DARACHAND HARAKCHAND OSWAL Vs. SURESH WAMAN KARMARKAR

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the judgment and order passed by the IIIrd Additional District Judge, Pune, dated 31st January, 1989 in Civil Appeal No. 940 of 1986. The premises in question comprises of single room admeasuring 10 x 12 ft bearing C. T. S. No. 350/1-8 situated at Somwar Peth, Pune. The petitioners instituted a suit for possession of the suit premises on the ground of default, tenant having secured alternate accommodation of residence and unlawful subletting, being Civil Suit No. 797 of 1984. That suit was decreed by the trial Court on 28-4-1986 only on the ground of respondents-tenants having secured alternative residential accommodation within the meaning of section 13 (1) (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act ). The respondents carried the matter in appeal being Civil Appeal No. 940 of 1986. The Appellate Court however has reversed the decree for possession and instead dismissed the suit. It is not in dispute that petitioners did not challenge the finding with regard to the other two grounds. In so far as the ground for possession under section 13 (1) (1) is concerned, the Appellate Court has adverted to the fact that the petitioners had filed earlier suit being Civil Suit No. 2214 of 1978 on the self same ground on the allegation that the respondents had secured alternative suitable residence at Kasba Peth, Pune but that suit was dismissed for default and which order attained finality on rejection of the application for restoration filed by the petitioners. The Appellate Court in the circumstances found that even in the present suit the ground under section 13 (1) (l) was founded on acquisition of the same premises by the respondents at Kasba Peth. The Appellate Court, therefore, held that since the subsequent suit was founded on same cause of action it was barred in view of provisions of Order 9, Rule 9 of the Civil Procedure Code. Accordingly, the appeal preferred by the respondents was allowed and the suit filed by the petitioners was dismissed in its entirety. It is this decision which is subject matter of challenge in the present writ petition.

(2.) THE sole question that arises for consideration is: whether the second suit filed by the petitioners for possession on the ground of tenant having acquired alternative residential premises at Kasba Peth, was barred? According to the petitioners, such a suit was not barred because the cause of action was a continuing one. It is contended that legislative intent of enacting section 13 (1) (l) of the Act should be kept in mind while deciding this issue. It is, therefore, contended that, although the earlier suit was dismissed for default and which order has become final, that by itself, will not preclude filing of a subsequent suit founded on the same cause of action when it is possible to take the view that the cause of action was a continuing one. On the other hand, the learned Counsel for the respondents contends that such a course was not open and no fault can be found with the ultimate conclusion reached by the Appellate Court in allowing the appeal and in turn dismissing the suit preferred by the petitioners.

(3.) IT is not in dispute that even in the previous suit the petitioners had alleged that the tenant has secured alternative residential premises at Kasba Peth, Pune and that suit was dismissed for default and which order has become final. Even in the present suit the ground under section 13 (1) (l) is founded on acquisition of self same premises at Kasba Peth, Pune by the tenant. Accordingly, the present suit is founded on the same cause of action. It is in this backdrop the Appellate Court has held that the suit is barred by the provisions under Order 9, Rule 9 of the Civil Procedure Code. To my mind, the Appellate Court is right in dismissing the present suit being barred by the provisions of Order 9, Rule 9 of C. P. C. There is no substance in the plea that in view of the legislative intent in enacting the provision such as section 13 (1) (l) of the Act, the cause of action being continuing, would enable the plaintiff-landlord to institute another suit in succession on the same allegations even when his earlier suit is dismissed for default. This argument clearly overlooks that if such a plea was to be accepted then that logic would also apply to a situation where the landlord had unsuccessfully invoked the ground under section 13 (1) (l) in the earlier suit on the allegation of acquisition of a premises by the tenant and that issue were to be decided against the landlord on merits even then the landlord would file subsequent suit on the same allegations, principles of res judicata notwithstanding. Then there would be no finality to the adjudication of that ground. This cannot be countenanced. On the other hand, the provision such as Order 9, Rule 9 of C. P. C. would plainly preclude the plaintiff from filing fresh suit in respect of the same cause of action, which presupposes that the Court cannot entertain the subsequent suit in respect of the same cause of action. Understood thus, it is not possible to accept the submission made on behalf of the petitioners so as to permit them to extricate from the rigours of mandatory provision under Order 9, Rule 9 of C. P. C. Accordingly, no fault can be found with the conclusion reached by the Appellate Court that the present suit for possession on the ground under section 13 (1) (1) of the Act was barred by the provisions of Order 9, Rule 9 of C. P. C. being founded on the same cause of action.