A Proceeding By Way Of An Scc Suit ... vs The Petitioner Before This Court
2023 Latest Caselaw 1952 UK

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                                 WPMS No.2084 of 2023
                                 Hon'ble Sharad Kumar Sharma, J.

Mr. P.S. Rawat, learned counsel for the petitioner.

A proceeding by way of an SCC Suit No.3 of 2019, "Tara Singh Vs. Sayeed Ahmad" stood instituted before the Judge, Small Causes Khatima, District Udham Singh Nagar. In the suit in question, the decree was sought with regards to the eviction and recovery of the arrears of rent and the same was formulated in the following manner:-

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The petitioner before this Court, who is a defendant in the suit, had filed an application under Order 7 Rule 11 of the CPC, after filing of the written statement, contending therein that the suit would not be tenable because it would be barred by limitation and the bar of limitation was sought to be attracted, on the ground, that the decree was partially sought with regards to the arrears of rent from June 2013 to June 2016, which would be not recoverable in view of the provisions contained under Article 52 of the Limitation Act.

The second ground for invoking Order 7 Rule 11 of the CPC; was that there was no subsisting relationship of landlord and tenant and hence, the suit was not maintainable and the plea of non-sustaining relationship of landlord and tenant was because of the absence of there being any written agreement for creating a tenancy rights in favour of the petitioner.

The said application has been rejected by the Court of Senior Civil Judge, Khatima by the judgment and order dated 28.05.2022, which later on, also stood affirmed in an SCC Revision No.2 of 2022, "Sayeed Ahmad Vs. Tara Singh" by judgment rendered on 30.05.2023.

After having heard learned counsel for the petitioner and having gone through the records of the writ-petition and, particularly, in view of the relief sought in the suit, the principal relief claimed by the landlord was for eviction of tenant and recovery of arrears of rent, obviously for the period, which was legally due to be paid. Merely, because of the fact that part of the relief for recovery of arrears of rent, which was barred by limitation, that itself will not amount to attract Article 52 of the Limitation Act and, consequently, the provisions of Order 7 Rule 11 of the CPC and enabling the tenant to take a plea that the suit was barred by the limitation.

The term suit, though it has not been defined under the Civil Procedure Code, has had to be dealt with in its entirety and, particularly, in the instant case, in the light of the relief quoted above, the principal relief would be the eviction of tenant and the ancillary relief would be the recovery of the arrears of rent.

If the ancillary relief, which is consequent to the principal, is partially barred by the limitation, it will not attract Order 7 Rule 11 of the CPC because, at the most, when the adjudication of the suit is made on merits, by the trial Court or the Judge, Small Causes Court, it may be depending upon the facts of the case, denying remittance of the arrears of the rent for the period, which otherwise, if proved to have lapsed, in accordance with the limitation.

The second argument is that Order 7 Rule 11 of the CPC was attracted, on the ground that in the absence of there being any written agreement of tenancy there was no subsisting relation of landlord and tenant.

In fact, this plea raised by the petitioner would be barred by the provisions contained under Section 116 of the Evidence Act, where if the tenant continues to occupy a premises and enjoys the same, on institution of the proceedings, he is estopped to raise a plea that, there did not subsisted the relationship of landlord and tenant and the said principle has been dealt with by the Hon'ble Apex Court in the judgment as reported in (2015) 3 SCC (Civil) 652 and the relevant observation with regards thereto has been made in paragraph nos.10, 14 to 16 and 18, which are extracted hereunder:-

