CHAUHAN, J. - (1.) THE instant appeal has been preferred against the judgment and decree passed by the First Appellate Court dated 10. 5. 02 by which it has affirmed the judgment and decree of the trial court dated 25. 8. 99 by which the suit of the respondents for eviction of the appellant on the ground of bonafide need under the provisions of Rajasthan Premises (Control of Rent and Eviction Act), 1950 has been allowed.
(2.) THE main contention of the appellant before the court below as well as before the First Appellant Court had been that on the ground of bonafide need an earlier suit had been filed which was dismissed in default under Order 9 Rule 8 of the Civil Procedure Code (hereinafter called `the Code' ). Respondents' application for restoration of the same under Order 9 Rule of the Code also stood dismissed by the Court. THErefore, the suit was barred by the provisions of Order 9 Rule 9 of the Code Moreso, the principle of res judicta was also attracted. Before the First Appellate Court the application under Order 41 Rule 27 was filed which was accepted and the parties were permitted to lead additional evidence. The learned First Appellate Court, in order to examine the appellant's contention compared the factual averments made by the respondent/plaintiff in the earlier suit and in the subsequent suit and recorded the finding of fact that in the earlier suit cause of action i. e. need had been that the suit premises was required for his son Aziz Ali, while in the subsequent suit the need was entirely different i. e. that the respondent/plaintiff had five sons out of which, four got married and three of them were living in the rented houses, thus, the suit premises was required for having appropriate accommodation for their families and thus the case of action was different. Hence, provisions of Order 9, Rule 9 of the Code were not attracted. So far as the application of the provisions of S. 11 of the Code is concerned, position remains that the earlier suit had not been decided on merit. A simple and plain reading of Sec. 11 of the Code reveals that it puts an embargo to try a suit or issue, where the issue in question had been directly and substantially an issue in the earlier suit between the same parties and the Court, dealt with the earlier suit, had jurisdiction to try it and the same stood finally decided after adjudication. In absence of fulfilment of all these aforesaid conditions, it cannot be held that the provisions of Section 11 of the Code are attracted. The issue of res-judicata, being a principle of equity based on public policy, is applicable even in writ jurisdiction. (Vide Syed Mohammed Salie Labbai vs. Mohammed Hanifa (1 ). In Shivashankar Prasad Shah & Anr. vs. Baikunth Nath Singh & Ors. (2), the Hon'ble Supreme Court placed reliance upon its earlier judgment in Pulavarthi Venkata Subha Rao & Ors. vs. Valluri Jagannadha Rao & Ors. (3), and held that before an earlier decision can be considered as res-judicata, the same must have been heard and finally decided. Unless the earlier matter had finally been disposed of on merit, the plea of res-judicata cannot be entertained.
(3.) IN Ram Gobinda Daw & Ors. vs. Smt. H. Bhakta Bala Dassi etc. (4), the Hon'ble Supreme Court held that where the suit had been dismissed in default by the Court or for want of jurisdiction, the earlier order does not operate as res-judicata. In Hoshnak Singh vs. Union of India & Ors (5), the Hon'ble Apex Court held that the issue of res-judicata is applicable even in writ jurisdiction, but it does not operate where the earlier writ had been dismissed in limine without speaking order. While deciding the said case, the Court placed reliance upon its earlier judgments in Daryao vs. State of U. P. (6); P. D. Sharma vs. State Bank of India (7); Virudhunagar Steel Rolling Mills Ltd. vs. The Government of Madras (8); and Trilokchand Motichand vs. H. B. Munshi (9); and observed that it would be incorrect in such a situation to dismiss the petition on the ground that earlier the matter had been dismissed by the Court, though by a non-speaking order, for the reason that where the court does not give the reason, it becomes difficult, or atleast it could not be easy to decide as what factor weighed in the mind of the Court and that makes it difficult to hold that such a summary dismissal is dismissal on merit and as such constitutes a bar of res- judicata against a similar petition dismissed earlier. In Guda Vijaylakshmi vs. Guda Ramachandra Sekhara Sastri (10), the Hon'ble Supreme Court held that the Code is not merely procedural but is also a part of substantive law as it deals with the jurisdiction of the courts also. Therefore, the question as to whether the doctrine of res-judicata is applicable in a case or not, should be considered consciously. ;