IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA THURSDAY, THE9H DAY OF JANUARY201419TH POUSHA, 1935 RCRev..No. 301 of 2012 () -------------------------- AGAINST THE
JUDGMENTIN RCA1432011 OF3D ADDL.DISTRICT/RENT CONTROL APPELLATE COURT, KOZHIKODE ------------------- REV.PETITIONERS/APPELLANTS/RESPONDENTS2TO7: ------------------------------------------------------------------------------------ 1. AYANIKKATTU UNNIRAJA, AGED65YEARS S/O.AYANIKKATTU CHATHU MASTER, PO PANTHEERANKAVU KODAL AMSOM, KAILAMADAM DESOM, KOZHIKODE.
2. AYANIKKATTU PRASANNA MOHAN, AGED60YEARS S/O.AYANIKKATTU CHATHU MASTER, PO PANTHEERANKAVU KODAL AMSOM, KAILAMADAM DESOM, KOZHIKODE.
3. AYANIIKKATTU PREMADA KUMARI, AGED61YEARS D/O.AYANIKKATTU CHATHU MASTER, PO PANTHEERANKAVU KODAL AMSOM, KAILAMADAM DESOM, KOZHIKODE.
4. AYANIKKATTU DEVIL KUMAR, AGED57YEARS S/O.AYANIKKATTU CHATHU MASTER, PO PANTHEERANKAVU KODAL AMSOM, KAILAMADAM DESOM, KOZHIKODE.
5. AYANIKKATTU DAMANA KUMAR, AGED53YEARS S/O.AYANIKKATTU CHATHU MASTER, PO PANTHEERANKAVU KODAL AMSOM, KAILAMADAM DESOM, KOZHIKODE.
6. AYANIKKATTU VINODKUMAR, AGED51YEARS S/O.AYANIKKATTU CHATHU MASTER, PO PANTHEERANKAVU KODAL AMSOM, KAILAMADAM DESOM, KOZHIKODE. BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS/RESPONDENTS/PETITIONER & 8TH RESPONDENT : --------------------------------------------------------------------------------------------------- 1. K.P.GURUDAS S/O.K.P PANDURENJAN CHETTIAR18700, RAM NIVAS, KASABA AMSOM DESOM KOZHIKODE TALUK, KOZHIKODE67300 ...2/- RCRev..No. 301 of 2012 () -2- 2. A.BALATHILAKAN S/O.CHATHU MASTER, POST BOX NO66172 DUBAI, UAE. R1 BY ADV. SRI.P.K.RAMKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON2211-2013, THE COURT ON0901-2014 PASSED THE FOLLOWING: Mn T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No. 301 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - DATEDTHIS THE9H DAY OF JANUARY,2014
ORDERRamachandran Nair, J.
This revision petition is filed by the tenants of a building wherein they are conducting a printing press, aggrieved by the order of eviction passed under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act'), which stands confirmed by the Appellate Authority. Mainly it is contended that the eviction petition is hit by Section 15 of the Act, in the light of the fact that an earlier Rent Control Petition filed as R.C.P.No.70/2007 on the ground of bonafide need, viz. for his son to start a bio-technology unit, has been dismissed which stands confirmed by the Appellate Authority in appeal and by this Curt in revision.
2. At the outset, learned counsel for the petitioner, Shri P.A. Harish submitted that both the authorities have found the bonafide need overlooking the provisions under Section 15 of the Act, by relying upon the observations made by this Court in the earlier round of litigation in R.C.R. No.205/2011, whereby permission has been granted to the landlord to RCR No.301/2012 -2- institute a fresh Rent Control Petition invoking the ground under Section 11 (3) of the Act. With regard to the same, learned counsel mainly contended that the revision petition was dismissed in-limine confirming the order passed by the Appellate Authority in R.C.A. No.105/2008. Therefore, that portion of the order passed by this Court granting permission cannot be sustained. The petitioners herein were not issued a notice in the proceedings and therefore also those observations will not bind them.
