Hari Nath Tilhari, J. - (1.) THE tenants -petitioners have field this petition under Article 226 of the Constitution of India, challenging the order dated 18.5.1993 passed by IXth Additional District Judge, Lucknow whereby the learned IXth Additional District Judge, during the pendency of Rent appeal No. 54 of 1990 passed an order on application moved by the landlord opposite parties for issue of a Commission to inspect the house i.e. the landlord's house and to report about its actual condition or alteration to the Court. The applications have been mentioned in the order Annexure -8 as applications (C -26, C -43, C -51 and C -73) and the objections to the applications have been mentioned as (C -34 and C -75). The learned IX Additional District Judge, Lucknow has allowed these applications in part i.e. it has taken a view that local inspection by the Court is not necessary instead the justice requires that an Advocate Commissioner be appointed and a commission be issued to make the spot inspection and to submit his report. This order was passed by the learned Additional District Judge, Lucknow on 18.5.1993. The facts of the case in brief are that the opposite party landlord had moved an application for release of the house No. 251/35 Terhi Bazar, Rakabganj, Lucknow under Section 21 U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) on the ground of bona fide need and further, that it was in dilapidated condition, and it is required by the applicants for their own use after demolition and reconstruction. The release application was contested' and a written statement was filed by the petitioner challenging the release application and alleging that the house of the opposite party was not dilapidated. The release application of the opposite party was rejected and having felt aggrieved therefrom the opposite party Landlord filed the appeal being Rent appeal No. 54 of 1990. During the pendency of this appeal No. 54 of 1990 the applications (C -26, C -43, C -51 and C -73) were moved and to those applications the present petitioners filed the objections. The objection that has been filed is C -34 on the record of the Court below, a copy of which has been annexed as Annexure -6 to the writ petition. It was submitted by way of objection that before the appellate Court the opposite party appellant had moved an application for appointment of Commissioner which was originally allowed at the back of the respondent in the appeal i.e. (petitioner) in the writ petition and the said order allowing the commission in appeal was withdrawn and the application for Commission was rejected. It is further submitted in the preliminary objection that it was not open to the landlord to move other applications for appointment of Commissioner in the appeal as he had not challenged the earlier order of the appellate Court rejecting the prayer of the present opposite party i.e. the appellant for appointment of Commissioner and for local inspection. He submitted that in view of rejection of earlier applications (C -7, C -9, C -12 and C -21), the Landlord's application for Commission was barred by doctrine of estoppel and res -judicata. The learned Additional District Judge by his order dated 18.5.1993 allowed the application for Commission as has been mentioned above, taking the view that for having the clear picture of the actual position in the light of subsequent development or new situation which have developed during the period from the issuance of Commission by the Court below, it is necessary to issue a fresh Commission and that the doctrine of estoppel or res -judicata are not applicable and in any way these technical rules are not intended to obstruct the flow of justice.
(2.) FEELING aggrieved from the order of the Additional District Judge, dated 18.5.1993 the petitioner has filed this writ petition under Article 226 of the Constitution of India. The counter affidavit has been filed by the opposite party Landlord and the case has been argued on behalf of the petitioner by Sri. K.L. Gurnani and on behalf of the opposite party by Sri Basant Kumar Nigam at length.
(3.) SRI . K.L. Gurnani, the learned counsel for the petitioner laid main emphasis on the point that vide order dated 15.9.1990 copy of which is Annexure No. 5 to the writ petition, the Additional District Judge, on earlier occasion rejected the applications moved by the landlord for local inspection either by the Court or by Vakil Commissioner or by Amin which applications were (C -7, C -9, C -12 and C -21) and as such the opposite party No. 1 i.e. IXth Additional District Judge, had no jurisdiction to either entertain or allow similar four applications for the same purpose in view of the doctrine of res -judicata which is applicable in respect of orders passed during the course of proceedings of the case at any stage of the case i.e. in other words he submitted that the orders passed on 15.9.1990 operate as res -judicata and as such he submitted the order passed was illegal and without jurisdiction. Sri K.L. Gurnani the learned counsel for the petitioner in support of his above contention placed reliance on the decision of Supreme Court in the case of Satya Dhayan v. Smt. Devrajini Devi : A.I.R. 1960 S.C. p. 941 and in particular on the principle and the observation that the principle of res -judicata applies as well as to the different stages of the same illegation. Sri Gurnami further tried to submit that the conduct of the opposite party landlord had been malafide throughout the proceedings under Section 21 of the Act, so the Court should not have shown any indulgence in favour of landlord, like the one, as granting the application for issue of Commission as successive applications have been causing harassment and inconvenience to the petitioner -tenant. On behalf of opposite party, Sri Basant Kumar Nigam refuted those contentions vehemently. He submitted that the order rejecting application for Commission vide Annexure -5 did not per se decide any case, it did not either amount to a judgment deciding the rights nor did it amount to a decree or case decided. Sri Nigam submitted that an order whereby the Court decides or determines some right of the parties that order may be said to operate as res -judicata but an order which is inter -locutory in nature which does not determine the rights of the parties even relating to certain proceedings does not operate as res -judicata. He denied the allegations made by the petitioner's counsel to the effect that conduct of the opposite party has been malafide in whole of the proceedings under Section 21.;