Lalit Kumar Upreti vs Chunni Lal Gujral
2017 Latest Caselaw 7167 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 30
 

 
Case :- WRIT - A No. - 52292 of 2017
 

 
Petitioner :- Lalit Kumar Upreti
 
Respondent :- Chunni Lal Gujral
 
Counsel for Petitioner :- Kanchan Chaudhary,C.L. Chaudhary
 
Counsel for Respondent :- Anil Kumar Srivastava
 

 
Hon'ble Vivek Kumar Birla,J.

Heard learned counsel for the petitioner and Sri Manish Goel, learned counsel appearing for the respondent.

Present writ petition has been filed seeking quashing of the impugned order dated 26.8.2017 passed by the Additional District Judge, Court No. 12, Kanpur Nagar in S.C.C. Revision No. 29 of 2011 (Lalit Kumar Upreti Vs. Chunni Lal Gujral) and the order dated 9.2.2011 passed by the Judge, Small Causes Court, Kanpur Nagar in Suit No. 164 of 1992 (Chunni Lal Gujral Vs. Lalit Kumar Upreti). A further prayer in the nature of mandamus directing the respondent not to evict the petitioner from the shop in question pursuant to the aforesaid impugned order has also been made.

The landlord had instituted one suit being SCC Suit No. 518 of 2011 claiming rent only and the second suit was filed by him in the year 1964 being SCC Suit No. 164 of 1992 for rent and eviction on the ground of default in making payment of rent and termination of tenancy when the rent was not paid from 1.7.1990. A notice dated 17.8.1991 was given and when the amount was not paid suit for eviction was filed. By order dated 4.9.1992 both the suits were clubbed and in both suits evidence was given by the parties and Suit No. 518 of 1991 was treated leading case. It is pertinent to note that documentary and oral evidence given in subsequent suit being SCC Suit No. 164 of 1992 was directed to be placed on record of the leading SCC Suit No. 518 of 1991. Both the suits were clubbed and were decided together.

Two issues were framed in leading SCC Suit No. 518 of 1991. The first issue was as to whether the defendant had committed default in making payment of rent and to what relief the plaintiff is entitled for.

In the second suit being SCC Suit No. 164 of 1992 five issues were framed by the trial court. The first issue was as to whether the defendant had committed default in making payment of rent. The second issue was as to whether the defendant is liable to be evicted on the ground of denial of title of the landlord. The third issue was as to whether there is compliance of the provisions of Section 20 (4) of Act 13 of 1972. The fourth and fifth issues were regarding validity of notice and to what relief the plaintiff is entitled for.

The first issue being common in both suits was decided on the basis of evidence.

In so far as leading SCC Suit No. 518 of 1991 is concerned, it was found that no notice claiming rent was given to the tenant but on evidence it was found that in SCC Suit No. 164 of 1992 a notice was given to the defendant for making payment of rent but the rent was not paid. After discussing the evidence it was found that the rate of rent was not in dispute between the parties. The plaintiff in his statement has made a statement that the defendant had not paid rent since 1.7.1990. The D.W.1 - tenant himself stated that no rent from 1.7.1990 to 31.7.1991 is balance/due on him and in his cross examination he admitted that he does not have any receipt regarding payment of rent from 1.7.1990 to 31.7.1991. He further stated that for this period he had adjusted the rent towards the advance of Rs. 10,000/- given by him to the landlord and he has not paid any rent separately. He however, specifically stated that since he has given advance of Rs. 10,000/- to the landlord therefore, he stopped making payment of rent after 1.7.1990. He admitted in his cross examination that he had no proof that he had paid Rs. 10,000/- to the plaintiff therefore, a finding was recorded that the rent was not paid after 1.7.1990. As such it was found that the defendant has committed default in making payment of rent.

The relief in SCC Suit No. 518 of 1991 was denied on the ground that it was filed only for recovery of rent and therefore, the same was not maintainable before the Small Causes Court and the plaintiff was not entitled for any relief.

