Mohd. Hussain vs Mohd. Mian & Ors.
2000 Latest Caselaw 131 Del

ORDER

Madan B. Lokur, J.

1. The Appellant has preferred a second appeal against an order dated 28th February, 1983 passed by the learned Rent Control Tribunal (hereinafter referred to as the Tribunal) in case No.201 of 1983.

2. The Appellant is the landlord of the suit premises. For the sake of convenience, he and his predecessors in-interest are referred to as the Appellant or the Landlord, as the case may be.

3. The Appellant had filed an eviction petition on 16th April,1960 against one Mohd. Yunus (the brother of Respondent No.1 and uncle of Respondent No.2). In this eviction petition, it was alleged that Mohd. Yunus (and another person who was also said to be the tenant) had created subtenancies in favour of Mohd. Syed.Mohd. Idris (another brother of Mohd. Yunus) and some others. This eviction petition came to be dismissed as withdrawn on 11th/16th August,1980.

4. Thereafter, the Appellant filed a second eviction petition on 17th January, 1961 against Mohd. Yunus. The allegation in this case was the same, namely, that Mohd. Yunus had created sub-tenancies in favour of Mohd. Syed, Mohd. Idris and others. In this petition, an order dated 20th July , 1965 was passed whereby the Appellant was directed to give better particulars of the sub-tenants. On 21st August, 1965 the Appellant filed a statement to the effect that sub-tenancies had been created in favour of Mohd. Mian (earlier Respondent No.1 in this appeal), Mohd.Sultan Hashmi (Respondent No. 2 in this appeal and son of Respondent No.1) and Mohd.Yusuf who subsequently died on 18th June, 1968. (The legal representatives of Mohd. Yusuf were on record in this appeal as Respondents No. 3 to 6; but were subsequently given up).

5. The second eviction petition was dismissed in default by an order dated 5th August, 1969 passed under the provisions of Order IX Rule 8 of the Code of Civil Procedure (hereinafter called the CPC).

6. During the pendency of the second eviction petition, the Appellant filed a third eviction petition on 19th March, 1962 against Mohd. Yunus. In the third eviction petition also, the allegation of the creation of subtenancies was made but since the original record has apparently been destroyed, it is not very clear what was the exact nature of the allegations. However, the third eviction petition also came to be dismissed in default under Order IX, Rule 8 of the CPC on 17th August,1963.

7. Thereafter, again during the pendency of the second eviction petition the Appellant filed a fourth eviction petition on 2nd December, 1964 against Mohd. Yunus. Mohd. Mian, Mohd. Sultan Hashmi and Mohd. Yusuf.

8. As mentioned above, Mohd. Yusuf died on 18th June, 1968, Mohd. Yunus died on 6th November, 1971 and Mohd. Mian died on 5th September, 1985. In Civil Revision Petition No.4 of 1973 decided on 5th May, 1976 a learned Single Judge of this Court held that "under Mohammadan law. the full brother succeeds to the estate of the deceased and he excludes the full nephews". Consequently, it was held that upon the death of Mohd, Yunus. Mohd. Mian alone became his legal representative. Since Mohd. Mian has now died. the appeal really survives against Mohd. Sultan Hashmi, one of the sons of Mohd. Mian and his other sons Mohd. Shahzad and Mohd. Wazir. The other legal representatives of Mohd. Mian, even though they have been made parties, are no longer interested in the outcome of the appeal.

9. The appeal was heard on 28th January, 2000 and 1st February, 2000 when judgment was reserved.

It was submitted by learned counsel for the Appellant that even though most of the order of the learned Tribunal is in his favour, he has been non-suited on account of the finding by the learned Tribunal that he had abused the process of the Court. According to learned counsel, the decisions relied upon by the learned Tribunal, namely, M/s. Parasram Rao Vs. M/s. Shanti Prasad Narinder Kumar, ; Amirdin Shahab Din Vs. Shiv Dass Singh, AIR 1947 Lahore 102 and Raj Kumar & Ors. Vs. Mutsaddi Lal, are not at all applicable to the facts of the case. Learned counsel submitted that Order IX, Rule 9 of the CPC also does not apply to the facts of the present case because under Order IX Rule 9, a fresh suit in respect of the same cause of action is barred where the earlier suit is wholly or partly dismissed under Rule 8. According to learned counsel, the second eviction petition was still pending when he had filed the fourth eviction petition and, therefore, Order IX Rule 9 of the CPC will not come into play. Learned counsel for the Appellant was frank enough to admit that in the fourth eviction petition, it was not disclosed that the first and the third eviction petitions had been disposed of or that the second eviction petitions was still pending.

10. On the other hand, learned counsel for the Respondents contended that while, strictly speaking, the principles of order IX Rule 9 of the CPC will not be applicable, nevertheless, no person can be vexed again and again on the same cause of action and on the same basic facts. According to learned counsel, this is what was held in Amirdin Shahab Din (supra). The fact that the Respondents have been again and again troubled by the filing of eviction petitions on the same cause of action and on the same basic facts indicates that the Appellant is abusing the process of the Court.

