# Satyapal Chopra v. A.D.J., Lalitpur & Anr

- **Citation:** (2021) 4 ILRA 215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-19
- **Case number:** Writ A ( Rent Control) No. 4854 of 2021
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satyapal-chopra-v-a-d-j-lalitpur-anr-46987
- **Pages:** 13

## Headnote

A. Civil Law - Rent Control - Res-judicata
- Code of Civil Procedure, 1908 - Section
11 - Same ground of eviction but based on
216 INDIAN LAW REPORTS ALLAHABAD SERIES
different cause of action is not barred by
res-judicata. (Para 17)

Perusal of Section 11, Explanations I and IV
clearly reflects that existence of a "former
suit" which has been 'heard and finally
decided' is mandatory, whereas in the present
case
appeal
is
pending,
which
is
in
continuation
of
the
original
suit/release
proceedings, wherein due to rejection of
amendment
application,
the
amended
grounds (as permitted now) were neither in
issue nor were heard and finally decided.
Thus, the mandatory element of 'former suit'
'heard and finally decided' is missing in
respect
of
the
amendment
allowed.
Therefore, the Explanation IV to Section 11,
C.P.C., which also requires 'former suit' would
also not be attracted in this case. (Para 15)

Further, while allowing the petition filed by
the tenant, the judgments of prescribed
authority and the appellate authority both
were quashed and amendment in pleading
was permitted at appellate stage and as the
appellate court is the final court on facts,
considering
the
pendency
of
release
application since the year 2000, the lower
appellate court was directed to decide after
affording an opportunity of hearing to both
the parties afresh. Thus, stage of proceedings
being 'former' in nature and 'heard and finally
decided' has not come as yet so as to attract
Section 11, C.P.C. itself. (Para 16)

B. Scope of applicability of Section 11,
C.P.C. in rent laws - Bona fide need may
arise after eviction suit and decision
thereon - Even if nature of proposed
business is not decided by the landlord,
still need is bona fide. The bona fide need
must be considered with reference to the time
when a suit for eviction is filed and it cannot
be assumed that once the question of
necessity is decided against the plaintiff it has
to be assumed that he will not have a bona
fide and genuine necessity even in future.
(Para 18, 19)

In the present case, the appeal is pending
which is in continuation of the proceedings,
where a final finding of facts is yet to be
recorded between the original parties to the
suit/release
application.
Further,
release
application was filed in the year 2000 and it is
only during pendency of the proceedings, the
applicant got himself enrolled as an advocate,
therefore, due to change in the facts and
circumstances of the case, this subsequent
event should not and ought not be prevented
to come on record. It may also be noticed
that since earlier amendment application
dated 16.8.2005 to bring on record the
change in circumstance that now release of
shop is required for establishing chamber as
an advocate was rejected, the prescribed
authority once found the bona fide need, had,
probably no other option but to release the
shop on the ground taken or say, existing on
record (i.e., need for opening gift item shop).
(Para 23)

Writ petition dismissed. (E-3)

Precedent followed:

## Text

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4 All. Satyapal Chopra Vs. A.D.J., Lalitpur & Anr.
215
landlord have not come forward to
challenge the release in favour of one, who,
admittedly, has also inherited the property,
no relief can be granted on this ground to
the tenant that the person, who was
receiving the rent has not filed the release
application.

20. In such view of the matter, I do
not find any jurisdictional error or
perversity in the findings recorded and
the conclusion drawn by the courts
below. Present petition is devoid of
merits and is accordingly dismissed.

21. Having considered the facts and
circumstances of the case, subject to
filing of an undertaking by the petitionertenant before the Court below, it is
provided that:

(1) The tenant-petitioner shall
handover the peaceful possession of the
premises in question to the landlordopposite party on or before 30.9.2021;

(2) The tenant-petitioner shall
file the undertaking before the Court
below to the said effect within two
weeks;

(3) The tenant-petitioner shall
pay entire decretal amount within a
period of two months from the date of
receipt of copy of this order.

(4) The tenant-petitioner shall
pay damages @ Rs. 2,000/- per month by
07th day of every succeeding month and
continue to deposit the same in the Court
below till 30.9.2021 or till the date he
vacates the premises, whichever is earlier
and the landlord is at liberty to withdraw
the said amount;

(5) In the undertaking the
tenant-petitioner shall also state that he will
not create any interest in favour of the third
party in the premises in dispute;

(6) Subject to filing of the said
undertaking, the tenant-petitioner shall not
be evicted from the premises in question till
the aforesaid period;

(7) It is made clear that in case of
default of any of the conditions mentioned
herein-above, the protection granted by this
Court shall stand vacated automatically.

(8) In case the premises is not
vacated as per the undertaking given by the
petitioner, he shall also be liable for
contempt.

