A suit for injunction to restrain eviction on the ground of a fresh tenancy is not maintainable in view of the bar of Section 47 CPC and Section 41(h) of the Specific Relief Act, where the decision of the appellate authority and the revisional court affirming the order of eviction has become final.

N.K.Kapoor, J.

1. This is a defendants regular second appeal against the judgment and decree of the Additional District Judge decreeing the suit of the plaintiff thereby restraining the defendants from dispossessing him on the basis of ejectment order dated 8.10.1985.

2. Plaintiff filed a suit for declaration to the effect that the previous including the impugned ejectment order dated 8.10.1985 passed by Rent Controller has become infructuous and a new tenancy has come into existence in respect of the premises in dispute between the plaintiff and defendant No.l and so prayed for injunction restraining the defendants from executing the ejectment order dated 8-10-1985. As per averments in the plaint it was stated that plaintiff is the-proprietor of M/s Narang Heat Treatment Centre and is running his business of heat treatment in the rented premises. This premises was taken on rent from Smt. Shanti Devi vide lease deed dated 18.4.1979. Smt Shanti Devi has died and the property has been bequeathed in favour of Smt. Veena Gupta on the basis of a Will dated 12.12.1979 and so she is the sole owner of the premises in dispute. It has been further stated that an order of eviction was raised against the plaintiff on an ejectment application Under Section 13 of the Haryana Urban Control of Rent and Eviction Act on the ground of non payment of rent and that appeal against the order of Rent Controller is pending before the appellate authority. It is during the pendency of the appeal that matter has been compromised and by mutual consent the monthly rent has now been increased from Rs. 750/- to Rs.-1,000/ w.e f. 18.12.1985. On account of the fresh agreement arrears of rent at the increased rate of rent has already been paid to the defendants by two Bank drafts which have been encashed and so these ejectment orders and the appeal pending have become infructuous.

3. Defendants were proceeded ex-parte. The trial Court after considering the ex-parte evidence came to the conclusion that Section 47 bars the institution of such a suit. Otherwise also the trial Court came to the conclusion that the matter of compromise can also be agitated before the appellate authority and so held that the suit of the, plaintiff cannot be decreed as prayed for. The Court accordingly ordered that the plaintiff shall not be dispossessed except in due course of law.

4. Feeling dissatisfied with the limited relief granted by the trial Court plaintiff filed an appeal. This time defendants put in appearance with a view to place relevant documents i.e the order of the appellate authority as well as the order passed in revision petition by this Court filed an application under order 41 Rule 27 CPC to adduce in evidence these documents by way of additional evidence. This prayer was declined by the Additional District judge vide order dated 13.1.1988. The Additional District judge found substance in the plea of the plaintiff that a fresh tenancy has been created which renders the earlier order of eviction as redundant. Court accordingly passed a restrain order preventing the defendants from dispossessing plaintiff in execution of ejectment order dated 8.10.1985.

5. Challenging the judgment and decree of the Lower Appellate Court the learned counsel for the appellant has argued that judgment and decree is not only illegal and invalid but infact no such suit could be filed by the plaintiff. According to the counsel the plaintiff is clearly guilty of holding the material information from the Court but for which the suit of the plaintiff could not be decreed. Elaborating the counsel argued that admittedly an order of eviction- was passed against the plaintiff on the ground of non-payment of rent as well as for causing material impairment to the building by Rent Controller vide order dated 8.10.1985 which order was affirmed by the appellate authority on 11.9.1986. Not only this, a further revision against the order of the appellate authority was dismissed by this