M/S Greenways vs Y.N. Gupta
2013 Latest Caselaw 5685 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Order delivered on: December 09, 2013
+                         CM(M) No.719/2013

      M/S GREENWAYS                                           ..... Petitioner
                  Through               Mr.S.K.Puri, Sr.Adv. with
                                        Mr.Praveen Kumar, Adv.
                          versus

      Y.N.GUPTA                                              ..... Respondent
                          Through       Mr.Sandeep Sethi, Sr.Adv. with
                                        Mr.Harpreet Singh & Mr.Rajesh
                                        Gupta, Advs.
      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

C.M. No.10941/2013 (exemption) Exemption allowed, subject to just exceptions. The application is disposed of.

CM(M) No.719/2013

1. The petitioner (defendant in the suit) has filed the present petition under Article 227 of Constitution of India seeking to set aside the impugned order dated 18th May 2013 passed by the learned Addl. District Judge (Central) 08, Tis Hazari, Delhi, in the application filed by the respondent/plaintiff under Order XXIII, Rule 1 CPC in Suit No.149/10.

2. The brief facts leading to the present petition are as follows:

a) A suit for ejectment/possession, recovery of arrears of rent and mesne profits was filed by the respondent/plaintiff against the petitioner (defendant in respect of one tenancy), alleging that the

petitioner was a tenant and the rent was more than Rs.3500/-. Upon service, the petitioner filed the written statement stating that the suit was not maintainable and was not within the competence of the civil Court on account of bar of Section 50 of the Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act") and that there were two tenancies. The rent of each tenancy was clubbed together to bring one suit before the civil Court.

b) Replication was filed by the respondent in which the statements issuing the plaint were confirmed while the pleas taken up in the written statement were denied. Issues were framed and the parties were taken to trial. The respondent/plaintiff completed his evidence. Thereafter, the respondent filed an application under Order XXIII, Rule 3 read with Section 151 CPC, stating that as the petitioner admitted that there were two separate tenancies, he was entitled to decree in respect of the subject matter of the suit. However, the said application was dismissed vide order dated 17 th August, 2012.

c) On 23rd March, 2013, the respondent/plaintiff filed an application under Order XXIII, Rule 1 CPC to withdraw the suit, with liberty to file fresh suit in respect of the subject matter. The Court by the impugned order allowed the respondent to withdraw the suit with liberty to file fresh suits with respect to the two tenancies. Hence, the present petition.

3. It is argued by Mr.Sandeep Sethi, learned Senior counsel appearing on behalf of the respondent that the petitioner is a tenant in the suit premises who took the plea in the written statement that there are two tenancies in property bearing No.E-20, Connaught Place. The respondent accepted the

stand of the petitioner and withdrew his case and has already initiated the action against the petitioner in view of the objections raised by the petitioner.

4. Mr.S.K.Puri, learned Senior counsel appearing on behalf of the petitioner, on the other hand, states that for the same cause of action, no action lies and is maintainable. Since it was the defect in the suit which was not maintainable under Section 50 of the Act, it has to be determined as per its owner rather to allow the respondent's application for withdrawal of suit and permitted him to initiate fresh action in order to cure the defect. Thus, the respondent ought not to have allowed to withdraw the suit which was not maintainable on account of the two tenancies.

5. I have perused the pleadings as well as the impugned order. I am of the considered view that the present petition filed by the petitioner is liable to be dismissed on the following reasons:-

(i) No doubt, in the suit was filed by the respondent, the petitioner in its written statement raised specific plea by stating that the suit was not maintainable and was not within the competence of the Civil Court on account of the bar of Section 50 of the Act as the respondent has clubbed the rent of two tenancies to bring one suit before the Civil Court. However, there is no bar to file an application under Order XXIII, Rule 1 CPC to withdraw the suit and to take remedy in accordance with law, the same was decided after hearing both the parties. The Court also granted liberty to take fresh action.

(ii) There is no force in the submissions of the petitioner that the fresh actions are not maintainable, as the same have been filed on the basis of similar cause of action. Once the liberty is

granted while disposing of the application under Order XXIII, Rule 1 CPC, the respondent is not estopped from taking the fresh action as per the law. The decisions referred by the petitioner do not help its case in view thereof. Normally, the second action for the same cause of action is not maintainable. However, in the present case, the suit was withdrawn with the liberty to take the fresh action which was granted, thus, the said decisions referred by the petitioner are distinguishable. As a matter of fact, it was the petitioner who itself has taken the objections in the written statement that the suit was not maintainable, thus, the respondent in view thereof filed the said application.

6. Under these circumstances, the present petition is without any force. The same is accordingly dismissed.

(MANMOHAN SINGH) JUDGE DECEMBER 09, 2013