AI Structured Summary
Not yet generated for this judgment
Judgment
Sabyasachi Bhattacharyya, J
The present application under Article 227 of the Constitution of India arises at the instance of the defendants in a suit for eviction on the ground that the defendants/petitioners are trespassers upon the expiry of five years from the commencement of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the 1997 Act"), in view of the prior death of the original tenant, who was the predecessor‐in‐interest of the present petitioners, invoking Section 2(g) of the 1997 Act.
The petitioners prayed for framing of preliminary issues as regards maintainability of the suit, in consonance with which the following issues were framed:
i. Whether the present suit is barred under Order XXIII Rule 1(4) of the Code of Civil Procedure?
ii. Whether the present suit is barred under Order XXII Rule 9 of the Code of Civil Procedure?
By virtue of the impugned order dated October 6, 2018, the trial court decided the issues in the negative, against the defendants and in favour of the plaintiff. Being thus aggrieved, the defendants have preferred the instant application under Article 227 of the Constitution of India.
Learned senior counsel appearing for the petitioners argues that there were two previous suits prior to the institution of the present suit. The first suit, bearing Title Suit No. 233 of 1993, was filed by the plaintiff/opposite party for eviction under the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the 1956 Act"), pleading cause of action on the basis of an eviction notice issued under the said Act. Such cause of action was dated as September 1, 1993. The said suit ultimately abated due to non‐substitution of the defendant's heirs on his death.
Subsequently, a second suit was filed, bearing Title Suit No. 256 of 2011, for eviction under the 1997 Act, also on the basis of a quit notice. The cause of action in the said suit was dated as October 1, 2011. Ultimately, the said suit was dismissed for non‐prosecution, upon a finding that the said order was treated to be a withdrawal of the suit under Order XXIII Rule 1 of the Code of Civil Procedure, debarring the plaintiff from filing a fresh suit on the same subject‐ matter.
Thereafter, the third (present) suit, bearing Title Suit No. 221 of 2016, was filed for eviction of the petitioners on the ground that the petitioners were rendered trespassers under Section 2(g) of the 1997 Act, in view of the statutory period of five years having elapsed from the date of commencement of the 1997 Act and the prior death of the original tenant, being the predecessor‐in‐interest of the present petitioners.
It is submitted by learned senior counsel for the petitioners that the current suit is debarred under the provisions of Order XXII Rule 9 of the Code of Civil Procedure, since the same was filed also for eviction on the basis of title of the plaintiff/opposite party under the 1956 Act, which was the predecessor statute of the present Act of 1997.
Learned senior counsel next submits that, in paragraph no. 10 of the plaint of the current suit, the plaintiff has admitted that both the original tenants, namely Kali Charan Sharma and Shib Charan Sharma, died long back, even before the promulgation of the West Bengal Premises Tenancy Act, 1997, which came into force on and from July 10, 2001.
The ground of Section 2(g) of the 1997 Act was, as such, available to the plaintiff at the juncture of filing the suit of 2001, but was not filed by the plaintiff/opposite party. As such, it should be deemed that the said ground was available but not taken in the suit of 2011, thereby waiving the ground of Section 2(g) in the previous suit, which might and ought to have been taken by the opposite party but was not taken. As such, it is argued, the subject‐matter of the present suit, being alleged termination of tenancy of the petitioners by virtue of Section 2(g) of the 1997 Act, was also the deemed subject‐matter in the previous suit of 2011 and operates constructively as a bar to the present suit.
It is argued on behalf of the petitioners that the plaintiff/opposite party was barred by the principle of waiver as well as under Order XXIII Rule 1 of the Code of Civil Procedure, since the subject‐matter of the 2011 suit and the current suit of 2016 can substantially be deemed to be the same and constructively covered the same cause of action and relief.
It is submitted on behalf of the petitioners that, even in paragraph no. 6 of the plaint of Title Suit No. 256 of 2011, it was specifically averred that the original tenants, Kali Charan Sharma and Shib Charan Sharma, were already dead when the said suit of 2011 was filed. In paragraph no. 10 of the said plaint, the plaintiff had alleged that, in respect of the determination of the tenancy, the present defendants/petitioners were illegally overstaying in the suit property. As such, the ground and cause of action on which the 2016 suit has been filed, were also available and pleaded in the plaint of the 2011 suit. Thus, the plaintiff is squarely hit by the bar stipulated in Order XXIII Rule 1(4) of the Code of Civil Procedure, from bringing the 2016 suit on the same subject‐matter.
