Bombay High Court
M/S. Spring Fresh Drinks Pvt. ... vs Gani Sons Charitable Trust Thru. ... on 16 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.2084 OF 2007
PETITIONER: M/s Spring Fresh Drinks Pvt. Ltd.,
through its Director Shri
(Ori. Plaintiff)
Hasmukhbhai s/o Odhavji
Panchmatiya, Aged 62 years,
Occupation-business, C/o Godown B-
4, Gani Sons Charitable Trust
Building, Residency Road, Sadar,
Nagpur.
-VERSUS-
RESPONDENTS:
(Org. Defendant)
ig 1. Gani Sons Charitable Trust Through
its Managing Trustee, Office 638,
Central Avenue, Nagpur.
2. Anjuman Hami E-Islam, through its
Administrator, appointed by Hon'ble
High Court, Residency Road, Sadar,
Nagpur.
Shri R. M. Bhangde, Advocate for the petitioner.
Shri S. V. Purohit, Advocate for the respondent No.1.
Shri Masood Shareef, Advocate for the respondent No.2.
WITH
WRIT PETITION NO.2085 OF 2007
PETITIONER: M/s Raskunj, through its Proprietor,
Shri Waryamsingh Bhagwansingh,
(Ori. Plaintiff)
Aged Major, Occupation business,
C/o Godown B-15, Gani Sons
Charitable Trust Building, Residency
Road, Sadar, Nagpur.
-VERSUS-
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RESPONDENTS: 1. Gani Sons Charitable Trust Through
its Managing Trustee, Office 638,
(Org. Defendant)
Central Avenue, Nagpur.
2. Anjuman Hami E-Islam, through its
Administrator, appointed by Hon'ble
High Court, Residency Road, Sadar,
Nagpur.
Shri R. M. Bhangde, Advocate for the petitioner.
Shri S. V. Purohit, Advocate for the respondent No.1.
Shri Masood Shareef, Advocate for the respondent No.2.
WITH
PETITIONER:
ig WRIT PETITION NO.2086 OF 2007
M/s Kale Gas Company, through its
Proprietor, Shri Prashant S. kale,
(Ori. Plaintiff)
Aged Major, occupation-business, C/o
Godown B-2, B3, Gani Sons
Charitable Trust Building, Residency
Road, Sadar, Nagpur.
-VERSUS-
RESPONDENTS: 1. Gani Sons Charitable Trust Through
its Managing Trustee, Office 638,
(Org. Defendant)
Central Avenue, Nagpur.
2. Anjuman Hami E-Islam, through its
Administrator, appointed by Hon'ble
High Court, Residency Road, Sadar,
Nagpur.
Shri R. M. Bhangde, Advocate for the petitioner.
Shri S. V. Purohit, Advocate for the respondent No.1.
Shri Masood Shareef, Advocate for the respondent No.2.
----------------------------------------------------------------------------------------------------
CORAM: A.S. CHANDURKAR, J.
DATED: 16
th JUNE, 2016.
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ORAL JUDGMENT :
1. Since identical orders are challenged in these writ
petitions, the same are being decided by this common judgment.
2. For the sake of convenience the facts in Writ Petition
No.2084/2007 are being referred to. The petitioners are the
original plaintiffs who had filed Regular Civil Suit No.1577/2004
against the respondents herein. In the said suit, it was the case of
the petitioners that the respondent No.2 which was a public trust
was the owner of the building which had been let out to the
respondent No.1 herein. The petitioners were occupying the
separate shop blocks, the same having been let out to them by the
respondent No.1. It was their further case that with the view to
get the premises occupied by them vacated, the respondent No.1
initially committed various illegal acts at the behest of respondent
No.2 due to which the petitioners could not enjoy the suit premises
as tenants. It was pleaded that on 30-11-2004 the petitioners were
restrained from enjoying the suit property and treating the same as
cause of action, the aforesaid suit for permanent injunction seeking
to restrain the respondents from obstructing their peaceful
possession came to be filed. A further prayer was made that the
defendants be directed to remove the iron gate so as to facilitate
the usage of the suit premises by the defendants. The respondent
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No.1 herein was deleted from the array of parties 28-2-2005. In
the said suit, the petitioners prayed for grant of temporary
injunction which application came to be rejected by the trial Court.
