Preetam Gidwani vs Madan Chaurasia And Another

The applicant/defendant has preferred this revision under section 115 of Code of Civil Procedure (hereinafter referred to as the ""CPC"") being

aggrieved by the order dated 08.08.2019 passed by Second Civil Judge Class-I, Mandla in Civil Suit No.5-A/2015 whereby the application filed by the

applicant under Order 7 Rule 11 CPC has been partly dismissed.

A suit has been filed by the respondent No.1/plaintiff pleaded that the Municipal Council, Mandla granted lease in his favour in respect of the suit

property. The same was terminated by the then Collector in the year 1997. The respondent had leased out the suit property to the applicant. However,

the respondent filed a suit for delivery of possession, injunction and mesne profit against the applicant.

The applicant preferred an application under Order 7 Rule 11 of CPC alleging that, from the plaint it was not evident that the respondent had leased

out the suit property to the applicant. The respondent/plaintiff had not specified the date of cause of action and the provisions of law to file the suit

after termination of the lease deed. He has no locus standi to file the plaint. Otherwise also, there is deficiency of court fees. Thus, the applicant filed

the application under Order 7 Rule 11 for rejection of plaint.

The learned trial Court partly dismissed the application on the ground that question ""whether the plaintiff has locus standi to file the suit as lease

holder"" is the question of fact. Further, it is held that at this juncture he has the locus standi to file the suit against the applicant and court directed the

plaintiff to properly value the suit and to pay the deficit court fees.

The applicant challenged the impugned order on the ground that, in plaint it is not specified as per Order 7 Rule 11 CPC as to when the cause of

action had arisen in favour of respondent/plaintiff to file the instant suit. It is further submitted that learned trial Court has erred in not dismissing the

suit filed by the plaintiff, under Order 7 Rule 11(a) of C.P.C. Hence, he prayed to set aside the impugned order dated 08.8.2019 and reject the plaint in

the interest of justice.

Learned counsel for the respondent No.1 strongly opposed the contentions raised by the applicant.

The applicant has also filed an application for stay of further proceeding of the civil suit. He has obtained an interim stay order.

The respondent has filed an application for vacating stay on the ground that on the basis of section 116 of the Indian Evidence Act, he alleged that

applicant made an agreement with the respondent in respect of operation of the suit shop and, therefore, he has no right to challenge the locus standi

of the respondent. It is further stated that lease has been cancelled by the Collector. However, against which a litigation is already pending before the

higher authority, who had granted the lease. In other way, for the notice given by the Muncipal Council, a separate suit being C.S.No.93-A/2014 has

been filed by the respondent seeking the relief of injunction. Under the agreement, the applicant is running the shop since 24.7.2000. But, he stopped to

give the mesne profit to the respondent. Thus, the petition has no merit. The order passed by the trial Court cannot be interfered with by this Court.

Hence, he prayed to dismiss the revision filed by the applicant.

Heard the counsel for the parties. Perused the record. It is not in dispute that the suit property belongs to the Government and earlier it was leased

out in favour of the respondent. This lease was terminated by the Government through Collector in the year 1997. A copy of plaint filed by the

applicant as Annexure-P-1 shows that earlier the suit property was leased out to the respondent. Vide written agreement dated 24.7.2000 he delivered

the possession of the suit property to the applicant for three years at the rate of Rs.1900/- per month. The applicant himself also deposited Rs.1 lac as

a security amount to the respondent and renewed the written agreement on 01.9.2003 at the rate of Rs.2,900/- per month for the period of three

years. Both the agreements were signed by the applicants, respondents and witnesses. After two years, the applicant denied the right of the respondet

over the suit property. The respondent issued notice to him after terminating the lease. Still then the applicant has not handedover the vacant

possession of the suit property to the respondent. Hence, the respondent filed the suit for recovery of Rs.70,000/- as compenation amount for two

months.

During the pendency of the suit, an application has been filed by the applicant under Order 7 Rule 11 CPC on the ground that the respondent filed

the suit for injunction. There are some disputes between municipality, applicant and the respondent. But, this is not the proper ground to dismiss the

suit. It is apparently clear from the pleadings of the parties and the documents annexed by the parties that the applicant is in possession of the tenanted

premises. He has not deposited the rent to anyone, neither to respondent No.1 nor to the State/Municipality. He has also not denied that rent

agreement has been signed by him in favour of the respondets, in which, the name of the respondent is mentioned as landlord. Therefore, he is

enjoying the suit property without any authority or without paying the rent. He himself pleaded in the application under Order 7 Rule 11 of CPC that

value of the disputed shop is Rs.50 lacs. Thus, his malafide intention is clear. He wants to stay in possession of the tenanted premises without giving

the rent to anyone. Even though, he is not owning the suit property.