It is further submitted on behalf of the petitioners that the application of the plaintiff/opposite party for dismissal of the 2011 suit for non‐prosecution on the ground of 'technical defects' was disposed of by holding that the order shall have the effect of abandonment of the suit by the plaintiff against the defendants as per Order XXIII Rule 1 of the Code of Civil Procedure. Hence, since Section 2(g) of the 1997 Act was available and pleaded, if not specifically on law, at least on facts, but abandoned, the current suit of 2016 is palpably barred by Order XXIII Rule 1(4) of the Code.
Learned senior counsel for the petitioners further submits that the current suit is also barred under Order II Rule 2 of the Code of Civil Procedure, which point was taken in paragraph no. 6 of the petitioners' application under Order XIV Rule 2 of the Code of Civil Procedure, but not considered by the trial court while formulating the issues.
Even if the immediate cause of action for the 2011 suit was taken in the plaint to be the termination of the tenancy of the petitioners, the court could have passed a decree on the ground of trespasser, since the ingredients of Section 2(g) of the 1997 Act were pleaded in the plaint of the 2011 suit. Placing reliance on Order VII Rule 7 of the Code of Civil Procedure, it is argued on behalf of the petitioners that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative. However, since the plaintiff failed to do so in the 2011 suit, it would be deemed to have been implicit in the plaint of 2011 suit that the ground of Section 2(g) was also a part of the cause of action therein.
It is argued that, since the relief of recovery of possession remains the same in all the three suits and the cause of action for eviction also was identical, the issue of maintainability of the current suit ought to have been decided against the plaintiff.
Learned senior counsel cites a judgment reported at 1970(1) SCC 761 [Vallabh Das vs. Dr. Madan Lal and others] and submits, placing particular reliance on paragraph no. 5 thereof, that "subject‐matter" does not mean property but the cause of action and relief claimed.
Citing another judgment, reported at AIR 1965 SC 295 [Suraj Ratan Thirani & Ors. Vs. The Azamabad Tea Co. & Ors.], it is submitted that, in the context of Order IX Rule 9 of the Code of Civil Procedure, the causes of action in the two suits involved are to be seen in substance and not technically, to find out whether they are identical or not. Since the basis of title was the same in both the suits in the said case, the plaintiff having purchased and possessed but again being dispossessed from the suit property, the causes of action of the two suits were held to be identical.
Learned senior counsel next cites a judgment reported at (2010) 2 CAL LT 423 (HC) [Sm. Kalabati Debi & Ors. Vs. Sm. Pratapi Devi] on the proposition that, in the context of Order II Rule 2 of the Code of Civil Procedure, a relief which could have been claimed but omitted, debars a second suit, irrespective of the outcome of the first suit, whether dismissed on technical grounds, on merits or withdrawn.
The petitioners next cite a judgment reported at (1905) Vol‐II CLJ 480 [Hari Nath Dass and others Vs. Syed Hossainali], wherein a division bench of this court held that the first suit therein, in respect of plot no. 2, was dismissed as withdrawn with a conditional liberty, which condition was not fulfilled. It was held that the second suit for the same relief on plot no. 2 was barred. It was further held that, since the plaintiff could have sought the same relief in respect of plot no. 1 as well in the first suit, the same was also barred.
Learned senior counsel next relies on a judgment reported at AIR 2005 SC 2897 [N.V. Srinivasa Murthy and others Vs. Mariyamma (Dead) by proposed L.Rs and others] for the proposition that if a second suit ought to have been filed also for declaration, but was only filed for permanent injunction, although declaration was indirectly sought, the same would be debarred under Order II Rule 2 for not having made such a claim in a previous suit.
