Jai Kishan Balkishan And Anr. vs M.B. Kagal And Anr.
1972 Latest Caselaw 135 Del

JUDGMENT

D.K. Kapur, J.

(1) This is a second appeal under Section 39 of the Delhi Rent Control Act 1958 at the instance of the tenant. The question involved in this appeal is, whether the landlady Dr. (Mrs.) Kagal was entitled to bring two ejectment petitions against the tenant. It appears from the facts that she instituted the first ejectment petition on 17th February, 1968 in which she claimed ejectment from a shop and a two-roomed flat situated on the ground and first floors, respectively, of 2, Sunder Nagar, Market, New Delhi. That petition was based on non-payment of rent, personal bona fide requirement, non-occupation of the flat for a period of six months, acquisition of vacant possession of an other residential premises contrary to the conditions imposed on the appellant by the Government while giving the lease. Clearly, this petition was based on a number of different grounds. On 2rd March, IS68, the second ejectment petition was filed, which was based solely on the ground of sub-letting the residential flat situated on the first floor and a part of the ground floor. The alleged sub-tenant, M/s Sweet Corner, Sunder Nagar Market, Delhi, was imp leaded as respondent No .2.

(2) The two ejectment petitions were consolidated and were tried together thereafier. The land-lady completed her evidence on 20th December, 1968 and on 7th January, 1969, the tenant and M/s Sweet Corner, respondent No. 2 made an application that the maintainability of. the second ejectment application should be decided as a preliminary issue. The Additional Rent Controller entertaind this application and gave a decision holding that the second application was barred under Order 2, Rule 2 of the Code of Civil Procedure.

(3) The reasoning of the Additional Rent Controller in support of this decision was that the alleged sub-letting had taken place in the year 1967,even before the institution of the first ejectment petition. Relying on Jai Narain 'v. Syed Ali Murtaza and Amir Din Sahab Din v. Shiv Dev Singh the Additional Rent Controller held that if the landlady knew of the existence of the sub-letting when she instituted the first ejectment petition she could not bring another ejectment petition on an existing ground at a subsequent date. On the facts, the Additional Rent Controller held that the landlady never slated in her evidence, that she was not aware of the existence of sub-letting when she instituted the first ease. The second ejectment petition was accordingly dismissed by the Additional Rent Controller on 14th January, 1969.

(4) On Appeal to the Rent Control Tribunal, it was held that Order 2, Rule 2 of the Code of Civil Procedure was clearly applicable to the facts of the case in view of the decision of the Bombay High Court in Husseinbhai Ebrahim Bohri v. Novyog Chitrapat Co. Ltd, and the only question which remained to be examined was whether the landlady was aware of the existence of the ground of sub-letting in February, 1968, when she brought the first ejectment petition. The Tribunal found that the landlady had stated that she came to know of the existence of the sub-letting in February, 1968, which could also be after 17th February, 1968, the date on which the first petition was instituted. The fact that she had not included this ground when she filed her first petition, led him to believe that she was unaware of the ground on that date. As regards her failure to state in her evidence that she became aware of the sub-letting after 17th February, 1968, it was held that the onus of providing the fact was on the respondents and not on the landlady. The Tribunal, therefore, concluded from the facts and circumstances of the case, that the landlady was not aware of the existence of the ground of sub-letting and-hence, there was no bar to the second ejectment application under Order 2, Rule 2 of the Code. Against this decision, the tenant has appealed to this Court under Section 39 of the Delhi Rent Control Act 1958.