In so far as the other reliefs are concerned on Issue no. 2 in SCC Suit No. 164 of 1992 which was as to whether the plaintiff was liable for eviction as he has denied the title of the plaintiff, in reply to the notice dated 14.9.1991, the defendant had denied title of the landlord and stated that since after demolition of the shop by the Nagar Mahapalika the same was reconstructed by him therefore, he was the owner of the construction and even if the title of the land is not in dispute, he is not liable for eviction. In his cross-examination the defendant admitted that he had taken shop on rent and it is not in dispute between the parties that the demolition drive was undertaken by the Nagar Mahapalika for widening the road and the buildings were demolished either by the owner themselves or by the Nagar Mahapalika and the shop in question also included in such demolition. However, after consideration of the oral evidence of the defendant as D.W. 1 as well as of D.W.3 it was found that the entire shop was not demolished and only front portion of the shop was demolished which was got repaired by the tenant and the shutter which was installed on the front of the shop was installed after repair of the shop on the rest portion that was left after partial demolition. The defendant himself had admitted that about 5-6 feet the shop has been demolished which was a partial demolition and D.W. 3 also stated that about 6 feet on the front side was demolished and simultaneously 6 - 7 feet front side of the shop of the defendant was demolished and were got repaired by them. On this evidence it was held that it was a case of partial demolition which was only got repaired by the tenant and for this reason he cannot claim that he is the owner of the construction. It was found that the case is not covered under Section 29-A of Act 13 of 1972 as in the present case the shop was let out and it was not a case where the land was let out.

On the issue as to whether the defendant has complied with the provisions of Section 20 (4) of Act 13 of 1972 it was held that admittedly the defendant has deposited a sum of Rs. 9,000/- which includes cost etc. also on the first date of hearing but in SCC Suit No. 518 of 1991 by moving Applications being Paper No. 17C and 28C the landlord was restrained from lifting the amount and therefore, the deposit was not unconditional. It was also found that since the title of the landlord has been denied therefore, benefit of Section 20 (4) of Act 13 of 1972 cannot be extended to the petitioner. A notice dated 17.8.1991 wherein the rent was demanded was given and a notice for termination of tenancy was also given. This notice was replied by the defendant vide reply dated 28.8.1991 and again a notice dated 14.9.1991 was given by the plaintiff on the ground that since the title of the landlord is being denied by the tenant therefore, the tenancy is liable to be terminated. In such view of the matter, the notice was held to be a valid notice. The relief of rent and eviction was granted in SCC Suit No. 164 of 1992 and the leading suit being SCC Suit No. 518 of 1991, as already noticed, was dismissed as not maintainable. The SCC revision filed against the same was dismissed by the lower revisional court.

Submission of learned counsel for the petitioner on the ground of resjudicata is that the impugned judgment is liable to be set aside as once the leading suit between the parties being SCC Suit No. 518 of 1991 is dismissed, the second suit being SCC Suit No. 164 of 1992 could not have been allowed as the same was barred by Section 11 C.P.C. as well as Order II Rule 2 C.P.C. Submission is that since evidence in both suits was collected and the leading suit was dismissed, the second suit could not have been decided otherwise as earlier suit has been finally heard and decided. Second submission is that provisions of Section 29-A of Act 13 of 1972 are applicable in the present case as the tenancy would be in regard to the land only and not of the structure standing thereon and hence claiming right of possession over the construction raised by the tenant has no basis and therefore, termination of tenancy of shop in question is against the provisions of Sections 106 and 107 of the Transfer of Property Act.

It was asserted that the demolition had taken place under the drive undertaken by the Nagar Mahapalika and therefore, after reconstruction the petitioner becomes owner of the shop in question and therefore, the notice for termination cannot be given and the provisions of Section 29-A of would come to the rescue of the petitioner.

Per-contra, Sri Manish Goyal, learned counsel appearing for the respondent has submitted that the prayers made in both the suits were different. The earlier suit was only for recovery of rent and no notice of termination was given. In the second suit the tenant committed default in making payment of rent a notice for termination of tenancy was given when in reply the ownership of the landlord was disputed by the plaintiff a subsequent notice was given terminating the tenancy also on the ground of Section 20 (2) (f) of Act 13 of 1972. He, therefore, submits that both suits were different in nature and the first suit was dismissed as not maintainable and both suits were consolidated and decided on the same day and the same cannot operate as resjudicata on the subsequent suit.

I have heard the rival submissions and have perused the record.

At the very outset, it may be noticed that Sections 38 and 34 (1) of the Act provides as under:

"38. Act to override T.P. Act and Civil Procedure Code.- The provisions of this Act shall have effect notwithstanding anything consistent therewith contained in Transfer of Property Act, 1882 (Act No. IV of 1882), or in the Code of Civil Procedure, 1908 (Act No. V of 1908).