3. We will therefore go into the skeletal facts required for the disposal of this revision petition. The landlord seeks eviction on the ground of bonafide need under Section 11(3) of the Act, viz. for starting a Bio- technology unit for the purpose of his son Shri Radhakrishnan. In the present petition for eviction filed as R.C.P.No.83/2011 in para 7 it has been averred that on an earlier occasion the landlord had filed R.C.P.No.70/2007 seeking eviction under Sections 11(2)(b) and 11(3) of the Act but the plea under Section 11(3) was rejected. This has been confirmed in appeal filed as R.C.A. No.105/2008. In para 9 it is averred that this Court in R.C.R.No.205/2011 has permitted the landlord to file a fresh rent control petition within one month and accordingly the petition is filed. In para 10 it RCR No.301/2012 -3- is stated that the requirement is to start a Bio-technology unit for which space, viz. 1000 sq. ft. is required; 500 sq. ft. for the production unit and 500 sq. ft. for office complex. In para 11 it is averred that the son is now conducting an I.T. Consulting business in the name and style of 'Web Namaste' in a room in the building having 500 sq. ft. area, which is on a temporary basis and once eviction is ordered, it is proposed to use the said room as office of the Bio-technology unit and the petition schedule room will be utilised for the purpose of Incubation, Research and Production unit. It is averred in para 12 that for the purpose of starting the Bio-technology unit the petition schedule rooms are to be vacated. In para 13 it is averred that on 26.2.2007 a notice was issued to the tenants seeking eviction on the said ground which was produced in R.C.P.No.70/2007 and the reply notice has also been produced therein. It is also stated that the cause of action has arisen from the date of issuance of notice dated 26.2.2007, on 7.3.2007 the date of reply notice and from 8.6.2011, the date of the order of this Court in R.C.R.No.205/2011.
4. The tenants, in their counter statement stoutly refuted the bonafide need, by contending that the bonafide need claimed by the landlord in the RCR No.301/2012 -4- former Rent Control Petition on behalf of his son, was decided by the Rent Control Court against the landlord and now the very same need is projected again by him and that in view of the already decided questions basing on the very same reason, the present need contended is hit by the principles of res judicata and the Rent Controller is estopped from dealing with the said claim again. The bonafide need pleaded is also opposed on various other aspects. It has come on record in the earlier proceedings in R.C.P.No.70/2007 that there is a vacant upstair hall in the roadside building which is more than in area claimed by the landlord, but the landlord had no case that the said space is insufficient. In para 12 it is contended that the landlord is having vacant possession of building Nos.10/390 and 10/395 which were in possession even at the time of filing R.C.P.No.70/2007. It is also contended that another room, viz. having assessment No.10/6367 is also in the vacant possession of the landlord. It is further contended that the tenants are depending upon the income derived from the business conducted in the petition schedule building for their livelihood.
5. The evidence of the landlord consists of the oral evidence of P.W.1, the landlord and P.W.2, his son and he has also produced Exts.A1 to A16. RCR No.301/2012 -5- Ext.A1 is the certified copy of R.C.P. NO.70/2007 and Ext.A2 is the certified copy of the order passed therein. Ext.A3 is the certified copy of the judgment in R.C.A.No.105/2008 and Ext.A14 is the certified copy of the order passed by this Court in R.C.R.No.205/2011. Various documents regarding the educational qualification of the son of the landlord have also been produced as Exts.A9 to A13 and A15. The tenants have examined R.Ws.1 and 2 and have produced Exts.B1 to B8.
6. Learned counsel for the petitioners submitted that there is no plea by the landlord that the bonafide need pleaded is independent of the one pleaded in the earlier proceedings and no changed circumstances have been pleaded or proved. It is submitted that the cause of action that is pleaded is one and the same that was pleaded in the earlier Rent Control Petition. Therefore, the eviction petition is filed on the same set of facts and by projecting the same bonafide need. After the dismissal of R.C.R.No.205/2011 no fresh notice also has been issued showing any change of circumstances. It is therefore submitted that the bar under Section 15 of the Act will apply.
7. It is contended that in the order in R.C.P.No.70/2007 there is a RCR No.301/2012 -6- clear finding that the bonafide need pleaded is not genuine and is a ruse to evict the tenants. It was also found that the landlord is in possession of vacant rooms in the very same building. These findings have been confirmed by the Appellate Authority in R.C.A. No.105/2008. Therefore, when the very same purpose, viz. starting of a Bio-technology unit was the subject matter of the earlier round of litigation and as the said findings have been confirmed by this Court in R.C.R.No.205/2011, on the very same set of facts a second eviction petition cannot be maintained.
8. It is submitted that the observations by this Court permitting the landlord to institute a fresh Rent Control Petition cannot survive in the light of the well settled legal principles. They will not bind the petitioners, as they were not heard. It was not a case of remand of the matter for fresh consideration.
