V.S. DESHPANDE, J.

This special civil application under Article 227 of the Constitution of India, by the original tenant-defendant is directed against the concurrent decrees for eviction passed by the Judge of the Court of Small Causes at Bombay and also in appeal by the Appellate Bench of the said Court. Respondents landlords claimed possession of the suit premises from their tenant after terminating his tenancy on the ground amongst others that the tenant had already acquired suitable premises for his residence to which place he has already shifted. The tenant did not dispute the fact that in the year 1959 he did acquire some premises at Bassein. His contention, however, is that the premises in dispute were still required by him as he was carrying on his business in Bombay and his premises at Bassein did not suit him for carrying his business. Both the courts could not place any reliance on this plea of the tenant and held that the tenant was liable to be evicted in view of his having acquired suitable premises for himself at Bassein.

2. Mr. J.C. Rajani the learned Advocate appearing for the petitioner contents that previous to the present proceedings in suit No. 4491 of 1962, the respondent had initiated the suit for evicting being Suit No. 2702 of 1960. The suit was based on the alleged sub-letting by the tenant. However, the plea that the premises were vacated by the tenant and the tenant had acquired suitable premises for his own residence was not pleaded in their earlier suit. Mr. Rajani, therefore, contends that the earlier judgment dismissing the suit of the plaintiff operates as res judicata. Both the courts have rejected the contention of the tenant. It is true that in the earlier suit plaintiff merely relied on the ground of sub-letting and did not plead acquisition of the suitable premises by the tenant as ground for eviction. However, none of the issues were actually tried in the earlier suit as the suit was settled and compromised and dismissed on that ground. This cannot be said to be a decision on merits of the controversies. No issue can be said to have been tried and decided to attract the provisions of section 11 of the Civil Procedure Code. In fact, it will not be possible even to contend that the point was not taken as the pleadings in the earlier suit claim did assert that plaintiff had sub-let the premises and left the place. Secondly, it is doubtful whether the plaintiff was aware of the defendant having shifted to the new premises though he admits to have been aware of the fact that defendant-tenant had so purchased and acquired other premises at Bassein. The ground of acquisition of the other premises can only be available to the landlord if it is found to be suitable for tenants residence. Mere knowledge of the acquisition of any premises by the tenant may not be sufficient to claim eviction unless landlord also knows that the said premises were suitable for the tenant. Tenants evidence in this case itself indicates that he shifted in the year 1960. The date of his shifting is not mentioned by him nor otherwise it is possible to know from the record. In this view of the matter even the knowledge of such acquisition cannot be attributed to the plaintiff and the effect of the failure by the landlord specifically to treats it as a ground cannot also be taken into account for rejecting the plaintiffs present claim.

3. Thus there is no merit in the Special Civil Application. Rule is accordingly discharged.

No order as to costs.