JUDGMENT
Usha Mehra, J.
(1) Determination of a lease in accordance with the Transfer of Property Act (hereinafter called the T.P. Act) is a mere surplus age and unnecessary in order ro seek eviction of a tenant under the Rent ControlAct.” But an interesting question has arisen as to whether in an eviction petition a tenant would be entitled to a notice in terms of the agreement of tenancy as a double protection, even though no notice under Section 106 of the T.P. Act is required.
(2) In order to determine the same, the relevant facts are that the respondent No. 1 herein filed a petition for eviction being a widow under Section 14-D read with Section 25-D of the Delhi Rent Control Act (hereinafter called as the ‘D.R.C. Act’) against the present petitioners. respondent No. 2 was also imp leaded as respondent in the said eviction petition. The petitioner/tenants filed the leave to defend application seeking leave on various grounds. One of the ground was that a notice under Section 106 of the Transfer of Property Act had not been served before filing of the eviction petition and that the landlady had agreed to give a notice of termination for one month before filing the eviction petition. In the absence of the same THE petition was not maintainable. Other grounds taken were that the premises in question was meant for commercial purposes and not for residential and that she does not require the premises for bona fide use as she was not the owner of the premises. She is only a co-owner. The premises were let out for commercial purposes. That the earlier petition filed under Section 14(1)(j) and(k) of the Drc Act was dismissed for want of notice and that judgment is a res judicata between the parties. That the petitioner has also filed an eviction petition under Sections 14(1)(e)(g)(h)(j)& (k) of the Act. During the tendency of the said petition, the present petition is barred. The Additional Rent Controller dismissed the leave to defend application finding that no friable issue has been raised. It is against the impugned order that the present revision has been filed.
(3) Mr. Mukul Rohtagi appearing for the petitioner conceded at the bar that the petitioner was not pressing the service of a notice under Section 106 of the T.P. Act. His argument is that under the tenancy agreement the respondent was to serve a month’s notice. The fact that one month notice was required to be served before filing eviction petition had been admitted by the landlady when she appeared in the witness box in an earlier eviction petition. As per her own admission the agreement required onemonth’s notice to be given at the time of terminating the tenancy. In the absence of the notice her earlier petition filed under Section 14(1)(k) & (j) of the D.R.C. Act was dismissed. Appeal against that order was also dismissed by Shri V.S. Aggarwal. Rent Control Tribunal vide order dated 24/05/1983. The second appeal to the High Court was also dismissed and so was the Special Leave Petition. That judgment will prevail as res judicata between the parties. Even now one month’s notice has not been served before instituting this petition. Hence the Trial Court ought to have allowed the leave to defend application because it raises friable issue as to whether previous judgment inter se the parties regarding non issuance of one month’s notice would operate as res judicata. He then contended that even though the Supreme Court has set at rest the controversy that notice under the T.P. Act is unnecessary in a petition filed under the RentControl Act, yet protection given to a tenant under the rent agreement willprevail, it being a double protection to the tenant. The notice required to be served per the rent agreement, has not been effected because of Supreme Court holding that notice under Section 106 of the T.P. Act is not necessary in rent matters. Notice as per agreement is an added protection given to the tenant by the law. It is so held by the Supreme Court in the case of Manujendra Dutt v. Purnedu Prosad Roy Chowdhury and Ors., . In the absence of notice as per the term of rent deed and there being a judgment operating between the parties holding that one month’s notice is necessary, the Court below erroneously dismissed petitioner’s application seeking leave to defend.
(4) Mr. Ishwar Sahai Counsel for respondent contended that the present eviction petition, was based on a new cause of action which became available to Smt. Sita Bijai Singh on the basis of the amendment of the D.R.C. Act and she filed the petition within the limitation prescribed under the statute. It is an admitted case that prior to filing the present petition on the basis of the D.R.C. (Amendment) Act, 1988 which introduced this new ground of eviction covered by Section 14-D, the respondent had filed an eviction petition under Section 14(1)(k) and (j) which was dismissed for want of notice and second petition under Section 14(1)(e)(h)(j) & (k) is still pending. He, therefore, argued that no notice is required to be served under Section 106 of the T.P. Act or as per the term of the agreement. Eventhough on the previous petition filed by the respondent under Section 14(1)(k)& (j), the Court held that notice was necessary but that judgment would not operate as res judicata in the present case. Present petition is based on afresh cause of action, hence the earlier decision will not operate as resjudicata. His further limb of the argument is that if the Court in the earlier ease took a wrong view of the law that judgment may be good so far as that case was concerned, but that wrong view of law will not operate as resjudicata between the parties in a subsequent case. In this regard he placed reliance on the decision of our own High Court in the case of Jawahar Singhv. Jai Gopal, reported in Rcr, 1972 Vol. 4, page 242, where it was held : “IT is true that the correctness or otherwise of a decision is not relevant to determine whether it is res judicata or not. But it cannot be said that all decisions on questions of law are always resjudicata. The first exception to the rule that a decision on a question of law is res judicata is this. If a question of law is wrongly decided then it is res judicata only in the casein which the decision is given. But in a subsequent case arising out of different cause ofaction, it is not resjudicata.A distinction is, therefore, drawn between a matter in issue between at he parties and an abstract question of law which maybe relevant for the decision of the matter in issue but it is not in itself matter in issue. Whenever an abstract question of law is separate from a matter in issue between the parties, a decision thereon will not act as res judicata.”