9. Shri P.K. Ramkumar, learned counsel appearing for the landlord submitted that the eviction petition is not hit by the provisions of Section 15 of the Act or by the principles of res judicata, in the light of the specific permission granted by this Court while disposing of R.C.R.No.205/2011. The learned counsel further pointed out that the tenants were fully aware RCR No.301/2012 -7- about the directions issued by this Court and they had not challenged the same before the Apex Court and in the counter statement they have only stated that even though the said order is appealable, on account of poor financial condition, they are not questioning the same. This is a case where the principles of acquiescence and waiver will have application and therefore it will be deemed that the tenants have waived their right to challenge the same. It is also submitted that the directions issued by this Court in the earlier round of litigation cannot be said to be by way of any lack of jurisdiction and it will not vitiate the legality and validity of the present proceedings. In that context reliance is placed on the decision of the Apex Court in Budhia Swain and others v. Gopinath Deb and others {(1999) 4 SCC396. Reliance is also placed on two other decisions of the Apex Court in Rajendran v. Mohammed Kunhi (2002 (3) KLT461- SC) and Bharat Sanchar Nigam Limited and another v. Motorola India Private Limited (2009 (3) KLT337. He also relied upon the dictionary meaning of the word "acquiescence". It is submitted that in the earlier round of litigation the son of the landlord was not examined and two paragraphs were also added in the execution petition to explain the bonafide need. RCR No.301/2012 -8- 10. We will first refer to the order passed by this Court in R.C.R. No.205/2011. The revision petition filed by the landlord was dismissed at the stage of admission itself. Notice has not been issued to the petitioners/tenants. In para 5 of the order this Court agreed with the conclusions of the Appellate Authority and stated that this Court is not inclined to remand the matter for enabling the landlord to examine Shri Radhakrishnan (P.W.2 herein), as a remand without amendment of pleadings may be a futile exercise. The operative portion is para 7 which reads as follows: "The rent control petition is dismissed confirming the judgment of the Appellate Authority. However, permission is granted to the revision petitioner/landlord to institute a fresh rent control petition invoking the ground under sub-section (3) of Section 11 and any other ground which may be available to the landlord presently. If a fresh rent control petition is filed by the landlord within one month from today, the rent control court will invite pleadings, try and dispose of the same as expeditiously as possible and at any rate conforming strictly to time frame set under Section 24 of Act 2 of 1965. The Rent Control Court while taking decision in that rent control petition will not be influenced by the findings entered against the landlord under the impugned judgment and the impugned order RCR No.301/2012 -9- of the Rent Control Court." It will show that the judgment of the Appellate Authority has been confirmed; permission has been granted to institute a fresh rent control petition and one month's time from the date of the order was granted for that purpose and it was further directed that the Rent Control Court will not be influenced by the findings entered against the landlord under the impugned judgment and the impugned order of the Rent Control Court.
11. We heard learned counsel on both sides elaborately on the legality of the above. The infirmities pointed out by Shri P.A. Harish, learned counsel for the petitioners, are: (i) The observations in para 7 of the order passed by this Court are not binding on the petitioners/tenants as they have not been heard; (ii) Since the judgment of the Appellate Authority in the earlier round of litigation has become final, the fresh eviction petition is hit by Section 15 of the Act; and (iii) Since the petitioners can ignore the observations made by this Court, absence of a separate challenge of the said order will not affect their rights.
12. As far as the first aspect is concerned, reliance is placed on a Full Bench decision of this Court in Thambi v. Mathew (1987 (2) KLT848. RCR No.301/2012 -10- Therein, the Full Bench considered the effect of a decree dismissing an appeal in-limine without notice to the respondents. In para 8, the Full Bench explained the legal position thus: "As stated by Subba Rao C.J.
a decree dismissing an appeal in limine may not be binding on the respondent for the reason that he had no notice of the appeal and it may be open to him to ignore the decree. It is the same principle that is stated by the Supreme Court in a recent decision in Kewal Ram v. Ram Lubhat (1987) 2 SCC344. But that does not mean that an appellate decree dismissing an appeal has no legal effect. The legal effect is the confirmation of the decree appealed against whether the dismissal is after hearing the respondent or without notice to him." Finally, in para 10 it has been held as follows: "A decree dismissing an appeal in limine without notice to the respondent cannot be said to be binding on him and the respondent is entitled to ignore the decree of which he had no notice." In para 12, the Full Bench, relying upon the decision of the Apex Court in Shankar Ramchandra Abhyankar v. Krishnaji Dettatraya Bapat (AIR1970SC1, held that the revisional jurisdiction of the High Court is part of its general appellate jurisdiction and the dismissal of a revision in limine stands on the same footing as the dismissal of an appeal without notice to the RCR No.301/2012 -11- respondent. Shri P.A. Harish relied upon the above dictum also.