A miscellaneous appeal came to be filed by the petitioners against
said order. During pendency of this suit, the respondent No.2
herein filed an application under provisions of Order VII Rule 10 of
the Code of Civil Procedure, 1908 (for short, the said Code) stating
therein that the plaint be returned for its presentation to the Small
Causes Court as it was the case of the respondent No.2 that the
relationship between the parties was that of landlord and the
tenant and therefore, the civil Court had no jurisdiction to decide
the suit. A preliminary issue came to be framed in that regard. On
30-11-2005, the petitioners filed an application below Exhibit-50
seeking permission to withdraw the suit with liberty to approach
the competent court. This application filed by the petitioners came
to be decided on 4-1-2006 and the trial Court permitted
unconditional withdrawal of the said suit.
3. Thereafter, the petitioners filed Regular Civil Suit
No.14/2006 before the Small Causes Court against the respondent
no.1 herein. In the said suit, it was pleaded that the petitioners
were the tenants inducted by the respondent No.1 and that they
had a right to enjoyment of the suit property that was being
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interfered with by the respondent No.1. It was further stated that
on 29-12-2005 when the access to the property in question was
sought to be obstructed, the aforesaid suit came to be filed. The
declaration as sought was that the plaintiffs were the tenants of
the suit property and therefore, the respondents be restrained from
obstructing their lawful possession. The respondent No.2 herein
was added as a defendant in the said suit on 1-2-2006.
4. The respondent No.2 filed an application under
provisions of Order VII Rule 11 of the Code for dismissal of the suit
on the ground that the earlier suit filed by the petitioners had been
withdrawn without any liberty to file a fresh suit. It was further
stated that there was a bar to maintain the subsequent suit in view
of provisions of Order II Rule 2 of the Code. Reply came to be filed
by the petitioners and by an order dated 15-4-2006, the trial Court
allowed the application for temporary injunction and rejected the
application that was filed under provisions of Order VII Rule 11 of
the Code.
Being aggrieved by the aforesaid, the respondent No.2
herein filed an appeal under Section 26A of the Provincial Small
Causes Court Act. The appellate Court came to the conclusion that
it would not be permissible for the petitioners to file the
subsequent suit especially when the earlier suit was withdrawn
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without being granted liberty to file the fresh suit. To that extent,
the appellate Court held that the suit filed against the respondent
No.2 herein was liable to be dismissed. By order dated 16-4-2007,
the appellate Court partly allowed the appeal and dismissed the
suit against the respondent No.2. It further directed that the order
of injunction would operate against the respondent No.1 herein.
Being aggrieved, the petitioners have approached this Court by
filing the present writ petitions.
ig Shri R. M. Bhangde, the learned Counsel for the
petitioners submitted that the appellate Court was not justified in
holding that the suit as filed was not maintainable against the
respondent No.2. It is submitted that Regular Civil Suit
No.1577/2004 had been filed in the civil Court wherein the relief
of permanent and mandatory injunction had been sought against
the defendants. In the said suit, the respondent No.2 had filed an
application below Exhibit-19 under provisions of Order VII Rule 10
read with Rule 10A of the Code stating therein that as the dispute
related to matters between the landlord and tenant, the civil Court
had no jurisdiction and the suit was triable by the Small Causes
Court. He submitted that the plaintiffs had moved an application
to withdraw the said suit with liberty to approach the competent
Court. The order passed by the trial Court on said application
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permitted the petitioners to withdraw the suit unconditionally
after which the petitioners filed the subsequent suit before the
Small Causes Court. According to him, the order passed below
Exhibit 50 would not come in the way of the petitioners in
prosecuting the subsequent suit. He submitted that the cause of
action in both the suits was distinct and therefore, even if no
liberty was granted to the petitioners while withdrawing the
earlier suit, the same would not come in their way in prosecuting
the subsequent suit. He also submitted that the respondent No.2
had been joined as a defendant in the subsequent suit in view of
the order passed below Exhibit-1 on 1-2-2006. He, therefore,
submitted that the suit was maintainable against the respondent
No.2 and the appellate Court erred in holding otherwise. In
support of his submissions, the learned Counsel relied upon the
decision in R. J. Mehta and another Vs. Govind Ramchandra
Nadkarni, 1989 Mh. L. J. 809, Babulal Bhuramal and another v.
