ORDER
Murlidher Rao, J.
1. This revision Petition is filed by the landlord of premises bearing No. 22, Sampangi Tank Road, Bangalore. The premises in question was leased in favour of the respondent by lease deed dated 1-7-1971, for an agreed rent of Rs. 650/- per month. It appears that the tenant had paid Rs. 2500/-as advance. Thereafter the tenant initiated proceedings for fixation of fair rent in HRC FR 1/1973. That application was allowed on 19-11-1973 and the fair rent was fixed at Rs. 150/-. As against this order, landlord filed an appeal before the District Judge, Bangalore, in HRC No 67 of 1974. The learned District Judge allowed the appeal on 11-8-1976, on the ground that five years had not elapsed from the date of construction and therefore provisions of Part II of the Rent Control Act were net applicable and the provisions for fixation of fair rent were not attracted. Against this order, the tenant had filed W.P.No. 10605/1975. The said Writ Petition was dismissed on 18-11-1976.
2. On 4-3-1977, the landlord issued a notice under Section 106 of the Transfer of Property Act, and terminated the lease Thereafter the landlord filed O.S. No. 503 of 1977, which is renumbered as O.S. No. 1807 of 1980, for possession and for arrears of rent. That suit is still pending. Meanwhile, the tenant filed another application for fixation of fair rent in HRC FR 1/1977. That application was rejected by the House Rent Controller on 24-1-1978. It is necessary to mention that the said application was rejected on the ground that the earlier application having been rejected, Section 45 of the Rent, Control Act was a bar and therefore the tenant could not maintain this application. Thereafter, the tenant had filed another application in HRC FR 27 of 1981, on 23-12-1980. This application has been allowed by the Rent and Accommodation Controller on 31-5-1983, and the fair rent is fixed at Rs. 350/- per month. It is this order that is challenged in this revision petition.
3. Mr. V.H.Ron for the landlord urged two contentions - his first contention was that in view of Section 45 of the Act, the third application filed by the tenant was not maintainable; secondly he contended that in view of the termination of the tenancy by the notice dated 4-3-1987, there is no relationship of landlord and tenant. He strongly relied upon a decision of this Court in Raghunandan Prasad v. Sreeramasetty, 1974(2) KLJ 224.
4. It is not possible to accept Mr. Ron's first contention. Section 45 of the Rent Control Act reads thus:
'Decisions which have become final not to be re-opened.-
The Court or the Controller shall summarily reject any application under this Act 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 in a former proceeding under this Act or under any of the enactments repealed by Section 62.'
It cannot be disputed that on two earlier occasions, substantial issue between the parties namely, fixation of fair rent has not been tried on merits. The first application was rejected on the ground that five years had not elapsed from the date of construction of the building and the second application was rejected on the ground that earlier application has been rejected and Section 45 was a, bar. it is seen, on both occasions, the authorities did not go into the question whether the petition was maintainable for fixation of fair rent, which could be determined in accordance with law. Therefore there is no adjudication on merits. The dismissal of the application on earlier occasions was at the threshold, in that, they were held not maintainable. Section 45 will be a bar only when an issue has been tried and a finding is recorded and not otherwise. The words 'finally decided' indicate that such decision should be a judicial determination on the matter in issue, what has not been so determined cannot operate as a bar.
5. In T.M. Subramaniam Chettiar v. Ramaswami Iyer, (1955)2 Madras Law Journal 457 it was observed thus :
'The language of Section 10 is clear and what is required to be established is not that the previous petition was finally disposed of but that the issues that were raised between the same parties in the previous petition had been finally decided'.
Proceeding further, the learned Judge observed that --
'as it is only a decision on merits that would justify the view that a subsequent application is a bar by virtue of Section 10 of the Act.'
Relying on the above judgment, Tukol, J., as he then was, held that 'a decision to be final within the meaning of Section 45 has to be a decision on merits after contest and adjudication'; I respectfully agree.
6. In the instant case, there is no adjudication on merits and no finding is recorded. Therefore Section 45 is not a bar. Hence the first contention of Mr. Ron is rejected.
7. So far as the second contention of Mr. Ron is concerned, this Court in B.S. Giridhar v. P.V. Shetty, ILR 1984(2) KAR 1115 has held that the law laid down in Raghunandan Prasad's case, 1974(2) KLJ 224 was not a good law. The ratio of the decision in Giridhar's case is notwithstanding the termination of tenancy, the person in possession of the permises would be a tenant and he would be treated as a statutory tenant.
8. Though, at one time, the statutory 'tenant' was not treat- ed on par with contractual tenant, the same cannot be said now. In Gian Devi v. Jeevan Kumar, AIR 1985 796 it was observed thus : (majority judgment)
'....The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act ; and, the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contrary........'
Chief Justice Bhagwati, as he then was, in a separate but concurring Judgment explained the position thus :
'------The distinction between contractual tenancy and statutory tenancy is thus completely obliterated by the Rent Control legislation. Though genetically the parentage of these two legal concepts is different, one owing its origin to contract and the other to rent control legislation, they are equated with each other and their incidents are the same. If a contractual tenant has an estate or interest in the premises, which is heritable, it is difficult to understand why a statutory tenant should be held not to have such heritable estate or interest. In one case, the estate or interest is the result of contract while in the other, it is the result of statute. But the quality of the estate or interest is the same in both cases. The difficulty in recognising that a statutory tenant can have estate or interest in the premises arises from the fact that throughout the last century and the first half of the present, almost until recent times, our thinking has been dominated by two major legal principles, namely, freedom of contract and sanctity of private property and therefore we are unable to readily accept that legal relationship can be created by statute despite want of contractual consensus and in derogation of property rights of the landlord. We are unfortunately not yet reconciled to the idea that the law is moving forward from contract to status. Why can estate or interest in property not be created by statute When the rent control legislation places a statutory tenant on the same footing as a contractual tenant, wipes out the distinction between the two and invests a statutory tenant with the same right, obligations and includes as a contractual tenant, why should it be difficult to held that, just like a contractual tenant, a statutory tenant also has estate or interest in the premises which can be inherited.........'
Reiterating the view, it was held in Chandavarkar Sita Ratna Rao v. Ashalata, : [1986]3SCR866 as follows :
'It must be emphasised that as a result of the various decisions referred to hereinbefore, it must be accepted that statutory tenant was in the same position as a contractual tenant until the decree for eviction was passed against him and the rights of a contractual tenant included the right to create licence even if he was the transferor of an interest which was not in fact the transfer of interest.'
In the light of the above, the second contention is devoid of force and it has to be rejected.
9. Mr. Ron lastly contended that though the tenant was examined on 9-11-1982, his cross examination was postponed from time to time till 7-5-1983, and on the said date since the Counsel was out of station, he instructed the party to take adjournment. There is nothing on record to show that the tenant who was examined on 9-11-1982, his cross-examination was postponed from time to time. No attempt has been made by the landlord to bring it to the notice of the Rent and Accommodation Controller after the case was set down for arguments. In the absence of any material, it is not possible to accept the contention of Mr. Ron. I do not find any merit in this Revision petition. Accordingly, it is rejected. No costs.