13. In the light of the declaration of the legal position by the Full Bench in Thambi's case (supra) as above, the petitioners/tenants will not be bound by the operative portion of the order in R.C.R. No.205/2011. This is especially so in the light of the fact that the revision petition was dismissed confirming the judgment of the Appellate Authority in R.C.A.No.105/2008 by which finality has been attained to the findings against the landlord.
14. This is not a case where in R.C.R.No.205/2011 the landlord had sought to withdraw the earlier rent control petition by recourse to the provision under Order XXIII Rule 1 C.P.C. A situation identical to the position herein has been examined by a learned Single Judge of this Court (P.N. Ravindran, J.) in the recent decision reported in Koshy Daniel v. Rajan P.S. and others (ILR20131) Ker. 577). That was a case in which a suit was filed by the plaintiff seeking various reliefs including a declaration of plaintiff's title and possession over the plaint schedule property. The suit was dismissed by the trial court against which an appeal was filed before this Court as A.S. No.533/2002. This Court dismissed the appeal giving an opportunity to the plaintiff to file a comprehensive suit. This was after RCR No.301/2012 -12- hearing both sides and the Special Leave Petition filed as S.L.P.(C) No.17128/2008 by one of the respondents in the appeal was also dismissed on the ground of delay and also on the merits. A review petition was filed before this Court by one of the parties challenging that portion of the judgment by which permission was granted by this Court to institute a fresh suit after upholding the decree dismissing the suit and by pointing out that the findings of the trial court in the suit as well as in the appeal will operate as res judicata. The learned Single Judge answered the question in favour of the review petitioner. In that context reliance was placed on the decision of the Privy Council in Fateh Singh and others v. Jagannath Baksh Singh and another (AIR1925P.C. 55) and on the decisions of the Apex Court in Shiv Kumar Sharma v. Santhosh Kumari {(2007) 8 SCC600 and Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and another (AIR2008SCW3324. It was held that the liberty given while dismissing the appeal to institute a fresh suit seeking the same relief cannot survive and the principles of res judicata will also apply. We extract paragraphs 15 and 16 of the judgment which read as follows: "15. In the instant case, it is not in dispute that no application seeking withdrawal of the suit from which the appeal in the instant case arose, RCR No.301/2012 -13- was filed in this Court. Not even an oral request in that regard was admittedly made by the learned counsel for the appellant/plaintiff. In such circumstances, this Court could not have after affirming the decree and judgment of the Trial Court dismissing the suit for declaration of title, reserved liberty with the unsuccessful plaintiff to institute a fresh suit seeking the same relief. Any observation made by this Court while dismissing the appeal, that the dismissal of the suit would not stand in the way of the plaintiff from filing a fresh suit would still be res judicata. A similar issue arise for consideration in Fateh Singh and others v. Jagannath Baksh Singh and another (AIR1925P.C. 55) wherein, the Privy Council held as follows: "When the plaintiffs brought their first suit, they had to show their title to impeach the widow's gift. For this purpose they had to show either that they were some at least of the nearest reversionary heirs, or that the only nearer reversionary heir had colluded with the widow. In their plaint they did not rely on collusion, which they only introduced in their replication. Taking, however, that view of the pleadings which is most favourable to them and treating them as relying equally on both grounds of claim, it is now clear that they can only make out a claim to be some of the next reversioners on the footing of the family custom, and that the allegation of that custom therefore was an allegation which "might and ought to have been made" within the meaning of Explanation 4. RCR No.301/2012 -14- Or, to put in another way. One of the alternative cases on which they were basing their title to sue was their nearness of kin, and to prove their nearness of kin it was essential to aver the family custom. They claimed as next heirs, and their claim was dismissed. They cannot fight it over again. But, as the Judges in the Court of the Judicial Commissioner have observed, some complication was introduced by the language of the Judge who tried the first case and by his expressing himself as if he had power to give leave to bring a fresh suit. It was contended on behalf of the plaintiffs that in so expressing himself he was purporting to exercise the powers given to the Court by O.23, which allows the Court in certain cases to grant the plaintiff permission to withdraw from a suit with liberty to issue a fresh suit, in which case the bar against a fresh suit which is otherwise imposed on a plaintiff who abandons his first suit is removed. The same point was raised at their Lordships' bar, but their Lordships agree with the Court of the Judicial Commissioner that it is not a good one. There was no application for leave to withdraw the suit, nor was it withdrawn: it was dismissed and the power of the learned Judge ceased upon this dismissal. It may have been unfortunate for the plaintiffs that the learned Judge thought that he had a power which he did RCR No.301/2012 -15- not possess, but happily, as the Judges on the appeal observed, it is improbable that there was substance in the claim which they have been prevented from further prosecuting. (emphasis supplied) In passing it may be observed that if the learned Judge thought that he was exercising power under O.23 he must also have thought that the subject matter of any future suit would be the same subject matter as that of the suit which he dismissed. This confirms the view which the Courts below and their Lordships have taken".
