G. C. Jain ( 1 ) THIS second appeal under Section 39 of the Delhi Rent Control Act, 1958 (for short the Act ) is directed against the order of the Rent Control Tribunal dated October 4, 1982. ( 2 ) BY lease deed dated July 24, 1953 the Delhi Improvement Trust, predecessor-in-interest of the Delhi Development Authority, leased out a plot of land No. 12, Block No. B Western Extension Area, New Delhi to Rattan Lal. He constructed a building thereon and let out a portion, consisting of one room and a covered verandah in front thereof, to Narain Dass (respondent-tenant) on a monthly rent of Rs. 63. 00. Rattan Lal later sold this property to Manohar Lal (appellant/landlord) by a sale deed dated November 26, 1961. The respondent attorned to him as a tenant. ( 3 ) UNDER the terms of the lease deed granted by the D. DA. , the lessee was not entitled to use the said land and building that may be erected thereon for any other purpose than for the purpose of a residential house, without the consent in writing of the lessor. The tenant, however, used the tenanted premises for dairy business. This user, being contrary to the terms of the lease, was objected by the DD. A. The landlord consequently filed an application against the tenant for recovery of the possession of the premises indispute under clause (k) of Sub-section (1) of Section 14 of the Act. Parties however, arrived at a compromise. The tenant agreed to pay 3/4th amount of the penalty or the premium levied by the DDA for the commercial use of the premises since November 27, 1961 upto date. The landlord agreed to withdraw the eviction petition which was consequently dismissed as such. ( 4 ) THE D D. A. thereafter refused to regularise the commercial user and served the appellant with a notice dated 27-5-74 to show cause as to why the lease be not cancelled for the breach of the said term. The landlord consequently filed a second application for eviction of the tenant from the said premises under clause (k)ofthe proviso to sub-section (i) of Section 14 of the Act. The landlord consequently filed a second application for eviction of the tenant from the said premises under clause (k)ofthe proviso to sub-section (i) of Section 14 of the Act. This petition was, however, dismissed on the ground that notice dated June 8, 1974, the basis of the eviction petition, was not a valid notice inasmuch as the tenant was not called upon to stop the alleged misuser of the premises and was not allowed any time for this purpose. ( 5 ) THE appellant thereafter served a fresh notice on the tenant and filed another eviction petition on July 4, 1977 for recovery of the possession of the premises under clause (k) of the proviso to sub-section (1) of Section 14 of the Act. It was alleged that the tenant not with standing the previous notice dated May 7, 1977 was using the tenanted premises for commercial purpose which was contrary to the conditions imposed on the landlord by the DDA while granting him the lease of the land on which the premises were situated. The D. D. A. was also made a party to this petition. ( 6 ) THE tenant admitted that he was carrying on the business of a dairy in the premises in dispute. He also admitted the receipt of the notice dated May 7, 1977 asking him to stop the commercial user. He, however, resisted the eviction on the pleas that it was barred by the principles of res-judicata and also under the provisions contained in Order 23 Rule 1 (4), Code of Civil Procedure; that the premises in dispute bad been let out for commercial purpose and were being used as such since the inception of the tenancy and that the DDA had been regularising the commercial user and this user could be regularised permanently, and that notice dated May 7, 1977 was invalid. ( 7 ) SH. J. M. Malik, Addl. Controller by his order dated September 17, 1979, observing that the learned counsel for the respondent had not picked up any conflict with the maintainability of the case, held that the petition was not barred by the provisions contained in Section 11, Code of Civil Procedure inasmuch as the previous application had not been decided on merits. Controller by his order dated September 17, 1979, observing that the learned counsel for the respondent had not picked up any conflict with the maintainability of the case, held that the petition was not barred by the provisions contained in Section 11, Code of Civil Procedure inasmuch as the previous application had not been decided on merits. He further found that the notice dated May 7,1977 was valid and the tenant not with standing the previous notice had used the premises in his tenancy for commercial purpose which was contrary to the condition imposed on the landlord by the D. D. A. while granting the lease of the land on which the said premiles had been constructed. Replying on the Supreme Court decision in Ram Rattan Bhanot v. Faqir Chand (1973) 3 SCR 454 , he rejected the objection of the tenant that landlord having let out the premises in dispute for commerial purpose could not claim eviction under clause (k ). With these findings he held that the ingredients contained in clause (k) stand proved. He consequently issued a notice to the DDA under Section 14 (11) of the Act calling upon it to explain whether the premises in dispute could be" regularised temporarily or permanently and if the answer was in positive on"! what terms and e editions. The matter was thereafter decided by Sh. H. P. Sharma, Additional Controller on December 6. 