J.V. Gupta, J. - (1.) THIS is tenant's revision petition against whom eviction order has been passed by both the authorities below.
(2.) THE landlady Darshan Kaur sought the ejectment of her tenant Raj Kumar from the demised residential premises alleging that it was on a monthly rent of Rs. 20/ - besides water -tax with the tenant. He was habitual offender in the payment of the rent and water -tax. The rent for the period from July 1, 1977 to August 31, 1981 amounting to Rs. 1,120/ - besides water -tax was due from him. The ejectment application was filed on August 27, 1981. She had also filed an ejectment application earlier for non -payment of rent for the period from January 1, 1977 to February 28, 1979 which was dismissed for default on January 18, 1982. The tenant contested application. He denied the relationship of landlord and tenant between the parties and also questioned the jurisdiction of the Rent Controller. His case was that in the floods of 1950, his old house somewhere else was effected and as such, he built a kutcha kotha at the present site in which he has been residing and which kotha is outside the limits of Bungalow No. 105. The learned Rent Controller overruled the objection that there was no relationship of landlord and tenant and held that this relationship was established. Since the arrears of rent were neither tendered, nor paid on the first date of hearing, the eviction order was passed on April 9, 1983. In appeal, the learned Appellate Authority affirmed the said findings of the Rent Controller and, thus, maintained the eviction order. Before the Appellate Authority, an argument was raised for the first time, that the instant ejectment application was barred on the principles of res judicata as the earlier application on those very grounds was dismissed for default on January 18, 1982. That plea was rejected by the Appellate Authority with the observations that the bar of res judicata was not attracted from the dismissal of the previous application for default.
(3.) THE learned Counsel for the tenant -Petitioner submitted that even if the application was not barred by the principles of res judicata, it was barred under Order IX Rule 9 of the Code of Civil Procedure. In support of the contention, the learned Counsel relied upon Mehtab Singh v. Tilak Raj Arora (1988 -1) 93 P.L.R. 269. According to the learned Counsel, since the earlier ejectment application for non -payment of rent was dismissed for default, the second application on the same cause of action was not maintainable.;