"10. It is evident from the above that the respondent does not dispute either the jural relationship of landlord and tenant between the parties or the rate of rent settled between them. All that the respondent has asserted is that he has been in possession of the shop since the year 1992 and not since 1989 as asserted by the appellant. It is also not the case of the respondent that he is the owner of the suit shop or that he had taken the same on rent from anyone other than the appellant. Such being the position, the question is whether the respondent can dispute the title of the appellant over the shop assuming that he was let in possession by the appellant in the year 1992 as asserted by him and not in the year 1989. Our answer is in the negative. We say so because once the respondent admits that he has been let in possession as a tenant by the appellant in the year 1992 i.e. more than 10 years before the filing of the eviction petition, the requirement of the appellant being owner of the property for more than five years within the meaning of Section 13-B (supra) would stand satisfied. The respondent would then be estopped from denying the title of the appellant during the continuance of the benefit that he is drawing under the transaction, between him and the appellant. It is trite that the doctrine of estoppel is steeped in the principles of equity and good conscience. Equity will not allow a person to say one thing at one time and the opposite of it at another time. It would estop him from denying his previous assertion, act, conduct or representation to say something contrary to what was implied in the transaction under which he obtained the benefit of being let in possession of the property to be enjoyed by him as a tenant.

14. Section 116 of the Evidence Act deals with estoppel against tenants and of licensees or persons in possession. Estoppel under this provision falls in the category of estoppel by contract and is relatively a recent development. The rule embodied in Section 116 simply prevents the tenant in occupation of the premises from denying the title of the landlord who let him into possession, just as it applies to a mortgagor or a mortgagee, vendor or a vendee, bailer or a bailee and licensor or a licensee. The rationale underlying the doctrine of estoppel against the tenant's denial of title of his landlord was stated by Jessel, M.R. in Stringer's Estate, In re, Shaw v. Jones-Ford [Stringer's Estate, In re, Shaw v. Jones-Ford, (1877) LR 6 Ch D 1 (CA)] as under: (Ch D pp. 9-10) "... where a man having no title obtains possession of land under a demise by a man in possession, who assumes to give him a title as tenant, he cannot deny his landlord's title.... That is perfectly intelligible doctrine. He took possession under a contract to pay the rent as long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession, has not a title. That is a well-established doctrine. That is estoppel by contract."

15. There is considerable authority for the proposition both in India as well as in UK that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question the latter's title to the property. Section 116 clearly lends itself to that interpretation when it says:

"116.Estoppel of tenant and of licensee of person in possession.--No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."

16. A three-Judge of this Court in Sri Ram Pasricha v. Jagannath [Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184] reiterated the principle that a tenant in a suit for possession was estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The title of the landlord, declared this Court, even otherwise irrelevant in a suit for eviction of the tenant. The only exception to the rule of estoppel as stated in Section 116 (supra) may be where the tenant is validly attorned to the paramount title- holder of the property or where that the plaintiff landlord had, during the intervening period, lost his title to the property. We are not, however, dealing with a case where the respondent tenant claims that the property is vested in anyone else who could be described as the paramount title-holder or there was any extinction of the title of the appellant on any count whatsoever since the induction of the respondent as a tenant into the premises. We need not, therefore, be detained by any one of those considerations. What is important is that so long as a jural relationship exists between the respondent tenant and the appellant and so long as he has not surrendered the possession of the premises in his occupation, he cannot question the title of the appellant to the property. The inevitable inference flowing from the above proposition would be that (vis-à-vis the respondent) the appellant was and continues to be the owner of the premises in question since the year 1992 when the respondent was inducted as a tenant. Reckoned from the year 1992 the appellant has established his ownership of the premises for a period of five years before the filing of the eviction petition thereby entitling him to invoke the provisions of Section 13-B of the East Punjab Urban Land Restriction Act, 1949.

18. The upshot of the above discussion is that the courts below fell in manifest error in holding that the appellant landlord was obliged to prove his title to the property, no matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. We have, in the circumstances no hesitation in reversing the view taken by the courts below and in decreeing the eviction petition."

Thus, on these two counts, as referred to above, the rejection of an application under Order 7 Rule 11 CPC preferred by defendant/ petitioner/ tenant herein, has been rightly rejected by both the Courts below. Hence, I do not find any merit in the writ-petition to be ventured into while exercising my supervisory jurisdiction under Article 227 of the Constitution of India.

Hence, the writ-petition lacks merits and the same is, accordingly, dismissed.

(Sharad Kumar Sharma, J.) 28.07.2023 Sukhbant s