1980. He directed the landlord to approach the DDA and apply for regularisation of the commercial user, awaiting results thereon by July 2, 1981. The teaant was directed to pay the misuser charges for the past misuser within one month of the order. ( 8 ) FEELING aperieved the landlord filed a petition in the High Court under Article 227 of the Constitution. This Court by order dated October 30, 1981 held that the order of the Addl. Controller directing the landlord to approach the D. D. A. for regularisation of the future non-conforming user was without jurisdiction and liable to be quashed. The said order was consequently quashed and the matter was sent to the Add ). Controller for determining the two alternatives mentioned in Section 14 (11) of the Act. ( 9 ) AFTER the remand. Sh. V. B. Gupta, Addl. The said order was consequently quashed and the matter was sent to the Add ). Controller for determining the two alternatives mentioned in Section 14 (11) of the Act. ( 9 ) AFTER the remand. Sh. V. B. Gupta, Addl. Controller by order dated May 1, 1982 held that the DDA was not willing to regularise the misuser permanently and directed the tenant to stop the misuser within one month from the date of the order failing which the eviction order shall be deemed to have been passed against the tenant. ( 10 ) DISSATISFIED the tenant filed an appeal before the Rent Control Tribunal. The appeal was allowed, the order of the Addl. Controller was set aside and the case was remanded back to the Addl. Controller to decide it after finding the tentative date by which the temporary regularisation or permanent regularisation could be permitted. ( 11 ) FEELING aggrieved the landlord has filed this second appeal. ( 12 ) TO claim eviction under clause (k) the landlord was required to prove : (i) that the land on which the tenanted premises arc situate had been taken by him on lease from the Government, the DDA or the Municipal Corporation of Delhi ; (ii) the tenant was using the premises contrary to any condition imposed on the landlord by the said authority (lessor); and (iii) that the tenant had not stopped the breach of the said conditions even after, the service of a notice to th`at effect on him by the landlord. ( 13 ) IT has not been disputed and cannot bedisputed that all these ingredients stand proved in this case. Clause (4) (e) of the lease deed dated July 24, 1953, whereby the Delhi Improvement Trust, predecessor-in- interest of Delhi Development Authority, granted the lease of the land on which the premises in dispute arc situated in favr of Mr. Rattan Lal, predecessor of the present landlord, imposed a condition on the lessee that it shall not use the said land and the buildings that may be re-erected thereon, during the lease period for any other purpose than for the purpose of a residential house without the consent in writing of the lessor. The tenant has admitted in the written statement itself that he was using the tenanted premises for commercial purpose. The tenant has admitted in the written statement itself that he was using the tenanted premises for commercial purpose. It has also not been disputed that he had been served with the notice dated May, 1977 asking him to stop the user and he has not yet stopped the commercial user. All the ingredients required under clause (k) thus, stand proved. ( 14 ) SUB-SECTION II of the Section 14 of the Act reads : "no order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of proviso to sub- section (1), if the tenant within such time as may be specified in this behalf by the Controller, complies with the condition imposed on landlord by any of the authorities REFERRED TO to in that clause or pays to that authority such amount by way of compensation as the Controller may direct. " ( 15 ) THESE provisions prohibit the making of an order for the recovery of possession, under claase (k) if the tenant complies with the order which the Controller is obliged to make under sub-section 11. This sub-section requires the controller to make either of the two orders namely, (i) directing