Bombay High Court
Kamalbai Jagannath Patil ... vs Bhagwandas Gulabchand Somani ... on 6 November, 2023
Bench: S. G. Mehare
2023:BHC-AUG:24392
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
34 CRA NO.41 OF 2023
WITH CA/11682/2022 IN CRA/41/2023
KAMALBAI JAGANNATH PATIL DECEASED LRS. VIJAYA
RAMESH MAHAJAN AND ORS
VERSUS
BHAGWANDAS GULABCHAND SOMANI DECEASED LRS.
MANOJ AND ORS
...
Advocate for Applicants : Mr. V. D. Hon (Senior Counsel) i/b
Mr. A. D. Sonkawade, Mr. Hon Ashwin V.
Advocate for Respondent Nos.1-a to 1-c : Mr. Vijay B. Patil.
...
CORAM : S. G. MEHARE, J.
DATE : 06.11.2023
PER COURT :-
1. Heard the learned senior counsel for the applicants and
the learned counsel for the respondents.
2. The landlady has preferred the present civil revision
application against the judgment of dismissal of eviction suit.
The checkered history of the litigation was that in 1982, the
applicant landlady had filed a suit for eviction against the
present respondent. In that suit, it was her pleading that the
present respondent was not the tenant. However, doctor
Mungad was the real tenant. After the parties led the evidence,
it was held in suit i.e. Regular Civil Suit No.348 of 1982 that
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Bhagwandas Somani, the father of present respondent was the
tenant in the suit premises. The plea of the landlady that he
was trespasser was discarded. Besides, the said plea, the suit
for bonafide requirement was also dismissed. The appeal
against the said judgment bearing Regular Civil Appeal No.365
of 1986 was also dismissed.
3. After the above two judgments, the landlady again filed
the suit for eviction against Bhagwandas Gulabchand Somani.
However, he died during the pendency of the suit ; hence, his
legal heirs brought on record. In this suit, again the landlady
came with a case that Bhagwandas was a trespasser. However,
she was seeking eviction not for herself but for her daughters.
She wanted to settle her daughters in the suit premises, which
is residential.
4. The trial Court appreciating the pleading held that since
the plaintiff/landlady did not admit the landlord-tenant
relationship, her bonafide need under the Maharashtra Rent
Control Act could not be considered. Further, the Trial Court
observed that since the issue of the status of Bhagwandas was
settled in Regular Civil Suit No.348 of 1982, raising the same
plea again is res-judicata under Section 11 of the Civil
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Procedure Code. The Appellate Court also confirmed the
findings.
5. Learned senior counsel for the applicants would submit
that the reasons for bonafide ground in earlier suit and the
present suit were not similar. There is no bar in the Rent Act to
file a suit for eviction, if the bonafide need is changed. The
suit of the plaintiff/landlady was not only for eviction, but also
for the arrears of rent. In such circumstances, the Trial Court
ought to have understood that it was not purely the suit
against the trespasser but also the tenant. But both Courts have
committed error of law. Hence, civil revision application
deserves to be allowed.
6. Per contra, learned counsel Mr. Patil for the contesting
respondent would submit that the findings as regards the res-
judicata are legally correct and proper. Since the plaintiff did
not admit the defendants as a tenant, her prayer for eviction or
bonafide need could not be considered. Both Courts have
recorded the correct findings.
7. The applicants have an apprehension that the issue of
res-judicata may be misunderstood, if in future, a fresh suit for
eviction on any of the grounds available under Maharashtra
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Rent Control Act is filed. He submits that due to misconception
of law, again, similar objections may be raised. Hence, it
should be clarified.
8. For a Rent Suit, the cause of action, considering the facts
and circumstances, may be recurring. The Rent Control Act
does not bar a subsequent suit on the same ground if its
nature is changed. The rent law has been developed to such
an extent, that the tenant may oppose the bonafide need of the
landlord, if it ceases to exist, during and after the suit is
decided.
9. Under these circumstances, it cannot be said that in
future, if the landlady would file a fresh suit as provided under
the Maharashtra Rent Control Act showing the change in their
bonafide need, such suit would not be barred by the principle
of res-judicata.
10. The res-judicata issue was dealt with by both Courts only
restricted to the claim of the plaintiff/landlady treating the
respondent Bhagwandas as a trespasser. Therefore, both
Courts did not commit the mistake. The Courts are also right in
observing that since the suit was not filed admitting the
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respondent as tenant, the eviction sought for under the
Maharashtra Rent Control Act could be considered.
11. In the facts and circumstances of the case and
observations made above, the Court proceed to pass the
following order :
ORDER
(i) The civil revision application stands dismissed.
(ii) It is clarified that the right of the landlord filing a
subsequent suit for eviction against the tenant on
any of fresh ground/s is available under the
Maharashtra Rent Control Act and not barred
under the principle of res-judicata.
(iii) No order as to costs.
(iv) Civil Application stands disposed of accordingly.
(S. G. MEHARE, J.)
...
vmk/-