(5) The first question to be considered in this appeal, is to ascertain whether the conclusions of the Tribunal are not based on findings of fact which are not open to review in this second appeal. An appeal under Section 39 has to be confind to a substantial question of law. M.r. Radhe Mohan Lal, learned counsel for the appellant con - tends that this is abase of mis reading of evidence, and therefore, a question of law is involved. It is urged that if the Court misreads evidence, it really decides a case which was not before it and, hence conmitsa substantial error in law. For the purpose of satisfying myself concerning the findings of fact and the question of mis-reading evidence I have examined the statement of the landlady. She has slated that in 1967, the tenant left the residential flat and acquired some other house elswhere. She was not aware that the premises had been sub-let till she visited the place in 1968. In cross-examination, she again alleged that the sub-letting took place in 1967. The question that Mr. Radhe Mohan poses is : How did she learned that he discovered this sub-letting in 1968 ? it is undoubledly stated in her examination-in-chief that she learnt of the sub-letting in February, 1968. The relevant question is was her knowledge of the sub-letting before 17th February, 1968. This fact is not elucidated in the statement. It is quite possible that the landlady discovered the sub-letting after 17th February, 1968 and is equally possible that she discovered it before 17th February, 1968. As the statement is ambiguous, it cannot be clearly determined that the: petitioner was aware of the sub-letting before 17th February, 1968. This would mean that the statement of the landlady does not help us to ascertain the date of her knowledge. The Additional Rent Controller based his conclusions on the probabilities arising from the fact that the two petitions were instituted in close proximity as to time. The first petition was instituted on 17th February, 1968 and the second on 2nd March, 1968. It was stated in the second petition that the landlady had discovered the existence of the sub-letting only a week before she instituted the second petition, which means that it was pleaded that she had learned of the sub-letting on or about the 24th February in that year. In as much as there was nothing to prevent the landlady including this ground of edjustment in her first petition, I cannot believe that the Additional Rent Controller was right to come to the conclusion that her statement showed on facts that she was aware of the subletting on 17th February, 1968. After all, what prevented the landlady including the ground of sub-letting in her first petition ? If she knew of this sub-letting, I cannot conceive of any reason why she could not include this ground in the first petition. It is contended on behalf of the tenant that this ground of ejectment was deliberately excluded from her first petition because she had based the same on bona fide personal requirement, which leads to quicker decision. However, the first ejectment petition was also based on a number of other grounds, and I can- not see how the inclusion of sub-letting as a ground would have delayed the decision more than the other grounds. I, therefore, come to the conclusion that the finding of the Tribunal is not based on a mis reading of the evidence, but is based on evidence and hence the finding is binding on me in second appeal.

(6) Assuming that my conclusion on this question is erroneous, there remains the question whether the landlady could have instituted the second ejectment petition even if she had deliberately excluded the ground of sub-letting from the first petition. On this aspect of the case, what has to be seen is whether each,"round of ejectment constitutes a separate cause of action. According to the contentions of Mr. Makhija, who appears for the landlady, each ground of ejectment raises a separate cause of action because the evidence supporting that ground is substantially diffrent from the evidence supporting the other grounds. This is the test which has been adopted by the Privy Council in Mohainmad Khalil Khan v. Mahbub Ali Mian. On the other hand, it is contended by Mr. Radhe Mohan Lal, on the basis of Husseinbhai Ebrahim Bohri v. Navyug Chitrapat Co. Ltd.", that the cause of action is the right to get ejectment and the grounds of ejectment are only reasons for getling ejectment The position of the parlies under the Rent Control Act is a somewhat peculiar one. Under the ordinary law, an ejectment suit can be instituted as soon as a vacancy is terminated. There can be no double ejectment from the same premises. When the Rent Control Acts apply, they have the effect of preventing the landlord from instituting proceedings to get ejectment, because of the protection of the Acts. Every time a ground of ejectment comes into existence the protection of the relevant Act becomes suspended. Thus, for instance on non-payment of rent or because of bona fide personal requirement or the acquisition of another residence, the protection of the Act becomes suspended and the landlord can institute a petition for ejectment under the Delhi Rent Control Act, 1958, before the Rent Controller. Hence every lime a ground of ejectment comes into existence, the landlord becomes entitled to institute an application for ejectment. It can, there- fore, be said that each ground of ejectment constitutes a different cause of action, because each time the ground is established or comes into being an application for ejectment can be instituted. The Act says that the Controller can pass an order for eviction when a ground of ejectment as described in section 14 exists.

(7) The judgment of the Privy Council aforementioned has elaborately analysed the provisions of Order 2, Rule 2 of the Code. The said provision states that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of any cause of action but the plaintiff may relinquish a part of his claim. If the plaintiff does elect to relinquish a part of the claim, he is disentitled to sue late in respect of the relinquished claim. In case a person is en- titled to sue for more than one relief in respect of the same cause of action, he may sue for all or any of such reliefs, but if he omits any relief he is disentitled to sue later for that omitted relief. This means that a plaintiff basing his case on a particular cause of action, may relinquish a part of his claim and further, he may omit some of the relief he could get, but if he relinquished any part of his claim or omits any relief, he cannot later sue on the relinquished claim or for the omitted relief. The Privy Council in the aforementioned case had to apply this provisions to two cases instituted in close proximity as to time The decision of the case really turned on the question whether the causes of action were the same. The Privy Council approved of the decision in Brunsden v. Humphrey in which it was held that one of the tests to be applied in such a case was whether the same evidence would support both the suits. It was also indicated by the Privy Council that even if the causes of action in the two suits appeared to be different, they might in substance be the same. Now applying these tests to the case before me, the question that I have to determine is whether the cause of action in an ejectment petition based on several grounds, but not the ground of sub-letting is the same as in an ejectment petition between the same parties involving the same premises but based solely on the ground of sub-letting. Now, the decision in the first ejectment petition may be against the landlord because of the failure to establish any of the grounds on which that petition is based. The said decision cannot at all determine whether the tenant has not sub-let the premises. In fact, the evidence, necessary to support a claim for eviction on the ground of sub-letting necessarily has io be different from that necessary to support a claim for ejectment on the ground of non-payment of rent, bona fide personal requirement acquisition of another residence, etc. Thus one of the tests laid down by the Privy Council for determining an identical cause of action, is not satisfied in the present case. The evidence in the two cases necessarily has to be different and, therefore, the two cases of action are not the same. In order to maintain an ejectment petition under the Delhi Rent Control Act, 1958, the landlord lias to prove (a) that the contract of tenancy has been terminated and (b) that one or more of the grounds for ejectment specified in sub-section (1) of section 14 of the Act exist. The cause of action in each ground of ejectment must, therefore, be considered to be different. In the case actually before the Privy Council there were two properties involved one described as the Oudh property and the other the Shahjahanpur property. The course of dealings between the parties in respect of both properties was found to be the same and the denial of the plaintiff's title; to the Oudh property arid the possession of the Shahjahanpur property by the defendants was obtained as a result of the same transaction, the Privy Council found that the cause of action in both the cases was the same. Can it be said in the present case, that the cause of action for subletting by the tenant is the same as, for example, the cause of action based on non-payment of rent? The Properly is identical, the parties are the same ? but can the cause of action be described as the same. To my mind the two claims are necessarily different.