the tenant to stop the misuser within a specified period ; or (ii) to pay to the authority Concerned such amount by way of compensation as the Controller may direct. No doubt, it gives discretion to the Controller to pass either of these two orders, this discretion, however, cannot be exercised arbitrarily and has to be exercised judicially. The order has to be made keeping in view the facts and circumstances of the case and the object for the enactment of these provisions. It is also a settled law that the order under sub-section 11 has to be made after notice to the authority concerned, (lessor ). ( 16 ) THE object of enacting clause (k)oftbe proviso to sub-section (1) of the Section 14 and sub-section (11) of Section 14 of the Act, in my view, is two fold. The legislature had clearly taken note of the fact that enormous extents of lands have been leased by the three authorities mentioned in that clause, and has expressed its anxiety to see that these lands are used for the purpose for which they were leased. " (See Faqir Chand (supra ). The legislature had clearly taken note of the fact that enormous extents of lands have been leased by the three authorities mentioned in that clause, and has expressed its anxiety to see that these lands are used for the purpose for which they were leased. " (See Faqir Chand (supra ). The other object was to protect the landlords, whose right to claim eviction under the ordinary law had been curtailed by the Act, from the cancellation of their lease hold rights of such lands on account of the breach by the tenants, of any of the conditions imposed on them by these authorities. At the same time by enacting sub-section (11) the legislature sought to protect the tenants from eviction by giving a further opportunity to stop the breach or to pay such compensation. as the Controller may fix. The question of payment of compensation, in my opinion, would arise only when the authority concerned is prepared to condone the breach otherwise neither of above mentioned two purposes for enacting these provisions would be achieved. ( 17 ) THIS Court by order dated October 30. 1981, while remanding the case back to the Addl. Controller, directed him to determine the two alternatives mentioned in sub-section (11) of Section 14 of the Act. Learned Addl. Controller held that the DDA was not prepared to regularise the misuser permanently and directed the tenant to stop the commercial user. The learned Tribunal is appeal observed : "as already pointed out above, Hon ble Mr. Justice Sultan Singh in the civil writ between the parties has clearly held that it is to be found as to what compensation if any can be payable by the tenant for misuse charges and this has to be for the past as well for the future. Delhi Development Authority in its reply does state about past regularisation for the misuser and in the reply filed in this Court, stated that the misuser charges uptill 30-9-82 are none but for the future misuser charges they are not ready to make any statement. The Delhi Development Authority has been a party to these proceedings and therefore, is aware of the directions given by the High Court. It must file a detailed reply before the matter can be agitated. The Delhi Development Authority has been a party to these proceedings and therefore, is aware of the directions given by the High Court. It must file a detailed reply before the matter can be agitated. If necessary, it is a fit case where the evidence should be recorded by calling an officer of the Delhi Development Authority to spell out as to upto which date they are willing to condone the breaches temporarily or permanently for the future and on what compensation and further what is their general policy with respect to the shop in question. "with the above observations the case was remanded with directions to the Addl. Controller to decide, if any tentative date was known uptill which temporary regularisation charges could be fixed or permanent regularisation could be permitted. ( 18 ) MR. B. R. Malik, learned counsel appearing for the landlord, strenuously assailed this order of the learned Tribunal He contended that the Delhi Development Authority was a party to the eviction petition since beginning and had taken the stand that it was not prepared to regularise the breach. In these circumstances, argued the learned counsel, the Tribunal was in error in remanding the case. ( 19 ) UNDOUBTEDLY the Delhi Development Authority was a party respondent to the eviction petition filed by the landlord in the year 1977. It filed a written statement. Their relevant portion of para 3 of the preliminary objection and para 21 (additional pleas) read as under : "3. . . . . . . . . THE portion of the premises on this plot is being used for