RAMCHANDRA SHESHGIRI KAMATH Vs. JANARDAN VISHWANATH HEGDE

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from the judgment of the City Civil Court, Bombay dismissing his suit on the preliminary issue that it is barred by res judicata by reason of a previous decision between him and the defendant.

(2.) THE plaintiff used to run a tailoring shop at Tribhuvan Road, Girgaum, Bombay. The shop consisted of two rooms and was run by the plaintiff in the name of Kamath Brothers. The plaintiff was a tenant in respect of the two rooms but by an agreement dated the 1st of November 1965, he gave to the defendant the right to conduct the shop for one year. The defendant obtained possession of one of the two rooms under this agreement and at the end of the year, he exercised the option available to him under the agreement for extension of the period mentioned therein. Under the terms of the agreement, the plaintiff was entitled to recover possession of the shop from the defendant if he failed to pay the monthly royalty for a period of three months. The defendant appears to have fallen in arrears for over three months and thereupon, the plaintiff terminated agreement and filed an application under Section 41 of the Presidency Small Cause Courts Act, 1882 (Ejectment Application No. 8/177 E of 1958) for possession of the shop premises from the defendant. The plaintiff alleged in that application that the defendant was put in possession of the shop as a licensee and that the licence having been withdrawn he was liable to hand over possession. The defendant contended in that proceeding that he was in possession not as a licensee of the plaintiff but as his sub-tenant and he was therefore entitled to the protection of the Rent Act. The Small Cause Court, Bombay by its order dated the 14th of March 1960 dismissed the plaintiff's application for possession on the ground that the defendant was a sub-tenant and not a licensee of the plaintiff.

(3.) ON the 28th of April 1960, the plaintiff brought the present suit against the defendant (Suit No. 2364 of 1960) in the City Civil Court, Bombay for possession of the shop premises from the defendant alleging that the defendant was his licensee and that the licence was duly determined. The defendant contended by his written statement that he was in possession of the premises as a sub-tenant of the plaintiff and therefore, the plaintiff had no right to recover possession from him, save under the Bombay Rent Act On the 28th of November 1966, the defendant amended his written statement with the leave of the Court and he raised an additional contention that the suit was barred by res judicata or on principles analogous to res judicata, by reason of decision of the Court of Small Causes, Bombay in Ejectment Application No. 8/177 E of 1958.