JUDGMENT
V.S. Deshpande, J.
(1) The petitioners are tenants of premies situated in a slum area belonging to the respondents landlords. An order for eviction against the tenants was obtained by the landlords on 29th August, 1967. This order is not executable unless the permission of the Competent Authority for its execution is obtained under section 19(1)(b) of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter called the Act). In granting or refusing such permission, the Competent Authority has to take into account under section 19(4)(a) of the Act whether alternative accommodation within the means of the tenant would be available to him if he were evicted.
(2) In the first application to obtain permission under section 19(1)(b) the landlords, inter alia, stated that the tenant Sat Pal (appellant No. 1) was doing the work of a contract along with one Shri Vidya Parkash and was earning Rs. 1800.00 per month. But the defense of Sat Pal was that he was only an employee of M/s. Bharat Agencies on Rs. 125.00 per month. This defense was believed by the Competent Authority Shri D. K. Podder who found that the total income of all the persons living in the premises along with the tenants was Rs. 722.00 while the number of persons to be maintained on that income was 19. The tenants were not, therefore, in a position to find alternative accommodation within their means if they were evicted. He, therefore, dismissed the application of the landlords on 5th September, 1970 as per Annexure A. In the appeal against this order under section 30 of the Act it was urged before the Financial Commissioner that in addition to the basic salary, the tenant Sat Pal must be receiving some allowances and his income was, therefore, held by the appellate authority to be Rs. 200.00per month. The appellate authority was of the view that the total earnings of the people living in the premises were Rs. 1000.00. The tenants could not, therefore, be held to be able to find alternative accommodation within their means as such alternative accommodation would require payment of rent of Rs, 250.00 or so which would be 25 per cent of their income. The appeal was, therefore, dismissed on 21st October, 1970.
(3) The landlords filed a second application for permission under section 19(l)(b) on 22nd December, 1970. The tenants contended that the second application was barred by res judicata in view of the dismissal of the first one. The landlords replied that the bar of res judicata did not apply in view of changed circumstances. The Competent Authority Shri P.R. Vershneya appointed a commissioner for local investigation who reported that the premises of Bharat Agencies, the alleged employers of Sat Pal, had been closed down for a long time and that one Chanan Shah told him that Sat Pal was carrying business in partnership with Chanan Shah. Sat Pal filed an affidavit that he was not a partner of Chanan Shah but was serving Bharat Valve Manufacturing Company at a new address. But one Jagmohan Mehra, partner of Messrs. Ram Nath Mehra & Sons, filed an affidavit that he gave earth excavation and cartage work to Chanan Shah on the condition that the tenant Sat Pal also undertook the responsibility of proper fulfillment of the work allotted to Chanan Shah. Shri Varshneya, therefore, inferred that Sat Pal was carrying on business in partnership with Chanan Shah and had tried to conceal his income from the partnership. He, therefore, discarded his defense and believed the allegations of the landlords and held that the tenant Sat Pal was earning more than Rs. 1000.00 from his contract business. The total income of the occupants of the premises thus came to more than Rs. 1900.00. The tenants were, therefore, in a position to find alternative accommodation within their means if evicted. He, therefore, granted the permission to the landlords to execute the order for eviction on 11th Jure, 1971. This order is impugned in the present writ petition on various grounds. But Shri N.D. Bali, learned counsel of the petitioners, concentrated on the following two grounds of attack, namely:- (1)The dismissal of the first application barred the second one by resjudicata, and (2) The impugned order was based on no evidence. The respondents (landlords) defended the writ petition, inter alia, on the ground that the conduct of the tenant Sat Pal in concealing his income was such that the discretionary relief under Article 226 should be denied to him. The points for decision, therefore, are :- (1) Whether the second application resulting in the impugned order was barred by resjudicata ? (2) Whether the impugned order was void as being not based on any evidence ? and (3) Whether the conduct of the petitioner is such as to disentitle him to any relief in this petition ? Points 1 and 2 :- It is well established that the general principle of resjudicata, though not the express terms of section 11 Civil Procedure Code, applies to quasi-judicial decisions of tribunals other than civil courts. Madan Lal v. Competent Authority, Yoginder Pal v. Competent Authority and Ladli Prasad v. The Financial Commissioner.
