BHANWARLAL Vs. CHAMPALAL

JUDGEMENT

(1.) THIS is a defendant's revision against the order of the learned District Judge, Jodhpur, dated March 31, 1978 by which he confirmed the order of the Munsif City, Jodhpur, dated March 2, 1977.

(2.) THE plaintiff-landlerd (non-petitioner) instituted a suit for arrears of rent and ejectment against the defendant-petitioner in the court of Munsif City, Jodhpur, on August 30, 1972. Ejectment was sought on the ground of default and sub-letting. THE case of the plaintiff as disclosed in the plaint is that the defendant had taken on lease shop No 5 situate in his building located in Moti Chowk, Jodhpur and the rent payable by the defendant was Rs. 32/- per mensem inclusive of electricity charges and house tax about which there is no dispute between the parties and the defendant has paid rent up to Chait Sudi 15, Samvat 2028. It has been further mentioned in para 5 that a written notice wast sent to the defendant on December 27, 1971 stating that his tenancy would sand terminated on Magh Sudi 15, Samvat 2028 which is the date on which the month of the tenancy expires and that rent from Chait Sudi 15 to Magh Sudi 15 amounting to Rs. 320/- are due from him. In para 7 of the plaint, it is mentioned that a sum of Rs. 225/- on account of damages for use and occupation for the period from Falgun Badi 1 to Srawan Sudi 15, inclusive of 'adhik Mas' is due. Cause of action is stated to have arisen on Srawan Badi 1, Samvat 2035 when the defendant took the shop on rent and agreed to pay Rs. 32/- per men-sem as rent. THE defendant contested the suit on various grounds. His defence inter alia, is that rent up to Baisakh Sudi 15 has already been paid. He also preferred a counter-claim for the payment of Rs. 64. 80 p. alleging that the plaintiff has realised from the defendant house-tax from Samvat 2025 to the current Samvat illegally.

(3.) IT has vehemently been argued by Mr. Mathur that the order dated December 10, 1974 passed on the first application (which was presented on November 16, 1974) operates as res judicata. His submission in this behalf is that the plaintiff himself in that application had mentioned that the defendant did not deposit the rent of each month by the fifteenth of each succeeding month nor did he pay the same to the plaintiff He invited my attention to the following words used in the application, - *********