ORDER
A.K. Shrivastava, J.
1. The plaintiff whose suit has been dismissed by the trial Court and the appeal which he filed has also been dismissed by the first appellate Court by the impugned judgment and decree, has filed this second appeal assailing the judgment and decree of two Courts below and praying to decree the suit.
2. In brief, the case of plaintiff/appellant as borne out from his plaint is that State of Madhya Pradesh is his tenant and the suit accommodation was taken to run Veterinary Hospital in the suit premises. Earlier the rate of rent was Rs.500/-per month, however, later on, the rate of rent was enhanced to Rs.550/-per month.
3. The husband of the plaintiff has retired from Government service and is sitting idle. Plaintiff’s son Surendra Singh having age of 32 years has already completed his studies and is unemployed. The suit accommodation is required bona fidely by plaintiff and her son Surendra Singh to start the business of grain in which her husband would also assist and she has no reasonably suitable nonresidential accommodation of her own in the township of Niwari, District Tikamgarh and hence the suit has been filed after giving and serving notice on the respondents, since the same was not vacated by the respondents.
4. The plaint averments have been denied by the defendants by filing written statement. In the written statement it has been pleaded that earlier to the filing of the present suit, the plaintiff filed a suit alleging her bona fide need for residential purposes which was decreed by the trial Court but in appeal, filed by the State, the same was allowed and the suit was dismissed by learned 1st Additional District Judge, Tikamgarh in Civil Appeal No. 62A/2000 on 24/7/2002. Thus, according to the defendants, the earlier judgment passed in Civil Appeal No. 62-A/2000 will operate res judicata in the present suit and the same is not maintainable.
5. Learned trial Court framed preliminary issues in respect to the maintainability of suit on the ground of res judicata and after hearing the parties, dismissed the suit holding that the judgment dated 24/7/2002 passed in Civil Appeal No. 62-A/2000 by learned 1st Additional District Judge, Tikamgarh, would operate as res judicata in the present suit and, therefore, the same is not maintainable. Eventually, learned trial Court dismissed the suit on the ground of bar of res judicata. The appeal filed by the plaintiff has also been dismissed by the learned first appellate Court.
6. In this manner the present second appeal has been filed by the plaintiff.
7. On 13/2/2008 this Court admitted this second appeal on the following substantial question of law:
Whether the decision of earlier civil suit No. 69-A/2000 dismissed in civil appeal No. 62-A/2000 would operate as res judicata in the present suit which is based on the ground as envisaged under Section 12(1)(f) of the M.P.Accommodation Control Act ?
8. The contention of Shri Umesh Trivedi, Learned Counsel for the appellant, is that the earlier suit was filed for residential purposes by the plaintiff showing her bona fide need and the same was dismissed by learned first appellate Court holding that the suit accommodation is not a residential one but is a non-residential accommodation and the Veterinary hospital of the defendants is running in the suit accommodation, therefore, since the accommodation is let for non-residential purposes, the same cannot be got vacated for non-residential purposes and, hence, the appellate Court dismissed the suit of plaintiff on that ground. The contention of Learned Counsel is that present suit has been filed by plaintiff on the ground of bona fide need for herself and her major son to start the business of grain and, therefore, the present suit cannot be dismissed on the principle of res judicata. In support of his contention, Learned Counsel has placed reliance on Single Bench decision of this Court Sohanlal v. Sheikh Barkatukddin 1981(2) MPWN Note 223.
9. On the other hand, Ms.Nidhi Verma, Learned Counsel for the respondents/State, argued in support of the impugned judgment passed by learned two Courts below and by inviting my attention to the findings of learned first appellate Court in para-11 has submitted that the present suit is barred by principle of res judicata and learned two Courts below did not commit any error in dismissing the suit as such. On these premised submissions, it has been submitted by Learned Counsel for the State that this appeal be dismissed.
10. Having heard Learned Counsel for the parties, I am of the view that this appeal deserves to be allowed and the case is required to be sent back to the trial Court to try the suit on merit.
REGARDING SUBSTANTIAL QUESTION OF LAW:
11. On going through the judgment passed by learned 1st Additional District Judge, Tikamgarh in Civil Appeal No. 62-A/2000 decided on 24/7/2002, this Court finds that the appeal filed by the State/defendants was allowed holding that the suit accommodation was given for non-residential purposes on tenancy basis and the same cannot be got vacated showing the bona fide need for residential purposes. Admittedly, the present suit which is a subsequent suit has been filed by the plaintiff is for non-residential purposes on the ground of bona fide need to start the business by the plaintiff and her son Surendra Singh. Thus, the matter of the present suit is not directly and substantially in issue which was directly and substantially in issue in the former suit between the parties. In the earlier suit the matter in issue was whether plaintiff’s need is bona fide to reside in the suit premises, and the matter in issue in the present suit which is subsequent, is altogether different and is whether the plaintiff’s need is bona fide to start the business. According to the parties the suit accommodation is non-residential, therefore, the same can be got vacated only for non-residential purpose. Thus, the matter in issue of both the suit is not at all identical and, therefore, application and bar of res judicata does not arise and the present suit is not barred by the principle of res judicata.
12. In the case of Sohanlal (supra) it has been held that strictly speaking the principle of res judicata as contended in Section 11 of CPC is not applicable for eviction suits in all cases on the same ground. A fresh suit for eviction on the same ground can lie if the circumstances are changed. The circumstances, in the two cases may not be identical and, therefore, the rejection of the plaintiff’s earlier suit for eviction on the ground of his bona fide need would not necessarily operate as res judicata. In the case of Jethanand v. Mahendra Kumar 1981MPRCJ Note 39, it has been held that if basis of landlord’s claim in later suit different from that in earlier suit, the decision of earlier suit would not operate as res judicata. Long back the law was settled by P.V.Dixit, J (as His Lordship then was) in the case of Harakchand v. Karodimal 1957 JLJ 809 that the finding in the previous suit for ejectment of a tenant from a house, on the question of landlord’s genuine necessity for the house existing at the time of institution of that suit cannot operate as res judicata in the subsequent suit where the basis is the landlord’s genuine necessity as existing on the date of the later suit. The ratio decidendi also applicable in the present case.
13. Substantial question of law is, thus, answered in negative.
14. Resultantly, this appeal succeeds and is hereby allowed. The judgment and decree of two Courts below holding the present suit to be barred by res judicata is hereby set aside. The case is sent back to the trial Court to decide the suit on merit. The respondents shall bear the cost of appellant throughout including the costs of this appeal. Counsel fee Rs.2,000/-, if pre-certified.
15. The parties are hereby directed to appear before the trial Court on 7th April, 2008. Registry is hereby directed to send the record post-haste so as to reach the trial Court before 7th April, 2008.