22. There shall be no order as to costs.
----------
(2021)04ILR A215
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ A ( Rent Control) No. 4854 of 2021

Satyapal Chopra ...Petitioner
Versus
A.D.J., Lalitpur & Anr. ...Respondents

Counsel for the Petitioner:
Sri Ravi Anand Agarwal, Sri Shreya Gupta

Counsel for the Respondents:
C.S.C.

A. Civil Law - Rent Control - Res-judicata
- Code of Civil Procedure, 1908 - Section
11 - Same ground of eviction but based on
216 INDIAN LAW REPORTS ALLAHABAD SERIES
different cause of action is not barred by
res-judicata. (Para 17)

Perusal of Section 11, Explanations I and IV
clearly reflects that existence of a "former
suit" which has been 'heard and finally
decided' is mandatory, whereas in the present
case
appeal
is
pending,
which
is
in
continuation
of
the
original
suit/release
proceedings, wherein due to rejection of
amendment
application,
the
amended
grounds (as permitted now) were neither in
issue nor were heard and finally decided.
Thus, the mandatory element of 'former suit'
'heard and finally decided' is missing in
respect
of
the
amendment
allowed.
Therefore, the Explanation IV to Section 11,
C.P.C., which also requires 'former suit' would
also not be attracted in this case. (Para 15)

Further, while allowing the petition filed by
the tenant, the judgments of prescribed
authority and the appellate authority both
were quashed and amendment in pleading
was permitted at appellate stage and as the
appellate court is the final court on facts,
considering
the
pendency
of
release
application since the year 2000, the lower
appellate court was directed to decide after
affording an opportunity of hearing to both
the parties afresh. Thus, stage of proceedings
being 'former' in nature and 'heard and finally
decided' has not come as yet so as to attract
Section 11, C.P.C. itself. (Para 16)

B. Scope of applicability of Section 11,
C.P.C. in rent laws - Bona fide need may
arise after eviction suit and decision
thereon - Even if nature of proposed
business is not decided by the landlord,
still need is bona fide. The bona fide need
must be considered with reference to the time
when a suit for eviction is filed and it cannot
be assumed that once the question of
necessity is decided against the plaintiff it has
to be assumed that he will not have a bona
fide and genuine necessity even in future.
(Para 18, 19)

In the present case, the appeal is pending
which is in continuation of the proceedings,
where a final finding of facts is yet to be
recorded between the original parties to the
suit/release
application.
Further,
release
application was filed in the year 2000 and it is
only during pendency of the proceedings, the
applicant got himself enrolled as an advocate,
therefore, due to change in the facts and
circumstances of the case, this subsequent
event should not and ought not be prevented
to come on record. It may also be noticed
that since earlier amendment application
dated 16.8.2005 to bring on record the
change in circumstance that now release of
shop is required for establishing chamber as
an advocate was rejected, the prescribed
authority once found the bona fide need, had,
probably no other option but to release the
shop on the ground taken or say, existing on
record (i.e., need for opening gift item shop).
(Para 23)

Writ petition dismissed. (E-3)

Precedent followed:

1. Dunlop India Ltd. Vs A.A. Rahna & anr.(2011)
5 SCC 778 (Para 17)

2. Suraj Mal Vs Radheyshyam, (1988) 3 SCC 18
(Para 18)

3. Krishna Mohan Vs Krishna Swaroop, 2016
(10) ARC 300 (Para 19)

Precedent distinguished:

1. Asgar & ors. Vs Mohan Varma & ors., 2020
(16) SCC 230 (Para 6, 21, 22)

Present petition challenges order dated
20.02.2021, passed by Additional District
Judge. Lalitpur.

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Ms. Shreya Gupta, learned
counsel for the petitioner and perused the
record.

2. Present petition has been filed
challenging the impugned order dated
20.2.2021 passed by the Additional District
Judge, Lalitpur (respondent no. 1) in Rent
4 All. Satyapal Chopra Vs. A.D.J., Lalitpur & Anr.
217
Appeal No. 3 of 2009 (Satyapal Chopra vs.
Mahendra Kumar).

3. By the impugned order dated
20.2.2021 amendment application filed
under Order 6 Rule 17 CPC filed by the
landlord at the appellate stage was allowed
by the lower appellate court after noticing
the fact that the amendment in pleadings by
substituting the paragraphs and adding the
grounds
in
release
application
was
permitted by this Court vide order dated
13.8.2018 passed in Writ -A No. 535 of
2018 (Shri Satypal Chopra vs. Shri
Mahendra Kumar), however, since the
amendment was being sought after a delay,
therefore, the same was allowed by
imposing cost of Rs. 1,000/-.

