Usha Mehra ( 1 ) THE short point involved in this appeal iswhether the earlier petition under Section 14 (l) (k) of the Delhi Rent Controlact (hereinafter called the D. R. C. Act) which was dismissed would operateas res Judicata to a second petition under Section 14 (l) (k) of the D. R. C. Act,between the same parties. ( 2 ) ADMITTED facts are that the appellant filed a petition for evictionunder Section 14 (l) (k) of the D. R. C. Act against the respondent allegingthat the lease of the respondent on which the premises is situated had beengranted by the Delhi Development Authority (in short D. D. A.) for thepurposes of constructing a residential house. The respondent notwithstanding the previous notice, has been using the premises in question for commercial purposes and is running cloth business in the garrage room. Since thepremises is being used by the respondent contrary to the conditions imposedon the appellant by the D. D. A. therefore, the eviction petition. Respondentraised the plea that the petition was barred by the principle of resjudicatabecause earlier also the appellant had sought eviction of this premises on thesame ground. That the said petition was dismissed on 10. 6. 70, therefore,bringing a fresh petition of eviction on the same cause of action was barredby res judicata. By the impugned order the Rent Controller as well as therent Tribunal dismissed the eviction petition. Rent Tribunal relied on thedecision of this Court in the case of Shyam Singh v. Om Prakash, S. A. O. No. 355/86 decided on 21/05/1974, where it was observed that in view of thefinality attached to the earlier decision dismissing the petition for evictionunder Section 14 (1 ) (k) of the D. R. C. Act, the second petition on the samecause of action was barred by the principle of res judicata. ( 3 ) I am afraid the Rent Tribunal neither appreciated the facts ofthis case nor the correct position of law. The lease deed of the D. D. A. hasbeen exhibited as Ex. A-1. The terms of Ex. A-1 clearly indicate that thepremises has to be used for residential purposes and not for commercialpurposes. Earlier petition of the appellant was dismissed on 10. 6. 70. Subsequent thereto appellant received another notice from the D. D. A. , which isex. A-2, dated 13. 3. 73, asking him to stop the misuser of the garrage roomin question. A-1 clearly indicate that thepremises has to be used for residential purposes and not for commercialpurposes. Earlier petition of the appellant was dismissed on 10. 6. 70. Subsequent thereto appellant received another notice from the D. D. A. , which isex. A-2, dated 13. 3. 73, asking him to stop the misuser of the garrage roomin question. This notice was received by the appellant on 16. 3. 73. Thereafter, another notice was issued by the D. D. A. which is Ex. A-3 dated23. 4. 73 asking the petitioner to stop the misuser. As the D. D. A. issuedfresh notice after 10. 6. 7u, therefore, fresh cause of action accrued in favourof the appellant. The earlier petition having been dismissed, to my mind,that will not operate as res judicata because it was a continuous cause ofaction particularly when the D. D. A. served a second notice Ex. A-2 dated13. 7. 73. The lease deed has been proved on record as Ex. A-1 and therespondent admitted using this premises for commercial purposes which isagainst the terms of the lease. D. D. A. filed the written statement in whichit pleaded that it would not condone the misuser by the landlord or histenant. Therefore, to my mind, the appellant made out the ground undersection 14 (1 ) (k) of the D. R. C. Act. ( 4 ) THE Tribunal by the impugned judgment relied on the decisionof Shyam Singh v. Om Prakash, SAO No. 335/86. A perusal of this judgment shows that the learned single judge did not notice the decision of thesupreme Court in Mathura Prasad Sarju Jaswal v. Dossi Bai, reported inair 1971, Supreme Court. 2355, where it was held that the question relatingto jurisdiction of a Court cannot be deemed to have been finally determinedby the erroneous decision of that Court. If by erroneous interpretation ofthe statute the Court holds that it has no jurisdiction the decision would notoperate as res judtcata. The decision cannot operate as res Judicata betweenthe same parties whether the cause of action in the subsequent litigation isthe same or otherwise because if those decisions are considered as conclusiveit will assume the status of a special rule of law applicable to the partiesrelating to the jurisdiction of the Court in derogation of the rule declared bythe legislature. The decision cannot operate as res Judicata betweenthe same parties whether the cause of action in the subsequent litigation isthe same or otherwise because if those decisions are considered as conclusiveit will assume the status of a special rule of law applicable to the partiesrelating to the jurisdiction of the Court in derogation of the rule declared bythe legislature. ( 5 ) THE earlier eviction petition of the petitioner was dismissed on theground that he himself let out the premises for commercial purposes contrary to the terms of the lease, and therefore, estopped from claiming eviction under Section 14 (1 ) (k) of the Act. The Rent Controller at that timerelied on the decision of the Punjab High Court in the case of Smt. Vmakumar v. Jaswant Singh, 1960 PLR page 460 where it was held that if alandlord himself had rented out the premises for commercial purposes contrary to the terms of the lease deed then he cannot seek eviction under Section 14 (1 ) (k ). However, this view of the law was over ruled by the Supremecourt in the case of Fakir Chand v. Ram Rattan, 1973 SC page 921, whereit was held that a landlord who himself let out the premises in violation ofthe terms of the lease deed entered into with the President of India, was notstopped from claiming the eviction of his tenant under Section 14 (l) (k) ofthe Act. Thus there was a change in law by the judicial pronouncement ofthe Supreme Court. Therefore, in view of Fakir Chand s judgment thetribunal s decision of 10. 