I am inclined to agree with learned counsel for the Respondents.

11. The facts of the case make it quite clear that the Appellant had filed three eviction petitions prior to the fourth eviction petition, out of which the present proceedings have arisen. Of the three eviction petitions, one was dismissed as withdrawn and the other two were dismissed in default. This was not at all disclosed in the fourth eviction petition.

12. It is true that in the first eviction petition, the Appellant had only shown Mohd. Idris is (a brother of Mohd. Mian) as one of the sub-tenants;

but in the second eviction petition, when better particulars had been supplied by the Appellant, he had clearly shown Mohd. Mian, Mohd. Sultan Hashmi and Mohd. Yusuf as sub-tenants. In the third eviction petition, it was again alleged that Mohd. Yunus had created sub-tenancies in favour of some persons who were not named in the eviction petition but it would not be unreasonable to assume that in this petition also the alleged sub-tenants would be Mohd. Mian and Mohd. Sultan Hashmi. Notwithstanding all this, when the Appellant filed the fourth eviction petition he did not even bother to state the fact of his having earlier filed three eviction petitions, one of which was dismissed as withdrawn while the second one was pending and the third one was dismissed in default. This is nothing but concealment of material facts and an abuse of the process of the Court. The learned Tribunal rightly non-suited the Appellant on this ground.

13. Learned counsel for the Appellant placed reliance on Mangi Lal & Anr. Vs. Radha Mohan & Anr., AIR 1930 Lahore 599 (2) to contend that Order IX, Rule 9 of the CPC is, in essence, similar to Order XXIII, Rule 1 of the CPC which refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Relying upon the aforesaid decision, learned counsel contended that, in that case, a second suit had been filed before the first suit was withdrawn and the Lahore High Court found nothing wrong with the maintainability of the second suit.

14. I am afraid this judgment is of no help to the Appellant inasmuch as the Lahore High Court was only considering the provisions of Order XXIII, Rule 1 of the CPC. All that was held was that Order XXIII, Rule 1 of the CPC "cannot be read so as to bar a suit which has already been instituted before the other suit had been abandoned or dismissed". While remanding the case to the District Judge, the High Court left it open to the Appellants therein to urge other legal points including that the second suit was barred under Section 16 of the CPC. With respect, I fail to see the relevance of this case to the facts of the present case. In that case, there was no question or any argument raised nor any decision taken whether the institution of the second suit was an abuse of the process of the Court or otherwise. The case was limited to the interpretation of Order XXIII, Rule 1 of the CPC which has no applicability to the facts of the present case.

15. Learned counsel for the Appellant also relied upon S.P.A. Annamalay Chetty Vs. B.A. Thornhill AIR 1931 PC 263. The facts of that case are completely inapposite. In that case, the plaintiff (Appellant) had filed a suit for recovery of money. The suit was decreed and the Respondent filed an appeal against the decree. One of the objections taken by the Respondent therein was that the Appellant had not complied with the Business Names Registration Ordinance No.6 of 1918. The Plaintiff was faced with the situation that if the respondent's appeal succeeded, further proceedings may be barred by limitation because the Appellant had not complied with the said ordinance. Under these circumstances, the Appellant complied with the said Ordinance and moved an application for early hearing of the appeal which was rejected. It was in this situation that the Appellant instituted the second suit. All that the Privy Council held in that case was that it would have been appropriate for the concerned Court to wait for the decision of the appeal before proceeding further with the second suit because apart from anything else, it would have left it open to the court to see that the Appellant did not get a decree twice over for the same sum. I am afraid, with respect, that this decision also has no applicability to the facts of the present case.

16. In view of the above, I have no hesitation in accepting the conclusion of the learned Tribunal that the fourth eviction petition filed by the Appellant was an abuse of the process of the Court.

17. It may be mentioned that the Respondents had filed cross-objections bearing C.M. No. 1427 of 1984. In support of the cross-objections, learned counsel for the Respondents submitted that they were actually the tenants of the Appellant and there was no question of any sub-letting.

18. I find from the order of the learned Additional Rent Controller as well as the learned Tribunal that both had proceeded on the basis that since the tenancy related to commercial premises, the legal representatives of Mohd. Mian had no right to inherit the tenancy upon his death. The legal position has since been reversed through the decision of the Supreme Court in Gian Devi Anand Vs. Jeevan Kumar & Ors., wherein it has been clearly held that a tenancy in respect of commercial premises is also heritable.

19. Be that as it may, in view of the law as it then prevailed, both the Courts below have not adjudicated upon the question whether the Respondents were the tenants of the Appellant or that they were sub-tenants of some one else. In the absence of any finding being recorded by the Courts below on this issue, I do not think it appropriate to render any finding in a second appeal on the question whether the Respondents were the tenants of the Appellant or not.

In view of the above, the cross-objections are disposed of.

The appeal, for the reasons mentioned above, is dismissed. There will, however, be no order as to costs. The lower Court record be returned forthwith.