BARKATALI ABDULRAHIM KASAMWALINI Vs. SOHINIBEN JETHALAL PARIKH

JUDGEMENT

(1.) This is a revision application by the original tenant whose application being Misc. Application No. 203 of 1976 for fixation of standard rent under sec. 11 of the Bombay Rent Act had come to be dismissed by the Additional Judge of the Court of Small Causes Baroda on the ground that the prayer sought for by the tenant was barred under the principles of res judicata. This tenants Civil Revision Application No. 26 of 1976 also came to be rejected by the 2nd Extra Assistant Judge Baroda on the ground of estoppel. It is these orders of the two authorities below that are sought to be impugned by this revision application.

(2.) A few facts are necessary to be stated in order to appreciate the various contentions and submissions raised and made in this case. The applicant-tenant had filed an application No. 836 of 1975 in the Court of the Civil Judge (J. D.) Baroda on 19-1-75 for fixation of standard rent. The landlord I am told at the Bar had before that served a notice on the tenant calling upon him to pay up arrears and so the tenant had filed that application No. 836 of 1975 in the Court of the Civil Judge (J. D.) which was the Court then competent to deal with these matters there being not established the Court of Small Causes then in the city of Baroda. The contractual rent was Rs. 500.00 per month and the tenant disputed the reasonableness of that amount as the monthly rate of rent. After filing of the said application the Court had passed an order for interim rate of rent and the Court had fixed the interim rent at the rate of Rs. 300.00. The Court had directed the tenant to pay up the arrears at the rate of Rs. 300.00 and had also directed the tenant to go on paying the rent at that rate pending the final decision of the application. On 15-3-76 the tenants advocate requested the Court that as his client was out of station some time should be given to him presumably to deposit the amount. Mr. Shelat the learned advocate appearing for the applicant before me stated that by that time only three months rent had remained undeposited though he hastened to add that the fault did not lie with the tenant But lay with the clerk of the advocate engaged by him who though entrusted with the money had either failed or neglected to deposit the amount. The learned Judge then dismissed that application on 17-3-76 presumably under sec. 11(3) of the Rent Act on the ground that the tenant had failed to deposit the amount. The present applicant therea ter filed a Misc. Application No. 203 of 1976 before the learned Judge for restoration of the dismissed application No. 336 of 1975. Almost simultaneously he filed the Misc. Application No. 312 of 1976 as a fresh application for fixation of standard rent. It is an admitted position today that the said application for restoration of the earlier application is lying in the archives of the Court but the learned Judge had proceeded to decide this new application No. 312 of 1976 and ulti- mately dismissed the same on the ground that the earlier order dismissing the application under sec. 11(3) operated as a res judicata. Before the learned 2nd Extra Assistant Judge the tenant filed a revision application No. 26 of 1976 against the dismissal of his application No. 312 of 1976 and the learned Judge as said above upheld the order of the trial Court not on the ground of res judicata but on the ground of non-maintainabi- lity of the revision application and also on the ground of estoppel arising out of the dismissal of the earlier application for fixation of standard rent.

(3.) Mr. Shelat the learned advocate appearing for the applicant- tenant urged that the earlier application having been dismissed for default so to say that dismissal cannot operate as a bar. He firstly submitted that in order to operate as a bar of res judicata there must be a decision on merits. With respect to the alleged bar of estoppel he urged that the plea of estoppel resting on facts should have been raised speci- fically and for want of any such specific plea the learned Judge should not have entertained that plea. Lastly Mr. Shelat submitted that for want of any prohibition against the entertainment of a fresh application after the dismissal of the earlier application except on merits a fresh applica- tion and as a matter of fact a number of applications in succession would never be barred.