Nandram Shivram and others AIR 1958 SC 677, Kiran Singh and
others v. Chaman Paswan and others AIR 1954 SC 340 and Bengal
Waterproof Limited Vs. Bombay Waterproof Manufacturing
Company and another (1997) 1 SCC 99.
6. Shri Masood Shareef, the learned Counsel appearing
for the respondent No.2 supported the impugned order. He raised
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a preliminary objection that one writ petition raising challenge to
two orders passed in two separate appeals by the appellate Court
was not maintainable and separate writ petitions ought to have
been filed independently challenging both the orders. He then
submitted that the reliefs sought in the subsequent suit were
identical to the reliefs that were sought in the earlier suit. Even the
cause of action was identical and, therefore, the bar under
provisions of Order II Rule 2 of the Code would apply. According
to him, the respondent No.1 herein came to be deleted by the
petitioners in the earlier suit on 28-2-2005 and the subsequent suit
was filed initially against the respondent No.1 alone. It was only
after the order passed by the Small Causes Court that the
respondent No.2 came to be added as the defendant No.2. The
subsequent suit had been filed by suppressing material facts and
the same was filed despite the fact that no liberty was granted to
the petitioners to file the subsequent suit while withdrawing the
earlier suit. According to him, the same was not permissible in
view of provisions of Order XXIII Rule 3 of the Code. The fact that
in the earlier suit the trial Court had refused to grant temporary
injunction against which a miscellaneous appeal had been filed
and was pending at which stage the said suit had been withdrawn
was also a relevant fact. In support of his submissions, the learned
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Counsel relied upon decision in Coffee Board vs. Ramesh Exports
Pvt. Ltd., 2014 (6) Mh.L.J. 531, Suraj Rattan Thirani and others v.
Azamabad Tea Co. Ltd. and others AIR 1965 SC 295, Purna
Medium Project Division, Amravati vs. Y. R. Reddy and another
2004(1) Mh.L.J. 729 and SNP Shipping Services Pvt. Ltd and others
vs. World Tanker Carrier Corporation and another 2000(2) Mh.L.J.
Shri S. V. Purohit, the learned Counsel for the
respondent No.1 supported the case of the petitioner and stated
that the petitioners and the respondent No.2 had arrived at an
interim arrangement with which the respondent No.1 was not
concerned.
7. Taking up the preliminary objection as raised by the
learned Counsel for the respondent No.2, I find that the said
objection is too technical for being upheld. Though it is a fact that
the respondent No.2 herein had filed two separate appeals which
came to be decided on 16-4-2007 challenging the grant of
temporary injunction as well as the order passed on the
application for rejection of the plaint, it cannot be said that the
challenge to both the orders in one writ petition would not be
tenable. At the most, it would only be a question of paying
separate set of court fee for challenging said orders. The parties to
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the proceedings being the same in both the appeals and the suit
also being one, I do not find that the preliminary objection as
raised deserves to be upheld. Moreover, the writ petitions are at
the stage of final hearing and at this stage upholding the
preliminary objection would only result in further unwarranted
proceedings. The petitioners can be directed to pay separate set of
court fees with regard to the challenge to the orders in the two
miscellaneous appeals.
ig I have given due consideration to the respective
submissions on merits. I have gone through the documents filed
on record. Certain facts on record which are relevant for deciding
the challenge to the impugned order are that the petitioners had
initially filed Regular Civil Suit No.1577/2004 in the civil Court
against both the respondents. In the said suit, the respondent
No. 2 herein had filed an application below Exhibit-19 under
provisions of Order VII Rule 10 read with Rule 10A of the Code on
22-12-2004. The averments of the respondent No.2 in the said
application are relevant and the same read thus:
"1. A bare perusal of the pleadings of the
plaintiffs in the plaint, it is an admitted fact that
the dispute is between landlord and tenant. It is
now well settled that all matters relating to
landlord and tenant is triable by the Small
Causes Court only and this Hon'ble Court has no
jurisdiction to entertain the instant suit and try
the same inasmuch as there are Small Causes
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Courts having jurisdiction to entertain and try
suits between landlords and tenant."
