Sushil Kumar Bhatia (Advocate) 30 December 2008

Resjudicata

A new landlord filed a suit for recovery of rent and ejectment in name of tenants wife after service of notice to quit upon wife and court issued summons to tenant's wife where tenant filed objection and application for to add necessary party Under or.1 rule 10 of c.p.ccourt after considering the facts and evidence of tenant allow application and direct plaintiff to array party in the suit and after plaintiff ammended the plaint add tenant defendant no.2 not deleted wife the tenant filed his written statement and thereafter suit was dissmissed in default of plaintiff and afterward the landlord had given fresh notice to orginal tenant and not withdraw previous notice and filed fresh suit against only orginal tenant" whether second suit is barred by principles of Rs-Judicata ?" ,if yes, please give me some citation in this regard.

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8 Replies

Rajeev S Vadrali (n/a) 30 December 2008

res judicata will not applicable to this case, because his previous suit was dismissed for default so every things is closed. Res judciata is only applicable between the same persons for the same relief, but your case is dissmissed for defualt but not on merit. Sec 11 is clear

Sushil Kumar Bhatia (Advocate) 30 December 2008

What is the effect of first notice which is not withdrawn by plaintiff on the other hand in ammendement the plaintiff added that "there is no relationship of tenant and landlord between plaintiff and defendant no.2(admission)". he is arraying the deft.no.2 as per order of the court [added in his previous instituted suit].whether landlord can file further suit on same cause of action he is bound by its previous (admission)

J.L.Naagar (n/a) 31 December 2008

The principle of res judicata is not applicable on two counts, firstly, the ejectment petition can be filed any number of times as the cause of action aoises every month. On this the cause of action arises afresh with the landlord.

secondly, the first Ejectment application/Petiton was not decided on merits simply it was filed and was dismissed in default though it was well within the legal rights of the landlord to file a fresh petition but he could not exercised the right and filed another which can be tried in a normal manner afresh.

the principle of res judicata is thus not appication the connotation and provision of Section 11 of the Code of Civil Procedure, 1908, can not be invoked in such case.

J.L. Naagar, Advocate,

Jalandhar City.

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA) 31 December 2008

I do agree with Mr. J.L.Naagar.

Sushil Kumar Bhatia (Advocate) 31 December 2008

Dear,

My second submission is In first suit the landlord denied the relationship of landlord and tenant with orginal tenant and the second suit filed against only original tenant Whether landlord can file suit against orginal tenant to whom he denied relationship in first suit.

Ajay kumar singh (Advocate) 31 December 2008

Res Judicata means-matter decided or adjudicated.Where a suit is dismissed for default,there is no adjudication by court. Hence, in your case there is no application of res judicata.

PALNITKAR V.V. (Lawyer) 02 January 2009

Since a suit against dead person is a nullity, neither principle of Res judicata nor Sec. 10 of CPC would come in picture even if the suit remains pending.