Learned senior counsel next places reliance on a judgment reported at (2007) 7 SCC 148 [Sandeep Polymers (P) Ltd. Vs. Bajaj Auto Ltd. and others], with particular reference to paragraph no. 14 thereof. In the context of Order II of the Code, it was held therein that cause of action was a bundle of facts which, taken with the law applicable to them, gives the plaintiff the right to claim relief. Every fact necessary for the plaintiff to prove and the defendant to traverse in support of their respective rights, comprised the cause of action, although on the facts and not the evidence required to be led.
Learned senior counsel cites another judgment reported at AIR 2006 SC 3672 [Ramesh B. Desai and Ors. Vs. Bipin Vadilal Mehta and Ors.], with particular reference to paragraph no. 12 thereof, wherein it was held that under Order XIV Rule 2 of the Code of Civil Procedure, the court may try an issue of law first if the suit may be disposed of on it, when the issue relates to (a) jurisdiction and (b) barred by law.
Learned senior counsel for the petitioners places reliance on a judgment reported at XXVI CWN (PC) 297 [Muhammad Hafiz and anr. Vs. Mirza Muhammad Zakariya and ors.], wherein a five‐Judge bench of this court held that, in respect of Order II Rule 2 of the Code, the cause of action which gives occasion for and forms the foundation of a suit, if enables the plaintiff to seek a larger and wider relief than claimed, cannot afterwards furnish a cause of action for the plaintiff to sue for the balance relief.
The petitioners next cites a judgment reported at AIR 1959 SC 798 [Balakrishna Vs. Shree D. M. Sansthan], in particular paragraph no. 31 thereof. It was held in the said judgment that, if wrongful act causes injury which is complete, there is no continuing wrong even if the injury resulting from the act may continue. If, however, the wrongful act was of such character that the injury caused by it itself continues, it constitutes a continuing wrong. In the said case, a dispossession occurred in execution of decree. It was held in such context that the rights of the affected party were completely injured and the continued dispossession would not comprise of a continuous cause of action de die in diem.
Learned senior counsel for the petitioners thereafter cites a judgment of a learned Single Judge of the Kerala High Court rendered in Baby alias Mariamma Paul vs. Devassy and others, passed on April 17, 2001, for the proposition that once possession was taken and a hut constructed, the act was complete and there was no continuing act or wrong, for the purpose of limitation.
Learned senior counsel for the plaintiff/opposite party argues that the grounds of the second suit of 2011 and that of the third suit of 2016 were entirely different. The 2011 suit was filed under Section 6 of the 1997 Act, treating the defendants to be tenants, whereas the 2016 suit was filed under the provisions of Section 2(g) of the 1997 Act, treating the defendants as trespassers.
It is further submitted that the principle of constructive res judicata cannot be imported to Order XXIII of the Code of Civil Procedure.
Learned senior counsel refers in this context to a judgment reported at (1982) 2 CHN 154 [Nanda Kumar Mukherjee Vs. Hari Charan Ganguly], wherein a division bench of this court, particularly in paragraph no. 5 thereof, held that Order XXIII Rule 1(4) of the Code of Civil Procedure debars a fresh suit only in respect of the same subject‐matter as the withdrawn suit and there is no bar to file any other suit. In the said case, the first suit was filed on determination of tenancy by notice, wherein the trial court held while passing an order under Section 7 of the 1997 Act, that the defendant was not a tenant, whereupon the suit was withdrawn with liberty to sue afresh upon imposition of costs as condition, which was not complied with. The second suit was filed for eviction of trespassers on the own title of the plaintiff, which was held to be maintainable.
The next judgment cited on behalf of the opposite party was reported at (2000) 1 SCC 114 [Ajit Chopra Vs. Sadhu Ram and others]. Placing particular reliance on paragraph nos. 25 to 28 and 35 of the said judgment, learned senior counsel argues that the previous eviction suit being decreed on the ground that the defendant was a tenant, even if the execution thereof became time‐barred, a fresh eviction suit on the tile of the plaintiff lies, unless adverse possession of the defendant is proved, since the title of the plaintiff is not extinguished by limitation.
