Delhi District Court
M/S. Cepco Industries Pvt. Ltd vs Mrs. Ram Piari Chawla on 20 March, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 12
TIS HAZARI COURTS, DELHI.
RCA No. 15/2006
Unique Case ID No. 02401C0289432006
M/s. CEPCO Industries Pvt. Ltd.
(Earlier Known as 'Cycle Equipment Pvt.
Ltd.) Plot No. 8, Kalka Ji, New Delhi and
acting by and through its
Managing Director and Constituted
Attorney Shri R.N. Aggarwal ...Appellant
V E R S U S
1. Mrs. Ram Piari Chawla
Widow of Dr. Gopal Singh
Chawla (deceased)
Through Legal Representative
Shri Narinder Pal Singh
Chawla Son of Dr. Gopal
Singh Chawla C/o, 37,
Prithvi Raj Road, New Delhi.
2. Shri Narinder Pal SinghChawla
Son of late Dr. Gopal Singh Chawla, C/o, 37,
Prithvi Raj Road, New Delhi. ...Respondents
Date of institution : 10.04.2006
Date of reserving judgment : 06.03.2012
Date of pronouncement : 20.03.2012
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 1 of 147
2
JUDGMENT
1. RCA No. 15/2006 instituted by the appellant on 24.09.1983, titled 'CEPCO Industries Pvt. Ltd. vs. Narinder Pal Singh Chawla & Others' is the regular first appeal u/s 96 of the Code of Civil Procedure against the judgment and decree dated 01.03.2006 passed by the Ld. Civil Judge, Delhi in suit no. 203/1998 (hereinafter the 'Ld. Trial Court'). Vide the impugned judgment the Ld. Trial Court dismissed the suit recovery of possession of Property No. 37, Prithvi Raj Road, New Delhi.
2. In RCA No. 15/2006 the respondent, Dr. Narinder Pal Singh Chawla, has also filed crossobjections.
3. RCA 23/2006 titled 'CEPCO Industries Pvt. Ltd. vs. Narinder Pal Singh Chawla & Others' is the regular first appeal u/s 96 of the Code of Civil Procedure against the judgment and decree dated 01.03.2006 passed by the Ld. Civil Judge, Delhi. Vide the impugned judgment the Ld. Trial Court dismissed the suit no. 72/1998 instituted by the appellant on 01.06.1990 for the claim of Rs. 1,00,000/ as arrears of mesne profits and future mesne profits in respect of a portion of property No. 37, Prithvi Raj Road, New Delhi, which was dismissed as being infructuous in view of the judgment rendered in RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 2 of 147 3 above mentioned suit no. 203/1998.
4. In view of the common question of law and facts involved the appeal RCA 15/2006 and the crossobjections are disposed of by a single judgment.
5. Briefly stated, the case of the appellant is that the instant for recovery of possession has been filed by the appellant against the respondents on the ground of their predecessor Dr. Gopal Singh Chawla being a tenant in the said property and the tenancy of the said Dr. Gopal Singh Chawla having been determined in his life time and no right to continue in possession of the premises having been survived to the respondents/defendants under the law. The learned Civil Judge has held on all the issues in favour of the appellant/plaintiff, but has dismissed the suit of the appellant/plaintiff on the ground that the suit of the plaintiff/appellant was barred in view of the principles of resjudicata, it having been held in an earlier Eviction Petition under the Delhi Rent Control Act instituted by the appellant against the predecessor of the respondents that the premises were let out to the predecessor of the respondents for residentialcum clinic purposes. The learned Trial Court has for the same reason also held that though the notice determining the tenancy had been served RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 3 of 147 4 by the appellant on the predecessor of the respondents, since the purpose of letting on the principles of resjudicata was held to be residentialcumcommercial, the determination of tenancy of the predecessor of the respondents will be of no consequences as the respondents, as legal representatives of their predecessor, will inherit the tenancy as per the ordinary law of succession and will enjoy protection of provisions of the Delhi Rent Control Act. The Ld. Trial Court treating the suit to have been barred by the principles of res judicata did not herself determine the purpose of letting.
6. The further pleading of the appellant is that the findings aforesaid of the learned Civil Judge, treating the suit to be barred by resjudicata and for the same reason holding the determination of tenancy of the predecessor of the respondents to be of no effect is contrary to law and facts.
7. The appellant has assailed the impugned judgment on the following ground of appeal:
A. Ld. Trial Court has not considered the submissions of the counsel for the appellant and the judgments relied upon by the appellant.
B. Ld. Trial Court has not considered that the finding RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 4 of 147 5 in the proceedings under the Rent Control Act of the premises having been let out to Dr. Gopal Singh Chawla, predecessor of the respondents for residentialcum commercial purposes, was not resjudicata in as much as the Rent Control Tribunal, while affirming the finding of the Additional Rent Controller of the premises having been let out to Dr. Gopal Singh Chawla for residential cumclinic purposes (sine he was a medical practitioner), had ultimately dismissed the petition for eviction filed by the appellant on the ground of the appellant having prior to the institution of the petition for eviction not determined the tenancy of Dr. Gopal Singh Chawla.
C. Ld. Trial Court has not considered that as per the law prevalent at the time of decision of Sh. P. C. Saini, Addl. Rent Controller and Sh. G.C. Jain, Rent Control Tribunal, Delhi, a landlord even prior to instituting a petition for eviction under the Rent Act was required to determine the tenancy of the tenant under Section 106 of the Transfer of Property Act.
D. Ld. Trial Court has not considered that that the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 5 of 147 6 earlier legal probabilities, the finding wherein of the premises having been let out for residentialcumclinic purposes, was sought to be used against the appellant, is not resjudicata because the ultimate dismissal of the legal proceedings was on the ground of the tenancy having not been determined.
E. Ld. Trial Court has not considered the judgment cited by the appellant and reported in
(i) AIR 1950 Privy Council so laying down that when the court holds that the suit is not maintainable, by reason of failure to comply with section 80 CPC, findings given on merits are obiter and do not support plea of resjudi cata either in favour of the against a party.
(ii) AIR 1966 Supreme Court 1332, holding that when a former suit was dismissed for want of jurisdiction or on the ground of the suit being badly framed or on the ground of technical mistake, the decision is not on merits and would not be resjudicata in subsequent suit.
(iii) AIR 1972 Bombay 46, laying down that where the earlier decision was based only on the point of defective RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 6 of 147 7 notice and other findings were recorded only to convey a further background, such findings could not operate as resjudicata.
(iv) AIR 1979 Rajdhani Law Reporter, 194 holding that if a petition for eviction has to fall on the ground of the notice being faulty, any finding with regard to other matters would be futile because if such a finding is given and the petition was nevertheless dismissed, for the reason of faulty notice, such finding would not constitute resjudicata.
(v) 1988 (1) Rent Control Reporter, 224, holding that when the petition is dismissed as not maintainable, findings regarding ownership also given in the said order, do not operate as resjudicata and further that if a petition is dismissed on a technical point, any finding given on merits of the case, would not operate as resjudicata.
F. Had the Ld. Trial Court considered the submissions aforesaid of the counsel for the appellant and the judgments aforesaid in support thereof, it would not have held that the suit of the appellant/plaintiff was barred by RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 7 of 147 8 resjudicata.
G. The Ld. Trial Court was not bound by the findings in the earlier proceedings for eviction under the Rent Act which were ultimately dismissed on the technical ground of the notice having not been given.
H. The Ld. Trial Court ought to have held that it was only in the light of the findings in the earlier proceedings under the Rent Act that the Appellant had in the plaint mentioned for record that the premises had been held to be let out to the predecessor of the respondents for residentialcumclinic purposes.
I. The Ld. Trial Court did not consider that the findings in the earlier proceedings under the Rent Act was rendered in the then prevalent state of law and even otherwise was no longer valid in the state of the Law as now laid down by the courts.
J. The Ld. Trial Court did not consider that it has now been conclusively held that the use of a residential premises by the professionals such as Doctors for their clinic purposes does not change the purpose of letting and RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 8 of 147 9 the purpose of letting remains the residential only.
K. The Ld. Trial Court erroneously held that the earlier proceedings for eviction under the Rent Control Act were not dismissed only on the technical ground of invalidity of notice of termination.
L. The Ld. Trial Court has erred in law in holding that it is the settled preposition that where the suit is decided by the court on the basis of more than one issue, the finding given by the court on all the issues on which the judgment is based, is to operate as resjudicata in the subsequent proceedings between the same parties.
M. The judgment in Pawan Kumar Gupta vs. Rochi Ram Nagdeo relied upon by the Ld. Trial Court was/is not applicable to the facts of the case.
N. The Ld. Trial Court did not consider that even if the premises are held to be let out for residentialcum clinic purposes, the tenancy thereof was/of not heritable.
O. There is no rationale for discriminating between the premises let for residential purposes only and the premises let out for residentialcumcommercial RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 9 of 147 10 purposes.
P. Section 2 (1) of the Delhi Rent Control Act, 1958 ought to be read to mean that the tenancy whether of residential or for commercial purposes, is not heritable.
Q. There is no rationale in clubbing the premises let for residential cumclinic or commercial purposes with the premises let for commercial purposes only.
R. The classification of the premises let for commercial purposes alone is entirely different from the classification of the premises let out for residentialcum commercial purposes.
S. The premise let out for residentialcum commercial purposes can be used by the landlord for residential purposes and as such, for the purposes of Section 2 (1) of the Rent Control Act, ought to be classified as the premises let for residential purposes only.
T. The purposes of letting of the premises ought to be determined at the time of the adjudication of the proceedings and the determination, if any, more than 20 RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 10 of 147 11 years prior thereto, ought not be relied upon. In the present day when the courts are prohibiting use of the residential premises for commercial purpose, the agreement even if by the landlord permitting the tenant to use residential premises for commercial purposes, would be void and cannot be taken advantage of by the tenant.
U. The Ld. Trial Court did not consider that in the facts and circumstances of the present case the premises were let to the predecessor of the respondents by the Government of India only which itself had prescribed the use of the premises for residential purposes only and in the absence of any document whatsoever permitting the predecessor of the respondents to use the premises for any clinic or commercial purposes, it could not be held that the premises had been let out for residentialcum commercial purposes.
V. The Ld. Trial Court did not consider that even the appellant had at no time consented to the predecessor of the respondents using the premises for any commercial purposes.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 11 of 147 12W. The Ld. Trial Court did not consider that the predecessor of the respondents was residing in the premises along with his wife, three sons, etc. and considering the size of the total accommodation, the use, if any, of the premises for clinic purpose was of a minuscule portion only and such use of a minuscule portion of the tenancy premises for professional activity cannot make the tenancy of the residential premises which is otherwise not heritable, heritable.
X. The Ld. Trial Court ought to have held that upon the determination of the tenancy of the predecessor of the respondents, the tenancy rights were not inherited by the respondents and the respondents were liable to deliver possession of the premises to the appellant.
Y. The Ld. Trial Court did not consider that the respondents have been occupying the premises for nearly half a century and have also not been paying any amount whatsoever therefor.
Z. The Ld. Trial Court did not consider that the premises are situated in a prime residential colony of RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 12 of 147 13 Delhi and are as per the master plan of Delhi and the Zonal plan of the area can be used for residential purposes only and to hold such tenancy of such a premise sot be heritable and to hold such premises at par with commercial premises, is travesty of law.
AA. The Ld. Trial Court upon holding the respondents to be liable to deliver possession of the premises to the appellant ought to have further directed the respondents to pay mesne profits/damages for use and occupation of the premises to the appellant.
BB. For that the impugned judgment and decree in so far as holding the suit of the appellant/plaintiff to be barred by resjudicata and for the reason of the determination of the tenancy of the predecessor of the respondents to be of no effect for the said reason, is contrary to law and facts and is liable to be set aside.
8. The cross objections U/o 41 Rule 22 of CPC on behalf of respondent Dr. Narinder Pal Singh are as under:
(i). As a preliminary objection the present appeal is by a totally unauthorised and unconcerned person. The suit, RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 13 of 147 14 which has culminated in the passing of a decree of dismissal of the suit was filed by M/s Cycle Equipments Private Limited against the respondent herein. The decree sheet shows the memo of parties as "M/s Cycle Equipments Private Ltd. (now known as M/s Cepco Industries Private Ltd) Vs. Smt. Ram Piyari & another".
The title of the suit, which was filed as M/s Cycle Equipments Private Ltd. Vs. Smt. Ram Piyari Chawla and another, was not got changed. Although during the course of the evidence, it was stated that the name of the plaintiff had been changed from M/s Cycle Equipments Private Ltd to M/s Cepco Industries Private Ltd., yet no attempt was made to get the name of M/s Cepco Industries Private Ltd substituted in place of M/s Cycle Equipments Private Ltd. Since M/s Cepco Industries Private Ltd. is not a party to the original suit, the present appeal by Cepco Industries Private is legally not maintainable and it has to be taken as if no appeal has been filed against the judgment and decree pronounced in Civil suit no. 203 of 1998 by the Court of Ms. Sunena RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 14 of 147 15 Sharma, Civil Judge, Delhi entitled as M/s Cycle Equipments Private Ltd. Vs. Smt. Ram Piyari Chawla.
(ii). In any case the recording in the decree sheet "now known as Cepco Industries Private Ltd." is unauthorised, illegal and untenable. There has never been any attempt on the part of the original plaintiff to get the name of M/s Cepco Industries Private Ltd. substituted. Further there is no order on the file of the case substituting the original name Cycle Equipments Private ltd. with Cepco Industries Private Ltd. Thus the recording in the decree sheet "now known as Cepco Industries Private Ltd." is unwarranted and required to be struck off.
(iii). Without prejudice to the above objection, the respondent submits that the findings of the Ld. Civil Judge in respect of issues no. 1, 4 and 8 are incorrect and against the record of the case and the respondent files the following further cross objections to the said findings of the Ld. Civil Judge, Delhi:
a) The Ld. Civil Judge has erred in deciding issue no. 1 in favour of the appellant and against the respondent.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 15 of 147 16Pertinently the findings are not based upon correct appreciation of the evidence on record, as well as the established law of the land.
b) The Ld. Civil Judge has wrongly observed that the documents Ex. PW 2/1 and Ex. PW 2/2 are public documents. The Ld. Civil Judge has been misled into passing an erroneous order on the wrong assumption of the said two documents having been proved in accordance with law.
c) The original Memorandum of Association and Articles of Association have neither been produced by the appellant nor by PW2, who was an official from the office of the Registrar of Companies.
d) The Ld. Civil Judge wrongly observed that the Certificate of Incorporation of the plaintiff company has been proved on record. It is stated that the only document produced on record Ex. PW 2/2, which purports to be a copy of the Certificate of Incorporation of M/s Cepco Industries Private Ltd. Pertinently no certificate of incorporation of the plaintiff, namely M/s Cycle RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 16 of 147 17 Equipments Private Ltd. has been produced or record.
e) It would be pertinent to note that both Ex. PW 2/1 and Ex. PW 2/2 contain large number of cuttings and interpolations. Further last page of Ex. PW 2/1 still shows that the documents, though purporting to be relating to M/s Cepco Industries Private Ltd, yet it pertains to M/s Cycle Equipments Private Ltd. Further the endorsement appears to have been signed by a person whose designation has not been mentioned and this by itself is enough to reject the document and the Ld. Civil Judge should have held that the said document was not admissible in evidence. Pertinently cutting and writings in Ex. PW 2/1 are neither authenticated nor signed by either the stated Managing Director of the Company or by the only other Director. Cuttings and writing in such circumstances lose their credence and authenticity, and so doe the documents.
f) The Ld. Civil Judge has failed to take note of the fact that there is no evidence whatsoever on the record about the stated incorporation of M/s Cycle Equipments Private RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 17 of 147 18 Ltd. Even the Memorandum of Association and Articles of Association of M/s Cycle Equipments Private Ltd.
have not been placed on record and proved in accordance with law. Pertinently it is the own case of the appellant that the name of M/s Cycle Equipments Private Ltd. was changed to M/s Cepco Industries Private Ltd during the pendency of the present suit.
g) There are no averments in pleading of the plaintiff at any stage whatsoever showing that the name of the M/s Cycle Equipments Private Ltd. had been changed to M/s Cepco Industries Private Ltd. In the absence of specific pleadings, no amount of evidence could have been read by the Ld. Civil Judge in that behalf and the documents pertaining to M/s Cepco Industries Private Ltd. could not have been corelated to M/s Cycle Equipments Private Ltd.
h) The Ld. Civil Judge has erred in concluding that the plaint has been signed and verified by a duly authorised person. The Ld. Civil Judge has lost sight of the specific averments in para 1 of the plaint which states that Sh. R. RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 18 of 147 19 N. Aggarwal draws his powers to sign and verify the Plant from Resolution dated May 13, 1983 of the Board of Directors of the Company. However, the said Resolution has neither been placed on record nor even relied upon by PW1 Sh. R. N. Aggarwal while speaking about the stated powers to sign and verify the pleadings and institute the present suit.
i) Most importantly the Ld. Civil Judge failed to take note of the specific statement made by Sh. R. N. Aggarwal during his cross examination dated November 1, 1999 when he said: "NO RESOLUTION WAS PASSED BY THE PLAINTIFF COMPANY FOR FILING THE PORESENT SUIT FOR POSSESSION."
j) The Ld. Civil Jude has failed to draw a distinction between " powers to institute" and also " to act" as against the "powers to sign and verify the pleadings".
