THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION No.1078 OF 2023
Between:
T. Srinivas, S/o T. Sambaiah, Aged about 52
years, R/o. 13-8/1, Madhuranagar,
Ramanthapur, Hyderabad.
.........Petitioner/s
And
B. Bhujanga Rao, S/o late Jogaiah,
Aged about 60 years, Occ: Teacher,
R/o H. No.3-13-8/1, 1st Floor,
Madhuranagar, Ramanthapur, Hyderabad
and another.
.......Respondent/s
Date of Judgment pronounced on : 21-04-2023
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes
to Law Reporters/Journals:
3. Whether His Lordships wishes to see the fair copy : Yes/No
Of the Judgment?
__________________________
JUSTICE T.VINOD KUMAR
2
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION No.1078 OF 2023
% 21-04-2023
# T. Srinivas, S/o T. Sambaiah, Aged about 52 years, R/o. 13-8/1, Madhuranagar,
Ramanthapur,
Hyderabad.
.........Petitioner
Versus
$ B. Bhujanga Rao, S/o late Jogaiah,
Aged about 60 years, Occ: Teacher,
R/o H. No.3-13-8/1, 1st Floor,
Madhuranagar, Ramanthapur, Hyderabad
and another.
......... Respondents
GIST:
> HEAD NOTE:
! Counsel for the petitioner/s : Sri O. Ramesh
^ Counsel for the respondent/s : Sri K. Lakshmi Manohar
? Cases referred
1
(2008) 17 SCC 491
2
2014 (3) ALT 93 ( S.B. )
3
(2020)15SCC731
3
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION No.1078 of 2023
ORDER:
1. This Civil Revision Petition is filed aggrieved by the order dated 16.02.2023 passed in I.A. No.719 of 2022 in O.S. No.1313 of 2022 (previously numbered as O.S. No.1105 of 2012) by the II Additional Senior Civil Judge, Medchal-Malkajgiri District, at Malkajgiri, as being illegal and contrary to settled principles of law.
2. Heard learned counsel for the petitioner and perused the record.
3. The petitioner herein is the defendant/tenant in the suit filed by the respondent No.1/owner, for recovery of arrears of rents and eviction of the petitioner herein from the suit scheduled property.
4. The brief facts of the case are, that the respondent No.1 herein and the petitioner herein had entered into an oral tenancy in the year 1995, to let out the suit scheduled property for a monthly rent of Rs.1,500/-. The said monthly rent stood enhanced to Rs.10,000/- in the year 2011.
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5. Since, the petitioner herein was in chronic default in payment of rent, the respondent No.1 in the month of June 2011, had demanded the petitioner herein to clear the arrears of rent within a period of six months. As the default in payment of rent continued and that apart the respondent No.1 had a bona fide requirement of the suit schedule property, he issued a notice dated 04.04.2012, demanding the petitioner herein to vacate the suit schedule property and clear the arrears of rent.
6. As the petitioner herein failed to vacate the suit scheduled property and clear the arrears of rent, respondent No.1 herein filed suit bearing O.S.No.1313 of 2022 (previously numbered as 1105 of 2012).
7. During the pendency of the said suit, the respondent No.1 herein had sold the suit scheduled property to respondent No.2 herein vide sale deed Doc. No.8697 dated 03.11.2014. Subsequently, respondent No.2 herein had filed I.A.No.186 of 2018 under Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'), seeking to implead himself as "plaintiff No.2" in the suit, with a consequential relief to direct 5 the petitioner herein to handover the physical possession of the suit scheduled property to the respondent No.2 herein. The petitioner herein resisted the said application by filing a counter. The Court below on hearing both sides, allowed I.A. No.186 of 2018 vide order dated 20.09.2018 observing that impleading respondent No.2 herein as plaintiff No.2 in the suit was necessary for proper adjudication of the matter and the said order has attained finality in absence of any challenge thereto. Thus, the suit proceeded with the respondent No.2 herein as plaintiff No.2.