34 (1). Powers of various authorities and procedure to be followed by them.- (1) The District Magistrate, the Prescribed Authority or any (Appellate or Revising Authority) shall for the purposes of holding any inquiry or hearing (any appeal or revision) under this Act have the seame powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit, in respect of the following matters namely, -

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) receiving evidence on affidavits;

(c) inspecting a building or its locality or issuing commission for the examination of witnesses or documents or local investigation;

(d) requiring the discovery and production of documents;

(e) awarding, subject to any rules make in that behalf, costs or special costs to any parts or requiring security for costs from any party;

(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith;

(g) any other matter which may be prescribed;

A perusal of Section 38 of the Act clearly provides that Act 13 of 1972 overrides the provisions of the Code of Civil Procedure. Section 34 provides that the authorities under the Act shall have same powers as are vested in the Court under the Code of Civil Procedure when trying a suit in respect of only limited matters. In respect of provisions of Section 34 (1) (g) and other provisions in relation to various sub-sections of Section 34 several rules have been made in U.P. Urban Buildings Regulation of Letting, Rent and Eviction) Rules, 1972 framed under the Act.

A perusal of the aforesaid provision clearly notices the fact that the intention of the Legislature is clear that in the summary proceedings that are undertaken under the Act 13 of 1972 only limited provisions of the Code of Civil Procedure would apply otherwise it would frustrate the very purpose of the nature of summary proceedings. Accordingly, Section 11 CPC or Order II Rule 2 of the CPC though not made applicable but being fundamental principle of law , broadly speaking, would apply to such proceedings if they are based on same facts and circumstances and cause of action is based on same set of facts and circumstances. In other words, if the cause of action is different it would not apply.

For ready reference relevant extract of Section 11 CPC and Order II Rule 2 CPC are quoted as under:

"11. Res judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I. The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

. . . . . . . . .

Explanation III. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

. . . . . . . . ."

Order II Rule 2 C.P.C.:-

"2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."

(Emphasis supplied)

In landlord - tenant relationship the default in payment of rent are recurring cause of action. Similarly, bonafide need may change because of subsequent events and it is settled law that the Court of Small Causes is the Court of limited jurisdiction.

There may be successive suits praying for eviction on the ground of default in payment of rent for a certain period. Once such prayer for eviction is rejected by extending the benefit of various provisions of law in favour of the tenant, it cannot be said that the subsequent suit for eviction again on the ground of default in payment of rent for a subsequent period cannot be instituted for the obvious reason that the cause of action would be different. If it is held that earlier suit filed on the basis of default in payment of rent would operate as resjudicata in the subsequent case involving default for different subsequent perioid, it would frustrate the intention of law.

Similarly, if a release application is filed under the Act for bonafide need of the landlord himself or any member of his family, it may stand frustrated because of some subsequent event and the same is rejected, however, subsequently, because of subsequent event, like need of other family members, who may now have become eligible/competent to carry on business or in case of residential building more accommodation is required because of increase in family etc. etc., or of the landlord himself because of any subsequent event like his retirement etc.,which have taken place after rejection of his earlier release application, it cannot be said that the subsequent release application would not be maintainable as again it would be a different cause of action and if held otherwise, it would again frustrate the intention of the law.

A reference may be made to judgments of Hon'ble Apex Court in the case of Dunlop India Limited Vs. A.A. Rahna and another (2011) 5 SCC 778, Mohd. Nooman Vs. Mohd. Jabed Alam (2010) 9 SCC 560, Surajmal Vs. Radheyshyam (1988) 3 SCC 18.

Rule 22 (b) of the Rules of 1972 framed under Act 13 of 1972 provides the power of the court to consolidate two or more cases of eviction by the same landlord against different tenants whereas in the present case even the parties are same and therefore, there was no legal impediment in consolidating both cases and in deciding the same together.

It is not in dispute that both cases were decided together, their evidence was collected together, the evidence collected in the subsequent Suit No. 164 of 1992 was placed on record of the earlier Suit No. 518 of 1991 and the leading suit was not found to be maintainable as it was only for recovery of rent and no notice was given to the tenant before instituting the same.