The Ld. Civil Judge completely erred in taking "the Power to institute and act" as "power to sign and verify the pleadings". It is stated that the two functions are RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 19 of 147 20 separate and distinct one's. The Ld. Civil Judge lost sight of the fact that power to institute does not bind a person to any of the statements made in the pleadings while the powers to sign and verify the pleadings binds the person to given statement in such pleadings.
k) Pertinently this power having been conspicuous by its absence the issue no. 1 should have been answered in favour of the respondents and against the appellant.
l) In para 1 of the plaint the plaintiff appellant says that Sh.
R. N. Aggarwal is its Managing Director, who is Principal Officer of the plaintiff company. Needless to say that the plaintiff depicts Sh. R. N. Aggarwal to be its principal officer because of his being Managing Director.
However, the powers of Managing Director have been specified in Ex. PW 2/1. The Ld. Civil Judge misdirected herself into ignoring the fact that the Managing Director even as principal offices could not sign and verify the pleadings since the company had consciously put an embargo on the powers of the Managing Director. A bare perusal of Ex. PW 2/1 RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 20 of 147 21 would support the contention of the respondent in this respect.
m) That the Ld. Civil Jude has misdirected herself in deciding issue no. 4 in favour of the plaintiff appellant and against the respondent.
n) That the Ld. Civil Judge should have held that because of the plaintiff having sought a declaration about the service of notice through a separate civil suit, and the plaintiff, upon contest, having withdrawn the said suit without any leave from the Court to institute a suit on the same cause of action, is estopped from filing the present suit on the same cause of action namely the determination of the tenancy of Dr. Gopal Singh Chawla, the predecessor in interest of the respondents.
o) That the Ld. Civil Judge should have held that the plaintiff had infact abandoned the plea of the tenancy of Dr. Gopal Singh Chawla having been determined and on this ground alone the plaintiff is estopped from filing a fresh suit on the cause of action alleged to have arisen due to the alleged determination of the tenancy of the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 21 of 147 22 respondents.
p) That the Ld. Civil Judge should have held that in the circumstances the plaintiff is estopped from pleading the termination of the tenancy of Sh. Gopal Singh Chawla all over again.
q) That the findings of the Ld. Civil Judge on issue No. 8 are patently wrong.
r) That the Ld. Civil Judge should have held that the plaintiff appellant having taken recourse to a Civil Suit for establishing the termination of the tenancy of the Predecessor in interest of the respondent, and also having filed different eviction petitions against Dr. Gopal Singh Chawla, the notice in question, even if proved to have been served upon Dr. Gopal Singh Chawla, stood exhausted.
s) The Ld. Civil Judge should have held that the fact of the dismissal by the Court of the Eviction Petitions, as well as the civil suit was that the Notice under Section 106 Transfer of Property Act ceased to have any effect and the original tenant namely Dr. Gopal Singh Chawla was RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 22 of 147 23 restored to the position of the contractual tenant.
t) That the Ld. Civil Judge has completely ignored the judgment of the Allahbad High Court reported as AIR 1976 Allahbad 321 which was cited by the respondent in support of his this present contention.
u) That the Ld. Civil Judge should have taken notice of the fact that at the relevant time the settled law was that for filing an eviction petition against a tenant, notice of determination of tenancy was essential and was treated as a part of the arising of the cause of action and as such upon dismissal of the eviction petitions, as shown by Ex.
PW 1/R9 and Ex. PW 1/R10, Ex. PW 1/R1, Ex. PW 1/R2 and Ex. PW 1/R4, the notice of termination of tenancy stood exhausted.
v) That the findings of the Ld. Civil Judge on issues no. 1, 4 & 8 are patently wrong and are liable to be set aside.
9. I have heard Shri Deepak Gupta, Ld. Counsel for the appellant and Shri K. K. Bhuchar, Ld. Counsel for the respondent. Ld. Counsel for the parties have filed written arguments as well. They have cited case law at length. During the course of arguments ld. Counsel have RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 23 of 147 24 copiously read from the pleadings, evidence and documents in the trial court's record.
Objection as to the appeal instituted by Cepco Industries Pvt. Ltd. whereas in the Trial Court the plaintiff was Cycle Equipment Industries Pvt. Ltd.
10. Shri K. K. Bhuchar, Ld. Counsel for the respondent, has argued that the appeal be thrown out at the threshold as the appellant has no locus standi. The present appeal has been instituted by a totally unauthorised and unconcerned person. It is submitted that the suit, which has culminated in the passing of a decree of dismissal of the suit was filed by M/s Cycle Equipments Private Limited against the respondent herein; the decree sheet shows the memo of parties as "M/s Cycle Equipments Private Ltd. (now known as M/s Cepco Industries Private Ltd) Vs. Smt. Ram Piyari & another". The title of the suit, which was filed as M/s Cycle Equipments Private Ltd. Vs. Smt. Ram Piyari Chawla and another, was not got changed; though during the course of the evidence in the suit, it was stated that the name of the plaintiff had been changed from M/s Cycle Equipments Private Ltd to M/s Cepco Industries Private Ltd., yet no attempt was made to get the name of M/s Cepco Industries Private Ltd substituted RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 24 of 147 25 in place of M/s Cycle Equipments Private Ltd. Since M/s Cepco Industries Private Ltd. is not a party to the original suit, the present appeal by Cepco Industries Private is legally not maintainable and it has to be taken as if no appeal has been filed against the judgment and decree pronounced in Civil suit no. 203 of 1998 by the Court of Ms. Sunena Sharma, Civil Judge, Delhi entitled as M/s Cycle Equipments Private Ltd. Vs. Smt. Ram Piyari Chawla. Thus the appeal is nonest.
11. It is submitted by Shri Deepak Gupta, Ld. Counsel for the appellant that it is only a technical matter and duly protected by section 23 of the Companies Act, 1956. Admittedly, there is ample evidence on record to show the change of name of plaintiff (in the suit below) and the appellant herein from M/s Cycle Equipments Private Ltd. to M/s Cepco Industries Private Ltd. and both names are of one and the same persons. It is submitted that Ld. Predecessor of this Court has allowed an application of the appellant under section 151 CPC subject to cost of Rs. 3000/ vide order dated 15.01.2011, cost has been paid and thus the made stands at rest.
12. "What's in a name, a Rose by any other name would smell as sweet", says the Bard of Avons. Statutorily, section 23(3) of the Companies Act, 1956, change of name shall not affect any rights or RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 25 of 147 26 obligations of the company, or render defective any legal proceedings by or against it. It further says that any legal proceedings which might have been continued or commenced by or against the company by its former name may be continued by or against the company by its new name. It is also the settled law the law must bow before justice.
Substantive rights of the parties cannot be thrown overboard for technical considerations.
13. My Ld. Predecessor has passed a detailed order on this aspect and in order to avoid prolixity the same is not being reproduced herein. Suffice it is to say that the not getting the name of the plaintiff changed in the course of the suit was only an irregularity and not an illegality. The above referred to order has cured that irregularity.
Issues before the Ld. Trial Court
14. The Ld. Trial Court was seized of the following issues:
1. Whether the plaintiff is a company duly incorporated and whether the plaint is signed and verified by duly authorized person? OPP
2. Whether the suit in the present form is not maintainable? OPD
3. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP
4. Whether the suit of the plaintiff is barred by estoppel? OPD RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 26 of 147 27
5. Whether the tenancy of the deceased Dr. Chawla was duly terminated during his life time? If so, to what effect? OPD
6. Is the plaintiff entitled to the suit property from the defendant? OPP
7. Whether the suit of the plaintiff is barred by res judicata? OPD
8. Whether the notice in question stands exhausted? OPD
15. By the impugned judgment and decree the Ld. Trial Court has decided issue nos. 1 to 5 and 8 in favour of the plaintiff/ appellant whereas the issue nos. 6 & 7 have been decided against the plaintiff/appellant.
16. Findings on all the issues are under challenge in the appeal and in cross objections. Hence, I propose to deal with each issue in order of 1, 2, 3, 4, 7, 8 and 5 & 6 together.
Issue no. 1: Whether the plaintiff is a company duly incorporated and whether the plaint is signed and verified by duly authorized person?
17. This issue has been decided against the respondent by the ld.
Trial Court.
18. It has been argued on behalf of the respondent that ld. trial court has travelled offthetrack while deciding this issue. The certificate of RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 27 of 147 28 incorporation of plaintiff company has not been proved on record.
PW2 has tendered on record the Articles of Association and Memorandum of Association of as Ex. PW2/1 and Ex. PW2/2 respectively but these documents have not been proved in accordance with the law. The suit has been instituted in the name of Cycle Equipment Co. Pvt. Ltd whereas the record produced is of one CEPCO Ltd. The documents Ex. PW2/1 and Ex. PW2/2 cannot be treated as 'public documents' within the meaning of section 74 of the Evidence Act, 1872. Thus no presumption of authenticity on the face of it applies to them. Thus the Ld. Civil Judge has wrongly observed that the documents Ex. PW 2/1 and Ex. PW 2/2 are public documents.
The original Memorandum of Association and Articles of Association Cycle Equipment Co. Pvt. Ltd have neither been produced by the plaintiff appellant nor by PW2, who was an official from the office of the Registrar of Companies. Thus the Ld. Civil Judge has wrongly observed that the Certificate of Incorporation of the plaintiff company has been proved on record. The only document produced on record Ex. PW 2/2, which purports to be a copy of the Certificate of Incorporation of M/s Cepco Industries Private Ltd. Pertinently no certificate of incorporation of the plaintiff, namely M/s Cycle RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 28 of 147 29 Equipments Private Ltd. has been produced or record. Both Ex. PW 2/1 and Ex. PW 2/2 contain large number of cuttings and interpolations. Further last page of Ex. PW 2/1 still shows that the documents, though purporting to be relating to M/s Cepco Industries Private Ltd, yet it pertains to M/s Cycle Equipments Private Ltd. 20.
Further the endorsement appears to have been signed by a person whose designation has not been mentioned and this by itself is enough to reject the document and the Ld. Civil Judge should have held that the said document was not admissible in evidence. Pertinently cutting and writings in Ex. PW 2/1 are neither authenticated nor signed by either the stated Managing Director of the Company or by the only other Director. Cuttings and writing in such circumstances lose their credence and authenticity, and so does the documents.
19. Respondent's further argument is that in fact, there is no evidence whatsoever on the record about the incorporation of M/s Cycle Equipments Private Ltd. Even the Memorandum of Association and Articles of Association of M/s Cycle Equipments Private Ltd.
have not been placed on record and proved in accordance with law. It is the own case of the appellant that the name of M/s Cycle Equipments Private Ltd. was changed to M/s Cepco Industries Private RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 29 of 147 30 Ltd during the pendency of the present suit, but there is no document to support the same in a manner known to the law. As a matter of fact there are no averments in pleading of the plaintiff at any stage whatsoever showing that the name of the M/s Cycle Equipments Private Ltd. had been changed to M/s Cepco Industries Private Ltd. In the absence of specific pleadings, no amount of evidence could have been read by the Ld. Civil Judge in that behalf and the documents pertaining to M/s Cepco Industries Private Ltd. could not have been corelated to M/s Cycle Equipments Private Ltd.
20. Second limb of the argument is that even if the clause 23 (5) of the Articles of Association, Ex. PW2/1, is taken into consideration the Managing Director is only entitled to 'institute' a suit. There is no power to 'sign or verify' the pleadings. These acts are quite different and poles apart. The word institution cannot encompass within its meaning 'sign or verify'. Shri R. N. Aggarwal has claimed himself to be authorized by a resolution of the Board but no resolution has been proved on record. The Ld. Trial Court has erred in concluding that the plaint has been signed and verified by a duly authorised person. The Ld. Civil Judge has lost sight of the specific averments in para 1 of the plaint which states that Sh. R. N. Aggarwal draws his powers to sign RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 30 of 147 31 and verify the Plant from Resolution dated May 13, 1983 of the Board of Directors of the Company. However, the said Resolution has neither been placed on record nor even relied upon by PW1 Sh. R. N. Aggarwal while speaking about the stated powers to sign and verify the pleadings and institute the present suit. Sh. R. N. Aggarwal during his cross examination dated November 1, 1999 has said that no resolution was passed by the company for filing the present suit for possession.
21. It is further submitted by the respondent that there is a fine distinction between "powers to institute" and also "to act" as against the "powers to sign and verify the pleadings". The Ld. Civil Judge completely erred in taking "the Power to institute and act" as "power to sign and verify the pleadings". In fact, the two functions are separate and distinct ones. The power to institute does not bind a person to any of the statements made in the pleadings while the powers to sign and verify the pleadings binds the person to given statement in such pleadings. Pertinently this power having been conspicuous by its absence the issue no. 1 should have been answered in favour of the respondents and against the appellant.
22. Ld. Counsel for the respondent further argues that in para 1 of RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 31 of 147 32 the plaint the plaintiff appellant says that Sh. R. N. Aggarwal is its Managing Director, who is Principal Officer of the plaintiff company.
Needless to say that the plaintiff depicts Sh. R. N. Aggarwal to be its principal officer because of his being Managing Director. However, the powers of Managing Director have been specified in Ex. PW 2/1.
The Ld. Civil Judge misdirected herself into ignoring the fact that the Managing Director even as principal officer could not sign and verify the pleadings since the company had consciously put an embargo on the powers of the Managing Director. A bare perusal of Ex. PW 2/1 would support the contention of the respondent in this respect.
23. The respondent relies upon Ferruccio Sias vs. Jai Manga Ram Mukhi (1994) 1 Comp. LJ 345 (Delhi) in which it has been held that a person instituting a suit o behalf of a company has to be a person authorized by company to institute suit. Authority to institute suit is distinct from and is in addition to authority to sign and verify pleadings in a plaint. Therefore proper authority either by a resolution of Board or by a Power of Attorney or by Articles of Association in a particular officer is a necessary requirement. If the requirement is not fulfilled suit so filed is liable to be dismissed.
24. Further reliance has been placed by the respondent on case law RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 32 of 147 33 Manuel Barreto Xavier vs. Narayan Biku Naik 1997 AIHC 959 wherein it has been held that declaration made by private party before public authority would not make it a public document, hence modes of proof required under law cannot be dispensed with in respect of said documents.
25. Per contra, Ld. Counsel for the appellant has argued that the submissions of the respondent are hyper technical. He has relied upon various provisions of the Companies Act, 1956, more specifically section 23 and 35 of the said Act, which read as under: "23. Registration of change of name and effect thereof.-- (1) Where a company charges its name in pursuance of section 21 or 22, the Registrar shall enter the new name on the register in the place of the former name, and shall issue a fresh certificate of incorporation with the necessary alterations embodied therein; and the change of name shall be complete and effective only on the issue of such a certificate.
(2) The Registrar shall also make the necessary alteration in the memorandum of association of the company.
(3) The change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against it; and any legal proceedings which might have been continued or RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 33 of 147 34 commenced by or against the company by its former name may be continued by or against the company by its new name."
"35.Conclusiveness of certificate of incorporation.--A certificate of incorporation given by the Registrar in respect of any association shall be conclusive evidence that all the requirements of this Act have been complied with in respect of registration and matters precedent and incidental thereto, and that the association is a company authorised to be registered and duly registered under this Act."
26. Ld. Counsel for the appellant has also relied upon the Commercial Documents Evidence Act, 1939 and has read the section 3 as under: "3.Presumption as to genuineness of documentsFor the purposes of the Indian Evidence Act, 1872(1 of 1872), and notwithstanding anything contained therein, a Court
(a) shall presume, within the meaning of that Act, in relation to documents included in Part I of the Schedule, and
(b) may presume, within the meaning of that Act, in relation to documents included in Part II of the Schedule,--
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 34 of 147 35that any document purporting to be a document included in Part I or Part II of the Schedule, as the case may be, and to have been duly made by or under the appropriate authority, was so made and that the statements contained therein are accurate." The relied upon provision of the Schedule to the Commercial Documents Evidence Act, 1939 reads as under: "THE SCHEDULE (See sections 2 and 3.) PART I Documents in relation to which the Court "SHALL presume"
................................................