8. When the matter stood posted for the cross-examination of PW-1, the petitioner herein filed an application under Order VII Rule 10 & 11 of the Code, seeking rejection of plaint contending that the cause of action in the suit does not survive as the suit scheduled property was alienated in favour of the respondent No.2 herein. The respondents herein had filed their counter opposing the said application.
9. The court below on hearing both sides dismissed the said application, while observing that the transaction being pendent lite was subject to the outcome of the suit; further the rights of the 6 predecessor in title shall accrue to the subsequent purchaser of a property. The court below had rejected the contention of the petitioner herein that cause of action in suit does not survive, as under Section 55 of the Transfer of Property Act, the original owner was entitled to claim arrears of rents till the title is passed onto the subsequent purchaser, and the subsequent purchaser could seek arrears of rent along with eviction from the day title is vested in him. Aggrieved by the same, the present revision is preferred.
10. The counsel for the petitioner contends the court below had failed to consider, that the cause of action against respondent No.1 herein does not survive, since the suit scheduled property was sold by him and the title has passed to the respondent No.2; and that so far as the respondent No.2 was concerned, since no steps were taken to either alter the cause of action, or to add pleadings with respect to the respondent No.2's title and locus, no relief of eviction can be granted to respondent No.2. It is further contended that since the amended neat copy of the plaint did not disclose how cause of action accrued to the respondent No.2, the plaint was liable to be rejected. It is thus contended that at best the respondent 7 No.2 could institute a separate suit for eviction, after issuing a fresh notice of eviction under Section 106 of the Transfer of Property Act.
11. I have taken note of his contentions.
12. So far as the contention of the petitioner that the respondents herein are not entitled to seek eviction in the present suit is concerned, the same cannot be accepted in light of the Apex Court's decision in Gurdev Singh Vs Harvinder Singh, in SLP(C). No. 19018 of 2022 dated 09.11.2022 as under:
The application preferred by the petitioner to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) has been dismissed by the Trial Court which has been confirmed by the High Court. It is the case on behalf of the petitioner that the plaintiff is not entitled to any relief in the suit. The aforesaid cannot be a ground to reject the plaint at the threshold in exercise of powers under Order 7, Rule 11 of the CPC. The learned Trial court has rightly rejected the application under Order 7, Rule 11 of the CPC, which is rightly not interfered with by the High Court. We are in complete agreement with the view taken by the High Court. The Special Leave Petition stands dismissed.
13. The reliance placed by the counsel for the petitioner on the decision of the Supreme Court in Bachhaj Nahar Vs. Nilima 8 Mandal & Anr1, does not support his case as the same deals with the question of granting a relief on the basis of pleadings.
14. It is equally well settled that while considering an application for rejection of plaint on the ground of cause of action, distinction has to be maintained between a case where there is no cause of action and a case where the plaint does not disclose cause of action. A rejection of plaint can only be entertained in case of the latter. This Court in the case of Kasani Narasimhulu Vs. Sathagowni Srinivas Goud and Ors2, has reiterated this principle as under:
"14...
In M.A.E. Kumar Krishna Varma (supra), this Court at paragraph 17 held as follows:
17.The petitioner/first defendant who seeks rejection of the plaint has, therefore, to establish that the plaint does not disclose a cause of action or that from the averments in the plaint it appears that the suit is barred by any law. There is vast difference between a case where there is no cause of action and the one where the plaint does not disclose a cause of action.
Clause (a) is not applicable to a case where there is no cause of action. It 1 (2008) 17 SCC 491 2 2014 (3) ALT 93 ( S.B. ) 9 would be applicable only when the defendant is able to show that the plaint does not disclose a cause of action. It is not the absence of cause of action for the suit that entails rejection, but the absence of disclosure of cause of action..."
