1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3782/2010. Dindayal Laxmansingh Chavan -: VERSUS :- Smt. Kaushalyabai Vitthalrao Mahakalkar. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : SEPTEMBER 20, 2010. Heard Shri D.L. Chauhan, learned Counsel for petitioner and Shri Qubbawala, learned Counsel for respondent. Learned counsel for petitioner contends that the Appellate Court had earlier delivered judgment on 16.06.2009 and the appeal filed by present petitioner was partly allowed. The directions issued by the Small Causes Court to petitioner to vacate the suit premises was set aside. Respondent then filed review petition no. 698/2009 and by the impugned judgment dated 22.03.2010 that review has been granted under an 2 erroneous assumption that on 16.11.2000 when the rent control proceedings were dismissed, provisions of Maharashtra Rent Control Act, 1999 had not come into force. Learned Counsel argues that the said provisions had come into force on 31.03.1999 itself. His other contention is, as the Appellate Court had earlier considered the entire controversy on merits, a rehearing could not have been undertaken under the guise of entertaining review petition. Even an erroneous finding or judgment could not have been set aside under Section 114 of C.P.C. Shri Qubbawala, learned counsel on the other hand has argued that the review jurisdiction has been rightly exercised and the Appellate Court has corrected the error apparent, as Rent Controller had not decided the earlier proceedings on merits, but the same were dismissed in default. He has further contended that after dismissal of those proceedings, on 16.11.2000 the suit before the Small Cause Court was filed for recovery of possession and for arrears of rent vide R.C.S.N o. 202/2004, and hence two proceedings cannot be compared. 3 With the assistance of respective learned counsel, I have perused the papers. The Small Cause Court has found that the petitioner was in arrears of rent, when it decided the suit. It also found that present respondent proved his bonfide need and he would suffer greater hardship if the possession was not granted. This judgment of Small Causes Court dated 06.09.2007 was questioned in appeal vide Regular Civil Appeal No. 505/2007 by present petitioner. The Court of District Judge-5, Nagpur decided that appeal on 16.06.1999 and held that the landlord was precluded from filing fresh suit on the same cause of action. It therefore, did not consider other issues and partly allowed that appeal. The Appellate Court found that the provisions of Order IX Rule 9 C.P.C. barred the proceedings after Rent Controller dismissed in default matters filed by the present respondent. The Appellate Court has also noticed that in matter before it claim for arrears of rent was for period 11.01.1993 to 30.12.1993 and it found that it could have taken cognizance of those arrears for past three years, and hence, directed the tenant to pay amount of Rs. 2700/- towards arrears of rent. 4 In exercise of review jurisdiction, the said Court has found that the provisions of Order IX Rule 9 of C.P.C. or principles underlying it, were not applicable as a remedy was sought under the new Act namely Maharashtra Rent Control Act, 1999. It also found that the provisions of Section 58[1][a] of the Maharashtra Rent Control Act, 1999 had repealed the provisions of C.P. and Bearar Premises Rent Control Order, 1949 under which the earlier proceedings were filed. It has then noticed that because of confusion prevailing, it did not consider all these aspects and held appeal to be not maintainable. It has in review order considered the evidence on merits and accepted the finding recorded by the Small Causes Court. It is apparent that the earlier rent control proceedings were not decided on merits and the Appellate Court has realized that error in review jurisdiction and its appreciation of controversy in paragraph no.12 shows that the finding that the principles of res-judicata are not attracted, came to be recorded. 5 The petitioner before this Court is raising only technical objection to the exercise of review jurisdiction by the Appellate Court. The findings of facts as reached are not disputed. Even in earlier judgment, the fact that petitioner was in arrears of Rs.2700/- for period subsequent to dismissal of proceedings by the Rent Controller has come on record and that finding was never assailed. In this situation, I am not inclined to entertain the matter in writ jurisdiction, Writ Petition is therefore, rejected. No costs. JUDGE Rgd.