(5) He further contended that as an abundant precaution the notice bad in fact, been served on the petitioner and it is so pleaded in para 18(b)of the petition which reads as under : "18(B)Whether notice : No notice is required. How-required has been given, ever, notice dt. 16.2.73 is duly and if so, particulars served on the respondent/thereof (copies of such tenant and also notice dt.notice and tenant's 6 2.84 copies enclosed."reply, if any should befurnished) (6) In the leave to defend application the tenant never denied the factum of service of notice dated 16.2.83 or of 6.2.84. He has drawn my attention to para 11 of the leave to defend application, which reads asunder: "11.That no notice of termination of tenancy as required under Section 106 of the Transfer of Property Act was served before filing this petition for eviction as in this case, the petitioner agreed to give the notice of termination of tenancy for one month before filing the petition for eviction. No copy of the alleged notice dated 16.2.1973 has been supplied to the respondents No. 1 &2Along with the copy of the petition." (7) The only objection which the petitioner took, that copy of the notice dated 16.2.73 was not supplied. There is no denial of the receipt of notice dated 16.2.73 of the service of notice or of 6.2.84. Therefore, the objection of the petitioner that notice as per the terms of tenancy agreement wasnot served is belied from his own admission made in para 11 of the leave to defend application. As regards notice under Section 106 of theT.P.Actthat as already conceded by the Counsel for the petitioner, no notice under Section 106 of the T. P. Act is necessary in an eviction petition filed under the D.R.C. Act. Therefore, I am in confirmity with the view expressed by the Court below that no friable issue arises on this score.
(8) As regards double protection that question arose in the case of Manujendra Dutt v. P.P. Roy Chowdhury & Ors., . It was a case under the “Thika Tenancy Act”. In that case under Clause 7 of the lease the tenant was to be served with six months notice before asking him to hand over vacant possession of the land in the absence of any renewal of the lease or on determination of the same. Clause 7 in that agreement required that on determination of the lease by afflux of time or on determination the lessee was to handover vacant possession of the land in its original position after removing the superstructures, constructed thereon. If the superstructures were not removed the lessee had to sell them to Lesser at a valuation to be fixed by Lesser’s engineer.The Supreme Court while interpreting Clause 7, posed a question as to “What would happen in a case where the tenant is not informed and does not know whether his lease which is for a fixed term would be extended by a renewal or otherwise ?” While answering this question the Supreme Court observed that when the lease is not renewed or extended then of course the lessee has to vacate on the expiry of the term. But where the lease provides for an option of the tenant’s exercise the option it is but fair and equitable that he must know in good time whether the Lesser agrees to renewal or not. It was to provide against tenancy where the lessee would have to equate without affair opportunity to dispose of the structures he bad put up that the proviso was added in Clause 7 of the lease and that proviso must be effected to. Sixmonths’ notice ending with the expiry of the term was made in order to enable the lessee to remove the structures, if need be, if the lease was not renewed or extended. The object behind was to protect the interest of the tenant, because he had in the meantime constructed the superstructure. But that is not the case in hand. Therefore, the theory of double protection does not apply to the facts of this case.
(9) Looking from another angle, once the petitioner admits that the respondent has also filed a petition under Section 14(1)(e)(g)(h)(j) &(k)on15.7.88, to my mind. that petition itself will amount to a notice. Per terms of the agreement because this notice is not to be a notice under Section 106 of the T.P. Act. Hence, the procedure required to be followed for a notice under Section 106 of the T.P. Act need not be complied with. Therefore,also I find no merit in the contention of the petitioner.
(10) As regards the question of house being used for commercial purposes this Court in the case of B.M. Chanana v. U.O.I. & Ors., reportedin , has “held that if the premises is residential in nature and the Rent Controller comes to the conclusion that it is required by the landlord for his residence then the landlord can regain possession even if the said house was leased out for a composite or for a commercial purpose or for commercial-cum-residential purposes.” The object of Section 14D of the D.R.C. (Amendment) Act, 1988 is to assist the vulnerable and needy section of the society to recover possession, without the usual trial and turbulence. This is an admitted fact on record that the landlady is about 77 years of age. She is residing in a tenanted premises and requires this house for heruse. The Additional Rent Controller rightly came to the conclusion that she requires it bona fiddly for her residence because presently she is residing in a tenanted premises. She is tenant of barsati floor of this house and being old cannot climb 50 steps every day. She has to keep a Nurse and servant to look after her, and therefore, she requires this premises bona fiddly. This is being a single dwelling unit cannot be divided and, therefore, I am in confirmity with the view expressed by the Trial Court that the petitioners have not made out any friable issue for granting the leave. No merits in THE petition. Dismissed.