PRADEEP NANDRAJOG, J.(Oral)

The appellant has suffered 2 concurrent decrees of ejectment and mesne profits against him. Aggrieved by the judgment and decree dated 5.12.2007 affirming the judgment and decree of the learned Trial Judge dated 21.5.2007 instant second appeal has been filed.

2. Notwithstanding various questions framed in the memo of appeal at the hearing today, learned senior counsel for the appellant urges that 4 substantial questions of law arise for consideration in the instant appeal.

3. The first substantial question of law sought to be projected by learned counsel for the appellant is: whether the suit for ejectment was barred under Order IX Rule 9 CPC on account of an earlier suit for ejectment being dismissed in default and not being restored The second question sought to be projected is whether by the act of filing a petition for eviction before the learned Rent Controller and alleging that the rent of the suit property was Rs.3500/- per month did notice Ex.PW1/2 and Ex.PW1/3 dated 10.8.1990 and 22.1.1990 respectively stood waived Third question projected is whether suit by only one co-owner was maintainable Lastly it is urged that on the evidence on record damages awarded towards mesne profits @ Rs.25,000/- per month from 1.5.2002 till realization cannot be sustained.

4. Having gone through the impugned judgments and decrees and the relevant evidence on record, in my opinion no substantial question of law arise for consideration in the instant second appeal.

5. My reasons are recorded briefly since the second appeal is being dismissed in limine and I am concurring with the view taken by the learned courts below.

6. The suit property, a three bedroom single unit house in Hauz Khas on a plot of land admeasuirng 512 sq. yds. was let out to the appellant by late Shri S.S.Randhawa on 16.8.1981. Due to the enforcement of the Delhi Rent Control Act 1957 the terms of the lease did not enure to the benefit of the landlord for the reason a tenant could be ejected only on one or more of the grounds specified in Section 14 of the Delhi Rent Control Act being established; none were.

7. Fortunately for the landlords, the Delhi Rent Control Act came to be amended in the year 1988. Tenancies, where monthly rent exceeded Rs.3500/-, were not covered by the Delhi Rent Control Act.

8. A suit for ejectment was filed before the learned Civil Judge. The said suit bearing No.177/1992 (referred to in the impugned judgment as bearing No.177/1990) was dismissed in default on 17.1.1998. Admittedly, no application was ever filed seeking restoration of the suit and hence the suit was never restored. Instant suit seeking ejectment was filed in the year 2002 after serving a notice dated 11.3.2002 Ex.PW1/11 determining the tenancy.

9. In respect of the first so called substantial question of law sought to be projected, the question which arises is : What would be consequence when a suit for ejectment is dismissed in default

10. The answer is to be found in Order IX Rule 9 of the Code of Civil Procedure. It reads as under :- 9. Decree against plaintiff by default bars fresh suit (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from brining a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to cost or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

11. At the outset it may be stated that the principle underlying Order 9 Rule 9 CPC is public policy; not to vex the defendant for a second time on the same cause of action. But, it is not the same as the rule of res judicata enshrined und