The Supreme Court in the the case of J.J.Lal lPvt. Ltd. And others vs. M.R.Murali and another, AIR 2002 SC 106 1in paragraph 18 held as

under:-

18........As a general rule the vulnerability of denial of title by the tenant shall be tested by reference to rule of estoppel contained in Section 116 of the Evidence

Act, which estoppes the tenant from denyhing the title of the landlord at the commencement of the tenancy and the estoppel continues to operate so long as the

tenant does not surrender possession over the tenancy premises to the land lord who inducted him in possession. The tenant is not estopped from denying the title

of the landlord if it comes to an end subsequent to the creation of the tenancy nor is he estopped from questioning the derivative title of a transferee of his

landlord. However, the rule of estoppel contained in Section 116 of the Evidence Act is not exhaustive. To operate against the tenant as providing a ground for

eviction under Section 10 of the Act a mere denial of the title of the landlord is not enough such denial has to be not bona fide. Not bonafide would mean absence

of good faith or genuineness of the tenant's plea. If denial of title by the tenant is an outcome of good faith or honesty or sincerity, and is intended only to project

the facts without any intention of causing any harm to the landlord it may not be bonafide. Therefore, to answer the question whether an assertion of denial of

landlords title by the tenaant was bona fide or not, all the surrounding circumstances under which the assertion was made shall have to be seen. The counter

highlights the factum and contents of notice by the Municipal Corporation served on the tenant, reproduced in the earlier part of this judgment and the reaction

of tenants to the threat coupled with temptation held out by Corporation. This notice by Municipal Corporation states that tenants having informed the

Municipal Corporation that they were in possession of the premises that they had agreed to pay to the Corporation the lease amount which was presumably in

arrears on account of non payment by their landlords (i.e. the respondents), that the Municipal Corporation threatened the tenancy premises being subject to

public auction if the arrears were not cleared. This notice is by reference to letter dated 26-3-1993 sent by the tenants to the Municipal Corporation which is not

available on record. The landlords on whom lay the burden of proving availaility of the ground of eviction took no steps for the production of this letter. The

contents of the letter would have provided vital evidence relating to the nature and manner of denial of title by the tenants and the bona fides of denial could

have been inferred. The High Court in its judgment has made a reference to a ""a series of attempts to deprive the landlords of their lawful rights"" by tenants. The

High Court appears to have taken into consideration some other documents referable to some other litigation between the parties which documents, in our

opinion, could not have been taken into consideration unless tendered in evidence and brought on record consistently with procedural law governing trial of

civil cases. There is yet another error committed by the High Court. So far as the additional counter and contents of the notice by Municipal Corporation to the

tenants are concerned we do not think that a case of denial of title is made out. In any case it cannot be considered to be 'not bona fide'. The tenants have stated

that the ultimate powers of the property were the Municipal Corporation and they had agreed their willingness to pay rent to the Municipal Corporation under

threat of eviction solely for the purpose of protecting their own possession over the premises. They have neither disowned the title of their own landlords at the

inception of the tenancy nor have set up any title in themselves nor attorned in favour of the Municipal Corporation by voluntarily entering into direct tenancy

with the Municipal Corporation by passing their own landlords. We are therefore, clearly of the opinion that no case of eviction on the ground of ""tenants

denial of landlords' title ""not bonafide"" is made out.

From the pleadings of paragraph 11 of the plaint and onwards, when the cause of action had arisen, is clear . The learned trial Court specificallyÂ

mentioned in the impugned order that his objection regarding locus standi of respondent is a matter of evidence and, therefore, on

that sole ground, the suit cannot be dismissed for deficit court fees etc. [See: Vaish Aggarwal Panchayat vs. Inder Kumar and others, 2015 SCC

Online SC 751] The trial Court allowed the objection raised by the applicant and directed the respondent to pay the deficit court fee after valuing the

suit properly. Therefore, in the opinion of this Court the impugned order does not warrant any interference by this Court in exercise of powers under

section 115 of CPC.

In the result, there is no illegality or perversity in the impugned order passed by the trial Court, and the instant revision being sans stands dimissed.