Govind Mathur, J. - (1.) THIS petition under Art. 227 of the Constitution of India is preferred to question correctness of the judgment dt. 21.07.2012 passed by learned Appellate Rent Tribunal, Jodhpur affirming the judgment and certificate for recovery of possession dt. 23.04.2010 passed by the Rent Appellate Tribunal in Original Application No. 535/2004. The argument advanced by counsel for the petitioner is that the Appellate Rent Tribunal failed to appreciate that earlier a suit was preferred by the respondent landlord on the same grounds for eviction and that came to be dismissed for want of prosecution, as such the principles of res -judicata disentitles the landlord from agitating the same cause under the provisions of Rajas than Rent Control Act, 2001 (hereinafter referred to as "the Act of 2001"). It is further submitted that both the Tribunals erred while arriving at the conclusion that the petitioner tenant is having adequate alternative accommodation.
(2.) HEARD counsel for the petitioner and also examined the record available. From perusal of the judgment impugned it is apparent that the Tribunal considered the aspect regarding filing of the suit earlier by the landlord and its dismissal for want of prosecution. Learned Tribunal gave a definite finding that the earlier suit was based on the grounds of bona fide and reasonable necessity whereas the present application is based on the ground of availability of alternative accommodation. The Tribunal also held that by a flux of time the grounds for eviction arises and also vanishes. In the instant matter the bona fide necessity may would have not been existing at the time of dismissal of earlier suit but that may arise at subsequent stage too. With regard to availability of alternative accommodation a finding of fact is given that the petitioner tenant is having three adequate accommodations to reside but just to retain the rented premises the issue has been contested.
(3.) I am in absolute agreement with learned Tribunals below. So far as the earlier suit is concerned, that was dismissed in default and the same was based on the ground of reasonable and bona fide necessity. The subsequent application was filed by the applicant under the Act of 2001 with a ground of having alternative accommodation with tenant and as such it is not at all barred by principles of res -judicata. With regard to availability of alternative accommodation the tenant accepted that she is having a residential house bearing No. 10/254, Chopasni Housing Board, Jodhpur. The accommodation aforesaid is also quite near to the rented premises. Beside the above, her son and husband too are having their own residential houses. The residential house of her husband is 90, Amar Nagar, Jodhpur whereas he is residing too. The discussions made by the appellate Tribunal with regard to availability of accommodation reads as under: - ;