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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.154 of 2000
Hiralal Ramjivan Sabu,
since deceased, through his
legal representatives :
1. Smt. Sindhutai wd/o Hiralalji Saboo,
Aged about 65 years.
2. Sanjay Hiralalji Saboo,
Aged about 43 years.
3. Vinay Hiralalji Saboo,
Aged about 41 years.
4. Ajay Hiralalji Saboo,
Aged about 65 years.
All residents of Shrikrishna Peth,
Morshi 444 905, Tahsil and
District Amravati.
5. Abhay Hiralalji Saboo,
Aged about 37 years,
Occupation - Service,
Resident of Moryagiri Apartment,
Near Devang Hostel, Pimple
Nilkanth, Pune 411 027.
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All appellants through power of
attorney holder, i.e. appellant No.3
Vinay Hiralalji Saboo,
Aged about 41 years,
Shrikrishna Peth, Morshi 444 905,
Tahsil and District Amravati. ... Appellants
Versus
1. Bapurao Zinguji Bhoyar,
through his legal representatives :
1-i.
Smt. Indira wd/o Bhaurao Bhoyar,
Aged about 70 years,
R/o Main Road, Morshi,
Distt. Amravati.
2. Sharad s/o Bapurao Bhoyar (Dead),
through his legal representatives :
2-i. Smt. Kanta Sharad Bhoyar (Widow),
Aged about 34 years.
2-ii. Ku. Shamul d/o Sharad Bhoyar (Minor)
Guardian by mother,
Aged about 13 years.
2-iii. Vrushabh s/o Sharad Bhoyar (Minor),
through Guardian by mother,
Aged about 11 years.
Nos.2-i to 2-iii R/o Near Old Bus Stand,
Main Road, Morshi, Distt. Amravati.
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*3. Bharat Bapurao Bhoyar,
Aged about 45 years,
C/o Dr. Pachpore,
Main Road, Morshi,
Distt. Amravati Nirpingalai,
Tah. Morshi, Distt. Amravati.
(* Matter is abated against Respondent
No.3 vide Registrar (Judicial) Order
dated 15-10-2015).
4. Sau. Pushpa Ashokrao Dalvi,
Aged Major,
Mahesh Colony, Warud,
Tah. Warud, Distt. Amravati.
5. Lata Nitin Dalvi,
Aged Major,
R/o Mahesh Colony,
Warud, Tah. Warud,
Distt. Amravati.
6. Jyoti Subhash Dhande,
Opp. Bante Plot, Gadge Nagar,
Amravati, Tah. & Distt. Amravati.
7. Usha @ Baby Punjabrao Bhise,
Aged Major, R/o Isapur (Kh.),
Tah. Katol, Distt. Nagpur. ... Respondents
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Shri Abhay Sambre, Advocate for Appellants.
Shri V.P. Thakre, Advocate for Respondent Nos.1, 2(i), 2(iii),
4, 5 and 6.
CORAM : R.K. DESHPANDE, J.
DATE OF RESERVING THE JUDGMENT : 29-9-2016
DATE OF PRONOUNCING THE JUDGMENT : 1-10-2016
JUDGMENT :
1. The dispute in this second appeal pertains to eviction from shop block of 15 x 20 = 300 sq.ft., situated in Ward No.17 at Morshi. The appellant is the tenant in respect of the said shop block. In Regular Civil Suit No.240 of 1985, the Trial Court, by its judgment and order dated 26-2-1993, passed a decree for possession of the suit property in favour of the respondent-plaintiff, and the appellant-defendant is directed to deliver the possession within a period of two months along with the amount of Rs.260/-. The Trial Court also directed an enquiry to be made into mesne profits under ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:58:09 ::: 5 sa154.00.odt Order XX, Rule 12 of the Code of Civil Procedure from the date of suit, i.e. 13-9-1985, till the possession is delivered. The lower Appellate Court has dismissed Regular Civil Appeal No.93 of 1993 by its judgment and order dated 13-3-2000. Hence, this second appeal by the appellant-original defendant.