4. The release application was allowed
by the prescribed authority on the ground
of bona fide need of the landlord for
opening a gift-item Shop. The appeal filed
by the tenant was dismissed. The writ
petition being Writ-A No. 534 of 2018 filed
by the tenant was entertained and interim
order was granted vide order dated
31.1.2018. Thereafter, the petition was
allowed vide order dated 13.8.2018 on the
concession given by the counsel for the
landlord that he has no objection in case
writ petition is allowed.

5.
Thereafter,
this
amendment
application was filed before the appellate
court. Several paragraphs are being sought
to be amended/substituted and added. Two
paragraphs related to need of the landlord
and one paragraph was with regard to
subsequent developments i.e. purchase of
property by the tenant in the year 2018.
This application was contested by the
tenant-petitioner
by
filing
objections,
however, the objections were rejected and
since there was delay, the amendment
application was allowed by imposing cost
of Rs. 1,000/- and the appellate court fixed
a date by observing that short dates will be
fixed by the lower appellate court in the
light of the order of this Court dated
13.8.2018 passed in Writ-A No. 534 of
2018.

6. Challenging the impugned order,
submission of learned counsel for the
petitioner,
placing
reliance
on
the
judgement of Hon'ble Apex Court rendered
in the case of Asgar & others vs. Mohan
Varma & others, 2020 (16) SCC 230, is
that in the present case principle of
constructive res-judicata would apply and
therefore, such amendment cannot be
allowed. It is submitted that the grounds
that are being sought to be amended now
were, in fact, sought in the year 2005 and
an affidavit was filed in 2009 that he need
shop in question for his chamber for legal
profession and were rejected but shop was
released on the ground that the shop is
needed for starting business of gift items,
therefore, the same cannot be permitted
now.

7. I have considered the submissions
advanced by the learned counsel for the
petitioner at length and perused the record.

8. To appreciate the controversy
involved in the present case, it would be
relevant to take note of the order passed by
this Court in Writ-A No. 534 of 2018 (Shri
Satyapal
Chopra
vs.
Shri
Mahendra
Kumar) dated 31.1.2018, which is quoted
as under:

"Heard
Ms.
Shreya
Gupta,
learned
counsel
for
the
defendantpetitioner/ tenant and Sri P.K. Jain,
218 INDIAN LAW REPORTS ALLAHABAD SERIES
learned senior advocate assisted by Sri Abu
Bakht, learned counsel for the plaintiffrespondent/ landlord.

On 24.01.2018, this petition was
heard at length and after incorporating the
facts of the case, an order was passed as
under:

"Heard Shreya Gupta, learned
counsel for the defendant-petitioner/tenant
and Sri P.K. Jain, learned Senior Advocate
assisted by Sri Abu Bakht, learned counsel
for the plaintiff-respondent.

Briefly stated facts of the present
case are that House No.307/1 (New
No.340/1), Katra Bazar, Lalitpur, was
originally owned by one Sri Ratan Chandra
Jain. In the said house there is a shop in
which the defendant-petitioner is a tenant
at a monthly rent of Rs.85/- since the year
1958. After the death of the aforesaid
original owner, his wife Smt. Phoola Bai
became landlord of the disputed shop, who
died on 20.12.1999. Before her death she
had executed a will dated 20.10.1998.

As per the aforesaid will, the
plaintiff-respondent, who is 'Nati' of Sri
Ratan Chandra Jain and Smt. Phoola Bai,
became owner and landlord of the disputed
house and accordingly, his name was also
mutated in municipal records showing him
to be the owner and landlord of the
disputed
house
and
the
defendantpetitioner as tenant. He also apprised the
defendant-petitioner that he is owner and
landlord
of
the
disputed
shop.
Consequently,
the
defendantpetitioner/tenant had sent him a moneyorder of Rs.850/- towards payment of rent
from 18.12.1999 to 17.2.2000. The receipt
of money-order has been filed by the
plaintiff-respondent in evidence as Paper
No.22-C, which bears the message of the
defendant-petitioner for payment of rent
admitting the plaintiff-respondent to be the
owner and landlord. Thus, there is no
dispute of landlord and tenant relationship
between the plaintiff-respondent and the
defendant-petitioner.

On 31.10.2000, the plaintiffrespondent filed an application under
Section 21(1)(a) of U.P. Act 13 of 1972 for
release of the disputed shop on the ground
of his personal need for starting the
business of gift items. He sated that he is an
unemployed
Law
Graduate
and
has
experience of trade in gift items, therefore,
he is in bonafide need of the disputed shop.

