JUDGMENT
Medini Prasad Singh, J.
1. This is a defendant’s second appeal against the judgment and decree dated 23rd March, 1977 of the Additional Subordinate Judge, 2nd, Patna, confirming the decision of the Munsif 3rd, Patna, dated 29th Sept., 1975, passed in Title Suit No. 214 of 1971. The suit was brought on 22nd Dec., 1971, for eviction of the appellant from a building situated at Birla Mandir Path, Patna on the ground of non-payment of rent and personal necessity. It was alleged that rent was due from 1966 up-to-date. The defendant-tenant denied to be a defaulter. He also pleaded that the plaintiff had no personal necessity of the suit premises. The two courts below accepted the case of the plaintiff and agreed the suit for eviction.
2. The facts, in brief, are that on 25th May, 1973, the trial court passed an order on the defendant to deposit the arrears of rent from April 1966 up-to-date and also to go on depositing the current and future rent. On 18th April, 1974, the deience of the defendant was struck out for not depositing the rent as ordered by the trial court and the court directed for ex parte hearing. As against this order striking out the defence a Civil Revision 649 of 1974 was filed in this Court which was not admitted and was summarily dismissed on 24th July, 1974.
3. At the time of admission Mr. Sree-nath Singh learned counsel appearing for the tenant-defendant contended that no arrears of rent in respect of any period prior to the institution of the suit could be directed to be deposited under Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 and hence the order of the trial court was illegal and without jurisdiction and no defence could be struck out for non-compliance of that order. After hearing his argument the following two points were formulated by this Court under Section 100 (4) of the Civil P. C. for decision:
(1) Whether in the facts and circumstances of the case the trial court was justified in law in striking out the defence for non-deposit of the arrears of rent for the period before the filing of the suit?
(2) Whether the dismissal of the Civil Revision 694 of 1974 was a bar in raising point No. 1?
4. At the time of hearing the same point has been urged by the appellant. It is contended that the trial Court had no power to direct the defendant to deposit any arrears of rent prior to the institution of the suit 22nd Dec., 1971) and hence the order dated 18th April, 1974, striking out the defence is illegal and without jurisdiction. In continuation of this submission it is further said that great prejudice was caused to the defendant whose evidence was shut out in support of his deience against ejectment and therefore, the decree of the two courts below should be set aside and the trial court be directed to re-try the suit from the stage of striking out the defence. Counsel has relied on Ganesh Ram v. Smt Ramlakhan Devi, 1980 BBCJ 665: (AIR 1981 Pat 36) (FB) in which it was held at page 667 (of BBCJ): (at p. 39 of AIR):
“In view of the decision in Ramnandan Sharma v. Maya Devi, AIR 1975 Pat 283 (FB): 1974 BBCJ 818 it must be held that the trial Court had no power to order under Section 11A of the Act, for the deposit of the arrears of rent for the period before 9-8-1966, the date of institution of the suit…… The conclusion is that since his written statement was illegally struck off, which robbed him of the right to lead and establish his case, the decree of eviction passed by the two courts below must go and he should get a fair chance to plead and prove his case…… In the result, the appeal is allowed, the decree passed is set aside and the case is remanded to the trial court. The orders dated 28-6-1967 and 20-7-1967 mentioned above, are also set aside and the Court is directed to hold further trial of the suit in accordance with law. The evidence which has already been received will not be ignored, but both the parties will be permitted to lead further evidence in the suit.”
In my opinion, the point has no force. This case cannot afford any assistance to the appellant. In that case no party had earlier challenged the order of the trial court striking out the defence in revisional jurisdiction. In the present case the order dated April 18, 1974 was challenged in Civil Revision 649 of 1974 which was summarily dismissed on 24th July, 1974. That case, therefore, is distinguishable. In Bhagwanji Ram v. Babu Sagir Ahmad, 1975 BBCJ 794 a civil revision was filed in this Court against the order striking out the defence and was dismissed. The legality of the same order was challenged in second appeal from the final decree passed by the lower appellate Court but the contention was rejected. It is true that in that case it was held that the order striking out the defence could not be held to be an interlocutory order so as to attract the provisions of Section 105 (1) of the Code of Civil Procedure because the Court had no option to pass or not to pass such an order but had merely to read such an order under statutory obligation. But nonetheless the fact that a civil revision application had earlier been filed and dismissed by this Court was taken notice of and this will appear from the following observation made at page 796:
“Therefore apart from the fact that the very same order had come up before this Court in Civil Revisions which were dismissed, even on principles there is no scope on the facts of these cases and in so far as the effect laid down by Section HA of the Act is concerned to attract the provisions of Section 105 if the Code of Civil Procedure. There is thus no merit in the point urged by the learned counsel.”
It may be noticed that the view taken in that case that the order striking out the defence passed by the trial court was not an interlocutory order was not accepted as correct in the Full Bench case Ram Nandan Sharma (AlR 1975 Pat 283) (supra) but the ultimate decision arrived in that case was not overruled and this will appear from the following observation of the Full Bench at page 668 (of BBCJ): (at p. 39 of AIR) in respect of that case:
“Reference was also made at the bar to the decision in Bhagwanji Ram v. Babu Sagir Ahmad, 1975 BLJR 598. In that case, the defendant had earlier moved the High Court in its revisional jurisdiction against the order of the trial court striking off his defence and the order was confirmed. As a result, the trial court’s order became final and it was not open to the defendant to challenge the same again in the second appeal which arose out of the decree. Admittedly, in the present case, the defendant never came to this Court earlier against the orders dated 28-6-1966 and 20-7-1967, and the reported decision is, therefore, clearly distinguishable.”