16. The decision of Privy Council in Fateh Singh & Ors. (supra) was followed by the Apex Court in Shiv Kumar Sharma v. Santhosh Kumari ((2007) 8 SCC600 and Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & Anr. (AIR2008SCW3324. In the light of the authoritative pronouncements of the Apex Court and the Privy Council and in the absence of an application for permission to withdraw the suit, no process of reasoning or an analysis of the pleadings or a re-appreciation of the evidence adduced in the case is required to hold that this Court committed an error apparent on the face of the record, when, this Court permitted the unsuccessful plaintiff to institute a fresh suit even after upholding the decision of the Trial Court dismissing his suit. Amere reading of paragraph 4 of the judgment sought to be reviewed in the light of the principles RCR No.301/2012 -16- laid down by the Apex Court and the Privy Council is enough to hold that an observation of the kind made in paragraph 4 of the judgment could not have been made by this Court, while dismissing the plaintiff's appeal." Significantly, it was noticed by this Court that there was no application seeking withdrawal of the suit from which the appeal in the said case arose and not even an oral request was made in that regard which is the same situation in this case also.
15. In Shiv Kumar Sharma's case {(2007) 8 SCC600 relied upon by this Court in the above judgment, the facts show that a suit praying, inter- alia, a decree for possession was decreed in favour of the plaintiff and a decree for permanent injunction was also granted. In appeal before the High Court the decree was confirmed but liberty was given to the plaintiff to claim relief by way of damages/mesne profits in a separate suit. The legality of the same came up for consideration before the Apex Court. The contention by the respondent that the High Court has requisite jurisdiction in equity to pass the impugned decree was found not correct in para 24. In para 27 it has been held as follows: RCR No.301/2012 -17- "A court of law cannot exercise its discretionary jurisdiction dehors the statutory law. Its discretion must be exercised in terms of the existing statute." The Apex Court in para 29 further found that the leave granted to file a fresh suit also cannot be sustained and we extract the said paragraph hereinbelow: "23.We, therefore, are of the opinion that the High Court was not correct in framing the additional issues of its own which did not arise for consideration in the suit or in the appeal. Even otherwise, the High Court should have formulated the points for its consideration in terms of Order XLI, Rule 31 of the Code. On the pleadings of the parties and in view of the submissions made, no such question arose for its consideration. In any event, if a second suit was maintainable in terms of Order II, Rule 4 of the Code, as was submitted by Ms. Luthra, no leave was required to be granted therefor. A civil court does not grant leave to file another suit. If the law permits, the plaintiff may file another suit but not on the basis of observations made by a superior court." Thus, it was held that the portion of the judgment by which liberty was given to the plaintiff to file a separate suit, cannot be sustained.
16. In the later case in Dadu Dayalyu Mahasabha's case (AIR2008RCR No.301/2012 -18- SCW3324 the legality of an observation made by the Apex Court that the plaintiff may file a suit for possession, came up for consideration. The facts of the case show that the suit filed by the plaintiff with regard to the succession of a Gaddi and the management thereof, was dismissed by the trial court. The appeal filed from the same was dismissed by the Additional District Court, Rohtak and in the Second Appeal filed before the High Court, after accepting an additional item of evidence, the findings of the court below were reversed. In Civil Appeal No.299/1987 filed against the judgment in the Second Appeal of the High Court, the said judgment and decree of the High Court were set aside and the decree and judgment of the first appellate court were restored. It was finally observed as follows: "This judgment will not come in the way of the plaintiff/respondent filing a suit for possession, if he is so advised." 17. Thereafter, fresh suit was filed and the trial court held that the said suit was barred by the principles of resjudicata, the issues arising therein being directly and substantially in issue between the parties in the previous suit as well. The first appellate court reversed the said judgment and decree, holding the view that neither the principles of res judicata nor Order II Rule 2 C.P.C. were applicable in view of the observations made by the Apex Court RCR No.301/2012 -19- in the earlier round of litigation. Thereafter the matter went upto the Apex Court in appeal and all the legal issues were considered accordingly. While considering the legality of the observations made by the Apex Court, in para 19 it has been held as follows: "19. The judgment of a Court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior Court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case." In paragraphs 20 and 21 the applicability of the principles of res judicata was explained which we extract below: "20. If the judgment and order of the first appellate Court dated 2nd January, 1973 was restored by this Court in its order dated 2nd February, 1987, the finding arrived at by it attained finality. The issues determined therein would be, thus, binding on the parties.
