A tenant's right to seek repairs arises continuously under Section 44(3) of the Act, regardless of withdrawing a previous petition, which does not trigger res judicata.

JUDGMENT

Navin Chawla, J. (Oral)--This petition has been filed by the petitioner challenging the order dated 18.07.2020 passed by the learned Rent Control Tribunal, dismissing the appeal filed by the petitioner, being RCT No. 33/2019.

2. The respondent herein had filed a petition under Section 44 (3) of the Delhi Rent Control Act, 1958 (hereinafter referred to as `Act') before the learned Additional Rent Controller, claiming that the respondent is a tenant of the petitioner with respect to shop bearing private no. (32-33) on the ground floor of property bearing no. IX/1604, (old no. X-499/3), Sri Krishna Market, Gandhi Nagar, Delhi-110031, and the same is not habitable or usable besides being in a deplorable condition. The respondent asserted that inspite of the legal notice dated 07.11.2015 being served on the petitioner, the petitioner has failed to carry out the necessary repairs in the tenanted premises to make the same habitable/usable.

3. The petitioner herein challenged the maintainability of the above petition of the respondent on the ground that based on the same legal notice dated 07.11.2015, the respondent had earlier filed a petition under Section 44 of the Act, being RC/ARC No. 947/2016, which was withdrawn by the respondent without seeking leave of the learned Controller to file a fresh petition thereon, vide order dated 26.08.2017. The petitioner asserted that in view of such withdrawal without leave, the subsequent petition filed by the respondent was not maintainable on account of constructive res-judicata and under Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908 (CPC).

4. The plea of the petitioner was, however, dismissed by the learned Additional Rent Controller vide its order dated 02.08.2019, observing as under:-

"6. Before averting to the contentions of both the sides, it would be apposite to reproduce Section 44 of The Delhi Rent Control Act, 1958 which provides as under: -

"44. Landlord's duty to keep the premises in good repair. - (1) Every landlord shall be bound to keep the premises in good and tenant-able repairs .....

It is clear from said provision that it is the primary responsibility of the landlord to keep the tenanted premises in good shape and do tenantable repairs. Only in cases where the landlord neglects to make repairs which the landlord is bound to make U/s 44 (1) DRC Act, the tenant is required to give a notice in writing to the landlord to make such repairs and in case if the landlord neglects or fails to make the repairs within reasonable time after notice, the tenant can make repairs and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord.

Now coming to aspect that earlier petition was dismissed as withdrawn on the statement of the petitioner side in the opinion of this Court, the provision of Section 44 of DRC Act has been inserted in the Act to ensure that the premises are kept in good and habitable shape. The said provision appears to have been inserted in DRC Act to save life and loss of goods. In the opinion of this Court, a fresh cause of action would accrue with passage of each day for filing of such petition and earlier petition, if any would not amount to res judicata qua fresh cause of action. Moreover, in this matter the earlier petition was only withdrawn and was not finally adjudicated.

The law cited by Ld counsel for respondent regarding the principle of res-judicata being applicable to the writ petitions which are even dismissed as withdrawn may not be applicable to such benevolent provision U/s 44 of DRC Act which is there to save loss of life and of goods. So in the opinion