1 8 S.B. CIVIL WRIT PETITION NO.3258/2009 M/s.Appaji Navin Chandra & Company Vs. Hussaini Date of Order :: 17th April 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Tribhuvan Gupta, for the petitioner. Mr. Rajesh Shah, for the respondent (Caveator). .... BY THE COURT: Heard the learned counsel for the petitioner and perused the material placed on record. The petitioner-tenant is defending a petition for eviction (Case No. 321/2004) pending before the Rent Tribunal at Udaipur as filed by the respondent-landlord seeking eviction, inter alia, on the ground of his reasonable and bona fide requirement. The petitioner submitted in the written statement, inter alia, that the landlord earlier filed a suit for eviction on the ground of personal requirement that was dismissed; and the ground as sought to be suggested in the present case, of the landlord having returned from Kuwait and intending to start business, was also suggested before the Appellate Court but the appeal was dismissed; and this Court also dismissed the second appeal filed by the landlord on 06.01.2003. Hence, according to the petitioner, the decision 2 on the question of reasonable and bona fide requirement stands concluded against the plaintiff-landlord and the previous decision operates as res judicata. It appears that issue No.4 was framed by the learned Tribunal on the objection relating to res judicata. However, by moving an application, purportedly under Section 11 of the Code of Civil Procedure, the petitioner invited decision on the said issue No.4 before other proceedings. The learned Tribunal has proceeded to deal with the matter by its impugned order dated 06.08.2008 and relying on the decisions of the Hon'ble Supreme Court and of this Court and has held that dismissal of the suit for eviction on the ground of personal requirement does not mean that for the need arising in future, a fresh suit cannot be filed. The learned Tribunal has observed that the earlier suit was dismissed fundamentally for the reason that at the relevant time, the plaintiff-landlord was residing in Kuwait and now he had returned to the country and was seeking eviction for establishing his own business. The learned counsel appearing for the petitioner has drawn attention of this Court towards the observations made in the judgment dated 05.04.1999 as rendered in Civil Appeal No. 98/1995 relating to the previous suit wherein the fact of the 3 plaintiff having returned to the country permanently was placed for consideration and was not accepted by the Court concerned. Learned counsel has also drawn attention of the Court towards the order dated 06.01.2003 passed in dismissal of Civil Second Appeal No. 310/1999 by this Court. Learned counsel submitted that the issue of reasonable and bona fide requirement with all the essential facts having been decided against the landlord, the present suit particularly on the same ground of reasonable and bona fide requirement could only be said to be barred by res judicata. Learned counsel submitted in the alternative that the issue of res judicata being essentially a mixed question of law and facts be directed to be decided after evidence of the parties. So far the submissions as made in the alternative are concerned, it is noticed that the petitioner invited decision on the issue relating to res judicata by moving a separate application although the eviction petition is being dealt with by the Tribunal under the Rajasthan Rent Control Act, 2001 and filing of such an interlocutory application is not as such envisaged. However, the Tribunal has dealt with the matter essentially at the request of the petitioner himself and now, if the request as made by the petitioner for decision of the issue relating to res judicata after evidence of the parties is granted 4 that would only be reopening the matter and prolonging the proceedings unnecessarily; and there appears no reason or justification to grant such a prayer in this petition. So far the decision on the issue of res judicata is concerned, the view as taken by the Tribunal cannot be said to be suffering from fundamental error of law or facts and in any case, the impugned order dated 06.08.2008 cannot be said to be suffering from any such jurisdictional error that could be said to be leading to manifest injustice. All the aspects of the matter as to whether the plaintiff- landlord has reasonable or bona fide requirement are, of course, to be considered by the Tribunal concerned in accordance with law but merely because earlier the plaintiff sought eviction on the ground of his personal requirement and the suit was dismissed, it cannot be said that the plaintiff is debarred forever from seeking eviction on the ground of his requirement. Even if any such suggestion was made in the earlier suit that may have some co-relation with the requirement as suggested in the present case that cannot be said to be sufficient for attracting all the elements of res judicata. There appears no reason to consider any interference in the impugned order dated 06.08.2008 in the writ jurisdiction. 5 The writ petition fails and is, therefore, dismissed. (DINESH MAHESHWARI), J. /Mohan/