MANUBHAI DEVKARAN PATEL Vs. ALAMSAI RAJABSAI SAI

JUDGEMENT

(1.) Present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the petitioners herein - original defendants to quash and set aside the impugned judgment and order passed by the learned Appellate Court - learned 2nd Joint District Judge, Banaskantha, at Deesa in Regular Civil Appeal No.52 of 1983 by which the learned Appellate Court has allowed the said Appeal preferred by the respondents herein -original plaintiffs and has quashed and set aside the judgment and decree dated 31.03.1983 passed by the learned Civil Judge (Junior Division), Dhanera in Regular Civil Suit No.44 of 1979 by which the learned trial Court dismissed the said suit which was for eviction decree and consequently decreed the suit and passed the eviction decree on the ground of subletting.

(2.) That the respondent herein - original plaintiff instituted Regular Civil Suit No.44 of 1979 against the petitioners herein - original defendants for recovery of possession of the suit premises on the grounds of (1) subletting, (2) erecting permanent construction, (3) change of user, (4) arrears of rent, (5) bonafide requirement of the landlord and (6) for mesne profit. That it was the case on behalf of the plaintiffs that the original defendant Nos.1 and 2 have subletted the suit premises to defendant No.3.

(3.) Shri J.M. Patel, learned Advocate appearing on behalf of the petitioners herein - original defendants - tenants has vehemently submitted that the learned Appellate Court has materially erred in allowing the Appeal by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and passing the decree on the ground of subletting. It is submitted that the learned Appellate Court has materially erred in holding that the issue as to whether the suit premises was let to the partnership firm of which defendant No.3 was the partner cannot be said to be barred by res judicata despite the decision in Civil Suit No.28 of 1975. It is submitted that in the earlier suit being Civil Suit No.28 of 1975, it has been specifically held that the suit property was let to the partnership firm Ambica Machinery Works of which the original defendant No.3 was the partner and even the said finding has been confirmed by the learned Appellate Court, the said issue in the present case is to be held to be barred by res judicata.