A preliminary issue with regard to the jurisdiction of the civil Court
accordingly came to be framed on 3-2-2005. On 28-2-2005, the
petitioners deleted the name of the respondent No.1 herein from
the array of parties. In the meanwhile, the prayer for interim
injunction came to be rejected by the trial Court against which a
M. C. A. No.177/2005 was pending. At that stage, the petitioners
moved an application below Exhibit-50 seeking permission to
withdraw the suit on the ground that the dispute related to
matters between landlord and tenant for which the Small Causes
Court had jurisdiction. On this application, the trial Court passed
an order on 4-1-2006 and permitted to the petitioners to withdraw
the said suit unconditionally. Thereafter, Regular Civil Suit
No.14/2006 was filed before the Small Causes Court against the
respondent No.1 herein. On 1-2-2006, the Small Causes Court
passed an order directing addition of the respondent No.2 herein
as a defendant on the ground that it was a necessary party. The
application for temporary injunction below Exhibit-4 came to be
allowed by the Small Causes Court on 15-4-2006. Similarly, the
application below Exhibit-24 moved by the respondent No.2 under
provisions of Order VII Rule 11 of the Code for rejection of the
plaint also came to be dismissed. These orders came to be
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challenged before the appellate Court by filing appeals under
Section 26A of the Provincial Small Causes Court Act and the
adjudication therein in so far as the suit has been held to be not
maintainable against the respondent No.2 is under challenge.
9. While considering the question of bar of the
subsequent suit on account of permission not being granted to file
the same while withdrawing the earlier suit, it is to be noted that
the earlier suit was filed before the civil court. On an objection
raised by the respondent No.2 that the dispute related to matters
between landlord and tenant, the civil Court framed a preliminary
issue. In the application for withdrawal of the civil suit below
Exhibit-50, a reason given was that the dispute was required to be
tried by the Small Causes Court. Therefore, the order passed by
the civil Court on the said application dated 4-1-2006 would at the
most have to be treated as refusing permission to the petitioner to
again approach the civil court for filing a suit based on an identical
cause of action. In the present case, the subsequent suit was filed
before the court of Small Causes. If the order dated 4-1-2006
passed by the civil court permitting the petitioners to withdraw the
suit unconditionally is treated as an order by which the petitioners
were precluded from even approaching the Small Causes Court,
the same would have the effect of the civil Court passing an order
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in respect of the matter over which it had no jurisdiction.
Moreover, the application moved by the respondent No.2 below
Exhibit-19 under provisions of Order VII Rule 10A of the Code
stating that only the Small Causes Court had jurisdiction also
cannot be lost sight of. Hence, in my view the order dated 4-1-
2006 passed by the civil Court cannot be read in such a manner
that would prevent the petitioners from approaching a different
court exercising different jurisdiction. As observed by the Hon'ble
Supreme Court in Kiran Singh and others (supra) a decree/order
passed by a court which has no jurisdiction would be a nullity.
10. Coming to the objection raised on behalf of the
respondent No.2 based on the provisions of Order II Rule 2 of the
Code, it is a fundamental requirement that for attracting a bar of
provisions of Order II Rule 2 of the Code, the court in which the
earlier proceedings were initiated ought to have jurisdiction to
entertain the subsequent proceedings. If the earlier court had no
jurisdiction to try the claim as made in the latter suit, the bar
under Order II Rule 2 would not apply. The reference in that
regard can be made to the decision of the Privy Council in
Jagatsingh Vs. Sangatsingh AIR 1940 PC 70.
