JUDGMENT - V.S. SIRPURKAR, J. :---A tenant questions the order passed under the provisions of Clause 28 of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as "the Rent Control Order" for the sake of brevity). By the instant order the Rent Controller has restored the respondent in the shop, which is the disputed premises.

2. First the factual panorama for understanding the controversy in the petition. The respondent Nilkanth Krishnaji Mahajan claims to be the landlord, while the petitioner claims to be a tenant. Admittedly the present petitioner and the respondent have been operating from a small 6 x 6 shop wherein the respondent was working as a petition writer, while the petitioner was working as a stamp vendor. Though the avocations of both were supplementary to each other, both were not complimentary to each other in the sense that the relations between the two were probably strained. It was, therefore, that the present respondent claiming to be the landlord threw out the present petitioner. The petitioner tenant did not take this throwing out and filed an application under Clause 28 of the Rent Control order for restoration of possession in respect of this shop. Rent Control Case No. BRA-28/Karanja/77-78 was registered and ultimately by an order dated 25-4-1980 it was held that the tenant should be restored on the same terms and conditions on which the premises were held by him within a fortnight from the date of the order. It was held that the present respondent was not entitled to eject the tenant without obtaining the permission to give quit notice under Clause 13(3) of the Rent Control Order. This order came to be challenged by the present respondent before the Resident Deputy Collector, Akola, who confirmed this order. A writ petition was, therefore, filed being Writ Petition No. 111 of 1982 and the said writ petition also met the same fate. This Court by an order dated 9-6-1986 dismissed the said writ petition, thereby putting a final seal on the correctness of the order dated 25-4-1980.

3. So far the things were in order. It is only when the said order dated 25-4-1980 was sought to be executed by the Tahsildar, Karanja that further complications ensued, in the sense that the Tahsildar Karanja not only put back the tenant - petitioner in the shop, but in addition to this, he threw out the landlord who was also admittedly occupying the shop. It is to be appreciated that this was an admitted position in the application made by the present petitioner himself. In the application it was clearly admitted that both the tenant himself as well as the present respondent were occupying the shop. However, what seems to have happened is that the Tahsildar broke open the lock and removed all the articles even belonging to the landlord, which were admittedly there.

4. It is because of this that the further application under Clause 28 came to be made by the landlord praying for his own restoration in his own premises. The application was opposed firstly by way of preliminary objection dated 17-12-1986. The preliminary objection was rejected by the House Rent Controller by an order dated 4-2-1987 and the enraged petitioner, therefore, filed a writ petition in this Court challenging the order dated 4-2-1987 rejecting the preliminary objection. However, the High Court this time in Writ Petition No. 686 of 1987 upheld the order rejecting the preliminary objection. Unfortunately enough the order of this Court in Writ Petition No. 686 of 1987 is not available here. It may be remembered that the tenant had questioned the very tenability of the application under Clause 28 and this Court had held by order dated 1-10-1989 that such application was tenable. It is really unfortunate that the said order is not produced. However, the learned Counsel appearing on behalf of the parties have submitted that the only question which was raised was that of res judicata.

5. Be that as it may, after the order was co

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