commercial purposes and, as such, the same is in contravention of the terms and conditions and, therefore, the lease is liable to be cancelled. It is, further submitted that the answering respondent is not prepared to regularise the misuser of the premises and to accept the consideration money and is interested in the vaction of the misuser. " Additionai Pleas : 21. That the answering respondent reserves the right to take action against the petitioner for contravention of the terms and conditions of the lease deed under the provisions of Delhi Development Act, 1957 and the Master Plan and Zonal Plan of Delhi. " ( 20 ) AS noticed above Mr. J. M. Malik, Addl. " Additionai Pleas : 21. That the answering respondent reserves the right to take action against the petitioner for contravention of the terms and conditions of the lease deed under the provisions of Delhi Development Act, 1957 and the Master Plan and Zonal Plan of Delhi. " ( 20 ) AS noticed above Mr. J. M. Malik, Addl. Controller after holding that the ingredients of clause (k) had been proved, directed that notice be issued to the DDA under sub-section (11)of Section 14 of the Act. The authority filed a reply to this notice. The relevant portion of the para 3 of the reply reads as under : "qaestion for permanent commercialisation of the premises under reference does not arise till the Zonal Plan of this area is approved by the Central Government. However, the application for the change of the user may be considered afresh under the rules and regulations, if the same is submitted by the lessee. " ( 21 ) AFTER the remand by the High Court the Delhi Development Authority filed another reply date April 7, 1982, The relevant portion of para 3 reads as under: "question for permanent commercialisation of the premises under reference does not arise till the Zonal Plan of this area is approved by the Central Govt. However, the application for the change of the user may be considered afresh under the rules and regulations if the same is submitted by the lessee. " ( 22 ) IN this second appeal Deputy Director (OSB) Delhi Development Autority was examined. He deposed : "as per the existing policy the DDA is not at all going to regularise the misuse in respect of the said property permanently or temporarily but is keenly interested to get the misuse removed/ vacated. However, DDA can regularise only the past misuse subject to payment of misuse charges for the past period provided the lessee removes the existing misuse in premises. " ( 23 ) FROM various replies filed by the DDA and the statement of ihe Deputy Director (OSB) recorded by this Court on 27-1-86 it is clear that DDA was not prepared to regularise the misuse premanently or temporarily. On the other hand it was insisting to get the misuse vacated and in default threatening cancellation of lease. " ( 23 ) FROM various replies filed by the DDA and the statement of ihe Deputy Director (OSB) recorded by this Court on 27-1-86 it is clear that DDA was not prepared to regularise the misuse premanently or temporarily. On the other hand it was insisting to get the misuse vacated and in default threatening cancellation of lease. In these circumstances, there was no alternative but to direct the tenant to stop the misuser and in default to face eviction. ( 24 ) MR. P. K-JAITLEY, learned counsel for the tenant contended that the DDA had issued a public notice dated April 6,1985 which had been published in the Gazette of India Extra-ordinary-Part 11 dated April 6,1985. It shows that the DDA was proposing to make changes in the Master Plan. According to these changes the user of the premises in dispute would be converted as commercial. Admittedly, no change has yet been made in the Master Plan or the Zonal Plan regarding the user of the property in dispute. Mere proposal is not of much help. ( 25 ) LEARNED counsel for the tenant also argued that the authority had regularised the commercial user in respect of adjacent premises and its action is not regularising the commercial user of the premises in dispute was discriminatory. I am afraid, this question cannot be gone into these proceedings. ( 26 ) MR. Jaitley, learned counsel for the respondent also assailed the finding of the learned Addl. Controller regarding the maintainability of the eviction petition. It was argued that the landlord had earlier filed an application claiming eviction under clause (k) of the proviso to sub section (1) of Section 14 of the Act, i. e. on the same ground on which eviction was claimed in the present eviction petition. The application filed earlier was withdrawn by him without the permission from the Court and, therefore, the present application was barred by the principles of res judicata as well as by virtue of the provisions contained