During pendency of the release
application, the plaintiff-respondent got
himself enrolled in the year 2001 with U.P.
Bar
Council,
Allahabad
and
started
practising in District Court, Lalitpur.
Thereafter,
he
filed
an
amendment
application dated 16.8.2005, praying for
amendment in paragraph-6 of the plaint,
whereby he sought to amend the pleadings
to the effect that he needs the disputed shop
to establish his chamber as an Advocate.
The application was rejected by the
Prescribed Authority by order dated
22.4.2008 against which he filed a civil
revision, which was dismissed by the
District Judge,Lalitpur. Both these orders
were challenged by the plaintiff-respondent
in Writ Petition No.41688 of 2008 (
Mahendra Kumar Jain v. Prescribed
Authority
and
another),
which
was
dismissed by order dated 18.8.2008 giving
liberty to the plaintiff-respondent/landlord
to challenge the impugned order dated
22.4.2008 as well as the order dated
22.5.2008 in the writ petition, which may
be filed against final judgment and order
on the release application and the decision
4 All. Satyapal Chopra Vs. A.D.J., Lalitpur & Anr.
219
of appeal under Section 22 of the Act. The
release application was directed to be
decided expeditiously.

Thereafter,
the
plaintiffrespondent
filed
his
affidavit
dated
17.2.2009 in evidence. In paragraph-7 of
the affidavit he stated that he is an
advocate and is practising in Civil,
Revenue and Criminal matters and has no
business except the legal profession. He
reiterated his need of the disputed shop for
his chamber for legal practice. Another
affidavit dated 16.10.2008 was also filed
making similar averments.

By judgment dated 31.3.2009, the
aforesaid release application has been
allowed on the ground that the plaintiffrespondent/landlord is in bonafide need of
the disputed shop to start his business of
gift items. The Rent Control Appeal No.03
of 2009( Satpal Chopra v. Mahendra
Kumar)
filed
by
the
defendantpetitioner/tenant was dismissed by the
impugned judgment dated 14.12.2017 on
the ground that the plaintiff-respondent
needs the disputed shop for starting
business of gift items.

Learned
counsel
for
the
defendant-petitioner
submits
that
the
plaintiff-respondent has set up his bonafide
need for opening his chamber in the
disputed shop as an advocate, therefore,
the finding of bonafide need on the ground
to start the business of gift items, is wholly
without application of mind and without
consideration to the evidences on record.
Therefore, on this ground alone the
impugned orders deserve to be set aside
and the matter needs to be remanded for
decision afresh on the question of bonafide
need and comparative hardship. She
submits that the defendant-petitioner is
not disputing the landlordship of the
plaintiff-respondent. The objection is only
with respect to the findings on the point of
bonafide need and comparative hardship.

In support of her submissions, she
has relied upon the judgments of Hon'ble
Supreme Court in the case of Prabha Arora
and another v. Brij Mohini Anand and
others, 2008 CAR210 (SC) (Paragraph 5)
and judgment of this Court in Chand Ratan
Laddha v. Additional District Judge and
others 2012(3) ARC 349 ( paragraph Nos.
13,14 and 15).

Sri P.K. Jain, learned Senior
Advocate
prays
for
adjournment
to
complete his instructions.

As prayed, put up tomorrow."

Today, Sri P.K. Jain, learned
senior advocate prays for and is granted
three weeks' time to file counter affidavit.
Defendant-petitioner shall have a week
thereafter to file rejoinder affidavit.

List after four weeks before the
appropriate court.

Considering the facts of the case
as briefly noted in the afore-quoted order
dated 24.01.2018, I find that the defendantpetitioner has made out a case for interim
relief. Therefore, as an interim measure, it
is provided that till the next date of listing,
the effect and operation of the impugned
judgment and order dated 14.12.2017 in
Rent Appeal No.3 of 2009 (Satyapal
Chaupra vs. Mahendra Kumar) passed by
the Additional District Judge (Fast Track
Court-I), Lalitpur and the judgment and
order dated 31.03.2009 in P.A. Case No.12
220 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2000 (Mahendra Kumar vs. Satyapal
Chaupra)
passed
by
the
Prescribed
Authority/ Civil Judge (S.D.) Lalitpur shall
remain stayed." (Emphasis supplied)

9. Thereafter the aforesaid petition
was allowed on 13.8.2018 with liberty to
both the parties to amend their pleadings.
The said order dated 13.8.2018 is also
quoted as under:

"Heard
Ms.
Shreya
Gupta,
learned counsel for the petitioner and Sri
Pramod Kumar Jain, Senior Advocate
assisted by Sri Maha Prasad, learned
counsel for the respondent.

The present writ petition has
been filed for quashing the judgment and
order dated 14.12.2017 passed by the
Additional District Judge/Fast Track
Court 1st, Lalitpur in Rent Appeal No.3
of 2009 and judgment and order dated
31.03.2009 passed by the Prescribed
Authority/Civil Judge (Senior Division),
Lalitpur in Rent Case No.12 of 2000.

At the very out set Sri P.K.Jain,
learned Senior Counsel states that he has
no objection in case the writ petition is
allowed.