A perusal of the Section 11 CPC clearly indicates that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. Explanation I clarifies that expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

In the present case in the earlier suit a prayer for arrears of rent only was made and the relief for termination of tenancy was not claimed and even notice in this regard was not given. In the subsequent suit apart from demand of rent by issuing notice and termination of tenancy by such notice and relief for eviction of the tenant was made which was not so made in the earlier suit. Moreover, both suits were decided simultaneously and therefore, in view of the provisions it cannot be treated to be a former suit wherein matter has been directly and substantially in issue and has been decided. Thus, the first suit which was simultaneously decided cannot be said to be previously heard and finally decided.

Dealing with Order II Rule 2 CPC Hon'ble Apex Court in Kewal Singh Vs. Mt. Lajwanti AIR 1980 SC 161 held that this provision has no application to cases where the plaintiff has based his suit on separate and distinct causes of action and chooses to relinquish one or the other of them and that in such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action.

In the earlier suit relief for termination of tenancy was not claimed. No notice in this regard was issued terminating the tenancy of the defendant whereas in the second suit entire claim was made. Had it been a case where in a suit, the claims that have already accrued while claiming termination of tenancy, have not been claimed, the plaintiff could not have claimed the same in the subsequent suit. But this is not so in the present case.

In such view of the matter, I do not find that second suit is hit by Section 11 C.P.C. or by Order II Rule 2 C.P.C. inasmuch not only they were decided simultaneously but as the cause of action in both suits were different and earlier termination of tenancy was never demanded by the landlord and therefore, it cannot be said that entire relief was not prayed in the first suit as it is the discretion of the landlord to terminate or not to terminate the tenancy on its own sweet will.

In so far as the question regarding extending the benefit of Section 20 (4) of Act 13 of 1972 is concerned, suffice to say that the defendant himself had claimed that he had paid Rs. 10,000/- in advance to the plaintiff in May, 1990 and the rent with effect from 1.7.1990 was adjusted from the aforesaid advance of Rs. 10,000/-. However, he admitted that he had no proof that he had paid Rs. 10,000/- in advance to the plaintiff and on the contrary he had himself had stated that for this reason he stopped making payment of rent from 1.7.1990. Apart from this, eviction is also being claimed on the ground of Section 20 (2) (f) of the Act where suit for eviction of a tenant from a building after the determination of his tenancy may also be instituted on one or more on the ground that the tenant has renounced his character as such or denied the title of the landlord, and latter has not waived his right of re-entry or condoned the conduct of the tenant. Therefore, the benefit of Section 20 (4) of Act 13 of 1972 cannot be extended to the defendant when the eviction is being sought on the ground of denial of title of the landlord as the case would be covered by Section 20 (2) (f) of the Act.

Coming to the question of applicability of Section 29-A of the Act it may be noticed that Section 29-A was inserted by U.P. Act No. 28 of 1976 with effect from 5.7.1976 to provide protection against eviction of certain classes of tenants of land on which building exists. For ready reference the same is quoted as under:

"29-A. Protection against eviction to certain classes of tenants of land on which building exists. - (1) For the purposes this section, the expression "tenant" and "landlord" shall have the meanings respectively assigned to them in clauses (a) and (j) of Section 3 with the substitution of the word "land" for the word "building".

(2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expense in execution thereof.

(3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shgall apply in relation to any land referred to in sub-section (2) as they apply in relation to any building.

(4) .............

(5) ..............

(6) ...............

(7) ................

(Emphasis supplied)

A perusal of Sub-section (2) of the aforesaid Section would clearly provide that this section applies to only land let out, either before or after the commencement of this section.

It is not in dispute that in the present case the tenant is claiming ownership over the construction without denying title of the landlord on the land. It is also not in dispute that the shop was let out to the tenant. From the evidence that has come on record it is proved that shop was only partially demolished by the Nagar Mahapalika. In such view of the matter, Section 29-A of the Act is of no help to the defendant.

In such view of the matter, I do not find any legal infirmity in the orders impugned herein.

This writ petition is, accordingly, dismissed.

However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:

(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.7.2018.

(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;

(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;

(4) The tenant-petitioner shall pay damages @ Rs. 2,500/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.7.2018 or till the date he vacates the premises whichever is earlier and the landlord is at liberty to withdraw the said amount;

(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;

(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;

(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.

(8) In case the shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.

No order as to costs.

Order Date :- 21.11.2017

p.s.