ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 3114 OF 1991 PETITION NO. 3114 OF 1991 PETITION NO. 3114 OF 1991 G.N.Rao, Age 68 years, Occu.Tailoring, R/o. Samarath Chowk, Akkalkot, Dist.Solapur. ...Petitioner (Orig.Defendant) Vs. Dhondiram Shivram Chavan, (Since deceased by his L.Rs.) 1-a) Shri Shivkumar Dhondiram Chavan, R/o. Room No.1, D.B.Bhagwat Chawl, Near Kali Masjid, Solapur Dist. Solapur. 1-b) Shri Chandrashekhar Dhondiram Chavan, R/o. Shahu Colony, Galli No.4, S.No.1016, Karve Nagar, Pune, Dist. Pune. 1-c) Sou. Jayshree Ramakant Ghodke, R/o. Ghodke Building, Jagannath Road, Khamgaon, Dist. Buldhana 1-d) Sou. Ashalata Pradeeprao Jadhav, R/o. Juna Bazar, Khadke, Pune, Dist. Pune. 1-e) Sou. Uma Shashikant Karajkar, R/o. Armament Colony, F-29/1, Ganesh Khind Gol Market, Aundha Road, Pune, Dist. Pune. 1-f) Kum. Hemlata Dhondiram Chavan, R/o.159, Laxmi Peth Plot No.280, Damani Nagar, Solapur, Dist. Solapur. ...Respondents. Mr.V.B.Rajure for the Petitioner. Mr.P.D.Dalvi for Respondent No.1-a. Mr. Milind R. Deshpande for Respondent Nos. 1(b) to 1(f). ( 2 ) CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 15TH JANUARY, 2009. : 15TH JANUARY, 2009. : 15TH JANUARY, 2009. JUDGMENT: JUDGMENT: JUDGMENT: The Petitioner is the Original Defendant / tenant and Respondent is the Original Plaintiff / Landlord. The suit was filed for a recovery of rent and for possession in respect of two rooms in East-West Corner admeasuring 10’ x 10’ out of City Survey No.1576 corresponding Municipal No. 663 situated at Akkalkot, Taluka Akkalkot, District Solapur. 2. The tenancy was monthly @ Rs.15/- p.m.. The Petitioner was in arrears of rent for the period from 01/08/1973 to 29/03/1980. The notice was issued accordingly for rent, as well as terminating the tenancy w.e.f. 30/04/1984. The said notice was duly received and replied and basically contended that in the earlier proceeding the parties entered into a compromise and accordingly on 13/08/1970 a compromise decree came to be passed. As there was no compliance, an execution / Darkhast No.57 of 1971 was filed. The warrant of possession was issued. By an order in a revision, the order of possession was set aside with directions to the ( 3 ) Plaintiff to rectify the decree in Regular Civil Appeal No.40/1970. There was no further challenge made by the Plaintiff to that order and therefore, the said order passed in appeal operated as res-judicata in the present suit. 3. The Trial Court, after considering the rival contentions and evidence laid by the parties, restricted the reasoning by deciding that the Plaintiff failed to prove that there was relationship of landlord and tenant. And therefore, the suit is barred by law of limitation. However, held that the present suit is based on notice dated 15/03/1984, therefore, the principle of res-judicata is not applicable in view of fresh cause of action, but ultimately suit was dismissed. 4. The Respondent / Original Defendant, therefore, preferred an Appeal. By the impugned order dated 17/02/1991, the IInd Additional District Judge, Solapur has allowed the Appeal and ordered to deliver the possession of the suit premises and to pay the arrears of rent and held the enquiry as contemplated under Order XX, Rule 12 (1) (c) of the Code of Civil Procedure (for short,"CPC"). ( 4 ) 5. There is no dispute that though the compromise decree was passed which remained unexecuted. The Plaintiff in the present plaint itself specifically averred that he is not interested for executing the said compromise decree. The said compromise decree failed to attain finality as the parties though agreed to exchange the tenancy of some portion, could not complied with the conditions. The said compromise decree, therefore, could not attain finality and even not executed. Now, therefore, the filing of the present suit by the Plaintiff on the basis of fresh cause of action and as rightly held by both the Courts, is not bound by res-judicata or estoppel. The present suit was filed on the ground of default and not for execution of earlier compromise decree as the said compromise decree could not be executed for want of compliance. The landlord- tenant relationship between the parties remained intact. 6. The fact that the suit was filed in the year 1984 for arrears of rent and possession on that ground, just cannot be said to be barred by limitation. At least with regard to the arrears of rent of 3 years prior to the demand notice dated 15/03/1984. The suit, therefore, cannot be said to be barred by the law of ( 5 ) limitation. In the present facts and circumstances of the case, as decree itself was not executed for the reasons mentioned and as the possession taken required to be rectified. Such decree in no way, and rightly observed by the Appellate Court, prevent the landlord to file the present suit for fresh cause of action. The landlord - tenant relationship remained intact as observed. Even in the earlier occasion it was exchanged of premises with clear understanding of creation of tenancy in those premises. 7. Even as per the said compromise, the Defendant had agreed to gave his tenancy right in respect of certain portion of the premises and to deliver the possession of the same in exchange of getting some portion occupied by his landlord. The tenancy was created in the said portion. The possession of which was to be delivered on condition or on consideration of parting of some or major portion of the suit premises. Therefore, it was never agreed to terminate the tenancy even merely by virtue of said compromise decree. The landlord is, therefore, entitled to secure possession of the said premises, on the ground subsists under the Rent Act and as there is material to justify the default caused by the tenant, in spite of receipt of the demand notice and ( 6 ) not paid the same. The eviction order under Section 12 (3) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "the Rent Act), just cannot be said to be illegal. 8. Taking all this into account, I see there is no reason to interfere with the order passed of granting decree of possession by the impugned order dated 17th February, 1991. 9. In the result, the Petition is dismissed with no order as to costs. (ANOOP (ANOOP (ANOOP V.MOHTA, J.) V.MOHTA, J.) V.MOHTA, J.)