2. The undisputed factual position is that obtaining of permission of the Rent Controller under Clause 13(3)(v) and (vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (for short, "the Rent Control Order") is a condition precedent for issuance of notice to determine the tenancy under Section 106 of the Transfer of Property Act. The permission was granted by the Rent Controller to the plaintiff to determine the tenancy on 19-8-1977. The plaintiff issued notice dated 13-7-1978 under Section 106 of the Transfer of Property Act determining the tenancy of the defendant with effect from 7-8-1978 and thereafter Regular Civil Suit No.77 of 1978 was filed on 4-11-1978 for ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:58:09 ::: 6 sa154.00.odt eviction and possession. During the pendency of the suit, the grant of permission by the Rent Controller on 19-8-1977 was the subject-matter of challenge in separate proceedings in appeal, writ petition, and ultimately before the Apex Court.
3. The plaintiff withdrew Regular Civil Suit No.77 of 1978 on 3-7-1985 without any condition. After challenge to the permission granted by the Rent Controller attained the finality, a fresh notice was issued by the plaintiff under Section 106 of the Transfer of Property Act on 31-5-1985 (Exhibit 67), which was served upon the defendant on 7-8-1985. It is on the basis of this notice that Regular Civil Suit No.240 of 1985 was filed, in which the decree under challenge was passed.
4. The Courts below have held that the plaintiff has established that a permission for determination of the tenancy has been granted by the competent authority in Revenue Case ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:58:09 ::: 7 sa154.00.odt No.2/71(20)/75/76, and the plaintiff has established the determination of tenancy by issuing valid notice under Section 106 of the Transfer of Property Act, 1882 on 31-8-1985. The defendant resisted the suit on the grounds that earlier the plaintiff had issued notice determining tenancy on 31-7-1978 by issuing notice under Section 106 of the Transfer of Property Act, that Regular Civil Suit No.77 of 1978 was filed, which was unconditionally withdrawn, as a result of which, the permission granted by the Rent Controller on 19-8-1977, on the basis of which quit notice was issued on 13-7-1978 stood exhausted, and that there was a waiver of tenancy by the plaintiff. The lower Appellate Court held that from the pleadings of the defendant, it can be said that the earlier quit notice dated 13-7-1978 was not valid inasmuch as it had terminated the tenancy on the expiry on 7-8-1978, and the suit suffered from the formal defect. The Trial Court recorded the finding that issuance of notice and filing of civil suit and withdrawing the same is the choice of the plaintiff and it does not amount to waiver.
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5. On 24-7-2000, this Court admitted the second appeal and formulated the following two substantial questions of law :
1. Whether both the Courts below were right in holding that the notice to quit dated 8-1-1985 issued by the respondent has validly terminated the tenancy even though the same notice has been issued by the respondent without obtaining permission of the Rent Controller?, and
2. Whether the learned Additional District Judge was right in recording a finding in para 14 to the effect that the tenancy of the defendant commences from the first day of English calender month and expired on the last date of respective month, without there being any evidence on that point from the side of the respondent-plaintiff, and whether in the absence of such an evidence, the decree for possession can be passed?
This Court has stayed the execution of the decree.
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6. Shri Sambre, the learned counsel appearing for the appellant-tenant (defendant), has urged, relying upon the decision of the Division Bench of this Court in the case of Chaturbhuj Sitaram v. Manijibai Hirachand and another, reported in AIR 1959 Bombay 292, that withdrawal of the earlier suit amounts to waiver of the first notice issued under Section 106 of the Transfer of Property Act and hence without obtaining a fresh permission of the Rent Controller, as required by Clause 13(3) of the Rent Control Order, the second suit on the basis of subsequent notice issued under Section 106 of the Transfer of Property Act, was not maintainable. He submits that the permission granted stood exhausted and the notice to determine the tenancy stood waived. He has further relied upon the provision of Order XXIII, Rules 1, 2, 3 and 4 of the Code of Civil Procedure to urge that withdrawal of first suit without obtaining leave of the Court amounts to abandonment of claim, and, therefore, the second suit ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:58:09 ::: 10 sa154.00.odt was completely barred by the provision of law.