6. 70 was no good law and could not have operatedas a res judicata to a subsequent petition filed by the appellant. There couldnot have been any estoppel against the appellant, although he himself had letout the premises for use as held in the earlier proceedings. His right toclaim eviction under Section 14 (l) (k) read with Section 14 (11) of she D. R. C. Act was not determined by the Controller in the previous case and that theuser contrary to the terms of the lease deed is a recurring cause of action. ( 6 ) SHAM Singh s case (supra) the learned Single Judge was dealingwith a case where the earlier petition was dismissed and there was no subsequent notice received by the landlord from the D. D. A. , therefore. ( 6 ) SHAM Singh s case (supra) the learned Single Judge was dealingwith a case where the earlier petition was dismissed and there was no subsequent notice received by the landlord from the D. D. A. , therefore. Courtcame to the conclusion that the earlier judgment inter se the parties willoperate as a res judicata. But that is not the case in hand. In the presentcase from the facts stated above it is clear that after earlier decision dated10. 6. 70, the D. D. A. served two more notices on the appellant asking him tostop the misuser of the premises forthwith and further D. D. A. was not goingto condone the misuser. Therefore, the judgment of the Sham Singh s case (supra) had been wrongly applied by the Rent Tribunal in this case. Inrajeshwar Dayal v. Nanak Chand and. Anr" case reported in 21 (1982), Delhilaw Times 45, this Court observed that even where the landlord himself letout the premises for commercial purposes against the farms of the lease ofland granted by the D. D. A. such a landlord cannot be estopped from claiming eviction under Section 14 (1 ) (k) of the Act on the ground of misuse ofpremises by the tenant. That eviction petition filed under Section 14 (l) (k)after notice to stop misuser if dismissed on the ground that landlord hadhimself let out premises against the terms of the lease deed granted by thed. D. A. , subsequently, the said landlord giving fresh notice to stop misuser iffiled a fresh application for eviction under Section 14 (1) (k), the subsequentpetition was not barred by the principle of res judicata in view of the freshcause of action by fresh notice under Section 14 (l) (k) to stop the misuserand subsequent change of law by judicial pronouncement of Supreme Court. ( 7 ) IN view of what is stated above, it is clear that it was a freshcause of action which had arisen in favour of the appellant and since therespondent did not stop the misuser, fresh cause of action arose to the appellant to proceed under Section 14 (l) (k) of the Act. Under Sub-section (11)of Section 14 of the D. R. C. Act no order for recovery of possession underclause (k) could be passed if the tenant stops the misuser within. a time to befixed by the Controller or pays the compensation determined by the Controller. Under Sub-section (11)of Section 14 of the D. R. C. Act no order for recovery of possession underclause (k) could be passed if the tenant stops the misuser within. a time to befixed by the Controller or pays the compensation determined by the Controller. Is the present case the Rent Controller dismissed the eviction petitionon the ground that the same was barred by the principle of res judtcata. Hehad in fact not determined whether the respondent was willing to stop themisuse or pay the compensation that may be determined by the Controller. This is contrary to the law now well settled by this Court as well as by thesupreme Court in Fakir Chand s case. ( 8 ) I accordingly hold that the cause of action in the present petitionwas different from the one in the earlier petition. That due to change in lawon account of the interpretation given by the Supreme Court there was noestoppel against the appellant to claim eviction under Section 14 (l) (k) of theact. In this reward I am also supported by the decision of this Court in thecase of Li!a Wati Duti. v. DDA, reported in 20 (1981), DLT page 42. ( 9 ) IN view of my above discussion I hold that the ground of evictionunder Section 14 (l) (k) stand proved. The appeal is accordingly allowed. The judgment and the order of the Tribunal confirming the order of theaddl. Rent Controller, Delhi, dismissing the eviction application undersection 14 (l) (k) of the Act are set aside. Since the Rent Controller had nottaken the proceedings under Section 14 (11) of the Act, which is a mandatoryprovision, therefore, the case is remanded back to the Additional Rent Controllerfor deciding the question under Sub-section (11) of Section 14 of the Act. He could exercise one or the other of the two alternatives ie whether noorder for recovery of possession under Clause (k) could be passed if the tenantstope the misuser within a time to be fixed by him or pays the compensationdetermined by him. Since the DDA was not a party before this Courthence the Controller will ascertain from the DDA whether it can condonethe misuse after charging any penalty. The Court below would afford anopportunity to the parties to determine the question arising under Section 14 (11) of the D. R. C. Act. Parties are directed to appear before the Addl. Since the DDA was not a party before this Courthence the Controller will ascertain from the DDA whether it can condonethe misuse after charging any penalty. The Court below would afford anopportunity to the parties to determine the question arising under Section 14 (11) of the D. R. C. Act. Parties are directed to appear before the Addl. Rent Controller on 10/05/1993. No order as to costs.