ORDER
1. In this revision the tenant has assailed the legality of the order of Trial Court dismissing his application filed under Order 23, Rule 1(4)(b) read with Section 151 of Civil Procedure Code. This application is filed by the tenant in the eviction proceeding initiated by the respondent-landlord under the provisions of Section 21(1)(h) of the Karnataka Rent Control Act (‘Act’ for short).
2. In his affidavit filed in support of I.A. No. I, the petitioner has stated that, he is a tenant of the premises which is a shop premises which was taken on rent by his late father from the respondent-landlord. The petitioner has been doing electrical goods business. The respondent-landlord had filed a petition in H.R.C. No. 2757 of 1992 against the petitioner’s father under the provisions of Section 21(1)(h) of the Act for his bona fide use and occupation. In that case, the landlord got himself examined as P.W. I and he has also cross-examined at length. After cross-examination of P.W. I, the respondent-landlord withdrew the said petition without reserving liberty to file a fresh petition. Therefore, the said petition came to be dismissed as not pressed.
3. Controverting the contention raised by the tenant in I.A. I, the respondent filed his objections to I.A. I contending that, the previous petition had been filed for the bona fide use and occupation of his son Suresh and also for the landlord’s law chambers and that he withdrew the earlier eviction proceeding upon the request made by the present petitioner who undertook to deliver vacant possession of the petition premises. The respondent filed a memo to that effect in the said case. It is also contended that, under the Rent Control Act, an eviction proceeding can be initiated on recurring cause of action and therefore, permission to file a fresh petition does not arise, as the right is conferred by statute. The landlord has relied upon the judgment of the Apex Court in Surajmal v Radheshyam and the judgment of the Single Judge of this
Court in Subba Raju K. and Another v G.S. Dattamurthy and Another. The Trial Judge while considering the rival contentions squarely relied upon these two decisions by the landlord and dismissed the application filed by the petitioner under Order 23, Rule 1(4)(b) of Civil Procedure Code.
4. Learned Counsel for the petitioner made two submissions for consideration:
The first submission is that, the Trial Judge has not considered the scope of Order 23, Rule 1(4)(b) of Civil Procedure Code with reference to Section 45 of the Rent Control Act and that he has chosen to rely upon the judgment of the Single Judge in preference to the judgment of the Bench rendered in Papinayakanahalli Venkanna and Others v Janadri Venkanna Setty and Others.
5. Sri S.P. Shankar, learned Counsel appearing for the respondent-landlord strenuously justified the legality of the impugned order relying upon the judgment of the learned Single Judge in K. Subba Raju’s case, supra, and the decision in Thogataveerara Sangha v R.M. Shenoy.
6. The short question which arises for consideration is as follows:
“Whether the decision rendered by the Division Bench of this
Court is applicable to the facts of this case”?
Therefore, the impugned judgment is not sustainable.
7. The respondent-landlord who was a Court Officer of this Court incidentally a member of the Bar at present. It is undisputed that, he initiated eviction proceedings under the provisions of Section 21(1)(h) of the Act against the father of the present petitioner and withdrew it without reserving liberty nor obtaining any permission from the Court to file and to initiate a fresh proceedings in the same cause of action. He got it dismissed by filing a memo. His submission that, he got it dismissed upon the promise made by the petitioner-tenant to vacate and deliver vacant possession is neither admitted by the tenant nor such a contention comes to the aid of the landlord in justification of initiation of a second petition under the Act. It is undisputed that the premises is a non-residential premises, wherein, the petitioner is doing some electrical business. The requirement pleaded in the earlier petition and the requirement pleaded in the present petition is the same, namely, to accommodate his son Suresh to start his own business and also to start the law chambers of the landlord.
8. In Vallabh Das v Dr. Madanlal and Others, considering this aspect, the Apex Court held as follows:
“That ‘mere identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits’. The word ‘subject-matter’ in Order 23, Rule I means, ‘the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him’ “.
Therefore, the identity of the issues in both the matters are not different and distinct. Therefore, the contentions raised by the respondent Counsel that the causes of action are different and distinct has no merit. The contention urged by the learned Counsel for the landlord that, in view of Section 45 of the Rent Control Act, the second eviction petition is maintainable has also no merit. In my opinion, the judgment rendered by the learned Single Judge in Subba Raju’s case, supra, which has not considered the provisions of Order 23, Rule 1(4)(b) of Civil Procedure Code is clearly not applicable. The judgment of the Division Bench of this Court in Papinayakanahalli Venkanna’s case, supra, has considered the provisions of Section 45 of the Rent Control Act and the provisions of Order 23, Rule 1(4). The Division Bench held as follows:
“Section 45 of the Act operates in a different field and meets a different situation, and it only bars a subsequent proceeding being taken with regard to the matter which was finally decided in the earlier proceedings. The provisions contained in Civil Procedure Code are applicable in view of Rule 35 of the Karnataka Rent control Rule read with Section 141, Civil Procedure Code to the extent they are not specifically provided in the Rent Control Act and Rules”.
It is further held that:
“The permission to file fresh proceeding necessary and in the absence of such a permission, no fresh proceeding can be instituted on the same matter”.
9. Order 23, Rule 1(4) precludes a party from instituting a fresh suit in respect of same subject-matter or part of the claim. When the subjectmatter or the claim is the eviction of tenant, founded on the bona fide requirement of the landlord and that the premises are required for demolition and reconstruction, another proceeding on the same subject-matter cannot be instituted.
10. Relying upon the Apex Court judgment in Vallabh Das case, supra, it is held that:
“Mere identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits”.
11. The explanation of ‘subject-matter’ in Order 23, Rule 1, Civil Procedure Code means, ‘a series of accounts or transactions alleged to exists giving raised to the relief claimed’.
12. The decision in Thogataveerara Sangha’s case, supra, is also not applicable since the view expressed therein is based on the facts that there is no adjudication on merits and no finding is recorded in the earlier proceedings. Even in the said case, the learned Single Judge has
not considered the applicability of the provisions of Code of Civil Procedure, specially Order 23, Rule 1(4). Therefore, in my opinion, the judgment rendered by the Division Bench in Venkanna’s case, supra, holds the field. The subject-matter namely, bundle of facts involved in both the cases are the same. The relief claimed by both the proceedings are the same. The Bench has distinguished the scope of Section 45 of the Act and the provisions of Order 23, Rule 1(4) of Civil Procedure Code, and both the provisions deal with separate set of circumstances. Therefore, in the instant case, the second petition filed by the respondent-landlord without seeking permission of the Court is clearly bared under Order 23, Rule 1(4)(b) of Civil Procedure Code.
13. The Trial Judge is not right in dismissing his application without considering his submissions. Therefore, the impugned order is not sustainable in law.
14. The revision is accordingly allowed. The impugned order is set aside.