I think that the above observation supports the contention of Mr. K. D. Chatterji that the order has become final and the appellant is not entitled to raise this point again on a second occasion on the same ground when it comes up in appeal.
5. Mr. Sreenath Singh does not dispute the legal position that where an interlocutory order is heard on merits either in appeal or in revision and is decided between the parties, the matter becomes res judicata see also Balkishan Dass v. Parmeshri (AIR 1963 Punj 187). Laxminarayan v. Sultan Jehan, AIR 1951 Hyd 132 and Shyamacharan v. Sheojee Bhai, AIR 1964 Madh Pra 288. He however, argues that the dismissal of the civil revision in limine would not take away the right of his client under Section 105 (1) of the Civil P. C. to challenge the illegality of the order dated 18th April, 1974 striking out the defence because the order passed in the said civil revision was not a speaking order. He submitted that it was a one line order “This application is dismissed.” He urged that such an order cannot constitute a bar of res judicata. He relied on Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457: ((1962) 1 SCR 574). In that case the Supreme Court said that if the petition filed in the High Court under Article 226 is dismissed not on merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it then the dismissal of the writ petition would not constitute a bar to the subsequent petition under Article 32 except in cases where the facts found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order says that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases indicated in the judgment. Then comes an observation which may better be quoted (at P. 1466 of AIR):
“If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all, but in the absence of speaking order it would not be easy to decide what factor weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 32.”
The principles laid down in this Supreme Court case were approved in Hoshnak Singh v. Union of India, AIR 1979 SC 1328. However, it will appear from the observation made in Daryao’s case (supra) at pages 1465-1466 para. 19 that the conclusion reached in that case was confined only to the point of res judicata which was urged as a preliminary issue in the writ petition before the Supreme Court and in no other. Moreover it will appear that the observation was made in a writ matter where the High Court may dismiss a petition in limine on the ground of delay or laches or on the ground of alternative remedy; more often a petition under Article 226 is dismissed on the ground that before invoking the extraordinary jurisdiction of the High Court, if the petitioner has an alternative remedy under a statute under which the right is claimed by the petitioner, the Court expects the petitioner to exhaust the remedy and in such a situation the petition is dismissed in limine. In the present case the earlier Civil Revision 649 of 1974 was dismissed obviously after hearing the petitioner on merits. There is nothing to show that the dismissal was on any technical ground. In Brijgopal’s case 1978 MPLJ 70 : AIR 1978 Madh Pra 122 at p. 131 (FB) it was held by Shiv Dayal C. J. who delivered the majority opinion that when a case is dismissed at the admission stage, the questions raised are determined conclusively so far as this Court is concerned that dismissal at the admission stage has the same force and effect as dismissal after hearing parties, and that dismissal of a petition at the admission stage or on hearing parties makes no difference so far as its effect is concerned. In Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 at pp. 1336-37 it was held that where a decision is given on the merits by trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits as to issue to title also whatever may be the ground for dismissal of the appeal. In view of these decisions it is difficult to hold that the dismissal of the civil revision has not given finality to the order.
Even if the argument of Mr. Shreenath Singh that whenever any petition is dismissed in limine without a speaking order such a dismissal would not constitute a bar of res judicata, be accepted as correct for the time being, there is another difficulty in his way. I think that the law of estoppel will operate, against his contention. His client had two remedies against the order striking out the defence (i) to move the High Court in revisional jurisdiction or (ii) challenge the legality of that order in appeal from the final decree in the suit. His client already chose one remedy. Obviously, therefore, he cannot again agitate the same point by perusing the second remedy. In this regard the observation made in Shankar Ram Chanda v. Krishnaji Dattatraya, AIR 1970 SC 1 at page 5 is relevant:
“Even on the assumption that the order of the appellate Court had not merged in the order of the single Judge who had disposed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the C.P.C. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions.”
From the above it is clear that the appellant is estopped from raising the same point now. In this view of the matter the argument of Mr. Shreenath Singh that only res judicata can bind his client and no other principle for invoking the provisions of Section 105 (1) of the C.P.C. fall to the ground and must be rejected.
6. The next limb of argument of the appellant is that there was no revision against the order dated 25th May, 1973, directing the defendant-appellant to deposit the arrears of rent from April 1966 up-to-date and hence the legality of that order can be challenged and if that order is held to be illegal then the order dated 13th April, 1974, will automatically stand set aside. This contention also is without any merit The order dated 18th April, 1974, striking out the defence was confirmed by the High Court because Civil Revision 649 of 1974 challenging that order was dismissed on 24th July, 1974. The order dated 25th May, 1973, is so vitally connected by intrinsic unity with the order dated 18th April, 1974, that both of them can be called one order and consequently it cannot now be the subject-matter of challenge. If the defendant is estopped from challenging the legality of the order dated 18th April 1974, he is also estopped from challenging the validity of the earlier order dated 25th May, 1973, for non-compliance of which the defence was struck out. The contention, therefore, must be repelled.
7. It was next argued on behalf of the appellant that the order of this Court passed in the aforesaid civil revision was not exhibited in the courts below and in any view of the matter it is not relevant under any of the Sections 40 to 44 of the Evidence Act. The argument is devoid of merit. The fact that a civil revision application was filed against the order striking out the defence was not challenged in any of the two courts below and is not challenged even now. It was taken notice of by both the courts below and it cannot now be ignored. The contention is rejected.
8. Mr. K. D. Chatterji submitted that the defendant had adduced evidence both oral and documentary on the points involved in the suit and hence there was no prejudice to the defendant-appellant in spite of striking out of his defence. In the view which I have taken on the first point it is not necessary to deal with the point of prejudice to the defendant on account of striking out of his defence.
9. For the reasons given above I hold that there is no merit in this second appeal. It is, accordingly, dismissed. No costs.