Gokal Chand Mital, J. - (1.) DHANNA Ram Petitioner filed an application for ejectment on 25th of August, 1974, against his tenant Panna Lal, on the sole ground of non -payment of rent. 16th of December, 1974, was the first date of hearing when the tenant deposited certain amount with costs and interest which was accepted by the landlord under protest on the ground that the tender was invalid. On 23rd of December, 1974, the tenant filed a written statement and a reading of paras 5 and 9 of the same shows that he admitted that the tender was short due to mistake and apprehended danger of ejectment. Besides filing his written statement,, he also made a statement before the Court on the same date admitting that the tender was short and prayed for time up to 10th of September, 1977. Vide order, dated 23rd of December, 1974, the Rent Controller passed an order of ejectment, the material portion of which deserves to be reproduced below: On 23rd December, 1974, the Respondent made a statement that the tender made by them on 16th December, 1974 was a short tender, therefore, they apprehended their eviction on that and, therefore, they were ready to suffer the order of eviction and that they should be given time to vacate the shop in dispute up till 30th September, 1977 and that the parties be left to bear their own costs. A statement was also made on oath by the Applicant after hearing the above statement made by the Respondent to the effect that the application be accepted as per the statement of the Respondents. It is manifest from the pleadings that the Applicant had also claimed the house -tax besides the rent of the shop in dispute which has not been tendered along with the arrears of rent by the Respondent and, therefore, they apprehended that the tender made by them was a short one. This fact suggests that the ground of ejectment is made out and in view of the statements of the parties, I accept this application and grant time to the Respondent to vacate the shop in dispute till 30th September, 1977. In case of his failure to vacate the shop and deliver the possession of the shop to the Applicant till 30th September, 1977, the Applicant will have the right to eject the Respondent through the process of the Court. After the expiry of the time allowed by the Rent Controller, when the tenant did not vacate the premises voluntarily, the landlord took out execution. The tenant filed objections against the execution of the decree on the ground that the consent order of ejectment was void being not based on a ground of ejectment contained in the East Punjab Urban Rent Restriction Act, 1949, in view of the Supreme Court decisions in Parosi Lal Jain v. Man Mal and another : A.I.R. 1970 S.C. 794 and Smt. Kaushalya Devi and Anr. v. K. L. Bansal : A.I.R. 1970 S.C. 838 The tenant also filed a suit for permanent injunction restraining the landlord -decree -holder from executing the ejectment order on the same grounds and along with the suit, he filed an application for temporary injunction. Both the matters came together for consideration before the same learned Subordinate Judge, who by order, dated 27th of March, 1978, rejected the objections as also the application for temporary injunction filed by the tenant.
(2.) AGAINST the order of the Subordinate Judge, dismissing the objection petition, the tenant filed C.R. 1297/78 Panna Lal v. Dhanna Ram, which was dismissed by this Court. Against the order of the trial Court, refusing temporary injunction, the tenant filed an appeal before the District Judge. The learned District Judge, by order, dated 14th of December, 1978, allowed the appeal of the tenant on the findings that there was no prima facie satisfaction of the Rent Controller and that with a little application of mind the Rent Controller would have come to the conclusion that the tender was not short but rather in excess and while forming this "view he took support from the two Supreme Court decisions, referred to above, and held that the consent order of ejectment was a nullity and while quashing the same directed that the Rent Controller shall proceed with the application for ejectment after reviving the same in accordance with law. Aggrieved against this order, the landlord has come up in revision to this Court. The learned Counsel for the Petitioner -landlord has seriously criticised the judgment of the learned District Judge and has urged that not only the order is contrary to the two Supreme Court decisions, referred to above, but he had no jurisdiction, on the appeal before him, to set aside the ejectment order, dated 23rd of December, 1974, and to order the revival of the original ejectment application. Shri D. S. Nehra has further submitted that the objections under Section 47 of the Code of Civil Procedure, filed by the tenant, that the decree was inexecutable, null and void, were rejected by the Executing Court which order was upheld by this Court in revision. These orders have become final and operate as res judicata between the parties and as such, either in the suit or while deciding the appeal from refusal to grant temporary injunction, the validity of the ejectment order could not be challenged. I find force in all the submissions made by the learned Counsel for the landlord -decree -holder.
(3.) THE tenant impugned the executability and the validity of the ejectment order before the Executing Court as well as in the suit. The Executing Court held that the same was executable and was not null and void as the order of ejectment was clearly based on the ground of invalid tender. This order of the Executing Court has been upheld by this Court in revision. These orders have not been challenged by the tenant in appeal before the Supreme Court with the result that they have become final between the parties. The finding recorded in the execution proceedings between the parties, therefore, operates as res judicata between them in the suit as well as in the application for the grant of temporary injunction. Consequently, I hold that the learned District Judge had no jurisdiction to take a contrary view and the decision of the Executing Court rejecting the objections of the tenant and the order of the High Court upholding the same operated as res judicata between the parties. On this ground alone, the order of the learned District Judge would be liable to be set aside.;