- (1.) S. U. Khan, J. This is tenant's writ petition arising out of SCC Suit No. 305 of 1984 filed by landlord-respondent No. 3 Bachhan Babu for eviction on the ground of default and recovery of ar rears of rent. Plaintiff filed copy of sale-deed dated 31- 10-1981 through which Ashok Kumar son of tenant-petitioner had purchased an accommodation in the same City. None of the parties led any oral evidence before the trial Court and formal proof of documents filed by each of the parties was waived by the other party. Trial Court/jscc, Aligarh held that tenant had deposited the entire requisite amount of rent, interest and cost of the suit on the first date of hearing however, he was not entitled to the benefit of Section 20 (4) of U. P. Act No. 13 of 1972 by virtue of its proviso. According to the said proviso a tenant who or any member of whose family has acquired in a vacant state any residen tial building in the same city then he shall not be entitled to benefit of Section 20 (4) of the Act. The tenant asserted that the accommodation purchased by his son was commercial in nature and not residential. Tenant further pleaded that the said accommodation was pur chased for business purpose and was actually being used since its purchase for business purpose.
(2.) PRIOR to the suit giving rise to the instant writ petition another similar suit had been filed by the landlord against the tenant being SCC Suit No. 43 of 1982. The said suit was dismissed on the ground that notice of termination of tenancy and demand of rent was not found served. However it appears that in the earlier suit it was held that defen dant was not entitled to the benefit of Section 20 (4) of the Act as his son had acquired a residential house. The trial Court decreed the in stant suit for eviction and recovery of ar rears of rent through judgment and decree dated 11- 12-1985. Trial Court held that even though tenant had fully complied with the provisions of Section 20 (4) of the Act however, he was not en titled to the protection of the said sub section as his so" had acquired a residential house in the same city hence proviso to the said sub- section was squarely attracted. Against the said judgment and decree tenant-petitioner filed SCC Revision No. 4 of 1986. IIIrd A. D. J. , Aligarh through judgment and order dated 20-8-1986 dismissed the revision hence this writ petition. Heard learned Counsel for the parties. Plea of invalidity of notice was also taken by the tenant before both the Courts below however both the Courts below held the notice to be valid. No argument in that regard was raised before me.
(3.) IT was argued before me that finding that the proviso to Section 20 (4) of the Act is attracted was recorded in the earlier suit (SCC Suit No. 43 of 1982) hence according to learned Counsel for landlord- respondent the said finding operates as resjudicata and according to learned Counsel for tenant- petitioner as the said suit was dismissed hence he could not file revision against the said judgment and decree hence any finding recorded against tenant does not operate as res judicata. The question of res judicata has not been decided by any of the Courts below hence it may be presumed that it was not pressed. Even otherwise the earlier finding will not operate as res judicata as the earlier suit was dismissed hence tenant could not file revision. I have discussed this point in detail in Dhajja Ram v ADJ. , Muzaffar Nagar, 2006 (1) JCLR 635 (All): 2005 (2) A. R. C. 801. In the sale-deed dated 30-10-1981 copy of which has been annexed as Annexure-3 to the writ petition it is mentioned in the earlier part thereof that the property sold is one storied house. Thereafter sold property is repeatedly described as house. Thereafter it is men tioned that the said house has been agreed to be purchased by Ashok Yadav for business (Karobar Karkhana copper ).;