The effect of res judicata is, however, confined to the matter which was “directly and substantially in issue in the former litigation inter panes. What was directly and substantially in issue in the first application made by the landlords ? The question has to be decided on the pleadings, the issues and the findings given in that case. Isher Singh v. Sarwan Singh. The allegation of the landlords was that the tenant Sat Pal was a contractor but Sat Pal’s defense was that he was a wage earner only. His defense was accepted by the Competent Authority. The effect of res judicata in that litigation was therefore, confined to the fact that the tenant Sat Pal was only a wage earner and not a contractor and his income was Rs. 200.00 per month only as ultimately held by the Financial Commissnoner in the appeal. On the contrary, the matter directly and substantially in issue in the second application was that the plea of the landlords that the tenant Sal Pal was a contractor was upheld by the Competent Authority In- spite of the denial by Sat Pal on two grounds, namely :- (1)That the commissioner for local investigation had found that the business premises of the alleged employers of Sat Pal had been closed for a long time and that one Chanan Shah had told him that Sat Pal was apartner, and (2) That affidavit of Jagmohan Mehra that he had given the contract work to Chanan Shah only because Sat Pal undertook the responsibility to do the same.
Shri N. D. Bali referred to the Supreme Court decision in Bareilly Electricity Supply Co. Ltd. v. Workmen, paragraph 14, that the information obtained by the commission for local investigation was not evidence which could be accepted by the Competent Authority. According to section 19(3) of the Act, the application of the landlord has to be decided by the Competent Authority “after making such enquiry into the circumstances of the case as it thinks fit”. The manner of this enquiry is deliberately left flexible by the legislature. It is of course subject to the basic principle of natural justice that both the parites must be given the opportunity of rebutting whatever material is placed before the Competent Authority against either of the parlies. The evidence obtainned by the commissioner for local investigation may not, therefore, be admissible as such against the tenant Sat Pal since he had perhaps had no opportunity of rebutting it when the commissioner obtained it. The report of the commissioner may not also be regarded as evidence as such. The fact. however, remains that the tenant Sat Pal was made aware of the report of the commissioner in which reference was made to the information given by Chanan Shah to the commissioner about the alleged partnership between Chanan Shah and Sat Pal. This led Sat Pal to file an affidavit that the partnership was between one Chanan Shah and one Karnail Singh. Sat Pal still maintained that he was not a partner of this firm at all. Karnail Singh also filed an affidavit that he was a partner of Chanan Shah. The Competent Authority, however, did not believe the affidavit of Karnail Singh inasmuch as the deed of partnership was not tiled to show that he was a partner of Chanan Shah. On the other hand, it gave importance to the statement on affidavit of Jagmohan Mehra that he had given the work to Chanan Shah because Sat Pal undertook to be responsible for it. The Competent Authority, therefore, inferred that Sat Pal was a partner of Chanan Shah. Another reason for disbelieving Sat Pal was that Sat Pal had originally stated that he was an employee of Bharat Agencies but when the commissioner found that the Bharat Agencies had closed down long time back, Sat Pal came up with a new case that he was an employee of Bharat Valve Manufacturing Company which was working at a new address. The affidavit filed by Sudershan Kumari was disbelieved by the Competent Authority as the signatures on the affidavit and the salary certificate were different from each other. The Competent Authority was appreciating evidence. It had some evidence before it which it could believe. It cannot be held, therefore, that its decision was based on no evidence. The decision on the second application was that the contract of earth work was given by Jagmohan Mehra to Chanan Shah and Sat Pal in June 1970. The argument of the landlords in the first application was over in June 1970. The landlords had no knowledge of the Partnership between Sat Pal and Chanan Shah. They could not, therefore, plead about that partnership in the first application. The income of Sat Pal was a fact within his special knowledge and the burden of proof was on him to show what his income was. The landlords were thus not barred by constructive res judicata from raising the plea of Sat Pal’s partnership with Chanan Shah in the second application as they became aware of it only after the report of the local commissioner which was submitted in May 1971. Nor was the Competent Authority barred by res judicata in giving the finding that from June 1970 Sat Pal was in partnership with Chanan Shah. Shri Bali argued that the decision of the first application was given on 5th September. 