23. Copy, certified by the Registrar of Companies, of the memorandum or the articles of association of a company, filed under the Indian Companies Act, 1913.{See now the Indian Companies Act, 1956 (1 of 1956)} ................................................"
27. Appellant has relied upon Lunarmech Machinenfabri Ltd.
USF Filtration Ltd. 132 (2006) DLT 169 to rely upon that change of name of the company does not affect any right or obligation of the company or render defective any legal proceedings by or against it.
28. In United Bank of India vs. Naresh Kumar & Others (1996) 6 SCC 660 it has been held: RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 35 of 147 36 "8. In this appeal, therefore, the only question which arises for consideration is whether the plaint was duly signed and verified by a competent person.
9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity, it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6, Rule 14 together with Order 29, Rule 1 of the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 36 of 147 37 Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29, Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example, by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour, of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.
11. The Courts below could have held that Sh. L.K.Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 37 of 147 38 alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant bank must have ratified the action of Sh. L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the Courts below were still unable to come to this conclusion, then either of the appellate Courts ought to have exercised their jurisdiction under Order 41, Rule 27 (1) (b) of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they could have ordered Sh. L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Sh.L.K.Rohatgi to sign the plaint. Such a power should be exercised by a Court in order to ensure that injustice is not done by rejection of a genuine claim.
12. The Courts below having come to a conclusion that money had been taken by respondent No.1 and that respondent No. 2 and husband of respondent No. 3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable.
13. The Court had to be satisfied that Sh.L.K.Rohatgi could sign the plaint on behalf of RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 38 of 147 39 the appellant. The suit had been filed in the name of the appellant company; full amount of Courtfee had been paid by the appellant bank; document as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Sh.L.K.Rohatgi must have been authorised to sign that plaint and, in any case, it must be held that the appellant had ratified the action of Sh. L.K.Rohatgi in signing the plaint and thereafter it continued with the suit."
29. The above judgment of the Hon'ble Supreme Court of India has been referred to by the Hon'ble High Court of Delhi in the M/s Rajghria Paper Mills Ltd. Vs. General Manager, Indian Security Press and Another AIR 2000 Delhi 239 and it was held (in para 20 of the Judgment) that 'unless a power to institute suit is specifically conferred on a particular director he has no authority to institute the suit on behalf of the company. It must therefore follow that although the plaint was signed and verified properly but the suit was not instituted by a duly authorized person on behalf of the plaintiff.' RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 39 of 147 40
30. In the case law reported as Asia Today Limited vs. Sinhal Metal Industries Limited MANU/DE/1581/2006 Hon'ble High Court of Delhi has referred to the judgment of Hon'ble Supreme Court of India in United Bank of India v. Naresh Kumar AIR 1997 SC 3.
In para 29 of the said judgment Hon'ble High Court of Delhi has held that 'it is no more resintegra that signing and verification of the plaint is different from filing the suit by a competent person.' It is further held that 'normally the court does not insist for such technicalities nor gives much weightage on account of technicalities.
However, the question of authority to institute a suit on behalf of a company is not a technical matter. It often affects the policy and finances of the company and has far reaching effects, therefore unless a power to institute a suit is specifically conferred, a particular director or person, merely contending that a person is a constituted attorney, such a person will not have authority to institute a suit on behalf of the company. Needless to say, such a power can be conferred by the Board of Directors by passing a resolution in this regard.'
31. In the instant case the relevant portion of the Articles of Association (AOA) of the appellant company read as under: RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 40 of 147 41 "33 Powers of Managing Director: ....................................................... (5). To bring or defend suit:
To institute, conduct, defend, compound, refer to arbitration or abandon any legal proceedings or causes in action by or against the Company or its officers or otherwise concerning the affairs of the Company and also to compound and to allow... ..."
32. The incorporation of a Company, its MOA and AOA are documents within public domain. These records are accessible to the public at large.
33. A company is a creation of law and thus a juristic entity. It has no physical existence as it is only a fiction of law. For all intents and purpose it has to work through a human agency. Such human agency must be so specifically authorized and any Tom, Dick or Harry cannot act for the company. The cited case law goes to show that the power to institute a suit or proceeding is the backbone of authority of a person. This is to ensure that the Court is satisfied that the person instituting the suit is so competent/authorized so that at some other juncture the company does not come and disown the acts and deeds of such person to the detriment of the adversaries. It is this public policy which guides the insistence of the Court on the authority of the person RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 41 of 147 42 instituting a suit or proceeding--the courts look for binding value.
34. The objection of the respondent is as to the certificate of incorporation, MOA and AOA of the appellant, whether it pertains to M/s Cycle Equipments Private Ltd. or to M/s Cepco Industries Private Ltd. The objection is for the reason that different certificate of incorporation, MOA and AOA either of M/s Cycle Equipments Private Ltd. or of M/s Cepco Industries Private Ltd. have been placed on record. What has been done is that only the name of M/s Cycle Equipments Private Ltd. has been scored off and name of M/s Cepco Industries Private Ltd. has been handwritten and that the cutting are not duly authenticated.
35. Under section 114 illustration (e) of the Indian Evidence Act, 1872 there is presumption that judicial and official acts have been regularly performed. Thus on the face of it, the change of the name as carried out by the Registrar of Companies or under its authority has to be taken at the face value and if the respondent had desired the Court to infer otherwise it could have led the evidence to rebut this presumption. As far as the appellant is concerned, it could only have moved the requisite application for change of name and complied with other formalities and once that had been done the ball was in the court RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 42 of 147 43 of the ROC to do the needful. The appellant had no power to dictate the terms ROC to carry out its job in a particular mode, manner or way. If the office of ROC has changed the name of the appellant company by scoring off the erstwhile name of M/s Cycle Equipments Private Ltd. and handwriting the new name as M/s Cepco Industries Private Ltd. in the certificate of incorporation, MOA and AOA then such documents have to be taken at face value. The presumption as raised in Commercial Documents Evidence Act, 1939 also comes to the aid of the appellant.
36. The certified copies of the MOA and AOA of M/s Cycle Equipments Private Ltd. are on record as EX. PW1/1. In Ex. PW2/2 there is endorsement purported to be under the authority of the office of ROC for change of name of M/s Cycle Equipments Private Ltd. to M/s Cepco Industries Private Ltd. This is presumed to be regular under section 114 illustration (e) of the Indian Evidence Act, 1872, unless the contrary is proved. From the evidence on record there is nothing to impugn the authenticity of the certificate of incorporation, MOA and AOA of the appellant viz. the erstwhile M/s Cycle Equipments Private Ltd. in its new avtar as M/s Cepco Industries Private Ltd.RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 43 of 147 44
37. Words are vehicle of thought and do convey as to what is meant. The famous essayist Pope has said, "A perfect judge must read each work of wit, in the same spirit that its author has writ." The Articles of Association of a Company, which are generally loosely drafted, cannot be read like the books of statute. They must be read in a meaningful manner and must be understood in a broader sense to get their true import. However this must be with a caveat so as not to read something which does not exist there expressly or by necessary implication. It can be read in a manner to understand what is there, of course not to import therein what is not there.
38. Now reading the word 'institute' in the above context. Does it not necessarily include all the acts and deeds which are incidental or ancillary to institute a suit? Can a suit be instituted, until and unless a plaint is drawn up, signed and verified or any other compliances, which the law (existing at the time of framing AOA or in future) may seek to be complied with. Thus the compass, scope or arena of word 'institute' is of wide amplitude to cover all the requisites, including signing and verifying a plaint, which are necessary to effectively institute the same. Thus the words of AOA must be read in a manner to sustain it and not to impugn it. All hair splitting technicalities are to RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 44 of 147 45 be avoided. The words 'institute' and 'conduct' are wide enough to raise an inference that all necessary powers to meaningfully and effectively carry out the same are inherent in these words.
39. Looking from another angle, whether it could be conceived that while framing the AOA the Company had taken away with its left hand, what it had given with its right hand? No prudent person would do so, and thus such self contradiction cannot be inferred.
40. Though the plaint has averred a resolution, the same has not seen the light of the day. However, the authorization as given in AOA to the Managing Director is sufficient to dispense with the need of a resolution. Thus there is no infirmity on the part of the appellant for not producing a resolution of the company, despite it being averred.
41. When the trial court has given a correct finding but the reasoning is inadequate, the appellate court can always fill up the gaps and provide the adequate reasoning. Thus in view of the above discussion the findings of the ld. trial court on this issue is sustained.
Issue no. 2 Whether the suit in the present form is not maintainable? OPD
42. Regarding this issue the argument of the respondent is that once it is held that the respondent continues to be a tenant, the appellant has RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 45 of 147 46 to necessarily file a petition under the Delhi Rent Control Act and thus the suit in the present form is not maintainable.
43. Section 9 of the Code of Civil Procedure provides that the Civil Court has jurisdiction to entertain all disputes of civil nature, unless the jurisdiction is expressly or impliedly barred. When certain classified conditions are present a dispute as to recovery of possession within the specified jurisdictions in Delhi is governed by the provisions of Delhi Rent Control Act (DRC Act) and section 50 of the said Act bars the jurisdiction of the civil courts visàvis the matters which are duly covered by the DRC Act. DRC Act is a special statute and a special statute prevails over the general statute. However a matter which is not covered by the special statute, general statute will continue to apply. There where the DRC Act ceases to have application the provisions of section 9 of the Code of Civil Procedure become applicable.
44. Nothing has been demonstrated by the respondent that the finding given by the Ld. Trial Court on this aspect is perverse or contrary to law. Thus, I find no reason to interfere and thus the finding of the Ld. Trial Court on this issue is sustained.
Issue No. 3 Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 46 of 147 47
45. This issue has been given up by the respondent during the course of arguments. Considering the issue from the point of view of Revenue in my view the suit has been valued properly and appropriate court fee has been paid up as in such suits the valuation is on the basis of the annual rent and the suit has been valued accordingly in compliance of the provision under section 7(ix) of the Court Fee Act and also in accordance with the Suits Valuation Act. Thus the finding on this issue requires no interference.
Issue No. 4 Whether the suit of the plaintiff is barred by estoppel?
46. It has been argued by the Ld. Counsel for the respondent that the Ld. Civil Jude has misdirected herself in deciding issue no. 4 in favour of the plaintiff appellant and against the respondent. The Ld. Trial Court should have held that because of the appellant having sought a declaration about the service of notice through a separate civil suit, and the plaintiff, upon contest, having withdrawn the said suit without any leave from the Court to institute a suit on the same cause of action, is estopped from filing the present suit on the same cause of action namely the determination of the tenancy of Dr. Gopal Singh Chawla, the predecessorininterest of the respondents. In fact, RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 47 of 147 48 by such acts and omissions the appellant has abandoned the plea of the tenancy of Dr. Gopal Singh Chawla having been determined and on this ground alone the plaintiff is estopped from filing a fresh suit on the cause of action alleged to have arisen due to the alleged determination of the tenancy of the respondents. In these facts and circumstances of the case, it should have been held that in the appellant is estopped from pleading the termination of the tenancy of Sh. Gopal Singh Chawla all over again.
47. Ld. Counsel for the appellant has refuted the stand of the respondent arguing that there is no question of estoppel against the appellant as propounded.
48. The doctrine of estoppel has its roots in equity. It has crystallized into a rule of evidence and also a substantive rule of law (as it helps to create or defeat rights). Estoppel is a complex legal notion, involving a combination of several elements--statement to be acted upon, action on faith of it and resulting detriment to the actor.
Thus estoppel is a conclusive statement which cannot be denied by the person whom it affects. If a person makes a representation and any person acting on such representation changes his position, then the person who makes the representation cannot be heard to allege the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 48 of 147 49 contrary to the detriment of the person who acts on such representation.
49. The respondent has not shown on record as to whether there has been a change in any stand of the appellant, which has been inconsistent with its earlier stand and it has resulted in detriment to the respondents. It has not been demonstrated before me as to any change in the stand of the appellant and if so what is that change and what detriment it has occasioned. These factors being conspicuous by their absence, the plea of estoppel is only an art for art's sake argument.
50. The Ld. Trial Court has considered the issue in its correct perspective and I do not find any tenable ground to interfere with the same. Thus the finding of the Ld. Trial Court on this issue is sustained.
Issue no. 7 Whether the suit of the plaintiff is barred by res judicata? OPD
51. This issue has been decided against the appellant by the Ld. trial court. Hence the arguments on this issue have been opened by the appellant.
52. It has been argued by the Ld. Counsel for the appellant the findings of the Ld. Trial Court on this issue are unsustainable in the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 49 of 147 50 eyes of law. The judgment of the Ld. Trial Court in so far as it proceeds to hold that the findings of the Ld. Additional Rent Controller in the judgment dated 04th May, 1968 as affirmed by the Ld. Rent Control Tribunal in the judgment dated 24th August, 1971 {passed in the previous litigation between the present plaintiff/ appellant, on one hand, and Dr. Gopal Singh Chawla (since deceased), on the other hand}, cannot in law constitute resjudicata in as much as those findings, on their own face, were delivered by a court which lacked "jurisdiction" to try that eviction petition. If a Court that does not the possess "jurisdiction" to entertain a particular cause, proceeds to decide a matter or even an issue, such a decision in that cause (by the court lacking jurisdiction) cannot be resjudicata between the parties to that lis. The appellant draws support from Section 11 of the Code of Civil Procedure.
53. Other point argued by the appellant that when the suit is ultimately dismissed on a technical point like nonserving or inadequacy of notice then the decision of the other issues on merits cannot constitute resjudicata as the decision such issues have lost their relevance and court ought not to have ventured into the said issue(s). Thus the finding in the proceedings under the Rent Control RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 50 of 147 51 Act of the premises having been let out to Dr. Gopal Singh Chawla, predecessor of the respondents for residentialcumcommercial purposes, was not resjudicata in as much as the Rent Control Tribunal, while affirming the finding of the Additional Rent Controller of the premises having been let out to Dr. Gopal Singh Chawla for residentialcumclinic purposes (sine he was a medical practitioner), had ultimately dismissed the petition for eviction filed by the appellant on the ground of the appellant having prior to the institution of the petition for eviction not determined the tenancy of Dr. Gopal Singh Chawla. As per the law prevalent at the time of decision of Sh. P. C. Saini, Addl. Rent Controller and Sh. G.C. Jain, Rent Control Tribunal, Delhi, a landlord even prior to instituting a petition for eviction under the Rent Act was required to determine the tenancy of the tenant under Section 106 of the Transfer of Property Act. Ld. Trial Court has not considered that that the earlier legal probabilities, the finding wherein of the premises having been let out for residentialcumclinic purposes, was sought to be used against the appellant, is not resjudicata because the ultimate dismissal of the legal proceedings was on the ground of the tenancy having not been determined.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 51 of 147 5254. The appellant has relied upon a plethora of case law in support of his submissions.
55. It has been argued on behalf of the respondent that the Judgment of Sh. P. C. Saini, Addl. Rent Controller and Sh. G.C. Jain, Rent Control Tribunal, Delhi operates as resjudicata. The appellant had appealed against the judgment of the Rent Control Tribunal in the Hon'ble High Court of Delhi which was dismissed in default of appearance and no steps were taken to get the same restored. Mere fact that while disposing of the appeal the Ld. Rent Control Tribunal held that the appeal was also liable to be dismissed for want of service of a valid notice would not make any difference. When a judgment contains more point than one, then each point would be sufficient to dispose of the lis, the entire judgment would operate as resjudicata on all the points covered by the previous litigation.
56. It is further submitted by Ld. Counsel for the respondent that when a suit is dismissed on a technical point but the appeal is disposed of on merits or on technical point (even including an appeal dismissed in default of appearance of the appellant), then it would not operate as resjudicata but when the suit is dismissed on merits then appeal whether disposed of on merits or on technical point (even RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 52 of 147 53 including an appeal dismissed in default of appearance of the appellant) would constitute resjudicata.
57. It is further argued by respondent that the argument of the appellant flows from a legally erroneous presumption that the judgment of Sh. P. C. Saini, Addl. Rent Controller has merged into the judgment of Sh. G.C. Jain, Rent Control Tribunal, hence the appellant's argument of nonapplication of the doctrine of res judicata is not in accordance with law. The settled position is that doctrine of merger does not apply if the appellate court has disposed of the appeal on a technical point and in such a case the judgment of the trial court would only prevail.
58. A look at section 11 of the Code of Civil Procedure, which defines the ambit and scope of resjudicata, gives the following reading: "11. Res judicata--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or be tween parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 53 of 147 54Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted pri or thereto.
