Tags Eviction

Supreme Court of India (Full Bench (FB)- Three Judge)

Appeal (Civil), 3057 of 2017, Judgment Date: Feb 20, 2017

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                     CIVIL APPEAL NOS.3056-3057 OF 2017
             (Arising out of S.L.P.(C) Nos.28075-28076 of 2014)


Jayantilal Chimanlal Patel                                         Appellant


                                  Versus


Vadilal Purushottamdas Patel                                      Respondent



                               J U D G M E N T
Dipak Misra, J.


      Leave granted.
2.    The appellant-landlord instituted HRP Suit  No.686  of  1992,  seeking
permanent  injunction  against  the  original  tenant,  the  predecessor-in-
interest of the respondents herein, restraining them from  constructing  any
permanent structure on the tenanted premises  and  further  from  subletting
the same or transfer  it  in  any  manner.  The  learned  trial  Judge  vide
judgment and decree dated 12th  March,  1999,  partially  decreed  the  suit
restraining  the  respondents  from  subletting  or  transferring  the  suit
premises.
3.    Being grieved by  the  aforesaid  judgment,  the  appellant  preferred
Civil Appeal No.79 of  1999.   It  is  necessary  to  state  here  that  the
appellant also initiated an action for eviction forming the  subject  matter
of HRP Suit No.1804 of 1998 before the Small  Causes  Court,  Ahmedabad,  on
the  ground  that  the  respondent-original  tenant  had  erected  permanent
structure on the premises without the consent of the landlord.   It  is  apt
to note here that the same is one of  the  grounds  as  find  mention  under
Section 13 of the Bombay Rents, Hotel and Lodging House Rates  Control  Act,
1947, (for short, 'the 1947 Act')  which  is  applicable  in  the  State  of
Gujarat.
4.    The learned trial Judge dismissed the suit being hit by the  principle
of Order 2 Rule 2 of the Code of Civil Procedure, as well as on merits.
5.    The said judgment and decree was assailed in  Civil  Appeal  No.61  of
2004.  The appeal arising out of the first suit and the appeal  arising  out
of the second suit were taken up together and were dismissed by  the  common
judgment dated 24th March, 2006.
6.    The dissatisfaction of the  non-success  compelled  the  appellant  to
file two civil revision applications,  namely,  Civil  Revision  Application
Nos.172 and 173 of 2006.  The High Court  by  the  common  order  dated  1st
April, 2014, dismissed both the civil revision applications.
7.    It is submitted by  Ms.  Pyoli,  learned  counsel  appearing  for  the
appellant that all the  courts  have  fallen  into  error  by  applying  the
principle under Order 2 Rule 2 of the  Code  of  Civil  Procedure  when  the
plaint in the earlier suit was  not  proved  being  marked  as  an  exhibit.
Additionally, it is urged by her that the High Court has  not  addressed  to
the merits of the case, but has been totally guided by the  issue  that  the
suit was barred by Order 2 Rule 2.
8.    Mr. Tanmay Agarwal, learned counsel  appearing  for  the  respondents,
per contra, would contend that the High Court has correctly appreciated  the
spirit of Order 2 Rule 2 of the Code  of  Civil  Procedure  by  taking  into
consideration the findings recorded in the earlier judgment and,  therefore,
this Court should not entertain any attack  on  the  judgment  on  the  said
score.  As far as the delineation on the merits is concerned,  it  is  urged
by Mr. Agarwal that the analysis made by  the  High  Court  on  that  score,
especially in paragraphs 10 and 10.1, are absolutely unimpeachable.
9.    To appreciate the submissions raised at the  Bar,  we  have  carefully
perused the common order  passed  by  the  High  Court  in  both  the  civil
revision applications.  As we find that  the  High  Court  has  adverted  at
length to the facet of Order  2  Rule  2.   On  a  scrutiny  of  the  entire
judgment, we do not find that there is any mention that the  plaint  in  the
earlier suit was proved.
10.   In this context, learned counsel for  the  respondent  has  drawn  our
attention  to  the  Constitution  Bench  decision  in   Gurbux   Singh   vs.
Bhooralal[1].  In the said case, this Court while considering the  issue  of
Order II Rule 2 has opined thus:-
“6.   .....As the  plea  is  a  technical  bar  it  has  to  be  established
satisfactorily and  cannot  be  presumed  merely  on  basis  of  inferential
reasoning.  It is for this reason that we consider that  a  plea  of  a  bar
under Order 2 Rule 2 of the Civil Procedure Code can be established only  if
the defendant files in evidence the  pleadings  in  the  previous  suit  and
thereby proves to the Court the identity of the cause of action in  the  two
suits.  It is common ground that the pleadings in CS 28  of  1950  were  not
filed by the appellant in the present suit as evidence  in  support  of  his
plea under Order 2 Rule 2 of the Civil Procedure Code.   The  learned  trial
Judge, however, without these pleadings being on the  record  inferred  what
the cause of action should have been from  the  reference  to  the  previous
suit contained in the plaint as a matter of deduction.  At the stage of  the
appeal the learned District Judge noticed this  lacuna  in  the  appellant's
case and pointed out, in our opinion, rightly that  without  the  plaint  in
the previous suit being on the record, a plea of a bar under Order 2 Rule  2
of the Civil Procedure Code was not maintainable.

