SHISHIR KUMAR,J. - (1.) HEARD Sri Sanjay Agrawal, learned counsel for petitioner.
(2.) THIS writ petition has been filed against an order dated 17.9.2009 (Annexure 3 to writ petition) by which application filed by petitioner has been dismissed on the ground that application under Section 21(1)(a) of the Act is not maintainable in view of proviso of Section 21(1)(a). It provides that no application shall be entertained on the ground mentioned in Clause-A unless and until a period of three years has elapsed since the date of such purchase and landlord has given a notice on that behalf to the tenant not less than six months before the application. Petitioner submits that property was purchased by respondent No.1 on 29.3.2007 and the application has been filed on 2.7.2008. Therefore, in view of provision of Section 21(1)(a) of the Act, application itself is not maintainable. Further submission has been made that in view of aforesaid provision, six months notice prior to the date of filing the application is necessary but no notice was ever given and directly an application without any notice has been filed. Therefore, the application itself is not maintainable but Prescribed Authority without considering the aforesaid facts and circumstances has dismissed the application vide its order dated 17.9.2009. Petitioner submits that in view of Apex Court judgment reported in 2001(2) Allahabad Rent Cases, 554, Anwar Hasan Khan Vs. Mohammad Shafi and others, application itself was not maintainable in view of observations and findings recorded in paragraph 10 of the said judgment. The same is being quoted below:- "10. Keeping in mind the object of the Act to provide safeguards to the tenant, the first proviso to Section 21 of the Act was added to ensure that the unscrupulous litigants do not transfer properties only for the purposes of creating grounds for eviction of the tenant in occupation thereof. The aforesaid proviso, however, was not intended to put any restriction upon the owners of the property not to transfer it under any circumstances. To ensure that the sale transaction was valid and not mala fide, a statutory bar was created vide aforesaid proviso for the transferee to seek the eviction of the tenant with respect to such purchased property. The proviso mandates that no application shall be entertained by the Prescribed Authority on the grounds mentioned in clause (a) of sub-section (1) of Section 21 of the Act unless a period of three years had elapsed since the date of such purchase. It further provides that no application under the said clause shall be entertained unless the landlord had given a notice to the tenant not less than six months before the filing of such application and such notice may be given even before the expiration of a period of three years. The object of the service of the notice is to furnish information to the tenant about the requirement of the landlord in order to enable him to search for an alternative accommodation or to find out as to whether the sale made by his erstwhile owner was a genuine and bona fide or not. The proviso and the notice contemplated under it was never intended to be permanent clog on the rights of the purchaser. The period contemplated for not initiating the eviction against the tenant on the ground as specified in clause (a) of sub-section (1) of Section 21 of the Act was intended to be for a period of three years and in no case for more than three years and six months. Any proceedings initiated for release of building under occupation of tenant on the aforesaid ground after the period contemplated under the aforesaid proviso does not require the service of aforesaid notice of six months."
(3.) FURTHER submission has been made that application regarding maintainability of application filed by respondent-landlord that it is not maintainable in view of the fact of the proviso of Section 21(1)(a) that six months notice is necessary, as the earlier application was rejected, in such circumstances, prescribed authority has not entertained that application. Learned counsel for petitioner submits that principle of res-judicata will not be applicable in view of fact that earlier application was dismissed as not pressed. Similar principle has been laid down in AIR 1996 Supreme Court, 2367 State of Maharastra and another Vs. M/s National Construction Company. Reliance has been placed upon paragraph 6 and 8 of the said judgment. The same is being quoted below:- " 6. We may first dispose of the plea based on Section 11, Explanation IV, of the Code. That section deals with the doctrine of res judicata and provides that any matter which might or ought to have been made a ground for defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Since the plea of res judicta can be disposed of on a narrow ground, it is not necessary to examine the ambit of Explanation IV. The main text of Section 11 reads thus : S. 11. Res Judicata. - 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." The important words are "has been heard and finally decided". The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter of issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate asres judicata." ;