Shrimati Rajeshwari Devi and others vs Shiv Kumar and others

J.M. Tandon, J.—This is a second appeal filed by Shmt. Rajeshwari Devi and others against the order of Shri Inder Mohan Malik, Senior Subordinate Judge, Narnaul, dated May 28, 1976, accepting the appeal of Shiv Kumar Respondent against the order of Shri P.K. Goel, Subordinate Judge, Rewari, dated June 3, 1972, dismissing his suit for possession of the shop specified in the plaint and situate at Rewari under Order 9, Rule 9, Code of Civil Procedure.

On July 1, 1969, Shiv Kumar respondent filed suit No. 359 of 1969 in the Court of Subordinate Judge, Rewari, for the recovery of the possession of the shop in dispute and situate at Rewari, alleging therein that he was its tenant at Rs. 17/- per mensem under Shmt. Rajeshwari Devi and he carried on business there for the last 30 years. In 1956, he started doing the business in this shop under the name Sukh Lal Ghamandi Lal. On September 11, 1967, he entered into a partnership with his father Ghamandi Lal according to which 85 shares were to be owned by him and the remaining 15 by his father. The entire capital had, however, been invested by him and he continued to remain to be the sole propritor of the business. On January 26, 1969, he went to Delhi in connection with the Republic Day function and in his absence Shmt. Rameshwari Devi and others bribed his father and in collusion with him illegally obtained the possession of the shop. He was not dispossessed from the shop according to law and was, therefore, entitled to take back its possession. He assessed the value of the suit for purposes of Court-fee at half the annual rental value and paid Rs. 11/- as court fee thereon. In the heading of the plaint, the suit was termed as one u/s 6 of the Specific Relief Act (hereafter referred to as the Act).

Suit No 359 was dismissed on December 4, 1970, under Order 9, Rule 8, Code of Civil Procedure. On August 31, 1970, Shiv Kumar respondent filed another suit for possession with respect to the same shop against Shmt. Rajeshwari Devi and others repeating the earlier allegations that he was its tenant and in his absence he had been illegally dispossessed by the defendants without following due process of law. In this plaint, the suit was valued for the purposes of court fee at the annual rental value and a court fee of Rs.21/- was affixed on it. The defendants raised a preliminary objection that the suit was not maintainable under Order 9, Rule 9, Code of Civil Procedure, because a similar suit already filed had been dismissed under Order 9, Rule 8, The following issue was framed:--

Whether the suit is maintainable in the present form ?

The trial Court held that the previous suit filed by Shiv Kumar (No. 359 of 1969) as also the present suit filed on August 31, 1971, were both u/s 5 of the Act and as such the dismissal of the previous suit under Order 9, Rule 8, Code of Civil Procedure, was a bar for the second suit. The suit of Shiv Kumar was consequently dismissed vide order dated June 3, 1972. Shiv Kumar filed an appeal which was accepted by the learned Senior Subordinate Judge, Narnaul, vide order dated May 28, 1975, Shmt. Rajeshwari Devi and others have filed the present second appeal.

The sole point to be considered in this case is about the nature of suit No. 359 of 1969 filed by Shiv Kumar on July 1, 1969 and dismissed under Order 9, Rule 8, Code of Civil Procedure, on December 4, 1970. It is evident that in case that suit was one u/s 5 of the Act then the second suit filed by Shiv Kumar on August 31, 1971 admittedly under the same provision of law shall be barred under Order 9, Rule 9, Code of Civil Procedure.

A suit u/s 5 of the Act is maintainable on the basis of title whereas a suit u/s 6 thereof urn be maintained on the basis of possession with the condition that the possession was disturbed within a period of six months. The order u/s 6 of the Act is not appealable and is not to operate as a bar for another suit on the basis of title u/s 5 of the Act.

In a suit by a tenant for the recovery of the occupancy from which he has been illegally ejected by the landlord the court-fee is payable in terms of section 7 (xi) (e) of the Court-fees Act, according to which it shall be paid on the amount of rent payable for the year next before the date of presenting the plaint. The court-fee payable on a suit filed by a tenant for recovery of the occupancy u/s 6 of the Act has to be one-half of the amount otherwise payable. In the instant case, the rent of the shop was Rs. 17/- per mensem. The annual rental value of the shop, therefore, came to Rs. 204/-. In a suit for possession by a tenant u/s 5 of the Act, the court-fee was payable on Rs. 204/- and in a suit u/s 6 of the Act, the value of the suit for purposes of court-fee shall be reduced to one half, that is Rs. 102/- the amount of court-fee payable on Rs. 102/- is Rs. 11/- and on Rs. 204/- is Rs. 21/-.

Shiv Kumar filed civil suit No. 359 of 1969 on July 1, 1969, alleging therein that he was dispossessed from the shop in dispute illegally on January 26, 1969. That suit was, therefore, filed within six months of his alleged dispossession. In the heading of that plaint it was stated specifically that the suit was u/s 6 of the Act. The suit was evaluated for the purpose of court-fee at one-half of the annual rental value and a court-fee of Rs. 11/- was paid. All these, facts establish that Shiv Kumar meant to file suit No. 359 of 1959 u/s 6 of the Act and he in fact did so. He exhibited his intention manifestly by specifically mentioning in �the heading of the plaint that the suit was u/s 6 of the Act and further by paying the court-fee at half the annual rental value.

The learned counsel for the appellants has argued that the two suits filed by Shiv Kumar were substantially the same and as such it could not be inferred that the previous suit was one u/s 6 of the Act. He has also pointed out that in the previous suit Shiv Kumar raised the same pleas that he again raised in the second suit filed on August 31, 1971. It see no force in this contention. As discussed above, Shiv Kumar had made it clear in the previous suit that it was being filed u/s 6 of the Act. The court-fee was also paid on that basis. He, of course, did give the details about the nature of his possession but it is evident that he mentioned them to explain his possession and not for the purposes of making it a case u/s 5 of the Act. It was held in Ananta Kumar Sarkar v. Meghu Kurmi (1957) 61 C.W.N. 347, that a relief u/s 6 of the Act cannot be refused merely because the plaintiff mentioned his title apparently to explain his possession.

In view of discussion above, I hold that the learned Senior Subordinate Judge rightly found that suit No. 359 of 1969 filed by Shiv Kumar on July 1, 1969, was one u/s 6 of the Act and its dismissal under Order 9, Rule 8, Code of Civil Procedure, on December 4, 1970, could not operate as a bar in terms of Order 9, Rule 9 for the second suit filed by him on August 31, 1971.

In the result, the present appeal fails and is hereby dismissed with costs.