However in the light of the
arguments advanced before this Court
regarding remanding back the matter,
this Court is of the opinion that since the
lower appellate court is the final court on
facts and the suit is pending since the
year 2000, therefore, it would be
appropriate to remand back the matter to
the lower appellate court with liberty to
both the parties to amend their pleadings,
if they so desired and lead evidence on
all the issues as the parties may be
advised.

Accordingly, the present writ
petition stands allowed. The impugned
orders dated 14.12.2017 and 31.3.2009 are
quashed. The matter is remitted back to the
lower appellate court below for decision
afresh on its own merit. The lower
appellate court is directed to provide full
opportunity of hearing to both the parties
as indicated above.

Since the release application was
filed in the year 2000 it would be
appropriate that the lower appellate court
shall decide the same as expeditiously as
possible by fixing short dates and without
granting any adjournment."

 (Emphasis supplied)

10. In the order dated 31.1.2018,
wherein the order dated 24.1.2018 was
quoted, this Court has noticed the fact that
ultimately the amendment application dated
16.8.2005, though rejection whereof by the
prescribed authority was upheld by the
revisional court, was kept alive i.e. to be
challenged while challenging the final
order (obviously, if the need so arise) and
that the affidavit 17.2.2009 was filed in
evidence wherein it was stated that the
landlord is a practising advocate and he has
no other means of earning except the legal
profession. Contention of learned counsel
for the tenant that the release order suffers
from non-application of mind as the release
application was filed for the need of shop
of gift items whereas, the affidavit has
come that the shop is required for legal
profession, was also noted. Subsequently,
the petition was allowed on the concession
given by learned counsel for the landlord
that he has no objection in case writ
petition is allowed. In the light of the
arguments advanced before this Court in
that petition, the matter was remanded to
the lower appellate court with liberty to
4 All. Satyapal Chopra Vs. A.D.J., Lalitpur & Anr.
221
both the parties to amend the pleadings as
the lower appellate court is the final court
on facts and the suit is pending since the
year 2000. It may also be noticed that the
release application was allowed by the
prescribed authority and appeal was filed
by the tenant and thus, the landlord
obviously, had no occasion and reason to
challenge the rejection of amendment
application, as left open by this Court while
challenging the final order as the final order
of the prescribed authority, was in his
favour.

11. In such view of the matter, it is
not
in dispute
that
the
amendment
application
insofar
as
the
first
two
paragraphs
are
concerned,
was
filed
pursuant to the order of this Court. Third
amendment is also related to subsequent
developments and liberty was granted to
both the parties to amend their pleadings. It
is not in dispute that both the parties are at
liberty to lead their evidence on the issue as
already permitted by this Court as noted
above.

12. I have gone through the proposed
amendments which have been allowed by
the court below.

13. Learned counsel for the petitioner
has placed reliance on the of Asgar (supra)
to contend that principle of constructive
res-judicata applies in the present case and
hence the proposed amendment cannot be
permitted. To deal with the same, it would
be appropriate to take note of relevant
extract of Section 11 of Civil Procedure
Code together with Explanation I and IV,
which is quoted as under :

"11. Res judicata- No Court shall
try any suit or issue in which the matter
directly and substantially in issue has
been directly and substantially in issue in a
former suit between the same parties, or
between parties under whom they or any of
them claim, litigating under the same title,
in a Court competent to try such
subsequent suit or the suit in which such
issue has been subsequently raised, and has
been heard and finally decided by such
Court.

Explanation I- The expression
"former suit" shall denote a suit which has
been decided prior to the suit in question
whether or not it was instituted prior
thereto.

Explanation IV- Any matter
which might and ought to have been made
ground of defence or attach in such former
suit shall be deemed to have been a matter
directly and substantially in issue in such
suit." (Emphasis supplied)

14. It would also be relevant to take
note of paragraphs, 30, 36, 37, 38, 39, 46,
47, 48 of the judgement in Asgar (supra)
are quoted as under:

"30. Under Section 11, a matter
which has been directly and substantially
in issue in a former suit between the same
parties or between parties litigating under
the same title cannot be raised before a
court subsequently, where the issue has
been heard and finally decided by a
competent court. Explanation IV enacts a
deeming fiction. As a result of the fiction, a
matter which "might and ought" to have
been made a ground of defence or attack in
a former suit shall be deemed to have been
a matter directly and substantially in issue
in such a suit. In other words, Explanation
IV is attracted when twin conditions are
222 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfied: the matter should be of a nature
which might and ought to have been made
a ground of defence or attack in a former
suit. S. Rangarajan, J. (as the learned
Judge then was) sitting as a Single Judge of
the Delhi High Court in Delhi Cloth &
General Mills Co. Ltd v Municipal
Corporation of Delhi, 1975 SCC OnLine
Del 29 noticed this feature :

"35...The words employed --
might and ought -- are cumulative; they are
not in the alternative. It is a wellestablished rule that any plea which if
taken would have been inconsistent with or
destructive of the title in the earlier suit is
not a matter which ought to be raised
therein because even though it might also
have been raised in the alternative. This
aspect was explained by the Judicial
Committee of the Privy Council in
Kameswar Pershad v. Rajkumari Ruttan
Koer (I.L.R. 20 Calcutta 79 at p. 85). The
possibility of merely raising it as a ground
of attack or defence, at least in the
alternative, is alone not sufficient; the test
is one which is more compulsive, namely,
that the said plea "ought" to have been
taken as a ground of attack or defence.
These features would of course depend
upon the particular facts of each case."