In this background, if the facts of the case in hand are
examined, it is clear that such bar is not at all attracted. Regular
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Civil Suit No.1577/2004 had been filed in the civil court seeking a
relief of permanent and mandatory injunction against the
defendants who were the landlord and superior landlord
respectively. The respondent no.2 - superior landlord came up
with a specific defence that the issues raised in the suit could be
tried only by the Small Causes Court and that the civil Court had
no jurisdiction. The subsequent suit was filed before the Court of
Small Causes in which ultimately both the parties who were
initially arrayed as defendants has been impleaded though
belatedly. On that count, therefore, it cannot be said that bar
under provisions of Order II Rule 2 of the Code was attracted.
11. The ratio of the decision of the Hon'ble Supreme Court
in Coffee Board (supra) as well as the decisions of learned Single
Judge in Purna Medium Project Amravati (supra) and SNP Shipping
Services Pvt. Ltd. (supra) cannot apply to the facts of the present
case in view of the undisputed position that the earlier suit was
filed before the civil Court to which an objection was raised by the
respondent no.2 and the subsequent suit was filed before the Court
of Small Causes. On the own showing of the respondent No.2, the
petitioner had claimed relief in the earlier suit which could not be
granted by the civil Court. In this background, therefore, the bar
under provisions of Order II Rule 2 of the Code would not apply.
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12. Another relevant aspect that requires consideration is
that the respondent No.2 cannot be permitted to approbate and
reprobate in the same matter. When initially the suit was filed in
the civil Court, the respondent raised an objection to its
jurisdiction on the ground that the dispute related to matters
between landlord and tenant. When the petitioners withdrew the
said suit from the civil Court and approached the Small Causes
Court, the respondent No.2 took the stand that the subsequent suit
was barred as it was based on an identical cause of action and the
earlier suit had been withdrawn unconditionally. Having raised an
objection to the maintainability of the suit in the civil Court, it
would not be open for the respondent No.2 to now turn around
and contend that the suit filed before the Small Causes Court was
based on the same cause of action as the earlier suit and hence,
not maintainable.
13. Even otherwise, I find that the cause of action in both
the suits is distinct. In the prior suit, it was pleaded that the
respondent No.2 by illegally closing the iron gate in question had
infringed the legal rights of the petitioners. The cause of action
was stated to have arisen on 30-11-2004. In the subsequent suit,
it was pleaded that the respondent No.1 had erected Iron bars in
between the entrance gate and also had put a lock on the same.
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The cause of action was stated to have arisen on 29-12-2005.
Moreover, as observed in Bengal Waterproof Ltd. (supra), the cause
of action was based on continuous acts of obstruction by the
defendants. Thus, it cannot be said that the subsequent suit was
barred under law for the same to be entertained.
14. The appellate Court while allowing the appeal
preferred by the respondent No.2 lost sight of the fact that Regular
Civil Suit No.1577/2004 had been filed in the civil Court which
had no jurisdiction to entertain the suit relating to the dispute
between landlord and tenant. In that view of the matter, the order
passed by the appellate Court cannot be sustained. The same is,
therefore, liable to be set aside.
15. It is to be noted that during pendency of the present
writ petitions, the petitioners and the respondent No.2 arrived at
an ad hoc arrangement as regards the manner in which the
petitioners would have access to approach the respective premises.
By order dated 25-2-2008 this Court had accepted the said
arrangement and the same is continued since then. The interests
of justice would be served if the proceedings in the suit are
expedited and the aforesaid arrangement is permitted to be
continued during pendency of the suit without prejudice to the
rights of the parties.
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16. Hence, for the aforesaid reasons, the following order is
passed:
(1) The writ petitions are allowed. The petitioners shall
pay additional set of court fees as regards challenge to two
separate orders passed by the appellate Court. The order passed by
the appellate Court dated 16-4-2007 to the extent the suit has
been dismissed against the respondent No.2 is set aside.
(2) The suit shall proceed against both the defendants and
shall be decided in accordance with law.
(3) As the suit pertains to the year 2006, the proceedings
therein are expedited and the suit shall be decided by the end of
March, 2017.
(4) The interim arrangement that was operating during
the pendency of the present writ petition as per the minutes of
order dated 14-2-2008 shall continue to operate during pendency
of the suit. This continuation is, however, without prejudice to the
rights of the parties.
(5) Rule is made absolute in aforesaid terms with no order
as to costs.
JUDGE
//MULEY//
