Bombay High Court
Shri. Deepak Sopanrao Arbune vs Pralhad Mahadeo Arbune on 14 July, 2016
Bench: N.M. Jamdar
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Sequeira
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
SECOND APPEAL NO. 1050 OF 2004.
Along with
CIVIL APPLICATION (St.) NO. 16196 OF 2016
Shri Pralhad Mahadeo Arbune,
Age Adult, Occ.: Business,
R/at. Shaniwar Peth, Final Plot No.
33/1/3, Hotel Sanman, Opp: S.T.Stand,
Karad, Dist. Satara ... Appellant / Applicant
Versus
Shri Tukaram Khashaba Borge,
Age Adult, Occupation : Business,
R/o, Bombay Through his
Power of Attorney Holder,
Maruti Khashaba Chorage,
Occupation : Agriculture and business
R/o Malkapur, Tal. Karad,
District - Satara. ... Respondent.
Along with
CIVIL APPLICATION NO. 779 OF 2016
(For Adding Party)
Shri Deepak Sopanrao Arbune ... Applicant
In the matter between
Shri Pralhad Mahadeo Arbune. ... Appellant / Applicant
V/s.
Shri Tukaram Khashaba Borge. ... Respondent.
::: Uploaded on - 26/07/2016 ::: Downloaded on - 30/07/2016 09:17:30 :::
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Along with
CIVIL APPLICATION NO. 908 OF 2016
Shri Deepak Sopanrao Arbune ... Applicant
In the matter between
Shri Pralhad Mahadeo Arbune. ... Appellant / Applicant
V/s.
Shri Tukaram Khashaba Borge. ... Respondent.
Along with
SECOND APPEAL NO. 1051 OF 2004.
With
CIVIL APPLICATION (St.) NO. 16178 OF 2016
Shri Pralhad Mahadeo Arbune.
V/s.
ig ... Appellant / Applicant
Shri Tukaram Khashaba Borge & ors. ... Respondents.
Mr.S.G.Karandikar a/w Mr.S.S.Kanetkar, for Appellant in S.A
No.1050 of 2004 and S.A No.1051 of 2004 and Applicant in CASst
No.16196 of 2016 and CASst No.16178 of 2016.
Mr.A.A.Kumbhakoni-senior Advocate a/w Mr.A.M.Kulkarni and
Mr.Sarthak Diwan, for Respondents in both Appeals and Applicant
in CAS No.908 of 2016.
Mr.S.R.Morey i/b Mr.V.S.Talkute, for Applicant in CAS No.779 of
2016.
Coram : N.M. Jamdar, J.
Thursday, 14 July 2016.
Oral Judgment :-
Both these Appeals are between the same parties and they have
been argued together. By consent of parties, Appeals are disposed of
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by this common Judgment.
2. Second Appeal No.1050 of 2004 arise from the Judgment and
Order passed by Civil Judge Junior Division, Karad in Regular Civil
Suit No.368 of 1980 and Judgment and Order passed by District
Judge, Satara on 8 July 2004 in Civil Appeal No.151 of 2000.
3. The Second Appeal No.1051 of 2004 arises from Judgment
and Order dated 19 February 1994 passed by the Civil Judge Junior
Division, Karad in Regular Civil Suit No.367 of 1980 and Judgment
and Order dated 8 July 2004 passed by District Judge, Satara in
Regular Civil Appeal No.150 of 2000.
4. The Appellant in both these Appeals is the original Defendant
in the Suits and the Respondents are the Plaintiffs. Both the Suits
pertain to Plot No.33/13 situated at Karad. Regular Civil Suit
No.368 of 1980 is in respect of property demarcated as A, E, F and
M wherein the Respondent-Plaintiff has sought an order of
injunction and also mandatory injunction in respect of property
described at C, C1, D1, D. By the Regular Civil Suit No.367 of
1980, the Respondent prayed for possession in respect of the
property described to the Schedule to the plaint.