7. I have gone through the decision of the Division Bench of this Court in Chaturbhuj Sitaram's case, cited supra. In order to attract the ratio of the said decision, what is required to be established is that after issuance of notice to quit under Section 106 of the Transfer of Property Act, the landlord intended to re-establish the relationship as "the landlord and the tenant" by accepting the monthly rent. In the absence of there being any evidence of acceptance of rent for a period after service of notice upon the tenant, the question of waiver of notice would not arise.
8. Coming to the question of abandonment of the claim made in the earlier suit, which was withdrawn unconditionally, Shri Sambre for the appellant-tenant (defendant), has invited my attention to Rule 4 of Order XXIII of the Code of Civil Procedure, which is reproduced below :
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(4) Where the plaintiff,--
(a) abandons any suit or part of claim under
sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
It is urged by Shri Sambre that the earlier civil suit was filed on the basis of the same permission granted by the Rent Controller on 19-8-1977, which was exhausted by filing Regular Civil Suit No.77 of 1978. He submits that the subject-matter of the earlier civil suit is the same property, which is the subject-matter of the suit in question, and hence a prohibition created in Rule 4 of Order XXIII of the Code of Civil Procedure, reproduced above, will come into operation.
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9. Apparently, the cause of action for filing Regular Civil Suit No.77 of 1978 was the notice issued on 13-7-1978 under Section 106 of the Transfer of Property Act. The Courts below have found that the earlier suit suffered from the formal defect in the notice, as the determination of tenancy should have been by the end of monthly tenancy. The Courts below have held that the filing of subsequent suit was, therefore, permissible. Be that as it may, in the decision of the Apex Court in the case of Vallabh Das v. Dr. Madanlal and others, reported in AIR 1970 SC 987, the Apex Court has held that the expression "subject-matter" employed under Order XXIII, Rule 1 of the Code of Civil Procedure does not mean the property, but it has a reference to a right in the property which the plaintiff seeks to enforce, and the expression includes the cause of action and the relief claimed. In the said decision, it is further held that unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:58:09 ::: 13 sa154.00.odt previous suit. The cause of action in the present suit, as is apparent from the reading of the plaint, is the issuance of notice under Section 106 of the Transfer of Property Act on 31-8-1985, whereas in the earlier suit, it was the notice dated 13-7-1978, which was the cause of action shown. In view of this, it cannot be said that the bar under Rule 4 of Order XXIII of the Code of Civil Procedure operated in the present case to entertain, try and decide the suit in question.
10. Undisputedly, the permission granted by the Rent Controller on 19-8-1977 was the subject-matter of appeal and thereafter in writ petition and before the Apex Court. The permission has been upheld ultimately by dismissing the S.L.P. by the Apex Court. The permission granted by the Rent Controller was not exhausted either by passing a decree or refusing to pass a decree for eviction and possession on the basis of notice ::: Uploaded on - 01/10/2016 ::: Downloaded on - 02/10/2016 00:58:09 ::: 14 sa154.00.odt determining tenancy under Section 106 of the Transfer of Property Act and, therefore, no fresh permission from the Rent Controller was required for institution of the suit in question. The substantial question of law at serial No.1 is, therefore, answered accordingly.
11. As to the substantial question of law at serial No.2, no arguments are advanced by Shri Sambre for the appellant-tenant, except those, which have been dealt with in earlier paras. The said substantial question of law also, therefore, does not arise.
12. In the result, the second appeal is dismissed. No order as to costs.
JUDGE.
Later on :
At the request of the learned counsel for the appellant, the interim order passed by this Court shall stand extended for a further period of six weeks, after expiry of which, the same shall stand automatically vacated without reference to the Court.
JUDGE.
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