1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3378 OF 2008 Mahadeo Ramchandra Sawant ......Petitioner. V/s Pushpatai Narayan Bartakke and anr. ....... Respondents. ------ Mr. Vijay Killedar for the Petitioner. None for the respondents. ----- CORAM: V.M. KANADE, J. DATE : 27th June, 2008 P.C. 1. Today, this matter was dismissed for non prosecution as neither the petitioner nor his counsel was present when the matter was called out. However, the learned Counsel for the Petitioner mentioned the matter and requested that an order of dismissal may be recalled and the matter be disposed of on merits. 2. Accordingly, the order of dismissal passed today is recalled and the Petition is restored to the file. 3. Heard the learned Counsel for the Petitioner. 4. The petitioner is challenging the order passed by Ad-hoc District Judge, Sangli dated 08/02/2008 in Regular Civil Appeal No.135 of 2005 and also Judgment and Decree dated 22/06/2005 passed by Joint Civil Judge, Junior Division, Sangli in Regular Civil 2 Suit No.701 of 1999 whereby both the Courts below dismissed the suit which was filed by the petitioner - original plaintiff for eviction of the respondent - tenant from the suit premises. 5. It is an admitted position that the petitioner, initially, had filed a suit on the ground of non-use of the suit premises by the tenant and also on the ground that he was a defaulter within the meaning of section 12 of the Rent Act and also on the ground of change of user vide suit No.573 of 1985. This suit was, however, dismissed. Thereafter, a second suit was filed by the Petitioner herein vide Regular Civil Suit No.701 of 1999 on the very same ground. The trial Court dismissed the suit and this order was confirmed by the appellate court. Both the courts have recorded a concurrent finding that the plaintiff had not given details regarding non-use of the premises by the respondent - tenant and also had not given any particulars regarding arrears of rent. Both the courts, therefore, held that the second suit was barred by principle of res judicata. 6. The learned Counsel appearing on behalf of the petitioner strenuously urged before me that there was change in circumstances and, as such, separate cause of action has arisen and, on that basis, the second suit was maintainable. He submitted that both the Courts below had not taken into consideration this important aspect of the case. 7. It is not possible to accept this submission. Both the Courts below have recorded a concurrent finding of fact that the plaintiff had 3 not adduced any evidence to show that there was change in circumstances. Therefore, there is no substance in the submission made by the learned Counsel appearing on behalf of the Petitioner. 8. Petition is accordingly dismissed. (V.M. KANADE, J.)