The words "might and ought" are
used in a conjunctive sense. They denote
that a matter must be of such a nature as
could have been raised as a ground of
defence or attack and should have been
raised in the earlier suit.

36. Mr Giri urged, relying upon
the above decision of the House of Lords
that in construing the expression "might
and ought", it is necessary for the court to
bear in mind the fundamental distinction
between res judicata and constructive res
judicata. He urged that whereas the former
encompasses a matter which was directly
and substantially in issue in a previous suit
between the same parties and has been
adjudicated upon, the latter brings in a
deeming fiction according to which a
matter which might and ought to have been
advanced in a previous suit would be
deemed to be directly and substantially in
issue. He therefore urges that a degree of
circumspection must be exercised in the
application of the principle of constructive
res judicata.

37. We are not inclined to decide
this question on a priori consideration, for
the simple reason that under the CPC, both
res judicata (in the substantive part of
Section 11) and constructive res judicata
(in Explanation IV) are embodied as
statutory principles of the law governing
civil procedure. The fundamental policy of
the law is that there must be finality to
litigation. Multiplicity of litigation enures
to the benefit, unfortunately for the decree
holder, of those who seek to delay the fruits
of a decree reaching those to whom the
decree is meant. Constructive res judicata,
in the same manner as the principles
underlying res judicata, is intended to
ensure that grounds of attack or defence in
litigation must be taken in one of the same
proceeding. A party which avoids doing so
does it at its own peril. In deciding as to
whether a matter might have been urged in
the earlier proceedings, the court must ask
itself as to whether it could have been
urged. In deciding whether the matter
ought to have been urged in the earlier
proceedings, the court will have due regard
to the ambit of the earlier proceedings and
the nexus which the matter bears to the
nature of the controversy. In holding that a
matter ought to have been taken as a
ground of attack or defence in the earlier
4 All. Satyapal Chopra Vs. A.D.J., Lalitpur & Anr.
223
proceedings, the court is indicating that the
matter is of such a nature and character
and bears such a connection with the
controversy in the earlier case that the
failure to raise it in that proceeding would
debar the party from agitating it in the
future.

38. In State of U P v Nawab
Hussain, (1977) 2 SCC 806, a three-judge
Bench of this C
ourt noted that the two
principles of res judicata and constructive
res judicata seek to achieve the common
objective of assuring finality to litigation.
P. N. Shinghal, J. observed:

"3. The principle of estoppel per
rem judicatam is a rule of evidence. As has
been stated in Marginson v. Blackburn
Borough Council (1939) 2 KB 426 at p.
437, it may be said to be "the broader rule
of evidence which prohibits the reassertion
of a cause of action". This doctrine is based
on two theories: (i) the finality and
conclusiveness of judicial decisions for the
final termination of disputes in the general
interest of the community as a matter of
public policy, and (ii) the interest of the
individual that he should be protected from
multiplication of litigation. It therefore
serves not only a public but also a private
purpose by obstructing the reopening of
matters which have once been adjudicated
upon. It is thus not permissible to obtain a
second judgment for the same civil relief on
the same cause of action, for otherwise the
spirit of contentiousness may give rise to
conflicting judgments of equal authority,
lead to multiplicity of actions and bring the
administration of justice into disrepute. It is
the cause of action which gives rise to an
action, and that is why it is necessary for
the courts to recognise that a cause of
action which results in a judgment must
lose its identity and vitality and merge
in the judgment when pronounced. It
cannot therefore survive the judgment, or
give rise to another cause of action on the
same facts. This is what is known as the
general principle of res judicata.

4. But it may be that the same set
of facts may give rise to two or more causes
of action. If in such a case a person is
allowed to choose and sue upon one cause
of action at one time and to reserve the
other for subsequent litigation, that would
aggravate the burden of litigation. Courts
have therefore treated such a course of
action as an abuse of its process and
Somervell, L.J., has answered it as follows
in Greenhalgh v. Mallard (1947) 2 All ER
255) :

"I think that on the authorities to
which I will refer it would be accurate to
say that res judicata for this purpose is not
confined to the issues which the court is
actually asked to decide, but that it covers
issues or facts which are so clearly part of
the subject-matter of the litigation and so
clearly could have been raised that it would
be an abuse of the process of the court to
allow a new proceeding to be started in
respect of them."

