2001 (7) TMI 1296

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....No.2757 of 1992 for bona fide requirement on the ground that his son needed it to start a new business and also for his office purposes as he required access to his chamber by providing a door in the common wall and for keeping library books. The tenant Balraj promised that he would vacate the premises and hand over vacant possession of the premises. Therefore, by memo dated 6th December, 1994 the appellant submitted as under: The petitioner does not press the petition for the present and he prays that the petition may be disposed of accordingly. The tenant Balraj died on 3rd February, 1997 and the premises at present is occupied by his son, the respondent herein. On 24th August, 1998, appellant filed H.R.C. No. 10292 of 1998 for reco....

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....f the appellant submitted that the order passed by the High Court is, on the face it, illegal. Section 45 of the Rent Act only bars fresh application if substantially the same issues as have been finally decided in a former proceeding are involved in the second proceeding. She further contended that there is total non-application of mind by the learned Judge to the provisions of Order XXIII of the C.P.C. As against this, learned counsel for the respondent submitted that previous suit was for bona fide requirement and the present suit is also for bona fide requirement and as the previous suit was withdrawn without leave of the Court, as provided under Order XXIII, second suit is not maintainable. In our view, the High Court ought to have ....

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.... it is apparent that fresh application under the Rent Act could be summarily rejected only if (i) if the proceedings are between the same parties or under whom they or any of them claim, and (ii) substantially the same issues as have been finally decided in a former proceeding under the Act are raised. Thus the section as such, incorporates principles of res judicata. The aforesaid section would have no application as the previous proceedings for taking possession of the premises was not pressed and stood disposed of without deciding any issue. The next question would bewhether Order XXIII Rule 1 sub- rule (4) CPC is applicable to the facts of the present case. Sub-rule (4) reads thus:- (4) Where the plaintiff (a) aband....