Learned senior counsel next cites a judgment reported at (2001) 6 SCC 473 [N.R. Narayan Swamy vs. B. Francis Jagan]. With special reference to paragraph nos. 4 to 6, 9 and 10 of the said judgment, it is argued that the bar contemplated in Order XXIII Rule 1(4) (b) of the Code of Civil Procedure was not applicable if an eviction suit was filed on the ground of bona fide requirement or non‐payment of rent, since those grounds furnished recurring cause of action. In the said judgment, the Supreme Court referred to the judgment reported at (1970) 1 SCC 761 [Vallabh Das vs. Dr. Madan Lal], which was cited by the petitioners, in the context that "subject‐matter" is not property but includes the cause of action and relief claimed. If both are same in the second suit as in the first, only then the subject‐matter of the second suit would be treated to be same as the earlier one.
Learned senior counsel next cites a judgment reported at (2018) 6 SCC 733 [Sucha Singh Sodhi (Dead) Through Legal Representatives vs. Baldev Raj Walia and another]. With special reference to paragraph nos. 23 to 25, it is submitted that Order II rule 2 of the Code of Civil Procedure operates in respect of a bar to the relief claimed. If the same relief was available but not claimed in a previous suit, the same cannot be taken in a subsequent suit. It is submitted that in the present case, however, the reliefs claimed were same but the causes of action and bases of the rights of the plaintiff/opposite party were different.
Upon a consideration of the submissions of the parties, it is seen that the bar of Order XXII Rule 9 of the Code of Civil Procedure cannot be applicable to the 2016 suit, since the causes of action of the 2016 suit and that of the first suit of 1993 were entirely different. Order XXII Rule 9 of the Code of Civil Procedure bars a second suit on the same cause of action as the earlier one in case of abatement. However, in the 1993 suit, eviction was sought under the 1956 Act, on the basis of a notice to quit under Section 13 (6) of the 1956 Act, the date of the cause of action being pleaded to be September 1, 1993. On the other hand, the 2016 suit was filed on a notice to quit under Section 6(4) of the 1997 Act, pleading the date of cause of action to be November 1, 2015. As such, the alleged bar of Order XXII Rule 9 of the Code can be brushed aside at the inception.
The major bone of contention in the present revisional application is whether the trial court was justified in holding the issue of maintainability of the suit, on the ground of Order XXIII Rule 1 of the Code, in favour of the plaintiff. It is seen that in paragraph no. 10 of the present plaint, the plaintiff/opposite party admits that Kali Charan Sharma and Shib Charan Sharma, the original tenants, both died long back, even before the promulgation of the West Bengal Premises Tenancy Act, 1997, which came into force on and from July 10, 2001.
However, the previous second suit, bearing Title Suit No. 256 of 2011, was filed under Section 6 of the 1997 Act, pleading the cause of action thereof to be the quit notice issued under Section 6(4) of the said Act. Despite the availability of Section 2(g) of the 1997 Act at the juncture when the 2011 suit was filed, the same was not set forth as the ground for eviction therein. The contention of waiver cannot operate against the law, since the right to evict under Section 2(g) arises from a provision of law and not a factual ouster of the plaintiff.
The expression "subject‐matter", as defined in the cited judgments, for the purpose of Order XXIII Rule 1(4) of the Code, is comprised of both the cause of action and the relief claimed. Unless both are barred, it cannot be said that Order XXIII Rule 1(4) would be attracted.
The principle of constructive res judicata only applies in a situation envisaged under Section 11 of the Code of Civil Procedure, wherein the matter directly and substantially in issue in the second suit has been directly and substantially in issue in a former suit between the same parties or their representatives, claiming under the same title in a court competent to try such subsequent suit.
Explanation ‐ IV of Section 11 incorporates the principle of constructive res judicata by indicating that any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
The said principle was deliberately left out by the legislature while framing the language of Order XXIII Rule 1(4), which does not contemplate a previous, direct or constructive, final adjudication on any issue, substantially and directly in issue in the second suit, but merely restricts the bar broadly, to the institution of a fresh suit in respect of the subject‐matter or part of the claim which was previously abandoned in any suit or withdrawn without the permission referred to in sub‐section (3) of Order XXIII. As such, there is a marked difference between the scope of Section 11 and Order XXIII Rule 1(4) of the Code of Civil Procedure. While the former envisages a complete previous adjudication of an issue, directly and substantially involved, on merits, an abandonment as envisaged in the latter provision, that is, Order XXIII Rule 1(4), cannot invite such a serious consequence.