21. Section 11 of the Code not only recognizes the general principle of res judicata, it bars the jurisdiction of the Court in terms of Section 12 thereof. Explanation V of Section 11 of the Code extends the principle RCR No.301/2012 -20- of res judicata stating that the reliefs which could have been or ought to have prayed for even if it was not prayed for would operate as res judicata. Section 12 thereof bars filing of such suit at the instance of a person who is found to be otherwise bound by the decision in the earlier round of litigation and in a case where the principle of res judicata shall apply." In para 22, with regard to the applicability of principles of estoppel, waiver and resjudicata also Their Lordships have held as follows: "22. We, however, are not unmindful of the principles of estoppel, waiver and res judicata, are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play. However, once it is held that the issues which arise in the subsequent suit were directly and substantially in issue in the earlier suit, indisputably Section 11 of the Code would apply." In para 23 it was also held that "the provisions of Order II, Rule 2 bars the jurisdiction of the Court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one." In para 28, it was further held that "The issue indisputably was the claim of entitlement to Gaddi by the first respondent and a plea contra thereto raised by the RCR No.301/2012 -21- appellants. Once the issue of entitlement stood determined, the same would operate as res judicata. We may notice some precedents for appreciating the underlying principles thereof. Section 11 of the Code thus, in view of the issues involved in the earlier suit, the provisions thereof shall apply." 18. In the decision of the Privy Council in Fateh Singh's case (AIR1925P.C.55) Their Lordships have finally held that it is a case of applicability of the principles of res judicata. We extract the operative portion of the judgment hereunder: "Upon the whole, therefore, their Lordships agree with the Courts below that this is a case of res judicata, and that the defence succeeded." 19. In the light of the principles thus analysed, the view taken by the Apex Court which is followed by this Court in Koshy Daniel's case (ILR2013(1) Ker. 577) is that after upholding the decree and judgment of the trial court, liberty could not have been granted to the plaintiff to file a fresh suit and the principles of res judicata will squarely apply. Leave granted by way of an observation to file a fresh suit, was held to be not legal.
20. As far as the present case also is concerned, it is clear from the judgment in R.C.R.No.205/2011 in para 7 that permission is granted to RCR No.301/2012 -22- institute a fresh rent control petition after confirming the judgment of the Appellate authority and dismissal of the eviction petition. In the light of the legal position explained by this Court in Koshy Daniel's case (ILR2013(1) Ker. 577), the permission thus granted to file a fresh Rent Control Petition cannot survive and all the observations in para 7 cannot also be legally sustained and those will not be binding on the tenants/revision petitioners, in the light of the decision of the Full Bench in Thambi's case (1987 (2) KLT848 and the said observations will not help the landlord to wriggle out of the rigour of Section 15 of the Act.