The Court by observing so further held:
"...The question as to whether or not there is cause of action for the suit, does not arise for consideration at this stage. The decision on the question as to the existence or otherwise of the cause of action depends not merely on the averments in the plaint, but also on the pleadings in the written statement and evidence. The said question is, therefore, to be decided only at a later stage, but not at the threshold under Order VII Rule 11 CPC. What is required to be established for rejection of plaint under Order VII Rule 11(a) CPC is non- disclosure of cause of action in the plaint. In order to ascertain whether the plaint discloses a cause of action or not, the averments in the plaint have to be read as a whole and also in a meaningful manner. In State of Orissa v. Klockner and Company and others, AIR 1996 SC 2140, the Apex Court held that rejection of the plaint is not proper when the Court does not maintain distinction between the plea that there was no cause of action for the suit and plea that the plaint does not disclose cause of action...."
15. In the light of the above position of law, the contention of the petitioner herein that cause of action against the respondent No.1 does not survive, is liable to be rejected. Thus, the only question to be examined is whether a bare reading of the plaint discloses cause of action.
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16. As noted above, it is the case of the respondent No.1 herein that the petitioner herein was a chronic defaulter. A reading of the plaint reveals that cause of action first arose in June 2011 when the petitioner herein failed to pay the monthly rents, and thereafter on all the dates when the petitioner herein had failed to vacate the suit scheduled property. It is also the case of the respondent No.1 herein that the default in payment of rents is continuing till date. Therefore, in the view of this court the plaint discloses sufficient cause of action.
17. Further, so far as the transfer in favour of respondent No.2 is concerned, it is well settled that transactions made during the pendency of the suit are not void or illegal per se, the effect of Section 52 of the Transfer of Property Act, would thus entail that the subsequent purchaser was bound by the outcome of the suit instituted by his predecessor-in-title. The Supreme Court in Madhukar Nivrutti Jagtap and Ors. vs. Pramilabai Chandulal 11 Parandekar and Ors3, while dealing with the doctrine of lis pendens has held as under:
"14.3 ... The effect of doctrine of lis pendens is not to annul all the transfers effected by the parties to a suit but only to render them subservient to the rights of the parties under the decree or order which may be made in that suit. In other words, its effect is only to make the decree passed in the suit binding on the transferee, i.e., the subsequent purchaser. Nevertheless, the transfer remains valid subject, of course, to the result of the suit..."
18. In other words, the subsequent purchaser would be bound by the pleadings of his predecessor-in-title, in a suit instituted on the cause of action accruing to his predecessor-in-title. In a suit involving rights over immovable property, cause of action accrued to a predecessor-in-title will be sufficient cause of action for the subsequent purchaser to continue his predecessor's cause of action. However, such right to continue a suit does not pass to the subsequent purchaser in cases where the cause of action was personal to his predecessor-in-title. The Supreme Court in the case 3 (2020)15SCC731 12 of Hukam Chand v. Om Chand, (2001) 10 SCC 715 : 2001 SCC OnLine SC 1381 at page 7194, has held as under:
"9. As to the second contention, we have already pointed out that the appellant tenant has not taken any steps for bringing the transferee or the assignee of the respondent landlord on record in this appeal in spite of his having acquired knowledge as early as in November 1988, of the respondent having transferred his title in the suit property through sale deeds. The sale deeds are registered deeds. The appellant tenant could have obtained copies thereof and placed on record the terms and conditions of the transfer, which has not been done. In the absence of any application under Order 22 Rule 10 CPC having been filed by the appellant tenant and in the absence of the relevant transfer deeds having been brought on record, we are handicapped in determining the terms and conditions of the transfer effected by the respondent landlord. The situation is covered, and is taken care of, by Section 52 of the Transfer of Property Act and Order 22 Rule 10 CPC. The transfer is lis pendens. In case of any assignment or creation of any interest during the pendency of a suit, under Order 22 Rule 10 CPC, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. The Rule is an enabling one and permissive in nature. A Full Bench of the Patna High Court has held in Mahanth Sukhdeo Das v. Kashi Prasad Tiwari [AIR 1958 Pat 630 : 1958 BLJR 559] that in spite of a devolution of interest having taken place during the pendency of a litigation, the same can continue. It is for the assignee to appear in the suit at any stage and defend himself with the leave of the court but he cannot seek to be brought on record as of right.4