Moreover, the expression "subject‐matter", as used in Order XXIII Rule 1(4) has been interpreted in the judgments cited by the parties to include both the reliefs and the causes of action in the two suits and not to all issues involved, directly, substantially and constructively.
The term "cause of action" has been interpreted in the judgments cited, to include not only the bundle of facts immediately leading to the suit but also the right and the basis of the claim of the parties.
In the present context, the second suit of 2011 was filed by the plaintiff/opposite party as a landlord under the 1997 Act, for eviction of its tenants, upon a notice being issued under Section 6(4) of the said Act and the date of the cause of action was specifically pleaded to be October 1, 2011.
However, in the 2016 suit, the right on the basis of which the plaintiff filed the suit was as owner of the property, which was different from the capacity of landlord, seeking an eviction not against a tenant, as in the 2011 suit, but against a trespasser, which capacities are also different.
As such, the rights, bases of the claim and causes of action in the two suits, respectively of 2011 and 2016, differed in a remarkable way, although the principal relief claimed in both the suits was eviction.
Since subject‐matter is a combination of cause of action and relief, due to the difference in the causes of action of the two suits, the bar contemplated in Order XXIII Rule 1(4) of the Code cannot be said to be applicable to the 2016 suit.
That apart, Order II Rule 2 of the Code of Civil Procedure, as rightly argued by the opposite party, pertains to reliefs claimed in the suit and partial or total abandonment of reliefs in the earlier suit. In the present case, the relief claimed remains the same, but the ground on which such relief was claimed differed. As such, there is no occasion to import the concept of Order II Rule 2 to causes of action, which is the moot question involved in the present lis. This is not a case where there was an abandonment of the relief claimed and as such, Order II Rule 2 of the Code of Civil Procedure cannot be invoked here at all.
It is clear from the averments of the plaint in Title Suit No. 256 of 2011 and Title Suit No. 221 of 2016, that the bases and facts leading to the claim of eviction in both the suits were entirely different and on distinct footings. Even if the ground of Section 2(g) of the 1997 Act was available to the plaintiff at the juncture when the 2011 suit was filed, such a claim was not the basis of the suit and as such, did not comprise of the cause of action thereof. As such, the subject‐matter of the 2011 suit differed completely from that of the 2016 suit. Whereas the former was filed under Section 6 of the 1997 Act by a landlord to evict its tenants, the latter suit was filed by an owner to evict trespassers to the suit property, not by a specific physical ouster on a particular date, but by operation of Section 2(g) of the 1997 Act.
As far as the cause of action being a continuous one, in the present case, the availability of Section 2(g) at the juncture when the 2011 suit was filed, did not freeze the injury occurred to the plaintiff in respect of trespass to the date of expiry of five years from the commencement of the 1997 Act, which commenced on July 10, 2001.
Since there was no specific physical ouster of the plaintiff by the defendants in the present case, but the defendants continued on the basis of their initially lawful induction which turned unlawful by operation of law, it could not be said that there was any specific date of trespass, which froze on the date of such trespass and merely the effect of the injury continued thereafter.
In the present case, the petitioners were already in possession of the property as tenants prior to the expiry of five years after the commencement of the 1997 Act on July 10, 2001. In the absence of any claim of adverse possession, the capacity of the petitioners was converted from lawful tenants to illegal trespassers, not by any specific act of physical ouster which would freeze the date of the act complained of, but was by operation of law which continued the cause of action for the entire period during which the petitioners have been in possession of the suit property. The right of the opposite party to file an eviction suit on the ground that the petitioners were continuing as trespassers, rendered so by operation of law although their induction and possession was previously lawful, gave rise to a continuing cause of action and as such, the present suit could not be said to be restricted to the same cause of action as that available during the 2011 suit.
In such view of the matter, the trial court was justified in deciding the preliminary issues framed by it in favour of the plaintiff/opposite party and against the defendants/petitioners. Accordingly, C.O. No. 3803 of 2018 is dismissed on contest, thereby affirming the order of the trial court impugned in the present revisional application.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.