Explanation II.--For the purposes of this section, the competence of a Court shall be determined ir respective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.--Any matter which might and ought to have been made ground of defence or at tack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI.--Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the pur poses of this section, be deemed to claim under the persons so litigating.
Explanation VII.--The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, is RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 54 of 147 55 sue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that de cree.
Explanation VIII.--An issue heard and finally de cided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.'
59. From the above provision the following are the criteria on which the plea of resjudicata can be sustained:
(i). The matter directly and substantially in issue in the latter suit must have been directly and substantially in issue in issue in the former suit;
(ii). The former and the latter suits must be between the same parties, or between parties under whom they or any of them claim, litigating under the same title;
(iii). The former suit has been concluded;
(iv). The former Court is competent to try such subsequent suit or the suit in which such issue has RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 55 of 147 56 been subsequently raised;
(v). Such issue has been heard and finally decided by such former Court.
60. The appellant has relied upon law pronounced in Jeevraj Munshi Shah Vs. Collector Thane, 1995 AIHC 2642 to argue as to what constitutes res judicata. It has been argued by the appellant that this judgment in fact supports his stand. As the Ld. Counsels have copiously read from the judgment, sentence by sentence, it is being reproduced as under to elucidate the matter: "1. This second appeal is directed against the judgment and order dated June 17, 1993 passed by the District Judge, Thane, confirming a judgment and decree of the Joint Civil Judge, Senior Division, thane, dismissing the plaintiff's suit solely on the ground that it was barred by the provisions of resjudicata under Section 11 of the CPC.
2. The facts leading up to the suit, out of which this appeal arises have been related in the judgment delivered by the Joint Civil Jude, Senior Division, Thane. No useful purpose will be served by repeating them. Suffice it to say that before filing the present suit, the plaintiff had filed suit no. 23 of 1977 in the Court of Civil Judge, Senior Division, Thane, raising similar issues and claiming almost identical RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 56 of 147 57 reliefs. The Ld. Judge, who tried the said suit held that the suit was not maintainable for want of notice under section 80 of the CPC. The Ld. Judge, however, though holding that the suit did not lie purported to decide other issues in the case. Amongst other things, he held that the construction made by the plaintiff is contravention of construction rules and bye laws under the various enactments and that the plaintiff's construction has resulted in encroachment upon the public road and other properties. The plea of resjudicata is based on the said judgemnet of Civil Judge, Senior Division, Thane.
3. Having heard Mr. Angal, Ld. Counsel for the appellant and Mr. Tated, Ld. A. G. P. for the respondent, I am of the opinion that both the courts below have committed an error of law in dismissing the suit of the plaintiff on the ground that it was not maintainable under the provision of sections 11 of the CPC being barred by the principles of res judicata.
Order VII, Rule 11 of the CPC empowers the Court to reject the plaint where the suit appears from the statement in the plaint to be barred by any law. The provision of Section 80 debars the plaintiff to institute a suit against the Government or a public officer in respect of any act purporting to have been done by such public officer in his official RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 57 of 147 58 capacity until he complied with such obligation which fact is required to be stated in the plaint itself in terms of section 80. According to this provision, therefore, the plaint of the plaintiff in his earlier suit should have been rejected without the consideration of any other question. The rejection of the plaint under Rule 11 of Order VII of the Code entitles the plaintiff to institute a fresh suit in respect of the same cause of action under Rule 13 of the said order. The short question is where the Court having failed to pass an order of rejection under the provisions of Order VII rule 11 of the Code, proceeds to determine the issues on merits and ultimately dismisses the suit on the ground of non compliance of the provisions of section 80 of the Code, whether a second suit will be barred by the principles of resjudicata.
4. In somewhat similar situation, the privy Council held in Shakarlal Vs. HIralal, AIR (37) 1950 PC 80 that when the Court hold that the suit is not maintainable by reason of failure to comply with section 80, findings given on merits are obiter and do not support the plea of the resjudicata either in favour or against the party. The Supreme Court has also considered this question though in somewhat different context in Gangappa Vs. Rachawwa AIR 1971 SC 442. In paragraph RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 58 of 147 59 10 of the said judgment, the Supreme Court observed as follows: "No doubt it would be open to a court not to decide all the issues which may arise on the pleadings before it if it finds that plaint on the fact of it is barred by any law. If for instance the plaintiffs cause of action is against a Government and the plaint does not show that notice under Section 80 of the Code of Civil Procedure claiming relief was served in terms of the said Section it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by Section 80 of the Code is being claimed. It would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under Section 80 was necessary. If the Court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties apart from the question as to the applicability of Section 80 of the Code and absence of notice there under should not operate as resjudicata in a subsequent suit where the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 59 of 147 60 identical questions arise for determination between the same parties.
5. In my considered view, the previous suit of the plaintiff was not maintainable in view of the mandatory provisions of Section 80 of the Code. Simply because a court proceeds to determine some of the issues and tries a suit, in breach of this mandatory requirement that should not operate against the plaintiff to his prejudice as resjudicata taking away his right to institute a fresh suit. In my opinion, the Court which tried the earlier suit, had no jurisdiction to proceed with the trial of the suit on merits and was bound to reject the plaint. If once this view is taken then there was no issue at all directly or indirectly in that suit for determination between the parties. The principles of resjudicata, therefore, can have no application in such a situation. It is therefore not possible to sustain the finding recorded by the District Judge that the suit is barred by the principles of resjudicata. The District Judge has decided the appeal only on the issue of resjudicata and none else and therefore, the appeal is required to be remitted to the District Court for fresh hearing and disposal in accordance with law. Accordingly, the Appeal is allowed and the decree of the District Court is set aside. The District Court is directed to hear and decide the Appeal on merits in accordance with law. No order as to costs.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 60 of 147 616. The District Court shall decide the Appeal as expeditiously as possible and in any case within four months from this date."
61. Regarding the above judgment, it has been argued by the Ld. Counsel for the respondent that the same in fact supports his arguments as the observations of the Ld. Rent Control Tribunal is only an obiter and thus does not operate as resjudicata. Therefore in my opinion, in terms of the rival stand taken by the parties, this point needs to be appreciated as it has been held by the Hon'ble Supreme Court of India in Rajinder Nath vs. I. T. Commissioner AIR 1973 SC 1933 that an observation is not a finding, a finding must be one necessary for disposal of the case. Thus the scope of inquiry to be ventured into by this Court must be as to whether the observation as to the notice as made by the Ld. Rent Control Tribunal was itself sufficient to dispose of the proceedings, without reference to other findings on merits. If the answer is in affirmative, the plea of res judicata will not sustain. If the answer is in negative, the resjudicata doctrine would operate. After discussion of the other case law referred by the parties, I would revert to this point later on.
62. The appellant has further relied upon S. K. Chatterjee Vs. RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 61 of 147 62 Subrata Biswas AIR 1984 Delhi 217, wherein it is held that where the decision on each of the issues framed in the earlier eviction petition was no doubt sufficient to dispose of the earlier proceedings and the Court did decide all of those but based its final decision only on one of them that was the one relating to service of notice to terminate the tenancy, then the decision on the remaining issues will not operate as resjudicata. It was also held 'that apart in the instant case, the change in circumstances of the landlord gave him fresh grounds for eviction. Hence the second petition was not hit by resjudicata and under the changed circumstances landlord was entitled for the relief claimed.'
63. Another case relied upon by the appellant is the case of Ashok Leyland Ltd. Vs. State of T. N. and Another, (2004) 3 SCC 1 and he has emphasized on the following pronouncement: "The applicability of Principles of resjudicata, estoppel or waiver is not applicable to an order passed without jurisdiction, which is a nullity.
118. The principle of res judicata is a procedural provision. A jurisdictional question, if wrongly decided, would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity When an order is a nullity, it cannot be supported by RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 62 of 147 63 invoking the procedural principles like estoppel, waiver or resjudicata. This question has since been considered in Ramnik Vallabhdas Madhvani Vs. Taraben Pravinlal Madhvan 46 wherein this Court observed in the following terms: (SCC pp. 51819, paras 5557)
55. So far as the question of rate of interest is concerned, it may be noticed that the High Court itself found that the rate of interest should have been determined at 6%. The principles of res judicata which according to the High Court would operate in the case, in our opinion, is not applicable. Principle of resjudicata is a procedural provision. The same has no application where there is inherent lack of jurisdiction."
64. Ld. Counsel for the respondent has not disputed the proposition of law that a judgment without jurisdiction is a nullity, but he has simultaneously submitted that there is no material to support that the judgment of the There is no doubt that a judgment of Sh. P. C. Saini, Addl. Rent Controller or for that matter the judgment of Sh. G.C. Jain, Rent Control Tribunal suffer from the vice of lack of jurisdiction.
65. Next, the appellant has relied upon Hari Om Maheshwari, Vs. M/s. Delhi Stock Exchange Association Ltd. & Anr. 2002 AIHC 4506, citing the following: RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 63 of 147 64 "Res judicataApplicability - Ban on trading activity of member of Stock Exchange Civil Suit filed by member against Unconditional withdrawal of Another civil suit filed by him alleging that communication circulated by defendant brought his trading activity to stand still Subject matter of claim in earlier suit was not same Also, there was only one defendant Moreover, cause of action for subsequent suit arose after institution of plaint in earlier suit Unconditional withdrawal of earlier suit Would not operate as resjudicata in subsequent suit."
66. Ld. Counsel for the respondent has argued that the above judgment has no application in the facts and circumstances of the present case.
67. The appellant has next placed reliance upon Tulajappa and Others vs. Subhas and others AIR 2003 Karnataka 118 wherein it is held that 'jurisdictional error is not curable and a decree without jurisdiction becomes nullity. It does not operate as res judicata Finding recorded in earlier suit that suit properties were self acquired properties of plaintiff. However, the Court recording the finding lacking in territorial jurisdiction and thus finding can be set aside in subsequent suit between the parties.' About this judgment the stand of the respondent is that the same is not applicable at all to the point in RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 64 of 147 65 dispute between the parties as the proceedings before the Court of Sh.
P. C. Saini, Addl. Rent Controller and Sh. G.C. Jain, Rent Control Tribunal were instituted by the plaintiff and there was no question of territorial jurisdiction involved.
68. Ld. Counsel for the respondent while arguing that when a judgment is given on more points than one, and each point would be sufficient to dispose of the lis, the entire judgment would operate as resjudicata on all points covered in the previous litigation has placed reliance on Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai AIR 1963 SC 385 on the following pronouncement: "10. Before the High Court it was urged on behalf of the tenant appellant that the earlier decision of that Court, which has been mentioned above, that the order of the government fixing the rent at Rs. 1,245, 4/ was not an order under S. 9 and amounted in law to the sanction of the government to the grant of a fresh lease at Rs 1,245/4/ to the former tenant operated as res judicata between the parties. The learned Judges of the High Court have rejected this contention in the view that what the Court said on the earlier occasion was obiter. The correctness of this view is challenged before us by the appellant. It is urged that the fact that another ground was given by the High Court (on the earlier RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 65 of 147 66 occasion) for its conclusion that the government order of 1927 could not stand doe, not alter the position that this ground that the government order of 1911 was not one under S. 9, subs. (2) but amounted to a sanctioning of a fresh lease was also decided as a basis for the ultimate conclusion. It is well settled that if the final decision in any, matter at issue between the parties is based by a Court on its decisions on more than one point each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res judicata between the parties. (vide Kishori Lal v. Debi Prasad, AIR 1950 Pat. 50 (FB) Annammalai v. Lakshmanan, AIR 1939 Mad.
433)."
69. It is further argued by the respondent that if a Court bases its final decision on more than one points then decision on each point operates as resjudicata in subsequent suit between same parties.
Reliance is placed on Gangappa Gurupadappa Gugwad vs. Rachawa AIR 1971 SC 442 on the following pronouncement: "13. In our view the High Court rightly relied on the observations of this Court in Vithal Yeshwant Jathar Vs. Shikandrakhan Makhtum Khan Sardesai, 19632 SCR 235 at page 290= (AIR 1963 SC 285 at p. 388) that if the final decision in any matter at issue between the parties is based by a court on its decisions on more than one point RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 66 of 147 67 each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as resjudicata between the parties. the question as to the nature of the estate taken by Lochanapa under the will and the document called codicil to the will of the testator, Rudrappa having been in issue in the suit of 1935 and it having been decided that Lochanappa had obtained an absolute estate to the property the decision would bind the appellant in any subsequent litigation to which the claim is based on the Will and codicil. We accordingly dismiss the appeal on the ground that the decision in the suit of 1935 was bar to the institution of the second suit of 1957. The respondent will be entitled to costs throughout."
70. Ld Counsel for the respondent has further relied upon Murad Biswas vs. Basti Mandal AIR 1929 CAL. 449 it is held as under: "The facts therefore are not that the suit was dismissal on a preliminary point making it unnecessary for the Court to go into the other questions were decided and made the foundation of a decree declaring the plaintiff's title, and one of the prayers in the suit, namely, that for khas possession was refused on the ground that notice had not been served on the defendant. Under circumstances such as these the case to which the learned advocate for the appellant has referred, namely, that of Nundo Lal Vs. Bidhoomkhey RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 67 of 147 68 Dehee (1) has in our opinion no application. The real reason on which this doctrine of res judicata is founded in so far as a case of the present description is concerned has been given by the Judicial Committee in the case of the Midnapur Zamindar Co. Ltd. Vs. Naresh Narayan Roy (2) at P.467 ( of 48 Cal.) where their Lordships say that they do not consider that a decision will found an actual plea of res judicata where the defendants having succeeded on the other plea, had no occasion to go further as to the finding against them. This cannot be said of the present case in view of the fact that the plaintiff's title was declared and it is only one of his prayers, namely, that for khans possession was refused on the ground that no notice was served. We are of opinion that the Courts below were right in the view that they took on the question of res judicata."
71. Next the respondent has relied upon Ram Gobinda Daw vs. H. Bhakta Bala Dassi AIR 1971 SC 664 on the following pronouncement: "20. In our opinion, the decision of this Court referred to above does not assist the appellants. It is now well established that where a dispute as to title to receive compensation amount has been referred to a Court, a decree thereon not appealed from renders the question of title res judicata in a RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 68 of 147 69 suit between the same parties to the dispute. a party in such circumstances can not be heard to say that the value of the subject matter on which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it. It is true that the test of the resjudicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases but the previous decision must be one on a title in respect of which a dispute has been raised and which dispute was heard and finally decided by the Court.
............................................................
24. In Sheodan Singh Vs. Smt. Daryao Kumar (1966) 3 SCR 300 = (AIR 1966 SC 1332) the question whether a decision given by the High Court dismissing certain appeal on the ground of limitation or on the ground that the party had not taken steps to prosecute the appeal operates as resjudicata was considered by this Court. In that case A had instituted against B two suits asserting title to a certain property. B contested those claims and also instituted two other suits to establish his title to the same property as against A. A's suits were decreed and B's suits were dismissed. B filed four appeals, two appeals against the decision given in A's suits and two appeals against the dismissal of his two suits. It is seen that all the appeals were taken on the file of the High court but the two appeals filed by B RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 69 of 147 70 against the decision in the suits instituted by him were dismissed by the High Court on the g rounds that one was filed beyond the period of limitation and the other for non prosecution. At the final hearing the High court took the view that the dismissal of B's two appeals referred to above operated as resjudicata in the two appeal filed by B against the decision in A/s suits on the question of title to the property. It was urged before this court on behalf of B that the dismissal of his appeals on the ground of limitation and non prosecution by the High Court does not operate as resjudicata as the High Court can not be considered to have heard and finally decided the question of title. This contention was not accepted. This Court referred to instances where a Court for want of jurisdiction or for default of plaintiff's appearance etc and pointed out that in respect of such on merits, would not be resjudicata in a subsequent suit. It was further pointed out that none of those considerations apply to a case where a decision is given on the merits by the trial Court and the matter is taken in.
25. It will be seen from the above reasoning that in order to operate as resjudicata, the previous decision must have been given after the matter was heard and finally decided on merits. This court has further held that the High Court in that case when it dismissed the two appeals in question, though on a preliminary ground of limitation or RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 70 of 147 71 default in printing must be considered to have heard and finally decided on merits. Far from supporting Mr. Mukherjee's contention that a decision given in default of appearance under any circumstance, operates as resjudicata, the above decision lays down clearly that a previous decision to operate as resjudicata must one in a case heard and finally decided on merits."
