Dr. (Smt.) Prabha Manchanda vs Smt. Kawaljit Kapoor @ Rani
2007 Latest Caselaw 1048 Del

JUDGMENT

J.M. Malik, J.

1. This revision petition raises an interesting question i.e. whether in a suit filed by the plaintiff/revisionist wherein notice under Section 6A of Delhi Rent Control Act 1958 has been called into question, the counter claim seeking possession and recovery of mesne profits is barred under Order 7 Rule 11 C.P.C. The case of the plaintiff/revisionist is this. The appellant was inducted as a tenant in respect of the premises in dispute at a rental of Rs.3,500/- per month. The original landlord expired on 14.01.1993 leaving behind legal representatives. Smt. Kawaljit Kapoor, the defendant, claims to be one of his legal representatives. Vide notice dated 18.05.2006, she asked the appellant to increase the rent w.e.f. 08th July, 2006 by 10%. Thereafter, the suit for declaration was filed by the revisionist with the following prayers:

(a) Declare that the defendant in invoking Section 6A of Delhi Rent Control Act, 1958 without the ingredients of Section being attracted and despite the very entitlement of the defendant to invoke it being non existent intend to deny the plaintiff's legal character and deprive her of her right to property, the invocation vide notice dated 18th May, 2006 hence being illegal unlawful, wrong, unwarranted, arbitrary, malafide as well as without any cause of action and cannot be enforced/acted upon by the defendant.

(b) grant permanent injunction restraining the defendant by her representatives, assignees etc from acting upon notice under Section 6A Delhi Rent Control Act, 1958 enhancing the rent to Rs.3,850/- per month there being a breach of obligation owed to the plaintiff and in so acting the defendant invading the plaintiffs' right to enjoyment of property through proceedings frivolous, vexatious and in abuse of law.

(c) grant any other relief which this Hon'ble Court may deem fit and proper be also passed in favor of the plaintiff and against the defendants.

2. The appellant filed written statement as well as also filed counter claim dated 16.11.2006 wherein the defendant claimed possession and recovery of mesne profit.

3. During the pendency of this case the appellant/plaintiff filed an application dated 12.01.2007 under Order 7 Rule 11 read with Section 151 CPC wherein the following averments were made. Firstly, under Order 8 Rule 6-A of CPC the defendant/respondent has to file the counter claim in the written statement. However, the respondent has filed counter claim separately. The said counter claim has not been filed in consonance with the provisions of Order 8 Rule 6-A and the same should be dismissed as per law laid down by the Orissa High Court in and Chartered Bank v. Indo-Swiss Circuits 1986 2nd (Del) 2-399. Secondly, the defendant can set-up by way of counter claim only such right or claim which arises before the defendant has delivered his defense. The right pleaded in the counter claim has to await decision of the captioned suit. The right pleaded by the defendant does not exist and the counter claim is barred by law. The trial court has no pecuniary jurisdiction as the value of the suit is more than 3 lakhs to 20 lakhs whereas the counter claim has been valued for a sum of Rs.46,400/-. The said application was contested by the respondent. The trial court returned the findings in favor of the respondent and against the appellant. Aggrieved by that order the appellant has now approached this Court.

4. The learned Counsel for the appellant vehemently argued that the suit filed by the respondent is premature. He explained that counter claim is a separate case which does not lie until or unless the questions raised by the appellant are finally adjudicated by the concerned court. It was explained that the first of all the court will decide whether the notice issued by the respondent is valid on the reasons detailed in the suit. He opined that the cause of action would arise in favor of the respondent only when the court decides that the appellant is liable to pay 10% increase in enhancement. In order to fortify his argument he has cited following few authorities.

5. In Vithalbhai (P) Ltd. v. Union Bank of India , it was held:

7. To be entitled to file a civil suit the plaintiff must be entitled to a relief and the suit must be of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred (see Section 9 of the Code of Civil Procedure, 1908). Section 3 of the Limitation Act, 1963 provides that a suit filed after the prescribed period of limitation, shall be dismissed without regard to the fact whether limitation has been set up as a defense or not. However, there is no such provision (and none brought to our notice at the Bar in spite of a specific query in that regard having been raised) which mandates a premature suit being dismissed for this reason. The only relevant provision is the one contained in Rule 11 of Order 7 CPC which provides for a plaint being rejected where it does not disclose a cause of action. Though the plaint is not rejected, yet a suit may be dismissed if the court on trial holds that the plaintiff was not entitled on the date of the institution of the suit to the relief sought for in the plaint.