(8) In Hussenbhai Ebrahim Bohri v. Navayug Chitrapat Co. Ltd., which is a decision of the Bombay High Court (Nagpur Bench), relied upon by the appellants, an opinion was given that the grounds of ejectment are not a part of the cause of action in bringing an ejectment suit. The decision is based on the view that the grounds of ejectment relied upon have to be stated in the plaint in anticipation of the defendant's claim for protection under the Rent Control Act. I regret I am unable to accept this view. If the ground of ejectment is not alleged or proved by the landlord he cannot get ejectment. The causes of action in my view are the facts necessary to establish the plaintiffs claim. They are the facts which the plaintiff has to prove in order to get the relief claimed. Assuming that in an application for ejectment under Section 14(1) of the Delhi Rent Control Act, 1958 the landlord does not prove any ground of ejectment, clearly the ejectment petition will fail. It only fails because one of the necessary ingredients forming part of the cause of action for ejectment is the existence of one or more of the grounds set out in Section 14(1) of the Act. Hence, the inevitable conclusion must be that the grounds of ejectment on which the petition is based are part and parcel of the cause of action. I, therefore, come to the conclusion that the cause of action for getting ejectment on the ground of sub-letting is different from the cause of action forgetting ejectment from the same premises on and of the other grounds. Thus the cause of action in the first petition brought by the landlady in the present case was different from the cause of action in the second petition.

(9) I have been referred to Rajdev Singh v. Royal Studio, which is a decision of this Court, there Desh pande J. held that if a particular ground of ejectment was not raised in a former petition for ejectment, the same cannot be a ground of ejectment in a second petition Mr. R. M. Lal, submits on behalf of the appellants, that the same principle ib. applicable to the present case. I must point out that the rule of constructive res judicata is quite different from the provisions of Order 2, Rule 2 of the Code. If the first petition in the present case had conuluded, then the landlady would have been precluded from bringing the ejectment petition on the ground of sub-lifting on the ground that she highr and ought to have included this claim in the former suit. It may be noted that Deshpande J. observed as follows :- "ORDER2, Rule 2(1) Civil Procedure Code only requires that the plaintiff shall include the whole of the claim which be is entitled to make in respect of the cause of action in every suit. It does not, therefore, seem to require that the landlord must plead in the same eviction petition all the grounds available to him under the various provisions to section 14(1) on the date of the filing of the petition for eviction. But explanation Iv to section 11 is stricter than Order 2, rule 2(i)Civil Procedure Code. According to Explanation Iv to section 11 "any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The principles underlying the provisions of the Civil Proceedings under the Act in view of rule 23 of the Rules made there under and section 37(2) thereof "

Thus, it clear that section 11 is quite different from Order 2, Rule 2 of the Code. As I have said if the first of these two petitions had come to and end, then the second petition would have been barred by constructive res-judicata. As it happens the second petition has been moved only a few days after the first petition and therefore, section 11 of the Code does not apply. The second petition is also not barred by Order 2, Rule 2 of the Code. Under the circumstances, I hold that even if the landlady knew of the existence of the ground of sub-letting on 17th February, 1968, and deliberately or negligently omitted to include this cause of action in the first ejectment petition, she is not precluded from bringing a second petition by operation of Order 2. Rule 2 of the Code.

(10) I thus confirm the decision of the Rent Control Tribunal and hold that the second petition is not barred and can be proceeded with this appeal is, therefore, dismissed. I however, leave the parties to bear their own costs.