7.    ......This apart, we consider that learned Counsel's argument must  be
rejected for a more basic reason.  Just as in the case  of  a  plea  of  res
judicata which cannot be established in the absence on  the  record  of  the
judgment and decree which is pleaded as estoppel, we consider  that  a  plea
under Order 2 Rule 2 of the Civil Procedure Code cannot be made  out  except
on proof of the plaint in the previous suit the filing of which is  said  to
create the bar.  As the plea is basically founded on  the  identity  of  the
cause of action in the two suits  the  defence  which  raises  the  bar  has
necessarily to establish the cause of action  in  the  previous  suit.   The
cause of action would be the facts which the plaintiff had then  alleged  to
support the right to the relief that he  claimed.   Without  placing  before
the Court the plaint in  which  those  facts  were  alleged,  the  defendant
cannot invite the Court to speculate or infer  by  a  process  of  deduction
what those facts might be with reference to  the  reliefs  which  were  then
claimed.”
                                                         [Emphasis supplied]

11.   From the aforesaid statement of law, it is  clearly  discernible  that
filing of the  plaint  of  earlier  suit  and  proving  it  as  per  law  is
imperative to sustain the plea of Order 2 Rule 2 CPC.  Unless that is  done,
the stand would not be entertainable.
12.   In this regard, we may refer to the Full Bench decision  of  the  High
Court of Patna in Jichhu Ram and Others  vs.  Pearey  Pasi  and  Another[2],
wherein the Full Bench was called upon to appreciate the ratio laid down  in
the case of Gurbux Singh (supra). In that context, the Full Bench  has  held
thus:-
“7.   These observations are fatal to the  defendants'  contention  in  this
litigation.  Though the bar of Order 2,  rule  2,  was  one  of  the  issues
expressly raised before the original court (issue no.5), the defendants  did
not prove the plaint in the previous rent suit.  The only  documents  proved
on their behalf are copies of the order sheets in the execution case  (Exts.
A and B).  Mr. Chatterji, however, urged that from certain  admissions  made
in the plaint in this litigation this Court  should  reasonably  infer  what
was the nature of the allegation in the previous  rent  suit,  and  by  this
process of reasoning decide whether the cause of action  in  the  two  suits
was identical.  This approach  was  condemned  by  their  Lordships  of  the
Supreme Court in the aforesaid judgment with these words:

“As the plea is a technical bar it has to be established satisfactorily  and
cannot be presumed merely on the basis of inferential reasoning.”

Their Lordships condemned the action of the  learned  trial  Judge  in  that
court in inferring “what the  cause  of  action  should  have  been  from  a
reference to the previous suit contained  in  the  plaint  as  a  matter  of
deduction.”  I must, therefore, reject this contention of Mr. Chatterji.”

13.   Though Mr. Tanmay Agarwal, learned counsel  for  the  respondents  has
made enormous effort to distinguish the decision in  Gurbux  Singh  (supra),
in  our  considered  opinion,  the  same  is  not  distinguishable.   It  is
mandatory that to sustain a plea under Order 2 Rule 2 of the Code  of  Civil
Procedure, the defendant is obliged under law to prove the  plaint  and  the
proof has to be as per the law  of  evidence.   We  have  no  hesitation  in
saying that the ratio in Gurbux Singh (supra) has been properly  appreciated
by the Full Bench of the High Court of Patna in Jichhu Ram (supra).
14.   In view of the aforesaid, we are not able to  sustain  the  conclusion
arrived at by the High Court on the basis that the suit  instituted  by  the
plaintiff-appellant  was  hit  by  Order  2  Rule  2  CPC.    However,   the
controversy does not end there.  The trial court  and  the  appellate  court
have adverted to the merits of the case, that is,  whether  the  tenant  had
constructed any permanent structure without the  consent  of  the  landlord.
It is manifest that the High Court has not adverted to the same.

15.   In view of the aforesaid, we are inclined to remit the matter  to  the
High Court for proper appreciation of the material on  record  and  to  deal
with the contentions raised by the appellants  therein  in  accordance  with
law within the parameters of the revisional jurisdiction.  We may hasten  to
clarify that if the High Court from the  original  records  finds  that  the
plaint had been brought on record and proved as per law, it would  be  bound
to advert to the plea of Order 2 Rule 2 within the parameters  of  the  said
principle.  Be it noted, if the plaint has not been brought  on  record  and
proved, prayer for amendment shall not be entertained to  bring  the  plaint
on record by way of additional evidence by  taking  recourse  to  Order  XLI
Rule 27 of the Code of Civil Procedure.   In  that  event,  the  High  Court
shall proceed only to deal with the merits of the  case,  that  is,  whether
the plaintiff has made out a case under Section 13(b) of the 1947 Act.

16.   We may hasten to add that as  far  as  the  revision  arising  out  of
refusal of the order of injunction is concerned, it does not deserve  to  be
dwelt upon by the High Court as we do not see there is any justification  to
do so.  The conclusion on  that  score  by  the  High  Court  is  justified.
Therefore, the civil  appeal  arising  out  of  Civil  Revision  Application
No.172 of 2016, stands dismissed.  What is required  to  be  deliberated  by
the High  Court  is  whether  the  grounds  urged  for  eviction  have  been
established by the landlord or not. That is  the  subject  matter  of  Civil
Revision Application No.173 of 2006.  The same alone shall be dealt with.

17.   In view of the aforesaid, the appeal relating to eviction  is  allowed
and the judgment of the High Court in that  regard  is  set  aside  and  the
matter is remitted to the High Court for reconsideration on  merits.   There
shall be no order as to costs.  As we are remitting the matter,  we  request
the High Court to dispose of  the  civil  revision  application  within  six
months.


                               ...........................................J.

                                                              (Dipak Misra)




                               ...........................................J.
                                                          (A.M. Khanwilkar)




                               ...........................................J.
                                                   (Mohan M. Shantanagoudar)

New Delhi;
February 21, 2017.
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[1]     AIR 1964 SC 1810
[2]     AIR 1967 Patna 423