in that sub-section. The facts and circumstances to be alleged and proved to establish the various grounds mentioned in the subsections of S. 11 are not entirely different in each case. O.P(R.C).30/2014 5 The nature of the defences available in the case of applications filed under various sub-sections of S. 11 of the Act are also different. All the above aspects would in our view clearly indicate that each of the subsections of S. 11 and the 5 grounds in sub-s. (4) of S. 11 would furnish separate causes of action for eviction of the building and the landlord will be entitled to claim eviction on all or any one of the grounds so available to him at any point of time. ## xxxxxxxxxxxxxxxxxxxxxxxx ## 15. xxxxxxxxxxxxxxxxxxxxxxxx An analysis of the above principles would show that the general principle of res judicata applies to cause of action and issues decided already in earlier proceedings. The bar of ‘cause of action estoppel’ which is part of the doctrine of res judicata under English Law will apply only in cases where there is identity of causes of action. But in India, the principle applies even in cases where causes of action are different, if they arise out of the same set of facts. In the case of issues also identity is essential. Thus even recognising the difference between English Law and Indian Law it is clear that the bar of constructive res judicata will apply only if a party omits to include one of the several causes of action arising out of the same set of facts and not when different and independent causes of action arises out of altogether different set of facts. In other words, only causes of action or grounds of attack or defence arising out of the same set of facts would come within the scope of ‘might and ought’ rule which is the basis of the principle of constructive res judicata. If this be the correct legal position; then in the legal light of our finding that grounds mentioned in the various subsections of S. 11 of the Act furnishes separate and independent cause of action, we have no hesitation in holding that omission to claim eviction on the ground available under sub-s.4(iii) of S. 11 of the Act in the earlier petition in this case cannot bar a fresh application on the said ground even though the earlier application was dismissed on merits and the dismissal has become final. For, we find that the different causes of action under different sub-sections of S. 11 of the Act arises out of different set of facts and can never be O.P(R.C).30/2014 6 considered as arising out of same set of facts so as to attract the bar of constructive res judicata as held in _Nawab Hussains’s_ case (supra). There is also no question of applying the principle of issue estoppel.” In the light of this judgment which we were not called upon or persuaded to disagree or take a different view from, we see no reason to sustain the objection to Ext.P4 order. Therefore, the original petition filed under Article 227 of the Constitution of India, will stand dismissed. Sd/- **K. M. JOSEPH, JUDGE** Sd/- **A.K. JAYASANKARAN NAMBIAR, JUDGE.** // True copy // Sou.