5. Heard Mr.Karandikar along with Mr.Kanetkar, for the
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Appellant and Mr.Kumbhakoni learned senior Advocate along with
Mr.Kulkarni, for the Respondent, in both the Appeals.
6. Mr.Kumbhakoni learned senior Advocate for the Respondent
has placed on record a coloured map which depicts the properties
involved in both the suits. This map, by consent of parties, is taken
on record and marked 'X'. The map shall form part of the record in
this Second Appeal. The map simplifies the position of the suit
property to understand the controversy between the parties and the
subject matter of the two different suits.
ig The portion which is
marked in red forms part of the subject matter in Regular Civil Suit
No.368 of 1990 and the portion marked in blue and light blue is
subject matter of Regular Civil Suit No.367 of 1990. The portion
depicted in orange and numbered 2, 5 and 13 is subject matter of the
proceedings under the provisions of the Bombay Rent Act which are
pending against the Appellant.
7. Second Appeal No.1050 of 2014 is taken up for consideration
first. This Appeal arises from Civil Suit No.368 of 1980. In this
Suit the Respondent-Plaintiff sought an order of perpetual
injunction and mandatory injunction. It was his case that he is the
owner of the entire Final Plot No.33-1(3). The property mentioned
in letter I J K L, E F G H and A B C D mentioned in the plaint and
depicted in orange in the Map was given to the Appellant on rent
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basis by an Agreement dated 22 July 1975 and the tenancy was
terminated on 16 April 1979. The Appellant filed Regular
Miscellaneous Application No.20 of 1979 for standard rent wherein
he not only claimed tenancy in respect of the three rooms but in
addition to one more room and an additional portion. Since the
Appellant was claiming to be in possession which was never leased
out to him and had encroached, the present Suit needed to be filed.
Written statement was filed by the Appellant and it was contended
that the Appellant was tenant in respect of four rooms and the
additional room was let out to him at the rate of `60 per month. It
was contended that this Appellant is not a trespasser and is a tenant
in the premises. It was also contended that once the Appellant had
filed proceedings under the provisions of Bombay Rent Act for
fixation of standard rent, the Civil Court should not proceed with
the suit filed by the Respondent-Plaintiff. The learned Civil Judge
negatived the contention based on Section 10 of the Code of Civil
Procedure, 1908 and held that no evidence was produced by the
Appellant to show that one more room, apart from the three rooms,
was let out to him as a tenant. Accordingly by Judgment and Decree
dated 21 February 1994, the learned Civil Judge decreed the Suit
and directed the Appellant to hand over the possession of the
properties stated in the decree. An Appeal was filed by the Appellant
to the District Court, Karad. In the Appeal, the Appellant reiterated
the contentions raised before the learned Civil Judge and in addition
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submitted that the Suit was barred under the Order II Rule 2 of the
Code of Civil Procedure. The learned District Judge also held that
the Appellant failed to produce any evidence to show that he was
tenant of any premises other than the three rooms. The learned
District Judge held that the cause of action in the suits instituted was
different and bar of Order II Rule 2 of the CPC will not apply.
Accordingly the Appeal filed by the Appellant was dismissed, on 8
July 2004.
8. The Second Appeal was admitted on 8 September 2004 on the
following substantial questions of law -
(i) Whether both Courts below overlooked that the
respondent-plaintiff has filed two separate suits i.e.
Regular Civil Suit No.367 of 1980 and Regular Civil Suit
No.368 of 1980 against the Appellant and the suit was
barred by the provisions of Order 2 Rule 2 of Code of
Civil Procedure, 1908?
(ii) Whether both Courts below were justified in not
considering both the suits filed by the respondent-
plaintiff instituted on the same day and which were based
on same cause of action ?
(iii) Whether the Courts below were justified in holding
that the suit was maintainable inspite of the fact that the
standard rent application was preferred by the appellant
and the Civil Court was competent to decide whether the
appellant was trespasser or not?'