22. We may now briefly sum up the correct position of law which is as follows:

A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the court shall not exercise its discretion in favor of decreeing a premature suit in the following cases :(i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular even would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v. Kedar Nath) One more category of suits which may be added to the above, is : where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained.

6. He also cited another authority reported in Usha Kapur v. Kavita Kapur and Ors. , wherein it was held:

8. The peculiarity of the case, however, is that a counter claim has been filed along with the written statement. The counter claim is like a suit. Even if the filing of the written statement is barred in this case the defendant cannot be denied her right to file a fresh suit against the plaintiff. As per Order 8 Rule 6A(2) such counter claim has the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. Even if the written statement is taken off the record as barred by time, the counter claim will have to be entertained.

7. He also cited another authority reported in Kannan and Anr. v. Tamil Tahlir Kalvi Kazhagam wherein it was held:

14. When two or more interpretations are possible, the one which subserves to the object should be accepted. We find Sub-section (3) of Section 9 contemplates deposit of rent in case of bona fide doubt or dispute. This is to salvage the tenant from eviction. However, this would depend on the facts of each case. Thus, where there are two possible interpretations, the one which prevents a tenant from unreasonable eviction be accepted.

8. Lastly, he cited the following extracts from "The Code of Civil Procedure written by Mulla, Sixteenth Edition", Vol-II, Page 1993:

This is clear from the words 'a claim for damages or not' in Rule 6A. The wide words in which Rule 6A is couched shows that it can be brought in respect of any claim that could be subject of an independent suit. The very object of Rule 6A is to treat a counterclaim as an independent suit to be heard together with the plaintiff's suit to enable the court to pronounce final judgment. That however, does not mean that in all cases the counterclaim could only be in terms of money. Such an interpretation will render the express provisions of Rule 6A nugatory. The judgment relies on the commentary of the previous edition of this book. It is no longer confined to money claims or to causes of action of the same nature as the original action and it need not relate to or be connected with the original cause of action or matter.

A defendant can claim any right by way of a counterclaim in respect of any cause of action is accrued to him even though it is impendent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit.

9. The learned Counsel for the appellant also argued that the assumption of the counsel for the respondent that the rent stands "automatically" increased is all wet because there is no such inkling in Section 6A of Delhi Rent Control Act.

10. All these arguments have left no impact upon the court. Although, it is true that the word "automatically" is not mentioned in Section 6A of Delhi Rent Control Act, yet in order to understand the legal position clearly it would be worthwhile to reproduce Section 6A of Delhi Rent Control Act which reads:

6A. Revision of rent - Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent every three years.

11. The phrase "does not disclose the cause of action" has to be very norrowly construed. The rejection of the plaint at the threshold entails very serious consequences. This power has to be used in exceptional circumstances, ought to be used only when the court is absolutely sure that the plaintiff (i.e. the defendant in the case of the counter claim) does not have an arguable case at all. While considering the application under Order 7 Rule 11 C.P.C., the court is not required to take into consideration the defense set up by the defendant in his written statement. The question whether the plaint discloses any cause of action is to be decided by looking at the averments contained in the plaint or counter claim, as the case may be and not the defense set up in the written statement. The court cannot evaluate the pros and cons of the case of the plaintiff at that stage.

12. "Cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in the court. It implies a right to sue. The material facts imperative for the claimant to allege and prove, constitute the cause of action. Cause of action must help the petitioner in obtaining a decree. The cause of action in favor of the respondent has arisen, the moment notice was served upon the tenant. The present case is squarely covered within the above cited authority reported in Vithalbhai (P) Ltd. v. Union Bank of India (Supra). Since, the cause of action has already arisen in favor of the respondent, therefore, the present counter claim is maintainable.

13. In case the argument of the appellant is accepted, it would mean that the respondent cannot redress his grievance of recovery of possession till the suit filed by appellant is decided. It is likely that it would take a long haul in deciding the plaintiff's case. It would cause great prejudice to the landlord. Respondent's claim cannot be kept in abeyance. This goes without saying that every delay is grist to the tenant's mills. The suit filed by the appellant may not be decided for years together. Is he supposed to wait for the said suit to be decided? This is a clever ploy exercised in order to delay the main controversy between the parties.

14. Under these circumstances, I see no flaw in the judgment passed by the first appellate court. Consequently, the revision petition is meritless and the same is therefore, dismissed.

CM No. 5707/2007

In view of the dismissal of the revision petition, no further orders are required to be passed in the application, the application is dismissed.

CM No. 5708/2007

Allowed, subject to all just exceptions.