21. As far as Section 15 of the Act is concerned, it provides that the decisions which have become final, cannot be reopened. We extract the same for easy reference: "15. Decisions which have become final not to be reopened.-- The Rent Control Court shall summarily reject any application under sub- sections (2), (3), (4), (5), (7) or sub-section (8) of section 11 which raises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided or purports to have been finally decided in a former proceeding under this Act or under the corresponding provisions of any law in force prior to the commencement of this Act or the RCR No.301/2012 -23- corresponding provisions of any law repealed or superseded by such law." 22. Going by the well settled legal principles declared by this Court, on the scope of Section 15 of the Act, the maintainability of a second petition for eviction on the same ground of bonafide need will depend upon the proof of changed circumstances by the landlord and the burden will be on him. It was so held in Jayaram v. Achuthan Thambi (1997 (2) KLT909 by a Division Bench. In para 4 it was held as follows:- "When the claim of bonafide need was already raised on earlier occasion and the same was decided between the same parties the burden is entirely on the landlord to establish that the subsequent petition is maintainable due to changed circumstances. In other words, the burden is on the landlord to establish that the rent control petition is not liable to be rejected summarily since the issue which was raised and finally decided between the parties is not substantially the same. Petitioner has not established or pleaded that the present petition is maintainable due to changed circumstance when the same was sought to be resisted by the tenant It is an admitted fact that when the earlier rent control petition was filed, petitioner was a retired employee of K.S.R.T.C. Petitioner was also working as Assistant Accountant in a private enterprises by name `Chellam Enterprises'. When the petitioner was examined as PW-1 RCR No.301/2012 -24- in this proceedings he admitted in cross-examination that the circumstances which were in existence when RCP1983 was filed continued. His own admission would indicate that there is no change in the circumstances. It is under the above mentioned circumstances both the courts below came to the conclusion that the present petition is hit by S. 15 of the Rent Control Act." The authorities below have gone into the bonafide need pleaded by the landlord in this case, relying upon the operative portion of the judgment in R.C.R. No.205/2011. The Rent Control Court, in para 10 of the order, rejected the defence of the tenants relying on the orders passed in the earlier round of litigation, viz. in R.C.P.No.70/2007 and R.C.A.No.105/2008 produced as Exts.A2 and A3 and finally after referring to Ext.A14 order passed in R.C.R.No.205/2011, it was found as follows: "..........Ext.A14 is the copy of the order of Hon'ble High Court in the said RCR dated 08.06.2011. As per the said order, the petitioner was permitted to file a fresh RCP invoking the ground u/s.11(3) and any other ground which may be available to him. Accordingly, the present petition has been filed by the petitioner. There is a specific direction in the order of Hon'ble High Court that this court will not be influenced by the finding entered against the landlord in the earlier proceedings. So, this court has to decide the case on the basis of the evidence adduced by the parties in this proceedings." RCR No.301/2012 -25- Thereafter, discussions have been made on the plea for eviction under Section 11(3) of the Act. Therefore, evidently the observations in R.C.R.No.205/2011 have led to the finding under Section 11(3) of the Act, in favour of the landlord. The Appellate Authority has entered a similar finding in favour of the landlord, evidently in the light of the observations of this Court.
23. We have noticed that the landlord has projected the same cause of action in paragraph 13 of the eviction petition now filed as R.C.P.No.83/2011 and reliance therein is placed on the notice issued in the year 2007 which was produced in the earlier round of litigation, the reply notice and the order in R.C.R.No.205/2011 while describing the cause of action. We also notice that the landlord has not pleaded any changed circumstances or proved the same to sustain the plea under Section 11(3) of the Act. No argument also was raised before the authorities that the changed circumstances will help the landlord to sustain the plea under Section 11(3) of the Act independent of the findings contained in Exts.A2, A3 and A14.
24. The bonafide need pleaded by the landlord in the earlier proceedings, viz. R.C.P.No.70/2007 and the one herein is the same, viz. for RCR No.301/2012 -26- establishing a Bio-technology unit for his son. Of course, Shri P.K. Ramkumar, learned counsel for the landlord contended that the bonafide need will be a recurring cause of action, but we are of the view that in the light of the decision of this Court in Jayaram's case (1997 (2) KLT909) and the legal position explained therein, the landlord will have to establish the changed circumstances which is not the case herein. Therefore, even if bonafide need can be a recurring cause of action, it was never pleaded by the landlord in the eviction petition, and therefore the said argument cannot be accepted.