(2001) 10 SCC 715 : 2001 SCC OnLine SC 1381 at page 719 13 The discretion vests in the court. Though ordinarily the leave will not be refused, nevertheless the court would exercise its discretion in granting the leave on the facts and circumstances of a given case. The tenant having suffered a decree from the High Court, it was for him to make an appropriate application and seek leave of the court for prosecuting appeal against the person in whom the right and title in the suit property has come to vest. It was also open to such transferee pendente lite to seek leave of the court for coming on record. The Full Bench has opined in Sukhdeo Das case [AIR 1958 Pat 630 : 1958 BLJR 559] that such assignment or devolution of right during the pendency of the litigation did not arrest the progress of the litigation. We agree with the view taken by the Full Bench. In our opinion, the only exception is when the transfer of property forming the subject-matter of the suit, pendente lite, results in wiping out the cause of action itself or deprives the transferee of the right to decree, such as where the cause of action was personal to the original plaintiff. Otherwise the only result is that such transferee steps into the shoes of his predecessor-in-interest and remains bound by the result of the suit and would not, at a later stage, be permitted to raise the plea that he was not bound by the result of the litigation because he was not brought on record of the suit and impleaded as a party."
19. The Madras High Court in Sri Annapurna Sri Gowrishankar Hotels Pvt. Ltd. Vs. N. Andal and Ors 5, had held that since an eviction sought on the ground of willful default originates from the conduct of the tenant, cause of action in such 5 2011‐2‐LW148 14 cases was not personal to the original landlord and the subsequent purchaser was entitled to continue the proceedings. The relevant observations are as under:
"8. Therefore, when a landlord wants eviction of the property for his personal requirement or for the purpose of demolition and reconstruction, the requirement is for the benefit of the landlord and therefore, that can be termed to be personal to the landlord and when eviction petition was filed on the ground of own occupation or demolition and reconstruction as per the provisions of Sections 10(3) and 14(1)(a) and (b), the subsequent purchaser may not be entitled to prosecute the case or continue the proceedings as the grounds of eviction are personal to the erstwhile landlord.
9. On the other hand, when wilful default was committed by the tenant or when the tenant has sublet the premises without consent of the landlord or committed acts of waste, by reason of the conduct of the tenant, a cause of action was made available to the landlord to file the petition for eviction and it cannot be stated that such cause of action is personal to the landlord. In other words, by reason of the conduct of the tenant, he incurs the disqualification of continuing in the premises as a tenant and when eviction petition is field on the ground of misdeeds committed by the tenant, the eviction petition can be continued and prosecuted by the subsequent landlord. Therefore, when eviction is sought on the ground of wilful default in payment of rent and also on the ground of subletting, the subsequent landlord is entitled to prosecute the case."
20. Applying the above principle to the facts at hand, it is seen the respondent No.1 had primarily instituted the suit on account of 15 the alleged willful chronic default of the petitioner herein in payment of rent, which is continuing till date. Thus, the respondent No.2 being a successor-in-title is entitled to continue the suit on the basis of respondent No.1's cause of action. Therefore, the contention of the petitioner herein that the plaint was liable to be rejected as the amended neat copy of the plaint does not disclose separate cause of action against respondent No.2 cannot be countenanced.
21. Thus, considered from any angle the present revision is devoid of merit and is liable to be dismissed, as the impugned order passed by the court below does not suffer from any infirmity.
22. Accordingly, this Civil Revision Petition is dismissed. The order dated 16.02.2023 in O.S. No.1313 of 2022 of the II Additional Senior Civil Judge, Medchal-Malkajgiri District, at Malkajgiri, is sustained.
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23. Consequently, miscellaneous petitions pending if any shall stand closed. No order as to costs.
__________________ T. VINOD KUMAR, J Date: 21.04.2023 VSV/MRKR 17 THE HON'BLE SRI JUSTICE T. VINOD KUMAR CIVIL REVISION PETITION No.1078 of 2023 21.04.2023 VSR/MRKR 18