ORDER

1. Leave granted.

2. The short question that arises for consideration in this appeal is whether the Distrit Judge, who was the appellate authority under the Bombay Rent Act, could have entertained an application for review of the earlier order passed in appeal, and allowed the same and come to a conclusion that the subsequent proceedings filed by the landlord for eviction of the tenant are barred under Order 2 Rule 2 of the Code of Civil Procedure.

3. The aforesaid question arises under the following circumstances. The landlord appellant filed a suit for eviction of the tenant essentially on the ground on bona fide need and sub-letting. It is, no doubt, true that in the plaint he had made some averments that the tenant had also defaulted in payment of rent but he had simultaneously further averred that the landlord is not making any claim for arrears of rent. That suit ultimately was dismissed. During the pendency of the said suit, however, the landlord had alleged to have served notice on the tenant for arrears of rent. Against the earlier dismissal of the suit while the landlord s appeal was pending before the appellate authority, he filed the present suit which was registered as RCS No. 405 of 1984 for eviction of the tenant on the ground of default making all necessary averments that the due notice, as required under Section 12(2) of the Bombay Rent Act, has been served in the meantime. The learned trial Judge disposed of the present proceedings and granted an order of eviction of the tenant. In the written statement filed by the tenant, no plea had been taken that the subsequent suit is barred by the provisions of Order 2 Rule 2 CPC.

4. Against the order of eviction passed by the learned trial Judge, the tenant preferred an appeal, but that appeal of the tenant was dismissed. It may be stated at this stage, the earlier appeal of the landlord arising out of the suit for eviction on the ground of bona fide need and sub-letting was also dismissed and the landlord challenged the same in a writ petition before the High Court, which also stood dismissed. After the disposal of the tenant s appeal in the present proceedings, an application for review was filed and even in the review application, no ground had been taken that the subsequent suit is barred by Order 2 Rule 2 CPC. But certain assertions of facts had been made indicating that even in the earlier round of litigation, the landlord had sought for eviction on the ground of arrears of rent. On the basis of those assertions in the review application made for the first time notwithstanding the fact that in the written statement no point had been taken with regard to the bar of the subsequent suit under Order 2 Rule 2 CPC, the learned District Judge reviewed the earlier appellate order on a finding that the subsequent proceeding is barred under Order 2 Rule 2 CPC. The landlord appellant challenged the said order by filing a revision in the High Court. But the High Court having rejected the same, the present appeal has been preferred.

5. The District Judge, while reviewing the earlier order passed in appeal as well as the High Court appear to have taken in view that in the earlier proceedings, the application for eviction was also on the ground of default of rent. But, having examined the assertions made in the plaint itself, it is difficult for us to hold that in the earlier round of litigation, the landlord did make any prayer for eviction on the ground that there has been an arrear of rent. On the other hand, the factual assertions having been made about the arrears of rent dues, the plaintiff having averred that he is not making any claim for arrears, we fail to understand how an issue could be raised on that score or any finding thereon arrived at by the forum below can be pleaded as a bar in the subsequent suit. Be that as it may, the tenant respondent not having taking the plea of bar of subsequent suit under Order 2 Rule 2 CPC in the written statement itself nor even