There was no appeal from that judgment and its validity is not questioned in the instant case. The subject matter of this cause (eight months' rent to the end of the lease term, some of it accruing after eviction) was previously litigated, resulting in a judgment against defendant which was reversed on appeal. Klein v. Ickovitz, 72 Ill. App.2d 59, 219 N.E.2d 73. That suit had been brought by Louis Klein, d.b.a. Apex Associates, and, after judgment, all pleadings and papers were amended to add Malvina Klein as a party plaintiff. In explaining its reversal, another division of this court made the following observations at page 62:
Again, district courts should first apply relevant lease provisions that provide specific consequences for a material breach. See, e.g. , Klein v. Ickovitz , 72 Ill.App.2d 59, 219 N.E.2d 73, 74 (1966) (applying lease terms that vary default rules about suspending rent payments in instances of eviction). In the absence of such provisions, the courts should apply Restatement (Second) section 242.
When such a clause has been written into the lease, the courts have held that the lessee's duty to pay rent survives his eviction in a forcible entry and detainer proceeding, thus holding the tenant liable for all rent due to the end of the term. (See Lake Shore Management Co.v. Blum (1968), 92 Ill. App.2d 47, 53; Klein v. Ickovitz (1966), 72 Ill. App.2d 59, 61; Broniewicz v. Wysocki (1940), 306 Ill. App. 187, 193.) As stated in Heims Brewing Co. v. Flannery (1891), 137 Ill. 309:
See also Jakovljevich v. Alvarez, 113 Ill. App.2d 302, 252 N.E.2d 60. We see no reason why this principle should not be applicable to rent accruing subsequent to eviction, since the lease agreement expressly states that the lessee's duty to pay rent survives a forcible detainer proceeding, and the validity of such a provision is well established. See Grommes v. St. Paul Trust Co., 147 Ill. 634, 35 N.E. 820; Vintaloro v. Pappas, 310 Ill. 115, 141 N.E. 377; Klein v. Ickovitz, 72 Ill. App.2d 59, 219 N.E.2d 73. The obligation to pay rent is not dependent upon title in the lessor, but is governed by the lease agreement."
Defendant contends that the complaint is thus fatally defective and that the amendment violated the provisions of CPA 46(3), "which in effect limits the right to amend the pleadings after judgment to instances where the amendment is made to conform the pleadings to the proof." Klein v. Ickovitz, 72 Ill. App.2d 59, 219 N.E.2d 73, 75. In Klein, the court held it was error to permit the amendment because its effect was to add a new party to the suit after judgment.
A clause identical in substance to this paragraph was upheld in Broniewicz v. Wysocki, 306 Ill. App. 187, 190, 28 N.E.2d 283. In a recent opinion — Klein v. Ickovitz, 72 Ill. App.2d 59, 219 N.E.2d 73 — the court also held that where the lease contains a clause to the effect that lessee's duty to pay rent survives his eviction in a forcible detainer proceeding, the lessor may proceed under the lease. We find no error in the confirmation of the judgment on September 26, 1966 (Case No. 51,875).