72. The respondent has also relied upon Pawan Kumar Gupta versus Rochiram Nagdeo AIR 1999 SC 1823 in which it has been held: "15. Though the word "dismissed" has been employed in the last paragraph of the judgment a reading of it, as a whole, would show that the plaintiff had won the suit. The Court found against the plea of the defendant that plaintiff was not the rightful owner of the building. Dismissal of the suit was not on account of any defect in the plaintiff's claim nor in the frame of the suit nor even on any technical reason, but solely because the amount claimed by the plaintiff from the defendant has been deposited by the defendant in the Court during pendency of the suit. As the plaintiff was permitted to withdraw that amount his grievance in the suit would necessarily have been redressed fully.
16. The rule of res judicata incorporated in S. 11 of the Code of Civil Procedure (CPC) prohibits the Court from trying an issue which "has been RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 71 of 147 72 directly and substantially in issue in a former suit between the same parties," and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues.
17. The two decisions of the Nagpur High Court relied on by the learned single Judge (in the impugned judgment) have followed the rule set by the Privy Council in an early (earlier) decision in Midnapur Namindari Company v. Naresh Narayan Roy, AIR 1922 PC 241. It seems that the legal principle formulated by the Privy Council in the aforesaid decision regarding this facet of res judicata has since been approved and followed by the Courts in India as the correct position. The said rule was founded on the following facts : When a zamindar sued for possession against the tenant the latter contested the suit on two alternative grounds, one by claiming occupancy right and the other by contending that the suit was premature. The Court had repelled the plea of the tenant regarding RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 72 of 147 73 occupancy right, but dismissed the suit as premature. In the subsequent suit filed by the zamindar against the same tenant their Lordships of the Privy Council did not agree that the finding regarding occupancy right in the first suit would operate as res judicata "for the tenant having succeeded on the other plea, had no occasion to go further as to the findings against him." The reason is that such adverse finding in the aforesaid suit would only be obiter dicta.
18. However, the Madras High Court in Veeraswamy Mudali v. Palaniyappan (AIR 1924 Mad 626) and the Calcutta High Court in Murad Biswas v. Basti Mandal, AIR 1929 Cal 448 distinguished the said principle in cases where the first suit was dismissed due to want of valid notice to quit, and findings on disputed issues on title were held sufficient to operate as res judicata in subsequent suit between the same parties.
19. Thus the second legal position is this : If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 73 of 147 74 choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit.
20. In this case the position is still stronger for the appellant. Dismissal of the first suit was only on account of what the respondent did during the pendency of the suit i.e. depositing the arrears of rent claimed by the appellant. The Court permitted the plaintiff to withdraw that amount under deposit for satisfying his claim. Such a decree cannot be equated with a case where the suit was dismissed as not maintainable because any adverse finding in such a suit would only be obiter dicta. The finding made in OS 75A/90 that appellant was the real owner of the building as per Ext. P. 11sale deed became final. If the respondent disputed that finding he should have filed an appeal in challenge of it."
73. The respondent has also relied upon Mamleshwar Prasad v.
Kanahaiya Lal AIR 1975 SC 907 as under: "7. Certainty of the law, consistency of rulings and comity of courts all flowering from the same principle converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances where by obvious inadvertence or oversight a judgment fails to RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 74 of 147 75 notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam."
74. Reliance has been placed by the respondent on the judgment in Government of Andhra Pradesh v. B. Satyanarayana Rao AIR 2000 SC 1729 on the following pronouncement: "8. Learned counsel for the respondent attempted to convince us that the decision in the case of State of A. P. v. V. Sadanandam, (AIR 1989 SC 2060 :
1989 Lab IC 2024) (supra) has to be ignored on the principle of per incuriam as certain relevant provisions of the Rules were not considered in the said case, and in any case this case requires to be referred to a larger Bench of three Judges. Rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. This is not the case here. In State of A. P. v. V. Sadanandam (supra) the controversy was exactly the same as it is here and this Court after considering paragraph 5 of the Presidential Order of 1975 held that the Government has power to fill a vacancy in a zone RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 75 of 147 76 by transfer. We, therefore, find that rule of per incuriam cannot be invoked in the present case. Moreover, a case cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another co ordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law. We, therefore, reject the arguments of learned counsel for the respondents."
75. Also relied upon by the respondent is law propounded in Bharati Amma vs. Kumaran Peethambaran AIR 1990 KERALA 88 wherein it is held as under: "Applicability of the same abstract question of law The object of the rule of resjudicata is not to fasten upon the parties special principles of law as applicable to them interse but to ascertain their rights and the facts upon which these rights directly and substantially depend and to prevent the ascertainment from being nugatory by precluding the parties from reopening or re contesting that which has been finally decided.
Resjudicata is a rule of procedure and it can not change the law of the land as applicable to specific parties by decisions of Courts.
A finding or decisions inter parties based on a certain view of the law connected with the facts RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 76 of 147 77 relating to right of parties is binding on them even though the abstract proposition of law dissociated from the facts may not be so. Subsequent change of law, statutory or interpretative can not take away the binding force of the previous decision inter parties. That does not mean that in spite of the change of law the earlier decision will bind the parties in future disputes. When the cause of action and reliefs are different, the new law alone will govern. That is because the matter in issue in the subsequent proceeding is different since the law to be interpreted is different. A statutory change of law with retrospective effect, depending upon statutory provision may be capable of reopening concluded decision. But a different interpretation of law overruling an earlier decision not inter parties on the question of interpretation of law can not have the effect of reopening the earlier decision which has become final between parties. Otherwise, whenever there is an interpretative change in law, fresh litigations.
Bar of resjudicata is mandatory, when it is applicable, it could be avoided only on grounds available under section 44 of the Evidence Act. Resjudicata is not concerned with the question whether the previous decision is right or wrong. A wrong decision rendered with jurisdiction. If not corrected by appeal revision review or other methods available by law will have as such binding force as a right decision. Jurisdiction to RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 77 of 147 78 decide involves the right to err within the limits of jurisdiction. By such error, if something is done assuming non existent jurisdiction or wrongly omitting to exercise the vested jurisdiction by an erroneous interpretation of law, the question can not operate as resjudicata. The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi judicial body can not be impeached otherwise than in appeal, unless it relates to a matter of jurisdiction. When the decision is a nullity or want of inherent jurisdiction, no question of resjudicata will arise."
76. The case of Sheodan Singh Vs. Daryao Kunwar AIR 1966 SC 1332 has been relied upon by both the parties. It is held that: "13. Re. (iv) : This brings us to the main point that has, been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 78 of 147 79 been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of nonjoinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 79 of 147 80 ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merits, the result of the High Court's decision is to confirm the decision on the issue of the title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial Court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits No. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial Court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 80 of 147 81 the trial Court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial Court on the merits. It is well settled that where a decree on the merits is appealed from, the decision of the trial Court loses its character of finality and what was once res judicata again becomes res sub judice and it is the decree of the appeal Court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming in toto the trail Court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial Court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot, therefore, accept the contention that even though the trial Court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 81 of 147 82 and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal"
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20. A consideration of the cases cited on behalf of the appellant therefore shows that most of them are not exactly in point so far as the facts of the present case are concerned. Our conclusion on the question of res judicata raised in the present appeals is this. Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial Court given on RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 82 of 147 83 merits, and if that is so the decision of the appeal court will be res judicata whatever may be the reason for the dismissal. It would be a different matter, however, where the decision of the appeal court does not result in the confirmation of the decision of the trial Court given on the merits, as for example, when the appeal court holds that the trial Court has no jurisdiction and dismisses the appeal, even though the trail Court might have dismissed the suit on the merits. In this view of the matter, the appeals must fail, for the trail Court had in the present case decided all the four suits on the merits including the decision on the common issues as to title. The result of the dismissal on a preliminary ground of the two appeals arising out of suits Nos. 77 and 91 was that the decision of the trial Court was confirmed with respect to the common issues as to title by the High Court. In consequencea the decision on those issues became res judicata so far as appeals Nos. 365 and 336 are concerned and S. 11 of the Code of Civil Procedure would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has become res judicata, appeals Nos. 365 and 366 must fail."
77. Similarly the case of Ram Kishan Vs. Bharat Bhushan 1979 Rajdhani Law Reporter 194 has been cited by both the parties RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 83 of 147 84 wherein it has been held that 'if an Eviction Petition is held as not maintainable (on the ground of defective notice) it would be futile to decide merits (relationship of landlord and tenant) of controversy because such a finding would not operate as resjudicata.' Ld. Counsel for the respondent has argued that this case is distinguishable and does not apply to the instant case.
78. The law propounded in Jeevan Kumar Khanna Vs. Ajudhia Pershad Murgai & Ors. 34 (1988) Delhi Law Times 355 has also being cited by both the parties. In this case the Hon'ble High Court of Delhi relied upon Ram Kishan vs. Bharat Bhushan 1979 Rajdhani Law Reporter 194 and held that that an eviction petition deemed to have been dismissed on a technical ground then any finding given on merits of the case would not operate as resjudicata. It is submitted by Ld. Counsel for the respondent that this judgment by Hon'ble Mr. Justice P. K. Bahri is per in curium.
79. Similarly both the parties have cited Shankar Lal Patwari Vs. Hiralal Murarka AIR 1950 PC 80 in which Court has held that 'suit is not maintainable by reason of failure of notice to comply with section 80 CPC. Finding given on merits are obiter and do not support plea of resjudicata either in favour of or against any party'.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 84 of 147 8580. To bring home the argument that that doctrine of merger does not apply if the appellate court has disposed of the appeal on a technical point and in such a case the judgment of the trial court would only prevail, Ld. Counsel for the respondent has relied upon the law laid down in State of Kerala vs. Kondottyaparambanmossa (2008) 8 SCC 65 in which it has been held that doctrine of merger is not applicable when the matter was not considered on merits but only on the ground of delay and that it would apply only in a case when a higher forum entertains an appeal or revision and passes an order on merits.
81. Considering the submissions advanced and the law cited, it is axiomatic to state that judgments are passed on the particular facts of the case before the Court and the points raised in controversy. Thus while culling out the precedents from a decided cases, it must be taken care of as to what aspects were under consideration on which the judgment was rendered. In this way, the precedents can be applied in correct manner in the matter before the Court. It is in this context, the ratio of various case law cited by the Ld. Counsel for the parties has been considered and applied to the facts and circumstances of the present case.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 85 of 147 8682. The doctrine of resjudicata, which has been statutorily recognized, has its genesis in the elements of public policy primarily that it is in the interest of peace in the society that there should be an end to litigation and that no one should be vexed twice for the same cause. The raison d'etre of resjudicata is to extend finality to judicial decisions so that finally settled issues are not agitated again and again.
83. The appellant has propounded lack of jurisdiction as far as the judgments of the Court of Sh. P. C. Saini, Addl. Rent Controller and Sh. G.C. Jain, Rent Control Tribunal are concerned and thus their being not applicable as resjudicata. Nothing has been demonstrated by the appellant to show the lack of jurisdiction by there forums.
Jurisdiction has three facets viz. inherent (as to the subject matter), territorial (as to the place of suing) and pecuniary (as to the monetary value). A judgment by a Court without inherent jurisdiction (jurisdiction as to the subject matter) is a nullity per se and does not bind any of the parties. However the judgment is not a nullity if the defect is as to pecuniary or territorial jurisdiction and no objection is taken at the first instance or opportunity, as in such circumstances the objection would be deemed to have been waived in view of section 21 of the Code of Civil Procedure. In the case filed before the Ld. Rent RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 86 of 147 87 Controller the petition/application for eviction was instituted by the appellant and the there is no issue regarding pecuniary or territorial jurisdiction. Nothing has been demonstrated before me to show the lack of jurisdiction, on any aspect, by the Court of Sh. P. C. Saini, Addl. Rent Controller and Sh. G.C. Jain, Rent Control Tribunal.
Before the Ld. Trial Court the appellant had argued that the said courts were not competent to entertain and adjudicate upon the present lis, therefore their decision could not operate as resjudicata.
The said argument of the appellant was negatived by the Ld. Trial Court by referring to the Explanation VIII of section 11 of the Code of Civil Procedure, and I am in full agreement with the reasoning given by the Ld. Trial Court.
84. One more point taken up by the appellant before the Ld. Trial Court for nonapplicability of the resjudicata is the change in the interpretation of law due to subsequent judicial pronouncements has also been rejected by the Ld. Trial Court, and rightly so. Even an erroneous decision on a question of law operates as resjudicata between the parties to the lis as held in Mohonlal vs. Binoy Krishna AIR 1953 SC 65. The exception to the same is when the decision is on the question of jurisdiction and such question of jurisdiction is a RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 87 of 147 88 pure question of law as held in Isabella vs. M. A. Susai AIR 1991 SC 993. This, however, is not the point in controversy here, and any further discussion would digress into the realm of academics.
85. Now reverting to the question whether the dismissal or rejection of the suit on a technical issue when such technical issue by itself is sufficient to dispose of the suit, would invite the application of res judicata and, if not so, what would be the effect of the other points decided on merits.
86. In the case in hand, the judgment which is propounded as res judicata is the judgment of the Ld. Rent Controller which was challenged in appeal and upheld by the Ld. Rent Control Tribunal.
The judgment of the Ld. Rent Control Tribunal was challenged by the appellant in the Hon'ble High Court of Delhi but the appeal was dismissed in default of appearance of the appellant. As the appeal has been decided by the Ld. Rent Control Tribunal on merits and it has not been dismissed on any technical issue of limitation or any other ejusgem generis technical reason as per the law pronounced in State of Kerala vs. Kondottyaparambanmossa (2008) 8 SCC 65, as relied by the respondent, thus the argument of the respondent that the judgment of the Ld. Rent Controller does not get merged with the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 88 of 147 89 judgment of the Ld. Rent Control Tribunal is not sustainable. The law in the above case is applicable when the dismissal of the appeal is without it being heard on merits on the ground of delay etc. The same is not the case here.
87. There is no dispute between the parties that as per the law prevalent at the time of decision of Sh. P. C. Saini, Addl. Rent Controller and Sh. G.C. Jain, Rent Control Tribunal, Delhi, a landlord even prior to instituting a petition for eviction under the Rent Act was required to determine the tenancy of the tenant under Section 106 of the Transfer of Property Act. The judgment of Ld. Rent Control Tribunal while dismissing the appeal dealt with the notice of determination of tenancy and held the notice to be not reasonable being only of 10 days though it ought to be of 15 days and has relied upon the relevant case law.
88. The finding by the Ld. Rent Control Tribunal as to the notice has not emerged out of the blue. It was a legal requirement and sine quanon for the appellant to succeed in its case. In an eviction petition where the notice determining the tenancy has been so statutorily provided, it has to be complied with. It cannot be dispensed with, until and unless so provided by the law. If a law has provided a certain RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 89 of 147 90 thing to be done in a certain manner, it has to be done in that manner only. The moot question then is, whether the appellant would have been successful in his case, had the findings on other issue in the judgment of the Ld. Controller and Ld. Rent Control Tribunal had been in its favour? The answer is still no, as the eviction petition would have still failed for want of notice notwithstanding other findings in favour of the appellant. Thus the positive and negative checks confirm that either way the ultimate decision of the case would have been against the appellant. This by itself shows that the question of notice goes to the root of the matter and the case hinged on the same. Thus the question of notice was by itself sufficient to eclipse the other issues. The eviction petition was in fact nonest for want of adequate notice.
89. It is noteworthy to point out that while considering the aspect of notice the Ld. Rent Control Tribunal has consciously used the word 'rejected'. This by itself shows that the Ld. Tribunal was conscious of the fact that that the invalidity of notice went to the root of the matter and the eviction petition merited rejection without dwelling into the merits of the case. The mere fact that this was not considered by the Ld. Rent Controller is inconsequential. For want of the notice, the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 90 of 147 91 eviction petition of the appellant had no substratum and thus no vested right to be considered on merits. Thus the law pronounced in the judgments of Jeevan Kumar Khanna Vs. Ajudhia Pershad Murgai & Ors. 34 (1988) Delhi Law Times 355; Ram Kishan Vs. Bharat Bhushan 1979 Rajdhani Law Reporter 194 and Jeevraj Munshi Shah Vs. Collector Thane, 1995 AIHC 2642 (in which reliance has been placed upon Gangappa Vs. Rachawwa AIR 1971 SC 442) apply with full force to the present case.
90. Thus, for the above reasons, I differ with the findings of the Ld. Trial Court and therefore reverse the finding of the Ld. Trial Court and hold the issue in favour of the appellant stating that the suit is not barred by the resjudicata.
Issue no. 8 Whether the notice in question stands exhausted?