39. A Constitution Bench of this
Court in Direct Recruit Class II Engg.
Officers' Assn. v State of Maharashtra,
(1990) 2 SCC 715 referred to the decision
of a three judge bench of this Court in
Forward Construction Co. v Prabhat
Mandal, (1986) 1 SCC 100 and noted the
following position in law:

"20...an
adjudication
is
conclusive and final not only as to the
actual matter determined but as to every
224 INDIAN LAW REPORTS ALLAHABAD SERIES
other matter which the parties might and
ought to have litigated and have had
decided as incidental to or essentially
connected with subject matter of the
litigation and every matter coming into the
legitimate purview of the original action
both in respect of the matters of claim and
defence..."

46. In view of the settled position
in law, as it emerges from the above
decisions, it is evident that the appellants
were entitled, though they were strangers
to the decree, to get their claim to remain
in possession of the property independent
of the decree, adjudicated in the course of
the execution proceedings. The appellants
in fact set up such a claim. They sought a
declaration of their entitlement to remain
in possession in the character of lessees.
Under Order 21 Rule 97, they were entitled
to set up an independent claim even prior
to their dispossession. Under Order 21
Rule 101, all questions have to be
adjudicated upon by the court dealing with
the application and not by a separate suit.
Upon the determination of the questions
referred to in Rule 101, Order 21 Rule 98
empowers the court to issue necessary
orders.
The
consequence
of
the
adjudication is a decree under Rule 103.

47.
The
claim
which
the
appellants have now sought to assert for
compensation under Section 4 (1) of the Act
of 1958 is intrinsically related to the claim
which they asserted in the earlier round of
proceedings to remain in possession.
Indeed as we have seen, the appellants seek
to resist the execution of the decree on the
ground that they are entitled to continue in
possession
until
their
claim
for
compensation
is
determined
upon
adjudication and paid. Such a claim falls
within the purview of Explanation IV to
Section 11 of the CPC. Such a claim could
certainly have been made in the earlier
round of proceedings. Moreover, the claim
ought to have been made in the earlier
round of proceedings. The provisions of
Order 21 Rules 97 to 103 constitute a
complete code and provide the sole remedy
both to parties to a suit and to a stranger to
a decree. All questions pertaining to the
right, title and interest which the appellants
claimed had to be urged in the earlier
Execution Application and adjudicated
therein. To take any other view would only
lead to a multiplicity of proceedings and
interminably delay the fruits of the decree
being realized by the decree holder.

48. This view which we have
adopted following the consistent line of
precedent on Rules 97 to 103 of Order 21 is
buttressed by the provisions of the Act of
1958. A claim under Section 4 (1) has to be
addressed to the court which passes a
decree for eviction. In the present case, the
appellants are strangers to the decree.
They were required to get that claim
adjudicated in the course of their Execution
Application which was referable to the
provisions of Order 21 Rule 97. Having
failed to assert the claim at that stage, the
deeming fiction contained in Explanation
IV to Section 11 is clearly attracted. An
issue which the appellants might and ought
to have asserted in the earlier round of
proceedings is deemed to have been
directly and substantially in issue. The
High Court was, in this view of the matter,
entirely
justified
in
coming
to
the
conclusion that the failure of the appellants
to raise a claim would result in the
application of the principle of constructive
res judicata both having regard to the
provisions of Sections 4 and 5 of the Act of
1958 and to the provisions of Order 21
Rules 97 to 101 of the CPC."
4 All. Satyapal Chopra Vs. A.D.J., Lalitpur & Anr.
225

15. Perusal of Section 11, Explanation
I and IV clearly reflects that existence of a
"former suit" which has been 'heard and
finally decided' is mandatory, whereas in
the present case appeal is pending, which is
in continuation of the original suit/release
proceedings, wherein due to rejection of
amendment
application,
the
amended
grounds (as permitted now) were neither in
issue nor were heard and finally decided.
Thus, in my opinion, the mandatory
element of 'former suit' 'heard and finally
decided' is missing in respect of the
amendment
allowed.
Therefore,
the
Explanation IV to Section 11 CPC, which
also requires 'former suit' would also not be
attracted in this case.

16. Further, while allowing the
petition being Writ-A No. 534 of 2018 filed
by the tenant, the judgements of prescribed
authority and the appellate authority both
were quashed and amendment in pleading
was permitted at appellate stage and as the
appellate court is the final court on facts,
considering
the
pendency
of
release
application since the year 2000, the lower
appellate court was directed to decide after
affording an opportunity of hearing to both
the
parties
afresh.
Thus,
stage
of
proceedings being 'former' in nature and
'heard and finally decided' has not come as
yet so as to attract Section 11 CPC itself.