25. Then the question is whether the learned counsel for the landlord is justified in relying upon the principle of acquiescence, estoppel or waiver. This contention also cannot be accepted in the light of para 22 of the judgment of the Apex Court in Dadu Dayalu Mahasabha's case (AIR2008SCW3324. The meaning of the word "acquiescence" as contained in IA C.J.S., referred to by Shri P.K. Ramkumar, learned counsel for the landlord is the following: "ACQUIESCENCE. The word, it has been said, implies acceptance or approval, active assent, active consent, assent, assent or consent, consent, also knowledge, and power to contract. RCR No.301/2012 -27- He also relied upon the following portion in the said excerpt: "The word has been employed as meaning conduct recognizing the existence of a transaction and intended to carry the transaction, or permit it to be carried, into effect; some act not deliberately intended to ratify a former transaction as existing, and intended, in some extent at least, to carry it into effect, and to obtain or claim the benefits resulting from it. It is also defined as meaning consent by silence, consent to conditions; giving up or abandonment of claim; inaction while an act is being performed; intentional failure to resist the assertion of an adverse right; mere silence, or refusal to speak when one ought to speak for the protection of others, or to act in time to prevent others from doing acts of which the ilatory one afterwards complains; passive compliance; quiescence under such circumstances that assent may be inferred. In addition, it has generally been said that "acquiescence" is where a person who knows that he is entitled to impeach a transaction or to enforce a right neglects to do so for such a length of time that under the circumstances of the case the other party may fairly infer that he has waived or abandoned his right." 26. As far as the principle of waiver is concerned, the same has been RCR No.301/2012 -28- explained by the Apex Court in P. Dasa Muni Reddy v. P.Appa Rao (AIR1974SC2089 in paragraph 13 in the following words: "The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent." The principles governing acquiescence or waiver will not come to the aid of the landlord herein, as it cannot be said that the tenants have acquiesced or have waived their right to raise their legal objections with regard to the permission granted to file a fresh eviction petition. We have already noticed that in the counter statement filed by the tenants, they have clearly stated that the contentions in the present Rent Control Petition cannot survive in the light of the earlier round of litigation which culminated in an adverse RCR No.301/2012 -29- order, as confirmed in R.C.A.No.105/2008 and R.C.R.No.205/2011. In para 4 of the counter statement, the tenants have also stated that the observations made by this court in R.C.A.No.205/2011 are without issuing notice to the tenants which has led to miscarriage of justice. What is projected by Shri P.K. Ramkumar is the averment in para 6 of the counter statement that the order passed by this Court in revision is appealable, but on account of poor financial condition, the respondents/tenants are prevented from questioning the same. Learned counsel thus points out that the same will attract the principle of acquiescence and waiver. We cannot agree. As we have already found, in the light of the well settled principles rendered by the Full Bench in Thambi's case (1987 (2) KLT848- FB), the tenants are entitled to ignore the observations made without notice to them and they are not binding on them. Therefore, they cannot be called upon, at the instance of the landlord, to challenge those observations before the Apex Court and the absence of a challenge will be immaterial in the light of the legal position already explained by us. Apart from the same, in the light of the principles stated in Fateh Singh's case (AIR1925P.C. 55) which have been approved by the Apex Court in Dadu Dayalu Mahasabhal's case (AIR2008SCW3324 RCR No.301/2012 -30- also, the said observations will not help the landlord to sustain the maintainability of the present eviction petition. The findings in the earlier round of litigation will affect its maintainability under Section 15 of the Act, which contention has been specifically raised by the tenants in their counter statement. Therefore, neither the principle of acquiescence nor waiver will come to the aid of the landlord herein.
27. We will now come to the decisions relied upon by Shri Ramkumar. The dictum laid down in Budhia Swain and others v. Gopinath Deb and others {(1999) 4 SCC396 that mere error in the exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed therein unless the order is set aside by a challenge in the prescribed manner subject to the law of limitation, will not help the landlord, in view of our findings above. The judgment of the Apex Court in Rajendran v. Mohammed Kunhi (2002 (3) KLT461- SC) will show that it was a case where the Appellate Authority passed an order of remand holding that the second application for eviction under Section 11(3) of the Act is not barred by the principles of res judicata and the said order has become final. The Apex Court held thereafter that the tenant cannot be RCR No.301/2012 -31- permitted to reagitate the legality of the remand order, if an appeal has not been filed therefrom, in the subsequent stage. It was held that as the question whether Section 15 of the Act bars the present eviction petition, was decided against the appellants by the appellate authority at the earlier stage of the suit and it was allowed to become final, it is not open to the appellants to re-agitate the same at the subsequent stage of the suit. Herein, the position is different and therefore the said dictum will not apply.
28. Bharat Sanchar Nigam Limited and another v. Motorola India Private Limited {(2009) 2 SCC337 is relied upon by Shri P.K.Ramkumar to draw support from the principle of waiver. As we have already held, the said principle will not apply here. In the light of the above findings, the orders passed by the Rent Control Court and the Appellate Authority allowing eviction under Section 11(3) of the Act cannot be upheld. The eviction petition filed afresh will be RCR No.301/2012 -32- hit by Section 15 of the Act. We, therefore, allow the revision petition setting aside the orders passed by the authorities below and the Rent Control Petition stands dismissed. There will be no order as to costs. (T.R.RAMACHANDRANNAIR, JUDGE) (B. KEMAL PASHA, JUDGE) kav/