91. It has been argued by the Ld. Counsel for the respondent that the Ld. Trial Court should have held that because of the appellant having sought a declaration about the service of notice through a separate civil suit, and the plaintiff, upon contest, having withdrawn the said suit without any leave from the Court to institute a suit on the same cause of action, is estopped from filing the present suit on the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 91 of 147 92 same cause of action namely the determination of the tenancy of Dr. Gopal Singh Chawla, the predecessorininterest of the respondents and thus the notice dated 19.10.2008 has become null and void. In fact, the appellant has abandoned the plea of the tenancy of Dr. Gopal Singh Chawla having been determined and on this ground alone the plaintiff is estopped from filing a fresh suit on the cause of action alleged to have arisen due to the alleged determination of the tenancy of the respondents. The findings of the Ld. Trial Court on the issue No. 8 are patently wrong. The Ld. Trial Court ought to have considered the factum of the appellant having taken recourse to a Civil Suit for establishing the termination of the tenancy of the Predecessor in interest of the respondent, and also having filed different eviction petitions against Dr. Gopal Singh Chawla, the notice in question, even if proved to have been served upon Dr. Gopal Singh Chawla, stood exhausted. It should also have been considered and held by the Ld. Trial Court that the effect of the dismissal by the Court of the Eviction Petitions, as well as the civil suit was that the notice under Section 106 Transfer of Property Act ceased to have any effect and the original tenant, namely Dr. Gopal Singh Chawla, was restored to the status quo ante i.e. the position of the contractual tenant. The Ld. Trial Court RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 92 of 147 93 has completely ignored the judgment of the Allahbad High Court reported as AIR 1976 Allahbad 321 which was cited by the respondent in support of his this present contention and it was held in that judgment that 'when the suit for ejectment against the original tenant has been dismissed by the Court, the notice under section 106 of the Transfer of Property Act ceases to have effect and thus the original tenant is then restored to the position of a contractual tenant and is liable to ejectment only after termination of his tenancy by a fresh notice and that that position will enure to the benefit of his heirs as well'. the Ld. Trail Court failed to take notice of the fact that at the relevant time the settled law was that for filing an eviction petition against a tenant, notice of determination of tenancy was essential and was treated as a part of the arising of the cause of action and as such upon dismissal of the eviction petitions, as shown by Ex. PW 1/R9 and Ex. PW 1/R10, Ex. PW 1/R1, Ex. PW 1/R2 and Ex. PW 1/R4, the notice of termination of tenancy stood exhausted.
92. It has further been argued by the respondent that when the notice of determination of tenancy has been propounded as cause of action in a previous suit and a judgment has been rendered on the same by the Court, then the same notice cannot be based as cause of RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 93 of 147 94 action in any subsequent suit, as it stands exhausted. In the present case the appellant has filed an eviction petition on the basis of notice to quit dated 19.10.1978 and the petitioner was dismissed by the Ld. Rent Controller and then appeal dismissed by the Ld. Rent Control Tribunal and thereafter the appellant having filed a appeal against the judgment of the Ld. Rent Control Tribunal in the Hon'ble High Court of Delhi which appeal had been dismissed in defaultofappearance of the appellant, the said notice cannot be used as the basis of cause of action in subsequent suits. The notice cannot be reagitated again and again.
93. In this regard, the argument of the appellant is that notice does not get exhausted by the pronouncement of judgment by the Court. A notice to quit is a fact and is a result of the act of the parties. Thus it can get exhausted only by the acts of the parties and not by any other event. It is also submitted that the Ld. Rent Control Tribunal has only observed that the notice was not reasonable visàvis the quit period as only 10 day's notice was given though it ought to reasonably of 15 days. It is argued that there is no circumstance to show that the notice has been exhausted. Reliance is placed upon the law pronounced in Calcutta Credit Corporation Ltd. v. Happy Homes (Private) Ltd.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 94 of 147 95AIR 1968 SC 471 relying upon the following pronouncement: "Clearly Section 113 contemplates waiver of the notice by any set on the part of the person giving it, if such an act shows an intention to treat the lease as subsisting and the other party gives his consent express or implied therefor. The law under the Transfer of Property Act on the question in hand is not different from the law in England. Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting. It was held in (1868.) 3 Ex 303 that a notice determining a tenancy cannot be withdrawn. In (1868) 3 Ex 303 an annual tenancy of a farm under a written lease commencing on Lady Day i. e. March 25, was determined by a notice by which the landlord called upon the tenant to quit the farm at the expiration of the current year's tenancy. Before the expiry of the year of tenancy the arrears of rent were paid up by the tenant, and the notice was withdrawn and the tenant continued in occupation of the farm under the terms of the original agreement. It was held by the Court of Exchequer that the tenancy was determined by the notice to unit and a surety for payment of rent under the original lease was not liable for rent falling due after the expiry of the notice Kelly, C. B., observed that whether the notice is given by the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 95 of 147 96 landlord or the tenant the party to whom it is given is entitled to insist upon it, and it cannot be withdrawn without the consent of both. The consent of the parties makes a new agreement, and the rent became due under a new agreement. In our judgment, that principle applies to the law of landlord and tenant in India. Therefore on the expiration of the period of notice dated August 12, 1953, the tenancy of Allen Berry stood determined."
94. The appellant has further relied upon Mohan Lal Goela vs. Siri Krishna AIR 1978 DELHI 92 arguing that relying upon the law laid down in Calcutta Credit Corporation Ltd. v. Happy Homes (Private) Ltd. AIR 1968 SC 471 it has been held that 'once a valid notice is served it never gets exhausted. No law says that notice is exhausted if the proceedings end in failure. The tenancy once determined is determined for ever. The landlord and tenant may come together again and may by agreement, express or implied, continue the relationship of landlord or tenant. That is another thing but the doctrine that a notice is exhausted is in my opinion unknown to the law..."
95. No pronouncement of law differentiating or distinguishing the law pronounced in the above cases has been propounded by the respondent except the judgment of AIR 1976 Allahbad 321. In view RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 96 of 147 97 of the direct law laid down by the Hon'ble Supreme Court of India in AIR 1968 SC 471 and followed by the Hon'ble High Court of Delhi in AIR 1978 DELHI 92, the judgment relied upon by Ld. Counsel for the respondent has not application in the facts and circumstances of the case.
96. To exhaust means to 'put an end to' or to 'annihilate' i.e. the things exhausted get waived, wipedoff or left of no effect. The judgment of Shri Gian Chand Jain, Ld. Rent Control Tribunal, Delhi has not found the notice as illegal per se. It has only found the notice period of ten days to be not proper or adequate. Thus perse the notice has not been quashed or impugned. Of course, the eviction petition has been dismissed/rejected for want of adequate notice. The case law relied upon by the Ld. Counsel for the appellant as AIR 1968 SC 471 and AIR 1978 DELHI 92 clearly gives pronouncement that there must be some specific act of the parties to exhaust the notice. There is no fact or circumstance demonstrated in the case which shows any act or omission on the part of the appellant to exhaust or waive the notice.
97. The Ld. Trial Court has rightly held the above issue against the respondent.
Issue no. 5 Whether the tenancy of the deceased Dr. Chawla was RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 97 of 147 98 duly terminated during his life time? If so, to what effect? OPD & Issue no. 6 Is the plaintiff entitled to the suit property from the defendant? OPP
98. The question for consideration is whether the notice dated 19.10.1978 is within the four corners of the law and if so whether it has been duly served. If the answer is in affirmative, then what consequences flow from the same and further whether the appellant has established the necessary ingredients on record to establish his cause of action to get the relief claimed.
99. Ld. Counsel for the respondent has argued that the appellant has filed the instant suit seeking possession by making specific averments that the tenancy of Dr. Gopal Singh Chawla (predecessorininterest of the Respondent herein) was for residentialcumcommercial purposes, and that the tenancy of Dr. Gopal Singh Chawla was determined during his life time by a notice dated October 19, 1978 and that for that reason the tenancy of Dr. Gopal Singh Chawla was not heritable.
It has been specifically mentioned in paragraphs 3, 7 and 8 of the plaint that the purpose of letting having been for dual purposes i.e. for residentialcumcommercial purposes, and the tenancy having been RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 98 of 147 99 determined, the Respondent Smt. Ram Piyari Chawla was not entitled to continue in possession. The service of notice has not been proved by the appellant. Without prejudice to the same, the notice is not within the four corners of the law.
100. It has been argued by the Ld. Counsel for the appellant that Shri Gopal Singh Chawla, the predecessorininterest of the respondents has admitted the receipt of notice in his written statement before the Additional Rent Controller.
101. Ld. Trial Court has discussed the evidence on record which goes to show that not only the notice dated 19.10.1978 of determination of tenancy was Ex. PW1/3 was admitted by Shri Gopal Singh Chawla, the predecessorininterest of the respondents in his written statement (Ex. PW1/7), there is also a reply dated 24.10.1978 sent by him which is Ex. PW1/5 in which he had disputed the validity and authenticity of the notice. Further analogy has been drawn by the Ld. Trial Court from the deposition of the defendant no. 2, who is none other than the son of Shri Gopal Singh Chawla, the predecessor ininterest of the respondents, and the inference drawn goes to show the service of notice of determination of tenancy.
102. Nothing has been shown as to how the notice is not valid. Even RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 99 of 147 100 the Ld. Rent Control Tribunal did not found any illegality in the notice per se. It only found the time to be inadequate. With the efflux to time even the said defect stood cured. Under the present law of notices, it suffices if the suit is filed after 15 days of the service of notice. As per the recent pronouncements of law even filing of an eviction petition by itself constitutes notice of termination of tenancy (Jeevan Diesels & Electricals Ltd. vs. Jasbir Singh Chadha (HUF) 183 (2011) DLT
712.
103. That being the position now the question arises, as to the effect of notice and whether the appellant is entitled to the decree of possession.
104. Ld. Counsel for the appellant has argued the suit for recovery of possession has been filed by the appellant against the respondents on the ground of their predecessor Dr. Gopal Singh Chawla being a tenant in the said property and the tenancy of the said Dr. Gopal Singh Chawla having been determined in his life time and no right to continue in possession of the premises having been survived to the respondents/defendants under the law. The learned Trial Court has held on all the issues in favour of the appellant/plaintiff, but has dismissed the suit of the appellant/plaintiff on the ground that the suit RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 100 of 147 101 of the plaintiff/appellant was barred in view of the principles of res judicata, it having been held in an earlier Eviction Petition under the Delhi Rent Control Act instituted by the appellant against the predecessor of the respondents that the premises were let out to the predecessor of the respondents for residentialcumclinic purposes.
The learned Trial Court has for the same reason also held that though the notice determining the tenancy had been served by the appellant on the predecessor of the respondents, since the purpose of letting on the principles of resjudicata was held to be residentialcum commercial, the determination of tenancy of the predecessor of the respondents will be of no consequences as the respondents, as legal representatives of their predecessor, will inherit the tenancy as per the ordinary law of succession and will enjoy protection of provisions of the Delhi Rent Control Act. The Ld. Trial Court treating the suit to have been barred by the principles of resjudicata did not herself determine the purpose of letting.
105. The appellant has further argued that the Ld. Trial Court has not considered that that the earlier legal probabilities, the finding wherein of the premises having been let out for residentialcumclinic purposes, was sought to be used against the appellant, is not res RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 101 of 147 102 judicata because the ultimate dismissal of the legal proceedings was on the ground of the tenancy having not been determined. The Ld. Trial Court ought to have held that it was only in the light of the findings in the earlier proceedings under the Rent Act that the Appellant had in the plaint mentioned for record that the premises had been held to be let out to the predecessor of the respondents for residentialcumclinic purposes. The Ld. Trial Court did not consider that even if the premises are held to be let out for residentialcum clinic purposes, the tenancy thereof was/of not heritable. There is no rationale for discriminating between the premises let for residential purposes only and the premises let out for residentialcumcommercial purposes. Section 2 (1) of the Delhi Rent Control Act, 1958 ought to be read to mean that the tenancy whether of residential or for commercial purposes, is not heritable and that there is no rationale in clubbing the premises let for residential cumclinic or commercial purposes with the premises let for commercial purposes only. The classification of the premises let for commercial purposes alone is entirely different from the classification of the premises let out for residentialcumcommercial purposes. The premise let out for residentialcumcommercial purposes can be used by the landlord for RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 102 of 147 103 residential purposes and as such, for the purposes of Section 2 (1) of the Rent Control Act, ought to be classified as the premises let for residential purposes only. The purposes of letting of the premises ought to be determined at the time of the adjudication of the proceedings and the determination, if any, more than 20 years prior thereto, ought not be relied upon.
106. Appellant further argues that in the present day when the courts are prohibiting use of the residential premises for commercial purpose, the agreement even if by the landlord permitting the tenant to use residential premises for commercial purposes, would be void and cannot be taken advantage of by the tenant. The Ld. Trial Court did not consider that in the facts and circumstances of the present case the premises were let to the predecessor of the respondents by the Government of India only which itself had prescribed the use of the premises for residential purposes only and in the absence of any document whatsoever permitting the predecessor of the respondents to use the premises for any clinic or commercial purposes, it could not be held that the premises had been let out for residentialcumcommercial purposes. The Ld. Trial Court did not consider that even the appellant had at no time consented to the predecessor of the respondents using RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 103 of 147 104 the premises for any commercial purposes. The Ld. Trial Court did not consider that the predecessor of the respondents was residing in the premises along with his wife, three sons, etc. and considering the size of the total accommodation, the use, if any, of the premises for clinic purpose was of a minuscule portion only and such use of a minuscule portion of the tenancy premises for professional activity cannot make the tenancy of the residential premises, which is otherwise not heritable, as heritable. The Ld. Trial Court ought to have held that upon the determination of the tenancy of the predecessor of the respondents, the tenancy rights were not inherited by the respondents and the respondents were liable to deliver possession of the premises to the appellant. The Ld. Trial Court did not consider that the premises are situated in a prime residential colony of Delhi and are as per the Master Plan of Delhi and the Zonal Plan of the area can be used for residential purposes only and to hold such tenancy of such a premise sot be heritable and to hold such premises at par with commercial premises, is travesty of law.
107. It is submitted by Ld. Counsel for the appellant that the pleadings have to be liberally construed and in a meaningful manner.
When the appellant pleaded in the plaint that the tenancy of Dr. Gopal RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 104 of 147 105 Singh Chalwa was residentialcumcommercial then the appellant was only referring to what was held by the Ld. Rent Controller and the Ld. Rent Control Tribunal and that the factum of judgments was referred to but the appellant had never pleaded the tenancy to be residentialcumcommercial and for all intents and purpose it was residential and the theory of dominant user can be pressed into service and thus the use of the premises by Dr. Gopal Singh Chawla, being a doctor, was only incidental as for clinical purpose. The attendant facts do not warrant any other proposition.
108. It is also argued that even if the respondent Smt. Ram Piari Chawla had any right to occupy the premises was subject to a rider that she was financially dependent upon her husband Shri Gopal Singh Chawla. These facts were within her especial knowledge or that of her son and thus it was incumbent upon them to produce the necessary evidence to establish her dependency notwithstanding the question of onus of proof. The evidence on record indicates that the truth has been withheld from the court thus an adverse inference is liable to be drawn against the respondents. When both the parties have led evidence the question of onus fades into insignificance. So much so, now after the death of Smt. Ram Piari Chawla the right, even if it had existed, RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 105 of 147 106 stands extinguished and other defendants have no right to continue to hold the possession of the suit property.
109. Ld. Counsel for the respondent has argued that the appellant has filed the instant suit seeking possession by making specific averments that the tenancy of Dr. Gopal Singh Chawla (predecessorininterest of the respondent herein) was for residentialcumcommercial purposes, and that the tenancy of Dr. Gopal Singh Chawla was determined during his life time by a notice dated October 19, 1978 and that for that reason the tenancy of Dr. Gopal Singh Chawla was not heritable.
It has been, repeatedly and specifically mentioned in paragraphs 3, 7 and 8 of the plaint that the purpose of letting having been for dual purposes i.e. for residentialcumcommercial purposes, and the tenancy having been determined, the respondent Smt. Ram Piyari Chawla was not entitled to continue in possession.
110. The respondent further argues that the appellant filed an application under Order 6 Rule 17 CPC seeking to take away the averments that the tenancy was for residentialcumcommercial purposes and seeking to substitute it with the plea that the tenancy was for residential purposes. Apparently, the appellant wanted to bring his case within the scope the Section 2(1) of the Delhi Rent Control Act.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 106 of 147 107The said application was allowed by the Ld. Trial Court. The respondent herein filed a Revision Petition in the Hon'ble High Court of Delhi which was admitted and the proceedings before the trial court were stayed. However, on 26.02.1996, the Counsel for the appellant made a categorical statement before the Hon'ble High Court of Delhi that the appellant was not pressing his application under Order 6, Rule 17 read with Section 151 CPC, which application was dismissed by the Hon'ble High Court of Delhi vide order dated 26.02.1996.
