Summary
A landlord's first eviction petition under Section 14(1)(a) of the Delhi Rent Control Act, 1958 was dismissed in 1998 after he failed to lead evidence on the disputed landlord-tenant relationship. His successors filed a second petition in 2001 on a fresh notice. The Rent Controller refused to reject it, but the Delhi High Court in revision rejected the plaint under Order VII Rule 11(d) CPC as barred by res judicata, treating the 1998 order as a decision on merits under Order XVII Rule 3. The Supreme Court set this aside: a plea of res judicata, which requires examination of the pleadings, issues and judgment in the former suit, is beyond the scope of Order VII Rule 11(d), and the 1998 order, passed with no evidence on record, was a dismissal for default and not a decision on merits under Order XVII Rule 3.
Issues
- Whether a plaint can be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 on the ground that the suit is barred by res judicata.
- Whether dismissal of an eviction petition for the plaintiff's failure to lead evidence, with no evidence on record, is a decision on merits under Order XVII Rule 3 CPC capable of operating as res judicata.
Provisions considered
- Order VII Rule 11(d), Code of Civil Procedure, 1908A plaint may be rejected as barred by law only on the averments in the plaint; the defence and evidence cannot be looked into, so a plea of res judicata requiring reference to the earlier pleadings, issues and judgment cannot be decided under this provision. (¶¶ 25, 28, 29, 31, 33, 35)
- Section 11, Code of Civil Procedure, 1908Res judicata requires that the matter directly and substantially in issue was heard and finally decided on merits in the former suit between the same parties; a dismissal for default or on technical grounds, not being on merits, does not bar a subsequent suit. (¶¶ 26, 33, 34)
- Order XVII Rules 2 and 3, Code of Civil Procedure, 1908Rule 3 permits deciding a suit forthwith on a party's default only where some material exists for a decision on merits; where a party is absent and has led no evidence the court must proceed under Rule 2, and the Rent Controller's order closing the evidence and dismissing the petition was a dismissal for default, not a decision on merits. (¶¶ 41, 42, 49, 50, 51, 52, 53, 55)
- Section 14(1)(a), Delhi Rent Control Act, 1958Both eviction petitions were founded on arrears of rent after notice of demand; the second petition was based on a fresh notice of 18 May 2001. (¶¶ 5, 10, 12)
Held
- For rejection of a plaint under Order VII Rule 11(d) only the plaint averments may be referred to and the defence cannot be considered; since adjudication of res judicata requires consideration of the pleadings, issues and decision in the former suit, the plea lies beyond the scope of that provision, and the High Court erred in rejecting the plaint on that ground. (¶¶ 25, 33, 35)
- The power under Order XVII Rule 3 to decide a suit on merits for a party's default is drastic and to be used sparingly; it applies only where the party is present and there is some material for a decision on merits. Following Prakash Chander Manchanda, where a party is absent and has led no evidence the court must proceed under Rule 2. The Rent Controller's order of 27 January 1998 merely closed the plaintiff's evidence and stopped the proceedings for default; it did not purport to be a final disposal on merits and could not bar the second eviction petition. (¶¶ 49, 50, 51, 52, 53, 55)
- No opinion is expressed on the applicability of res judicata or any other contentious issue; the defendants remain free to ask the court to decide such an issue as a preliminary issue on its merits. (¶ 56)
Result
Appeal allowed; Delhi High Court judgment dated 04.05.2010 in CRP No. 1332 of 2002 rejecting the plaint of Eviction Petition No. 136 of 2001 set aside; the eviction petition revived, with liberty to the defendants to seek decision of the res judicata plea as a preliminary issue; no costs.