A-2 % 17.8.2011 Present: Mr.G.D.Chopra and Mr.Rahul Sharma, Advocate for the petitioner. +CM No.17094/2010 (for delay) in CM(M) No.1212/2010 * In view of the averments made in the apphcation, the delay of seven days in re-filing the petition is condoned. Application is disposed of. CM(M) No.1212/2010 & CM No.17092/2010 (for stav) The order impugned before this Court is the order dated 06.4,2010 which has endorsed the finding of the Additional Rent Control dated 14.8.2008 vide which an apphcation under Order 7 Rule 11 read with Order 23 and Section 151 of the Code of Civil Procedure (hereinafter referred to as "the Code") had been dismissed. Record shows that the eviction petition had been filed by the landlord against the tenant (petitioner) under Section 14(l)(a) of the DRCA. First petition had been filed which had commenced in trial but thereafter on an apphcation filed by the landlord on the ground that there was certain technical defects in the eviction petition; he had been permitted to withdraw this eviction petition with liberty to file a fresh eviction petition as per law. This was vide order dated 28.11.2003. Learned counsel for the petitioner has placed rehance upon a judgment of the BombayHigh court reported in AIR 2003, Bombay 238 A.D.S. Toshi Vs. Chief Officer. Panvel Municipal Council to support his submission Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified that the apphcation for withdrawal under Order 23 Rule 1 of the Code is complete on the date when the application is filed; his contention is that in this application there was no prayer made for liberty to file a fresh suit and the order dated 28.11.2003 according this permission was incorrect. Further it was passed in his absence. Order dated 28.11.2003 had permitted the landlord to withdraw this petition with liberty to file a fresh petition as per law; statement of the petitioner was also recorded to the same effect. This order has admittedly not been the subject matter of challenge before any court; it r has attained a finahty. Thereafter in the second petition which had been filed, after the written statement had been filed, an application under Order 7 Rule 11 of the Code had been filed. The apphcation under Order 7 Rule 11 of the Code read with Order 23 of the Code has been perused. In this apphcation the contention was that the earlier eviction petition which had been withdrawn was on the same cause of action; not only is barred by the principle of res judicata but Order 23 Rule 1 also creates a bar. t, " These contentions had been gone into by the Additional Rent Controller (ARC). He had dismissed the aforenoted application; it had rightly been noted that to deal with an apphcation under Order 7 Rule 11 of the Code it is only the averments made in the plaint which have to be perused and not the defence as set up by the defendant; that cannot be gone into. On this premise the apphcation had been dismissed by the ARC. This finding had been endorsed by the Rent Control Tribunal (RCT); this order has now been impugned before this Court. The RCT V t had also noted that the plea of res judicata as set up by the defendant in his apphcation under Order 7 Rule 11 of the Code cannot be gone into while dealing with an application under Order 7 Rule 11 of the Code and such a plea can only be examined by going through the record of the earlier and the later case; moreover as rightly endorsed in an application under Order 7 Rule 11 of the Code the averments in the plaint alone have to be perused and not the case as set up by the defendant. Moreover the bar under Order 23 of the Code also did not operate as vide order dated 28.11.2003 specific permission had been granted to the landlord to prefer a second eviction petition. The impugned order in no manner calls for jany interference. Dismissed. INDERMEET KAUR, J. AUGUST 17, 2011 nandan