111. The respondent further argues that the plea of the appellant as projected during the arguments that he had made the averments about the tenancy being for residentialcumcommercial purposes since it had been so held by a Court of competent jurisdiction in a previous litigation between the parties, cannot be accepted in as much as it has nowhere been stated in the plaint that the tenancy was actually for residential purposes and that since it had been held by the Court that it was for residentialcumcommercial purposes, the plaintiff, appellant was stating so in the plaint. The appellant cannot be permitted to somersault by taking up the stand that the tenancy was for residential purposes and not for residentialcumcommercial purposes. A plain reading of the plaint and replication specifically shows that the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 107 of 147 108 appellant accepted the findings of the Rent Controller, the Rent Control Tribunal and further confirmed by the High Court of Delhi that the tenancy was for residentialcumcommercial purposes. The appellant had filed an appeal against the said judgment. The said appeal, being Rent Control Appeal No.461/1968 was dismissed by Sh.
G.C. Jain, the then Rent Control Tribunal, Delhi vide his judgment dated August 24, 1971. It is pertinent to note that in the said appeal the Plaintiff herein had argued on all points raised by him on merits. The Ld. Tribunal confirmed all the findings of Sh. P.C. Saini, the then Rent Controller, Delhi and rejected all the grounds of eviction taken up by the Plaintiff herein. The Ld. Tribunal confirmed the findings of facts that were arrived at by the Rent Controller inasmuch as the Ld. Tribunal held that the tenancy was for residentialcumcommercial purposes. The High Court dismissed SAO No.273 of 1971 filed by the appellant herein against the judgment given by Sh. G.C. Jain, Rent Control Tribunal, Delhi, for default of appearance of the appellant before the High Court, the High Court in fact confirmed the entire judgment passed by Sh. G.C. Jain, Rent Control Tribunal, Delhi. The effect of such confirmation is that the findings of Sh. G.C. Jain, even on merits of the case stood confirmed.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 108 of 147 109112. Shri Bhuchar further argues that an attempt is being made the appellant to project that predominant user of the premises by Dr. Gopal Singh Chawla was for residence, it should be treated as if letting was for residential purposes and the court should proceed with the matter on that basis. Firstly this plea does not find mention anywhere in the pleadings. Neither the plaint nor the replication finds any mention of this plea. Rather the entire pleadings of the appellant are to the effect that the premises were let out for residentialcum commercial purposes except that at one place in the replication it is stated that "It is denied that the premises were let for residentialcum commercial purposes." Thus no evidence can be led by the appellant on a fact which is not pleaded.
113. While arguing on the aspect of liberal construction of pleadings Ld. Counsel for the appellant has relied upon Ram Sarup Gupta v.
Bishun Narain Inter College AIR 1987 SC1242. This case law is relied upon by the respondent to cite that in the absence of pleading no evidence cannot be considered. The relevant para of the judgment as cited by the parties is under: "6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 109 of 147 110 was irrevocable as contemplated by S. 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 110 of 147 111 found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul, (1966) 2 SCR 286 : (AIR 1966 SC 735) a Constitution Bench of this Court considering this question observed (at p. 738 of AIR) :
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 111 of 147 112 and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
114. On the aspect of the absence of pleadings and its effect Ld. Counsel for the respondent has cited Anathula Sudhakar v. P. Buchi Reddy AIR 2008 SC 2033 as under (the underlining as per the emphasis of the respondent): "23. The second question of law formulated by the High Court is a mixed question of fact and law, that is whether the factual ingredients necessary to claim the benefit of section 41 of the Transfer of Property Act were made out by plaintiffs. To attract the benefit of section 41 of TP Act, the plaintiffs had to specifically plead the averments necessary to make out a case under section 41 of the T.P. Act and claim the benefit or protection under that section. The averments to be pleaded were :
(a) that Rukminibai was the ostensible owner of the property with the express or implied consent of Damodar Rao;
(b) that the plaintiffs after taking reasonable care RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 112 of 147 113 to ascertain that the transferor or Rukminibai had the power to make the transfer, had acted in good faith in purchasing the sites for valid consideration; and
(c) that therefore, the transfer in favour of plaintiffs by Rukminibai was not voidable at the instance of Damodar Rao or any one claiming through him.
These pleas were not made in the plaint. When these were not pleaded, the question of defendant denying or traversing them did not arise. In the absence of any pleadings and issue, it is un understandable how a question of law relating to section 41 of TP Act could be formulated by the High Court.
24. The third question of law formulated by the High Court, is also a mixed question of fact and law firstly whether there was an oral gift and secondly whether the alleged oral gift was valid. Here again, there was no averment in the plaint in respect of any gift, oral or otherwise, by Damodar Rao in favour of Rukminibai or about its validity. Consequently there was no opportunity to the defendant to deny the oral gift in his written statement. There was no issue on this aspect also. Therefore, this question, which could not have been considered in the suit, could not also have been considered in the second appeal.
25. The High Court, in the absence of pleadings and issues, formulated in a second appeal arising RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 113 of 147 114 from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. The only averment in the plaint that plaintiffs were the owners of the suit property having purchased the same under sale deeds dated 9121968, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under section 41 of TP Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled.
26. The High Court while reversing the decision of the first appellate court, examined various aspects relating to title and recorded findings relating to title. It held that gifting a property to a daughter or sister by way of 'Pasupu Kumkumam", could be done orally and did not require a registered instrument. Even though there was no independent evidence of oral gift except the assertion to Rukminibai (which was denied by Damodar Rao), the High Court, held that there was an oral gift in her favour. It also accepted the evidence of PW3 and PW5 and plaintiffs, that Damodar Rao negotiated for the sale of the plots representing that they belonged to his sister Rukminibai and that he attested the sale deeds as a witness and identified the Rukminibai as the executant before RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 114 of 147 115 the SubRegistrar and therefore, section 41 of TP Act came to the aid of plaintiffs and Damodar Rao was estopped from denying the title of his sister. The High Court in a second appeal arising from a suit for an injunction, could not have recorded such findings, in the absence of pleadings and issue regarding title.
27. We are therefore of the view that the High Court exceeded its jurisdiction under section 100 CPC, firstly in reexamining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration."
115. Ld. Counsel for the respondent has further relied upon Kishor Kirtilal Mehta v. Lilavati Kirtilal Mehta Medical Trust AIR 2007 SC (Supp) 806 in which it has been held that there cannot be any doubt that no amount of evidence can be looked into on a plea never put forward. The respondent also relied upon Siddik Mahomed Shah v. Mt. Saran and others, AIR 1930 PC 57 in the same vein.
While referring to Sea Lark Fisheries vs. United India Insurance RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 115 of 147 116 Company Ltd. (2008) 4 SCC 131 Ld. Counsel for respondent cited that a plea not raised in the plaint cannot be accepted. Similarly in Siddik Mahomed Shah vs. Mt. Saran AIR 1930 PC 57(1) it is held that no amount of evidence can be looked into on a plea never put forward. Case of State Bank of India v. S. N. Goyal AIR 2008 SC 2594 has also been cited by the respondent as under (the underlining as per the emphasis of the respondent): "Re : Question (ii) Effect of absence of pleading.
13. The plaint did not contain any plea that the order of removal by the Appointing Authority (Chief General Manager) was vitiated on account of his consulting and acting on the advice of the Chief Vigilance Officer of the Bank. Nor did it contain any allegation that the Appointing Authority acted on extraneous material in passing the order of removal. In the plaint, the challenge to the order of removal was on the ground that the enquiry by the Enquiry Officer was opposed principles of natural justice that is : (i) the charge was vague and not established; (ii) he was not given reasonable opportunity to defend himself;
(iii) material witnesses were not examined; (iv) documents relied on were not formally proved; (v) burden of proof was wrongly placed on him; (vi) findings in the enquiry report were based on surmises and conjectures; and (viii) the Enquiry RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 116 of 147 117 Officer was prejudiced. The respondent had also averred that the Appointing Authority had approved the recommendation made by the Disciplinary Authority for imposition of penalty of removal, without application of mind and without giving him a hearing. He alternatively contended that the punishment imposed was severe and disproportionate to the gravity of the proved charge. But there was absolutely no plea with reference to the advice/recommendation of the Chief Vigilance Officer of the Bank. However, during the examination of the Bank's witness DW 1 (T.S. Negi, Deputy Manager) it was elicited that on 18.1.1995, the Disciplinary Authority had put up a recommendation to impose the penalty of reduction of pay by four stages by taking a lenient view; that the Appointing Authority had by his note dated 18.1.1995 accepted the said recommendation; that subsequently, on 2.2.1995, the Appointing Authority had informed the Chief Vigilance Officer of the Bank about the enquiry and proposed punishment; and that after receiving the comments of the Chief Vigilance Officer, the Appointing Authority on the recommendations of the Disciplinary Authority had reconsidered the question of punishment and imposed the penalty of removal. The respondent plaintiff did not amend the plaint to include the averments and grounds to challenge the order of removal on the said additional ground. No issue was framed in that RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 117 of 147 118 behalf. No amount of evidence on a plea that was not put forward in the pleadings can be looked into. In the absence of necessary pleading and issue, neither the trial court nor the appellate court could have considered the contention and recorded a finding thereon."
116. Ld. Counsel for respondent has further cited case of S. N. Ranade v. Union of India AIR 1964 SC 24 as under (the underlining as per the emphasis of the respondent): "15. We do not, however, think that it is possible for us to allow Mr. Pathak to raise this alternative argument before us, because it is clear that the reliefs claimed by the appellant were based only on one ground and that was the title to the flowing water of the river. In paragraph 8 of the plaint the appellant has specifically stated that he was claiming the amount of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so, by the unauthorised acts of the military authorities, the appellant and the Inamdars were not able to let out their bed of the stream for the plantation of water melons etc, and were thus put to loss. In other words, the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the village had certain rights in the flowing water of the river as riparian owners and RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 118 of 147 119 the illegal acts of the military authorities had affected the said rights and thereby caused damage to them. In fact, as the High Court has pointed out, there is no evidence on the record which would sustain the appellant's claim that the acts of the military authorities had prejudicially affected the appellant's rights as a riparian owner to the use of the water, and that means, on the record there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the diversion of the water caused by the military authorities. Therefore, we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner."
117. The respondent also relied upon Govind Prasad Chaturvedi v.
Hari Dutt Shastri AIR 1977 SC 1005 by citing that (the underlining as per the emphasis of the respondent): "6. Apart from the normal presumption that in the case of an agreement of sale of immovable property time is not the essence of the contract and the fact that the terms of the agreement do not unmistakably state that the time was understood to be the essence of the contract neither in the pleadings nor during the trial the respondents contended that time was of the essence of the contract. In the plaint the allegation was that the appellant has always been ready and willing to perform his part of the contract and he did all that RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 119 of 147 120 he was bound to do under the agreement while the respondents committed breach of the contract. The respondents did not set up the plea that the time was of the essence of the contract. In paragraph 32 of the Written Statement all that was stated was that the appellant did not perform his part of the contract within the stipulated time and that the contract thereafter did not subsist and the suit is consequently misconceived. The parties did not go to trial on the basis that time was of the essence of the contract for no issue was framed regarding time being the essence of the contract. Neither is there any discussion in the judgment of the trial Court regarding this point. The trial court after considering the evidence came to the conclusion that the appellant was always ready and willing to perform his part of the contract while the respondents were not. In the circumstances therefore the High Court was in error in setting as one of the points for determination whether time was of the essence of the contract. The High Court after referring to the agreement was of the view that the agreement was entered into between the parties during the course of a litigation between the appellant and the respondents and in pursuance of the agreement the parties were directed to withdraw their cases and were directed further not to take fresh legal steps during the period of the two months within which the sale deed was to be executed. On taking into account the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 120 of 147 121 circumstances of the case and the conduct of the parties of serving on each other notices, counter notices and telegrams the High Court inferred an intention on the part of the parties to treat the time as of essence of the contract. We will refer to the terms of the contract and the correspondence between the parties in due course but at this stage it is sufficient to state that neither the terms of the agreement nor the correspondence would indicate that the parties treated time as of essence of the contract. In fact, according to the agreement the sale deed ought to have been executed by the 24th May but it is the admitted case that both the parties consented to have the document registered on the 25th May. On the question whether the time is of the essence of the contract or not we are satisfied that the High court was in error in allowing the respondents to raise this question in the absence of specific pleadings or issues raided before the trial Court and when the case of time being the essence of the contract was not put forward by the respondents in the trial Court. Apart from the absence of pleadings we do not find any basis for the plea of the respondents that the time was of the essence of the contract."
118. Ld. Counsel for the appellant argued that the law pertaining to tenancy has undergone a sea change. It's sojourn from 'tenant's paradise' (where fools make houses and wise men live in them) to the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 121 of 147 122 present status is crystallized in a catena of case law. Thus in the present context what is relevant is the purpose of letting-- which has germinated into the concept of 'dominant user theory'.
119. On this aspect the appellant has relied upon Allenbury Engineers Pvt. Ltd. v. Ram Krishna Dalmia AIR 1973 SC 425 by citing the following: "7. The expression 'manufacturing purposes' in S. 106 is used in its popular and dictionary meaning, the Transfer of Property Act not having supplied any dictionary of its own for that expression. The burden of proving that the lease was for manufacturing purposes, must for the purposes of Section 106 of the Transfer of Property Act, lie on the party who claims it to be so, in the present case the appellantcompany. That burden is to establish that the exclusive or at least the dominant purposes of the lease was the manufacturing purpose. (see C. Mackertich v. Steuart and Co. Ltd. AIR 1970 SC 839).
10. .............There is no evidence except the bare word of wit. Jain that parts such as chassis and bodies etc. were actually manufactured and replaced for the old. No books of account or long books showing the work carried on the premises or other documents were produced which would throw light on the activities carried on the premises. Even if the evidence of Jain were RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 122 of 147 123 accepted in toto, and we were to find that some spare parts were being manufactured for repairing or reconditioning the vehicles, the dominant purpose of the lease would still have to be regarded as one for storage and resale of the vehicles and not for manufacturing purposes. Manufacturing of spare parts would then be merely incidental to the main purpose of disposal of these vehicles as without repairing or reconditioning them, such disposal could hardly have been possible. In our opinion, the appellants failed to establish that the dominant purpose of the lease was manufacturing purpose. In that view, the appellants could not have challenged the legality of the notice. .........."
120. Ld. Counsel for the appellant has placed reliance on Precision Steel and Engg. Works, M/s. v. Prem Deva Niranjan Deva Tayal AIR 2003 SC 650 and cited the following: "7. Section 14 of the Act protects tenants from eviction. An order for the recovery of possession of the tenancy premises can be made by the Rent Controller on one or more of the specified grounds. One of the grounds provided by Cl. (e), relevant for our purpose, is under : "(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 123 of 147 124 member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation :
Explanation. For the purpose of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;"
8. It is not permissible under the scheme of the Act to file an application seeking an order for the recovery of the premises let for nonresidential purposes on the ground of bona fide requirement. Letting out for composite or mixed purposes and whether the premises let for such composite or mixed purposes can be got vacated on the ground of bona fide requirement is not specifically provided by the Act.
9. In our opinion the expression 'the premises let for residential purposes' should be construed liberally and not technically or narrowly; meaning thereby, where the premises are solely let for residential purposes they are undoubtedly covered by S. 14(1)(e) but even when the premises are let out for composite or mixed purposes if the predominant or main purpose of letting is for residential purposes, the same would be included within the expression 'the premises let for RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 124 of 147 125 residential purposes.' An incidental, a secondary or unauthorised user of the premises for purposes other than residence would not take the premises out of the meaning of the expression 'the premises let for residential purposes.'
10. Premises are capable of being classified into residential and nonresidential depending on the purpose of letting. This is the broad classification. Question of construction and determining the purpose of letting may pose difficulty when the premises are let for mixed, composite or dual purposes, i.e., where the entire premises are allowed to be used for an overlapping purpose or the premises forming subjectmatter of one tenancy are allowed to be used for purposes more than one. In such a case it cannot be said that the premises would cease to be of either category, i.e., they would be neither residential nor non residential. Rather it would be necessary to find out what is the "main and dominant purpose" of letting as distinguished from "subsidiary, ancillary or incidental purpose." The theory of determining the purpose of letting by reference to finding out the main and dominant purpose of letting has ample judicial authority to derive support from. In Dr. Sewa Singh v. Smt. Revinder Kaur and another, 1970 RCJ 615 SC it was held that residential building will remain so even if it is used by a person engaged in one or more of the professions partly for his business or partly for his RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 125 of 147 126 residence. The building in the occupation of the tenant was undoubtedly residential and on the evidence it was found that part of it was being used by the tenant, a medical practitioner for examining patients and prescribing medicines. In Allenbury Engineers Pvt. Ltd. v. Shri Ram Krishna Dalmia and others (1973) 1 SCC 7, to determine whether the tenancy was for manufacturing purpose within the meaning of S. 106 of the Transfer of Property Act, 1882 the Constitution Bench applied the test of 'main and dominant purpose' as distinguished from 'incidental purpose.' The dominant purpose of lease was for storage and resale of the vehicles. Some spare parts were manufactured and used in the vehicles as incidental to the main purpose of disposal of the vehicles as without repairing or reconditioning the vehicles the disposal could hardly have been possible. It was held that the dominant purpose of the lease as manufacturing purpose was not established. In Sant Ram v. Rajinder Lal and others (1979) 2 SCC 274, a cobbler carried on cobbler's business in the shop. Incidentally he slept in the back portion of the shop at night while he worked during the days. On the off days he would go home at night. It was held that the purpose of letting remained exclusively commercial as the user of back portion for sleeping in the night was not incompatible with day's user.