9. Mr.Karandikar learned counsel for the Appellant submitted
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that once the Appellant had filed an application for standard rent
under the provisions of Bombay Rent Act and the Respondent-
Plaintiff had contested claim of the Appellant regarding tenancy,
which is subject matter of the present Suit, the Civil Court ought not
to have proceeded with the present Suit. He submitted that after the
standard rent application was disposed of against the Appellant, an
appeal was filed by the Appellant, which was pending. This
submission cannot be accepted. First the language of Section 10 of
the CPC needs to be noted. The Section reads thus :
'10. Stay of suit - No Court shall proceed with the trial
of any suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit
between the same parties, or between parties under
whom they or any of them claim litigating under the same
title where such suit is pending in the same or any other
Court in [India] having jurisdiction to grant the relief
claimed, or in any Court beyond the limits of [India]
established or continued by [the Central Government]
and having like jurisdiction, or before [the Supreme
Court].
Plain reading of this provision shows that it states that no Court
shall proceed with trial of any Suit with issues directly and
substantially in issue in a previously instituted suit having
jurisdiction to grant the relief claimed. Both the proceedings should
be 'Suits', and the Courts should be competent to grant relief as
prayed for. In the present Suit the Appellant has sought to apply
Section 10 to a substantive suit filed by the Respondent-Plaintiff for
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recovery of possession from the Appellant from the suit premises on
the basis of an Application filed for fixation of standard rent. The
Section 10 refers to suits. It does not refer to an 'application'. In
cases of some applications under particular statutes, the Courts have
equated them to suits. Nothing is shown by the Appellant as to why
the application for standard rent should be considered within the
ambit of the phrase 'suit' especially since the District Court has held
that this application is not a suit. The learned District Judge
therefore, was not in error in concluding that bar of Section 10 of the
Code does not apply. In addition in the application filed for fixation
of standard rent, the relief prayed for in the present suit cannot be
granted. As rightly contended by Mr.Kumbhakoni that there is
absolutely nothing on record to show that the Appellant is tenant of
the additional area as claimed by him. The Appellant has failed to
show any right whatsoever to the area claimed by them. As regards
the three rooms tenancy is created by a written document and it is
difficult to believe that for the additional area tenancy would be
created orally. There is no written document neither it has been
proved through any oral evidence that the Appellant has any claim
towards tenancy of additional area claimed by him.
10. The second point that was urged by the learned counsel for the
Appellant is based on the provisions of Order II Rule 2. The Order
II Rule 2 reads thus-
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'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.'
The Order II Rule 2(1) states that every suit shall include whole of
the claim which the Plaintiff is entitled to make in respect of the
cause of action. The bar in sub-rule 3 also speaks of 'same cause of
action'. It is the contention of Mr.Karandikar that three suits have
been filed in respect of the same premises between the same parties
and that Respondent-Plaintiff ought to have filed one suit or sought
leave to file the subsequent suit. Firstly, this contention was not
raised by the Appellant before the trial Court and was raised for the
first time in Appeal Court, still the learned District Judge considered
the same. The learned District Judge held that cause of action in all
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three suits was different. Though larger property in question in these
suits is same, the claim made by the Appellant in respect of each
identifiable area is different. So also the relationship between the
parties is different for the different areas. The rooms are clearly
identifiable and the Respondent-Plaintiff has filed suits praying
completely different reliefs. As regards the subject matter in
Regular Civil Suit No.368 of 1980, it is filed on the ground that the
Appellant is falsely claiming to be a tenant in the premises and
Regular Civil Suit No.367 of 1980 is filed for injunction on the
ground that he has trespassed a different part of the property. The
cause of action for the suits cannot therefore be considered as the
same to attract the bar of Order II Rule 2. The questions of law
framed in this Appeal will have to be accordingly answered against
the Appellant.
