MOTIRAM RAOJI GUJAR Vs. SIDRAM TIPPANNA KAVACHALE

JUDGEMENT

(1.) THIS petition raises a neat question of law arising out of an order of the Bombay Revenue Tribunal. The petitioner before us is the landlord and it appears that in 1951 he applied for possession of the land from the tenant, who is respondent No. 1, on the ground of default in payment of rent for three years 1948 -49 to 1950 -51. At that time the view prevalent in the Tenancy Courts was -that a notice to terminate the tenancy was necessary in such cases and acting on that view the Mamlatdar dismissed the application of the landlord for failure to give such notice. The landlord appealed against that dismissal, but he withdrew the appeal. Thereafter he gave a notice to the tenant terminating the tenancy on August 16, 1951, and again applied to the Mamlatdar for possession on the ground of default in payment of rent for the same three years as on the prior occasion. One of the contentions raised on behalf of the tenant was that the second petition was barred by the principle of res judicata and the Tribunal held that it was so barred. It is against this order of the Tribunal that this petition has been filed; and the question for determination is whether the Tribunal erred in law in holding that the matter was res judicata.

(2.) NOW , it is admitted that the former petition was dismissed on the sole ground that notice terminating the tenancy had not been given. The new petition is presented after such notice was given, in other words the defect from which the former petition suffered no longer is applicable to the new petition at all, and under the circumstances it is clear that if Section 11 of the Civil Procedure Code or principle analogous thereto applied, there could be no question of res -judicata, because what was actually determined in the former proceedings was that there could be no order of possession without notice of termination of tenancy -and nobody is asking for an order of possession in the new proceedings without notice of termination of tenancy.

(3.) NOW , in so far as the landlord applied for recovery of possession, his application was to be treated as a plaint filed under the Mamlatdars' Courts Act by virtue of Section 72 of the Bombay Tenancy and Agricultural Lands Act; and to this plaint the provisions of Section 26(6) have undoubtedly to be applied. It remains to be considered whether by applying those provisions the second application is barred.