CHHABUTAI PRABHAKAR INGOLE Vs. BAKULABAI JAGANNATH INGOLE

JUDGEMENT

(1.) By this appeal the appellants/original plaintiffs have challenged the judgment and decree dated 16-06-1993, delivered by the 2nd Additional District Judge, yavatmal in Regular Civil Appeal No. 75/1991, and also the judgment and decree dated 30-03-1991 delivered by the 2nd Joint Civil Judge, junior Division, Yavatmal in Regular Civil Suit no. 35/1985. The Courts below have concurrently held that the suit for ejectment and possession of present respondents filed by the appellant was barred in view of the provisions of Order 22, Rule 9 of C. P. C.

(2.) The admitted position is that the appellants/plaintiffs are the landlords and defendants are tenants. The predecessor in title of the present appellants obtained permission from Rent Controller, and thereafter served a notice under section 106 of the Transfer of property Act, dated 11-02-1974 terminating the tenancy of respondents. He thereafter filed regular Civil Suit No. 190/1974 on 20-09-1974 for ejectment, recovery of rent etc. The order of Rent Controller granting permission, in the meanwhile reached this court in Writ Petition no. 1885/1975 and proceedings in Regular civil Suit No. 190/1974 were stayed by this court. During the pendency of the said suit, rajaram the original landlord expired on 25-07-1977. An application was presented in the regular Civil Suit No. 190/1974 for bringing on record the legal heirs of the deceased rajaram, but as the said application was not traceable on record, the trial court ultimately held that the suit no. 190/1974 had bated. The legal heirs of Rajaram hereafter, by way of abundant precaution issued another notice dated 07-03-1984 and claimed possession and damages. After serving that notice the legal heirs i. e. the present appellants filed Regular civil Suit No. 35/1985. The said Civil Suit was opposed by the original defendant no. 2 i. e. the present respondent by filing Written Statement. The ground raised was that, permission granted by the Rent Controller, terminating tenancy of the defendant stood exhausted after issuing notice dated 11-02-1974 by the deceased landlord, and as the Regular Civil Suit No. 190/ 1974 had abated, there was no question of filing second suit for the same cause of action. The provisions of Order 22, Rule 9 were pressed into service.

(3.) The trial court as also the appellate Court found that the subsequent suit i. e. Suit No. 35/1985 was based upon the same cause of action and therefore, the suit was not tenable in view of the bar under Order 22, Rule 9, C. P. C. It was also held that because of the dismissal of Regular Civil Suit No. 190/1974, the permission granted by the Rent Controller also stood exhausted, and fresh notice could not have been given without obtaining fresh permission from the Rent Controller. The appellate Court has maintained this judgment.