11. Taking the Second Appeal No.1051 of 2004 now for
consideration. In this Appeal the Respondent-Plaintiff filed the Suit
seeking a decree of injunction on the ground that the Appellant has
trespassed in the property. The subject matter of the Suit is the area
depicted in blue in the sketch which is tendered. It is the stand taken
by the Appellant that the Appellant is licensee of the Suit area. The
learned Civil Judge considered the defence of the Appellant of being
a licensee. The learned Civil Judge found that this defence was a
complete after-thought and nothing was produced by the Appellant
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to demonstrate that he was a licensee of the premises. The learned
Civil Judge, accordingly directed the Appellant to hand over
possession of the area which is specified in clause (a) of the decree
and for the other portion, the learned Civil Judge decreed the suit
and injuncted the Appellant from using the said premises.
Mandatory injunction to demolish the shed was granted. It is
informed that the shed is already demolished by the local Authority.
In the Appeal filed by the Appellant, the learned District Judge re-
assessed the evidence and confirmed the findings of the learned Civil
Judge that Appellant had failed to produce any evidence to show that
he was licensee of the premises. The argument based on Order II
Rule 2 was also advanced in this Appeal, which was negatived.
12. The Second Appeal was admitted on following questions of
law-
'i) Whether both Courts below overlooked that the
respondent-plaintiff has filed two separate suits i.e.
Regular Civil Suit No.367 of 1980 and Regular Civil
Suit No.368 of 1980 against the Appellant and the suit
was barred by the provisions of Order 2 Rule 2 of Code
of Civil Procedure, 1908?
(ii) Whether both Courts below were justified in not
considering both the suits filed by the respondent-
plaintiff instituted on the same day and which were based
on same cause of action ?
(iii) Whether the Courts below were justified in holding
that the appellant defendant has not proved that he was
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occupying the suit property as a Licensee? Whether the
Courts below were justified in overlooking that the only
inference which could have been drawn from the long
standing possession of appellant was that the appellant
was a licensee ?'
13. In this Appeal Mr.Karandikar sought to advance the argument
based on the Order II Rule 2 of the Code of Civil Procedure. This
argument has already been dealt with in the above mentioned
paragraph while dealing with Second Appeal No.1050 of 2004.
Furthermore, this argument cannot be advanced in both the Appeals
i.e. both the Suits.
14. As regards the contention of Mr.Karandikar in respect of
licensee, mere longstanding possession of the Appellant, cannot
fructify into a licensee. As far as the three rooms, for which a written
document was executed between the parties on 22 July 1975, there is
no reference at all to any premises other than the ones specified
therein. Even when the Appellant moved an application for fixation
of standard rent, no claim was made that the Appellant is licensee of
the suit area. In the cross-examination the Appellant admitted that
in his application for fixation of standard rent, no reference was
made to an additional area to which the Appellant now claims as a
licensee. He also claimed that he paid money for construction of the
area for which he was in occupation, but admitted that it was not so
stated in the Written statement. No agreement or any written
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document nor any rent receipt is placed on record to substantiate
the claim of being a licensee in the area claimed by the Appellant in
these proceedings. Nothing is shown as to how the Appellant can
claim being licensee for this area. In absence of any evidence
whatsoever, the concurrent finding rendered by both the Courts that
Appellant is not licensee of this suit area but a trespasser and he has
encroached on some portion of the property, cannot be disturbed.
Consequently, the questions of law framed in this Appeal will have
to be answered against the Appellant.
15.
Resultantly, both the Second Appeals are dismissed. Civil
Applications pending in the Second Appeals are accordingly
disposed of.
16. At this stage, Mr.Karandikar seeks continuation of the ad-
interim relief for a period of twelve weeks. Mr.Kumbhakoni
opposes. Considering the facts and circumstances, the interim
order, operating in this Appeal will continue for a period of ten
weeks, on a condition that the Appellant files an undertaking in this
Court within period of four weeks from today that he will not create
any third party rights and will hand over vacant and peaceful
possession of the suit properties involved in both these Appeals, if no
order is passed after expiry of period of ten weeks.
(N.M. Jamdar, J.)
