Judgement ORDER :- By means of this writ petition, moved under Article 226 of Constitution of India, the petitioner/landlord has sought writ in the nature of certiorari, quashing judgment and order dated 3-12-1997, passed by Distt. Judge, Pauri Garhwal, in Small Cause Case Revision No. 5 of 1997. 2. Brief facts of the case, as narrated in the writ petition are that the petitioner instituted suit No. 1 of 1996, before Judge, Small Causes Court/Civil Judge (Jr. Division) at Kotdwar against the Respondent No. 3 for the eviction and recovery of arrears of rent and mesne profits, after giving notice to him under Section 106 of Transfer of Property Act, 1882 and thereby determined his tenancy. The said suit, after hearing the parties was decreed by the Judge, Small Causes Court, vide its judgment and order dated 7-6-1997. Respondent No. 3/tenant filed a revision against said order before District Judge, Pauri Garhwal (respondent No. 1) which was registered as Small Cause Case Revision No. 5 of 1997. Learned District Judge, after hearing the parties, allowed the revision and dismissed the suit No. 1 of 1996. It is alleged by the petitioner that the respondent No. 1 has wrongly allowed the revision on the ground that the said suit was barred by the principle of res-judicata. It is further alleged in the petition that earlier suit No. 3 of 1990 which was decided on 14-11-1995, related to the arrears of rent for the period July 1986 to October 1989, and the present suit No. 1 of 1996 in question, relates to arrears of rent of subsequent period and on different cause of action. 3. Respondent No. 3, filed his counter-affidavit in which it is stated that the SCC suit No. 1 of 1996 is barred by Section 11 of the Code of Civil Procedure, 1908 and no jurisdictional error has been committed by the respondent No. 1 in passing the impugned judgment and decree. It is further stated in the counter affidavit that the notice given under Section 106 of Transfer of Property Act, 1882, is bad in law. It is also alleged by the respondent No. 3 that since earlier suit was also for his eviction and for recovery of the arrears of rent and as such question being substantially same in both suits, which had been finally answered in earlier suit, the subsequent suit was not maintainable. 4. It is also alleged by the respondent No. 3 that since earlier suit was also for his eviction and for recovery of the arrears of rent and as such question being substantially same in both suits, which had been finally answered in earlier suit, the subsequent suit was not maintainable. 4. This writ petition was initially filed before Allahabad High Court, wherefrom it received under Section 35 of U.P. Reorganization Act, 2000, for its disposal. 5. I heard learned counsel for the parties and perused the record. 6. Relationship of landlord and tenant is not disputed between plaintiff (petitioner) and defendant (respondent No. 3), nor any thing agitated by the parties before this Court, as to rate of rent. It is also admitted that earlier Suit No. 3 of 1990 was instituted by the plaintiff/petitioner against the defendant/respondent No. 3 for his eviction and for recovery of arrears of rent for the period from July 1986 to October 1989 and the same was dismissed. There is no dispute between parties that the subsequent suit No. 1 of 1996 is filed again for eviction of defendant/respondent No. 3 on the ground of default in payment of rent for subsequent period and it is clear from the record that the subsequent suit pertains to alleged default in respect to the different period. As such, this Court has no doubt in agreeing with the contention of learned counsel for the petitioner that the cause of action in the subsequent suit was different. 7. Learned counsel for the respondent No. 3 drew attention of this Court to explanation IV of Section 11 of Code of Civil Procedure, 1908, and argued that any matter which might and ought to have been ground of defence or attack in former suit, shall be deemed to have been matter directly and substantially in issue in subsequent suit. I fail to understand how his explanation to Section 11 helps the defendant in the present case. Learned counsel for the respondent No. 1 further contended that plea as to the non-applicability of U. P. Act No. 13 of 1972 stands decided in the earlier suit and cannot be re-agitated in the subsequent suit. I fail to understand how his explanation to Section 11 helps the defendant in the present case. Learned counsel for the respondent No. 1 further contended that plea as to the non-applicability of U. P. Act No. 13 of 1972 stands decided in the earlier suit and cannot be re-agitated in the subsequent suit. Had the earlier suit been dismissed on the ground that the U.P. Act No. 13 of 1972 was applicable to the premises in question, this Court would have agreed with the submission of learned counsel for the respondent No. 3. From the perusal of record, it is not clear if defendant denied the plea taken in the previous suit that the house in question being situated 12 kms away from limits of Nagar Palika, was not covered by U.P. Act 13 of 1972, nor is there any finding on said earlier suit as such neither any issue framed thereon nor finding was given. 8. Learned counsel for the respondent No. 3 further submitted that since suit was dismissed, therefore in view of explanation V of Section 11 of the Code of Civil Procedure, 1908, it shall be deemed that question relating to aforesaid plea stands decided in negative. The submission of learned counsel, in my opinion, is misconceived for the reason that the previous suit was not dismissed on that ground. Moreover, explanation V of Section 11 of the above mentioned Code, only makes clear that the relief claimed earlier, if not expressly granted, shall stand refused. In other words, finding as to default in respect of period from July, 1986 to October 1989 stands decided in negative and relief on its basis stood refused. But it does not mean that the landlord, for all time to come unable to maintain suit for eviction against his tenant even for subsequent defaults. In the subsequent suit arrears of rent relate to period from May 1994 and onward. 9. In view of above discussions, learned Revisional Court (Respondent No. 1) has erred in law in allowing the appeal by holding that the subsequent suit was barred by principle of res-judicata. As such impugned order passed by the District Judge, Pauri Garhwal, in SCC Revision No. 5 of 1997, is liable to be quashed. Accordingly, writ petition is allowed. Impugned judgment and order dated 3-12-1997, passed by respondent No. 1 is quashed. As such impugned order passed by the District Judge, Pauri Garhwal, in SCC Revision No. 5 of 1997, is liable to be quashed. Accordingly, writ petition is allowed. Impugned judgment and order dated 3-12-1997, passed by respondent No. 1 is quashed. The judgment and decree passed by Judge, Small Cause Court in suit No. 1 of 1996 is upheld and restored. However, respondent is allowed two months time from today to vacate the shop in suit, whereafter the plaintiff may get the decree executed through Court. No order as to costs.