in Order 23 Rule 1 (4) of the Code of Civil Procedue. ( 27 ) MR. Malik, learned counsel appearing for the landlord, on the other hand, contended that the tenant had specifically raised this plea in the written statement but had given up the same as was apparent from the order of the learned Addl. Controller. ( 27 ) MR. Malik, learned counsel appearing for the landlord, on the other hand, contended that the tenant had specifically raised this plea in the written statement but had given up the same as was apparent from the order of the learned Addl. Controller. Even in the appeal filed by the tenant against the said order this finding was not assailed. He therefore, could not raise this plea now in the second appeal. It was also pointed out that there is no bar of res judicata as the matter had been compromised. Provisions of Order 23 Rule 1 (4) Civil Procedure Code were not attracted as the present petition has been filed on a new cause of action which arose after the decision of the earlier case. He also pointed out that according to the law which was prevalent in 1966, i. e. at the time of the decision of the earlier petition, the landlord who had himself let out the premises for use for a purpose which was contrary to the terms imposed on him by the authority concerned while granting the lease of the land on which the premises were situate, was estopped from claiming eviction under clause (k ). There was a change in this view by the decision of the Supreme Court in Ram Rattan Bhanot v. Faqir Chand (supra) which was decided in the year 19/3. ( 28 ) I have carefully examined the contentions of the parties. The previous petition filed under clause (k), as noticed earlier, had been withdrawn as a result of the compromise between the parties. To create the bar of res judicata the matrer in the earlier case, inter alia, must have been heard and finally decided by the Court. The petition having been dismissed as withdrawn on the basis of a compromise, the matter had not been heard and decided on merits. There being no decision of the court the previous order based on compromise does not bar the present application. That order did not operate as res judicata (See P. V. Subha Rao and Ors. v. V. Jagannatha Rao AIR 1967 SC 591 ). There being no decision of the court the previous order based on compromise does not bar the present application. That order did not operate as res judicata (See P. V. Subha Rao and Ors. v. V. Jagannatha Rao AIR 1967 SC 591 ). ( 29 ) SUB rule (4) of Rule 1 of Order 23, Civil Procedure Code provides that where the plaintiff withdraws from a suit without the premission of the Court under Sub-rule (3) he would be barred from bringing a fresh suit in respect of same subject matter, the term subject matter means plaintiff s cause of action in a suit. As observed by the Supreme Court in Vallabh Das v. Dr. Madanlal and Ors. AIR 1970 SC 987 , the term subject matter in Order 23 Rule I means the bundle of facts which have to be proved in order to entitle the plaintiff to the relier claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit. ( 30 ) IN claim eviction under clause (k), as observed earlier, the landlord, inter alia, was required to prove that the tenant had not stopped the breach of the condition even after the service of the notice on him by the landlord. In other words, one of the essential facts required to be proved in such a case is the service of the notice on the tenant requiring him to stop the breach of the condition imposed on the landlord by the Authority concerned. Each such notice furnished a new cause of action. The present petition was based on the notice dated May 7, 1977 which was issued long after the decision of the first case. Therefore, it cannot be said that the subject-matter in the present application was the same. This view finds support from a decision of this Court in Rajeshwar Dayal Saxena v. Nanak Chand and Another (SAO 165/81) decided on October 20, 1981. ( 31 ) IN the view I have taken above I need not go into the question whether the landlord had given up this plea and therefore, could not raise this plea in this appeal. ( 31 ) IN the view I have taken above I need not go into the question whether the landlord had given up this plea and therefore, could not raise this plea in this appeal. ( 32 ) FOR the reasons recorded above I allow the appeal, set aside the impugned order and instead direct the tenant to stop the misuser within three months from today, in default, the order for recovery of possession under clause (k) of the proviso to sub section (1) of section 14 of the Act would be deemed to have been passed against him and the landlord would be entitled to recover the possession of the premises in dispute. Parties are left to bear their own costs.