17 . In Dunlop India Limited vs. A.A.
Rahna and another, (2011) 5 SCC 778 it
was held that same ground of eviction but
based on different cause of action is not
barred by res-judicata, paragraph 35
whereof is quoted as under:

"35. The arguments of Shri
Nariman that the second set of rent control
petitions should have been dismissed as
barred by res judicata because the issue
raised
therein
was
directly
and
substantially similar to the one raised in
the first set of rent control petitions does
not merit acceptance for the simple reason
that while in the first set of petitions, the
respondents had sought eviction on the
ground that the appellant had ceased to
occupy the premises from June, 1998. In
the second set of petitions, the period of
non
occupation
commenced
from
September, 2001 and continued till the
filing of the eviction petitions. That apart,
the evidence produced in the first set of
petitions was not found acceptable by the
Appellate Authority because till 2.8.1999,
the premises were found kept open and
alive
for
operation.
The
Appellate
Authority also found that in spite of
extreme financial crisis, the management
had kept the business premises open for
operation till 1999. In the second round,
the appellant did not adduce any evidence
worth the name to show that the premises
were kept open or used from September,
2001 onwards. The Rent Controller took
cognizance of the notice fixed on the front
shutter of the building by A.K. Agarwal on
1.10.2001 that the company is a sick
industrial company under the 1985 Act and
operation has been suspended with effect
from 1.10.2001; that no activity had been
done in the premises with effect from
1.10.2001 and no evidence was produced
to show attendance of the staff, payment of
salary to the employees, payment of
electricity bills from September, 2001 or
that any commercial transaction was done
from the suit premises. It is, thus, evident
that even though the ground of eviction in
the two sets of petitions was similar, the
same were based on different causes.
Therefore, the evidence produced by the
parties in the second round was rightly
226 INDIAN LAW REPORTS ALLAHABAD SERIES
treated as sufficient by the Rent Control
Court and the Appellate Authority for
recording a finding that the appellant had
ceased to occupy the suit premises
continuously for six months without any
reasonable cause." (Emphasis supplied)

18.
Similarly,
in
Suraj
Mal
vs.
Radheyshyam, (1988) 3 SCC 18 it was held
that bona fide need may arise after eviction
suit and decision thereon, paragraph 8
whereof is quoted as under:

"8. The learned counsel for the
appellant Sunderbai contended that in
substance the case of the plaintiff-respondent
in the earlier eviction suit and in the present
suit is the same and since the earlier suit was
dismissed the present suit also should be
dismissed. The High Court in paragraph 4 of
its judgement pointed out that the nature of
requirement pleaded in the earlier suit was
different from that in the present suit. The
first appellate court while deciding the issue
against the defendant observed that the bona
fide need must be considered with reference
to the time when a suit for eviction is filed
and it cannot be assumed that once the
question of necessity is decided against the
plaintiff it has to be assumed that he will not
have a bona fide and genuine necessity even
in future. We are in agreement with the views
as expressed by the two court."
 (Emphasis supplied)

19. In Krishna Mohan vs. Krishna
Swaroop, 2016 (1) ARC 300, it was held by
this Court that even if nature of proposed
business is not decided by the landlord, still
need is bona fide.

20. Object of discussing the above law
is to highlight the scope of applicability of
Section 11 CPC itself, which, obviously
includes principle of constructive resjudicata, in rent laws proceedings.

21. I have noted the relevant paragraphs
of Asgar (supra) to record that there is no
quarrel with the settled law, however, for the
reason recorded above the same are of no
help to the petitioner.

22. In the totality of the facts and
circumstances of the case, more so, once this
Court has allowed the parties to amend their
pleadings, the case of Asgar (supra), being
mainly on interpretation of Order 21 Rule 91103 CPC, is also distinguishable on facts
where a third party who was stranger to the
decree was involved at the time of execution
proceedings and it was about the claim to
receive compensation in land acquisition
proceedings.

23. In the present case, the appeal is
pending which is in continuation of the
proceedings, where a final finding of facts
is yet to be recorded between the original
parties to the suit/ release application.
Further, release application was filed in the
year 2000 and it is only during pendency of
the proceedings, the applicant got himself
enrolled as an advocate, therefore, due to
change in the facts and circumstances of
the case, this subsequent event should not
and ought not be prevented to come on
record. It may also be noticed that since
earlier
amendment
application
dated
16.8.2005 to bring on record the change in
circumstance that now release of shop is
required for establishing chamber as an
advocate was rejected, the prescribed
authority once found the bona fide need,
had, probably no other option but to release
the shop on the ground taken or say,
existing on record ( i.e. need for opening
gift item shop).
4 All. Nirhi Vs. State of U.P. & Ors.
227

24. In such view of the matter, I do
not find any good ground to interfere in the
order impugned herein.

25. However, parties are liberty to
lead the evidence as permitted by this Court
vide order dated 13.8.2018 passed in WritA No. 534 of 2018.

26.