RIKABDAS A OSWAL Vs. DEEPAK JEWELLERS

JUDGEMENT

(1.) Leave granted.

(2.) The short question that arises for consideration in this appeal is whether the District Judge, who was the appellate authority under the Bombay Rent Act, could have entertained an application for review of the earlier order passed in appeal, and allowed the same and come to a conclusion that the subsequent proceedings filed by the landlord for eviction of the tenant are barred under Order 2 Rule 2 of the Code of Civil Procedure.

(3.) The aforesaid question arises under the following circumstances. The landlord appellant filed a suit for eviction of the tenant essentially on the ground of bona fide need and sub-letting. It is, no doubt, true that in the plaint he had made some averments that the tenant had also defaulted in payment of rent but he had simultaneously further averred that the landlord is not making any claim for arrears of rent. That suit ultimately was dismissed. During the pendency of the said suit, however, the landlord had alleged to have served notice on the tenant for arrears of rent. Against the earlier dismissal of the suit while the landlord's appeal was pending before the appellate authority, he filed the present suit which was registered as RCS No. 405 of 1984 for eviction of the tenant on the ground of default making all necessary averments that the due notice, as required under Section 12 (2 of the Bombay Rent Act, has been served in the meantime. The learned trial Judge disposed of the present proceedings and granted an order of eviction of the tenant. In the written statement filed by the tenant, no plea had been taken that the subsequent suit is barred by the provisions of Order 2 Rule 2 Civil Procedure Code.