1970 and that decision was, therefore. res judicata regarding every-thing which happened prior to 5th September 1970. I am unable to agree. The time at which an event lakes place is not a necessary ingredient of the plea of res judicata. Such time is relevant only to show that an event which has taken place prior to the former litigation would be within the knowledge of the parlies to the former litigation. If the parlies do not plead about such an event, then they would be barred by constructive res judiciala from raising the plea in a subsequent litigation. But when the landlords in the present case did not know at all about the partnership between Sat Pal and Chanan Shah, they could not be expected to raise the plea about it in the first application. The nature of the issue to be decided be the Competent Authority under section 19(4)(a) is whether at the time the application is made by the landlord and is defended by the tenant, the income of the tenant is such as to enable him to find alternative accommodation. The income of a person is not something which mast remain the same at all times. This is more so in case of a person like Sat Pal who was not a mere wage earner but who could do business. Business income is always liable to change according to the fortunes of the business. Therefore, the finding of the Competent Authority in the first aoplication that Sat Pal was a wage earner with a fixed income cannot be binding on the parties for all the time to come particularly if Sat Pal later ceased to be a wage earner and started doing business. It was open to the landlords to show that while the matter directly and substantially in issue in the former application was that the wages of Sat Pal were only Rs. 200.00 per month, the matter directly and substantially in issue in the second application was different, namely, that Sat Pal was getting much higher income from business. I am supported in this view by a Division Bench decision of this Court in Shri Jai Narain v. The Assistant Commissioner and another” (C.M. No. 86 of 1968 decided on 7th April, 1969.) Further, the decision in the first application is to be construed in the light of the pleadings and the issues arising in that litigation. The pleadings, issues and evidence were all over and even the argument of the landlords was over before Sat Pal entered into partnership with Chanan Shah. The decision on the first application, therefore, related to the pleadings, issues and evidence which were over by June 1970 in the first application. It is only if an event happening during the course of a litigation after the pleadings, issues and evidence are over is brought to the notice of the Court and the decision of the Court on the subsequent event is obtained that the subsequent event would be a part of the res judicata in the former litigation. Otherwise the subsequent event would not be covered by the decision and it would be open to the parties to refer to the subsequent event in a subsequent litigation unless the bar of constructive res judicata prevents them from doing so. lam of the view, therefore, that the filing of the second application was not barred by res judicata and the impugned order was not void for want of evidence. Both the contentions of the petitioners tenants are. therefore, negatived. Point 3 :– In the present case cheques dated 26th October, 1970 3rd September, 1970 and 31st August, 1970 have been produced from the National and Grindley’s Bank Ltd, payable to Sat Pal Chanan Shah. These cheques were actually cashed by Sat Pal the tenant. He has now for first time given the explanation that another Sat Pal son of Ram Saran Das was the partner of Chanan Shah and it was on behalf of the partners that he cashed the cheques. This explanation was not given by Sat Pal before the Competent Authority who passed the impugned order. It is thus clearly an afterthought. These cheques are for substantial amounts such as Rs. 2450, Rs. 2300 and Rs. 2300.00. Chanan Shah has also filed an affidavit that a total sum of Rs. 27,000.00 was paid for the earth work by Ram Nath Mehra & Sons and was equally divided between him and Sat Pal. The conduct of Sat Pal was thus reprehensible. He has totally suppressed his partnership with Chanan Shah even though he had received substantial payments from Ram Nath Mehra &Sons. His explanation for receiving those sums is also unbelievable. It is obvious, therefore, that he has tried to hoodwink the Competent Authority by supperessing his income. In its writ jurisdiction, this Court would be unwilling to help such a person on the principle that a petitioner who comes to obtain a discretionary relief must come with clean hands (C.R. Abrol v. Administrator under the Slum Areas”, at 781 and Digambar Prashad v. S I. Dhani etc.
(3) The writ petition is, therefore, dismissed with costs.
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