PRAGI GOWARDHAN WAGHELA Vs. OMPRAKASH SURESCHANDRA MOR

JUDGEMENT

(1.) THIS is a writ petition arising out of the proceedings under the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (for short, "the Rent Control Order").

(2.) BRIEFLY , the facts are that the respondent/landlord filed an application under clauses 13(1), (ii) and (v) seeking permission of the Rent Controller to give quit notice to the petitioner/tenant. However, he did not press this ground under clause 13(3)(v) before the Rent Controller. As regards the ground under clause 13(3)(i) it is clear from para 3 of the order of the learned Rent Controller that the petitioner/tenant had made the payment of arrears of rent on 2.2.1980 as per Exhibit NA-20 and, therefore, the ground under clause 13(3)(i) did not survive for consideration. The only ground with thus survived for consideration was under clause 13(3)(ii) of the Rent Control Order. As regards the ground under clause 13(3)(ii), the Rent Controller found that previously the respondent/landlord had filed an application under clause 13(3)(ii) of the Rent Control Order for the same defaults which were the subject matter of the instant application and in that previous case there was a compromise arrived at between the parties because of which the landlord did not prosecute the said case which was filed, vide order dated 18.12.1978 in the said case. After referring to the decision of the Supreme Court in the case of P. Dass Munni Reddy v. P. Appa Rao, 1976 RCR 58 (SC) : 1975 Mh. LJ 262, the learned Rent Controller held that the respondent/landlord had by the said compromise waived his right for getting the declaration that the petitioner/tenant was a habitual defaulter. He further held that it was open to landlord to claim such a declaration on the basis of the subsequent defaults but he could not move for the declaration on the basis of the same defaults which were the subject-matter of the previous case or which were prior to the date of the compromise. He, therefore, dismissed the application of the respondent/landlord under clause 13(3)(ii) of the Rent Control Order.

(3.) TURNING to the decision relied upon on behalf of the respondent, the facts in the case of Girdharimal v. D.C. Durg, cited (supra), would show that when in his deposition the tenant raised the question about the title of the landlord, the Rent Controller filed the case because the landlord did not want to prosecute the same. He, however, filed a second application on ground arrears of rent and also on the ground that it was required for his business. The High Court held that as the previous order was not passed on merits the second application was not barred. It is not however, clear from the facts stated in the note whether in the subsequent application the landlord had removed the defect about his title pointed out by the tenant in his deposition. It may also be seen that the question about the application of the general principles of res judicata was not considered in the said case. However, in this regard it may be seen that the learned Single Judge of this Court in the case of Arjundas v. Sitaram, 1973 Mh. LJ Note 28, has held that it was not open to the tenant to raise a plea in the subsequent proceedings that some other person was the tenant and not he when in the previous proceeding he had entered into a compromise in which he agreed to execute a fresh rent note and agreed to pay the rent regularly. The general principles of waiver of res judicata were thus made applicable by this Court to an identical question about the title raised by the tenant in the subsequent proceeding.