11. In Smt. Nai Bahu v. Lala Ramnarayan and RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 126 of 147 127 others (1978) 1 SCC 58, this Court has held that a nonresidential accommodation can be allowed to be vacated by an order for eviction if the same was genuinely required not only for nonresidential use but also a portion of it bona fide for personal residence. It clearly follows that user of a portion for personal residence would not alter the essential and basic or dominant user for nonresidential purposes. Hiralal Kapur v. Prabha Choudhary (1988) 2 SCC 172, is a reverse case on facts but deals with S. 14(1)(e) of Delhi Rent Control Act, 1958. The premises were residential in nature and let out for residential purposes. The landlord, a lawyer, applied for recovery of possession of his residential premises pleading bona fide requirement for his residential purposes. It was held that merely because the lawyer landlord intended to use a portion of the premises for purposes of his office, library or study, the same would not detract from his requirement being for residential purposes. It would be different when the entire premises sought to be got vacated are needed solely for use as office and liberty in which case the requirement would cease to be residential merely. This decision clearly spells out that incidental, secondary or partial user of the premises for office purposes along with use as residence of the premises does not alter the main or predominant purpose of user of the premises and the same continues to be residential.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 127 of 147 128..............................
15. Incidentally, we may refer to a Full Bench decision of Madras High Court in T. Dakshinamoorthy v. Thulja Bai and another, AIR 1952 Mad 413. The Full Bench held the English test being applicable in India too, as sound and reasonable, and approved the test of dominant purpose and principal user being applied for determining the purpose of letting though the Bench observed that such test was not always of easy application and the difficulty in the actual application of the test was capable of being taken care of by a margin of judicial discretion in the matter of the determination of the question of the character of the building as a question of fact has necessarily to be allowed for. To quote, the Full Bench held, "instances of transactions inspired by mixed motives and intents in which the question of the main, real and dominant motive and intent has to be canvassed for validating or invalidating them are not uncommon in other branches of law. There can in our judgment be no reason or principle why a canvass of the main, real and dominant purpose should be regarded as not legitimate in this branch of law in cases where the letting is actuated by mixed purposes.
16. In our opinion, for the purpose of S. 14(1)(e) of the Act, so long as the principal and dominant purpose of letting is residential merely because a mixed user of the premises or user of a part or RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 128 of 147 129 incidental or ancillary user of the premises is permitted for activities other than residential, the purpose of letting the premises would not cease to be residential and the premises would continue to be governed by S. 14(1)(e) of the Act.
17. It is not the case of the appellants that any business activity is being carried out in the suit premises or was permitted to be carried on or was included within the purposes of letting. Once the terms of tenancy have been reduced into writing the purpose of tenancy has to be determined by reading the relevant clauses of the deed and extrinsic evidence making a departure from the terms of deed may not be admissible. In case of doubt or vagueness resort can be had to other factors such as constructional features of the premises, their location, the amenities available, the conveniences provided, the number of rooms and the actual user or which the premises have been subjected. The opening and governing part of Cl. 6 is couched in a mandatory form 'the licensee shall use the premises for the residence of the directors, partners and officers.' In the succeeding sentence the use of word 'however' is suggestive of the fact that incidental user of the tenancy premises for the office purpose also was permitted by the landlord. Such incidental user is permissive and not purposive. And that too has been made dependent on the permissibility determinable by reference to the laws governing RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 129 of 147 130 the local authority. It is not disputed that the provisions of Delhi Development Act, 1957 and the Delhi Municipal Corporation Act, 1957 do apply to the locality where the tenancy premises are situated.
............................
20. The upshot of the above discussion is that the primary and dominant purpose of letting the suit premises is residential. Commercial activity therein is not permitted. Incidental user for office purpose is permitted subject to the condition of such user being permissible under the municipal laws which it is not. In any case such user being incidental or ancillary, the same would not detract from the primary or dominant purpose of letting. The suit premises have been rightly held by the High Court to be 'the premises let for residential purposes' within the meaning of Section 14(1)(e) of the Act."
121. Appellant has further cited the case of Hiralal Kapur v.
Prabhu Choudhury AIR 1988 SC 852 as under: "10. ....Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes and the premises does not cease to be his residence because of that. In the present case, the petitioner seeks eviction of the suit premises for his bona fide residential requirement and the use of the hall as an office is RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 130 of 147 131 only incidental to such a requirement. In ascertaining the bona fide need of residence, in the case of a lawyer, the fact that a room has to be used as an off ice cannot be a consideration extraneous to the scope and content of cl. (e) of the proviso to S.14(l).
12... Should the result depend on the jugglery of pleadings or the substance of the matter? We think the substance should prevail. In our opinion, where a landlord applies for the possession of his residential premises, his bona fide requirement of. the premises for his residential purposes will not stand vitiated merely because he intends to use a portion of the premises for purposes of his office, library or study....."
122. The appellant has placed reliance upon Jasbir Kaur vs. Girdhari Lal Mehra 1993 Supp (1) SCC 454 in which it has been held that an Advocate to whom premises were let out for residential purpose setting up an office in one room is not sufficient to change the nature of the purpose for which it was let out. In the similar vein reliance has been placed upon Jaghmohan Singh Wadhera vs. K. M. Bhatnagar 1995 (34) DRJ 279 (High Court of Delhi) in which it is held that letting purpose being commercial could not be possible in small premises consisting of two rooms alone. Also cited is B. K. RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 131 of 147 132 Daweshar (Dr.) vs. K. K. Sapra 2005 VI AD (DELHI) 321 in which it has been held that in the absence of any independent evidence regarding purpose of letting, the user of only one cubical/cabin to examine the patients and prescribe the medicines will not be sufficient to hold that the purpose of letting was residentialcumcommercial.
Further reliance has been placed upon SMT. KESHWANTI VS. DR.
K. MADAN 85 (2000) DLT 362 in which it has been held that 'the real question is for what purpose can the suit premises be lawfully used. The answer to that is clearly "residential'. If the premises are used for purposes other than residential, or partly for residential and partly for commercial purposes, it would be contrary to law.'
123. The plaintiff's cause of action flows from the statue law contained in section 2(l) of the Delhi Rent Control Act, coupled with the judicial interpretation of the same in a catena of case law. Section 2(l) reads as under: "2 (l) "tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be pay able, and includes
(i) a subtenant;
(ii) any person continuing in possession after the termination of his tenancy, RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 132 of 147 133
(iii) In the event of death of the person continuing in possession after the termin ation of his tenancy, subject to the order of suc cession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's
(a) spouse;
(b) son or daughter or where there are both son and daughter both of them;
(c) parents;
(d) daughterinlaw, being the widow of his predeceased son:
As had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include, (A) any person against whom an order or decree for eviction has been made, ex cept where such decree or order for eviction is li able to be reopened under the proviso to section
3 of the Delhi Rent Control (Amendment) Act, 1976; (18 of 1976) (B) any person to whom a li cence as defined in section 52 of the Indian Ease ments Act, 1882 (5 of 1882) has been granted; Explanation I: The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:
(a) firstly, his surviving spouse;RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 133 of 147 134
(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;
(c) Thirdly, his parents, if there is no surviv ing spouse, son or daughter of the deceased per son, or if such surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the de ceased person up to the date of his death; and
(d) fourthly, his daughterinlaw, being the widow of his predeceased son, if there is no sur viving spouse, son, daughter or parents of the de ceased person, or if such surviving spouse, son or daughter or parents,did not ordinarily live in the premises as a member of the family of the de ceased person up to the date of his death.
Explanation II: If the person, who acquires by succession, the right to continue in possession after the termination of his tenancy, was not fin ancially dependent on the deceased person on the date of his death, such successor shall acquire a right to continue in possession as a tenant for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in posses sion of the premises shall become extinguished.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 134 of 147 135Explanation III. For the removal of doubts, it is hereby declared that
(a) where, by reason of Explanation II, the right of any successor to continue in possession of the premises becomes extinguished, such extinguish ment shall not affect the right of any other suc cessor of the same category to continue in pos session f the premises but if there is no other suc cessor of the same category, the right to continue in possession of the premises shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be;
(b) the right of every successor, referred to in Explanation I to continue in possession of the premises shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs."
124. Cause of action consists of a bundle of facts which are material for the propounder to plead and prove in order to establish a right and to get the judgment in his favour. These are just and bare facts. If any of the these facts is missing the cause of action is conspicuous by absence. When the facts are not pleaded, the evidence qua the same cannot be led.
125. It goes without saying that the pleadings are indispensable in a civil case. They are necessary so as to give notice to the adversary as RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 135 of 147 136 to what kind of case it has to meet. No evidence can be led dehors the pleadings.
126. Of course, the pleadings have to be liberally construed. It is substance of pleadings which gets precedence over its form. Thus any hyper technical or pedantic approach must necessarily has to be avoided while appreciating pleadings. If a fact(s) is there is in the pleading by necessary implication, the pleadings would not be thrown off the board for not being specific or pertinent. If from the overall circumstances and rival pleadings it can be inferred that the other party has taken cognizance of certain fact(s) though pleaded vaguely by the adversary and no failure of justice is occasioned by reading such vague facts in a meaningful manner then the form of pleadings ought not to be made an issue of and it should be the substance of pleadings that should rule the day.
127. Considering in the above context, it is to be seen as to what has been pleaded by the appellant as regards the purpose of letting. A careful and meaningful reading of the plaint no where indicates that the appellant has pleaded the letting purpose as residential in its plaint.
Through out the plaint, in so many words, the appellant has pleaded that premises were let out for 'residentialcumcommercial purpose'.
RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 136 of 147 137It is only in the replication that as a denial the appellant has denied that the premises were let out for 'residentialcumcommercial purpose'. Replication is not a part of the pleadings, by the strict word of law. Even if it is so treated as a pleadings, at least no new case can be set up in the replication. The inference as drawn by this Court as to the pleaded purpose of letting as 'residentialcumcommercial purpose' is fortified/corroborated by the fact that the appellant sought leave to amend the plaint by pleading the purpose of letting as residential. This by itself shows the appellant had realized what it had pleaded. The amendment was allowed by the Ld. Trial Court, but on a challenge by the respondent in a Revision Petition the appellant gave up and reverted to his original plaint. Under the umbrella of liberal construction of pleadings, the appellant can not ask the Court to read in pleadings contrary to what case it has set up. This is not warranted under any circumstances.
128. It makes a world of difference as to what is the purpose of letting, as in one circumstance the tenancy is not heritable (when it is residential) and is heritable (when it is commercial or dual purpose).
In the absence of any specific pleadings or necessary implications in the plaint, the theory of predominant user also does not come to the RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 137 of 147 138 rescue of the appellant. This court is bound by the law pronounced by the Hon'ble Superior Courts on this aspect. However, this is also a factual aspect and must necessarily flow from the pleadings. A plea not having its foundation in the pleadings, cannot be made the basis of evidence, arguments or claim.
129. On the point of 'adverse inference, Ld. Counsel for the appellant relies upon Gopal Krishnaji Ketkar v. Mohamed Haji Latif AIR 1968 SC 1413 wherein it has been held: "Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, 44 Ind App 98 at p. 103 = (AIR 1917 PC 6 at p. 8) Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of he onus of proof, and failing. accordingly, to furnish to the Courts the best RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 138 of 147 139 material for its decision With regard to third parties, this may be right enough they have no responsibility for the conduct of the suit but with regard to the parties thee suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
This passage was cited with approval by this Court in a recent decision Biltu Ram v. Jainandan Prasad. Civil Appeal No. 941 of 1965 D/ 154 1968 (SC). In that case. reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh, 42 Ind App 202 at p. 206 = (AIR 1915 PC 96 at p. 98):
"But it is open to a litigant to refrain from producing any documents that he considers irrelevant, if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fail, so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents".
130. Appellant also relies upon Musauddin Ahmed vs. State of Assam V 2009 SLT 700 in which relying upon Gopal Krishnaji RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 139 of 147 140 Ketkar v. Mohamed Haji Latif AIR 1968 SC 1413 it is held that 'it is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence'
131. I am in full agreement with the position of law as regards the onus to prove as argued by the appellant. The onus is only the right to begin or open the evidence. It may keep on shifting during the course of trial. It is never fixed. However the burden of proof is always fixed and it never shifts. Under section 106 of the Indian Evidence Act, 1872 the burden to prove a fact which is within the especial knowledge of a person is upon him. The facts forming part of the financial dependency of Late Smt. Ram Piari Chawla upon her deceased husband also sail in the same boat and thus it was incumbent upon her (or her heirs) to give evidence on this aspect notwithstanding the fact that the onus of the same was on the appellant and an adverse inference is liable to be drawn against her. However, in view of the inherent deficiency in the pleadings of the appellant even drawing an RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 140 of 147 141 adverse inference against the respondents would be inconsequential.
132. About the previous litigations initiated by the appellant and its effect when they are withdrawn or abandoned without leave of the court or initiate fresh litigation on the same cause of action Ld. Counsel for the respondent has cited a number of case law.
133. Firstly the case of Mang Ba Tu vs. Ma Thet Su AIR 1928 RANGOON 73 has been cited to press that fresh suit on the same cause of action is barred. To cite as to what are the essential ingredients of the cause of action, respondent has cited Beni Madhab Sikdar vs. Sarat Chandra Jana AIR 1937 CALCUTTA 643 and has read that cause of action consists of the entire set of facts which gave rise to a claim. It includes everything which, if not proved, gives the defendant an immediate right to judgment. It includes every fact which is material to be proved to entitle the plaintiff to succeed. Ld. Counsel for the respondent has also relied upon Mohammad Khalik Khan vs. Mahbood Ali Mian AIR (29) 1942 Allahabad 122 and has cited the following: "The expression " cause of action" means every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the court, but it does not comprise RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 141 of 147 142 every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. In the restricted sense, the expression means the circumstances forming the infringement of the right or the immediate occasion for the action. In its wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right but the infraction coupled with the right itself, in other words, in its wider sense it means the whole bundle of material and essential facts which it is necessary for the plaintiff to prove in order to entitle him to succeeded in the suit. If the several items which make up the claim are of the same nature and form part of the same course of dealing so as to pass under the same description and from part of one transaction, they must be considered as one cause of action and must be joined in one suit;
134. Another case cited by the respondent is Amir Din Shahad Din vs. Shiv Dev Singh Jhanda Singh AIR 1947 LAHORE 102 to bring home the point that fresh suit in respect of same cause of action is barred. Case of Suraj Rattan Thirani v. Azamabad Tea Co. Ltd.
AIR 1965 SC 295 has also been relied upon by the respondent by citing the following: "25. On this the first submission was that the rule RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 142 of 147 143 which spoke of the "plaintiff" being precluded from bringing a fresh suit created merely a personal bar against the plaintiff in the first suit, and that in the absence of words referring to the representatives of the plaintiff or those claiming under the plaintiff as in S. 11 or S. 47 of the Civil Procedure Code, the bar was not attracted to cases where the subsequent suit was by the heirs and assigns of that plaintiff. In support of this submission Mr. Desai invited our attention to the observations of Das, J. in Gopi Ram v. Jagannath Singh, ILR 9 Pat 447 at p. 454 : (AIR 1929 Pat 685 at p. 688) where this argument was characterised as a weighty one and examined elaborately. Though the learned Judge decided this matter on quite a different line of reasoning, he referred to various earlier decisions which appeared to him to favour the view submitted to us by Mr. Desai and expressed his hesitation in rejecting that construction. We are not however impressed by the argument that the ban imposed by O. IX R. 9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the 'matter at large for those claiming under him. Beyond the absence in O.IX, R.9 of the words referring "to those claiming under the plaintiff" there is nothing to warrant this argument. It has neither principle, nor logic to commend it. It is not easy to comprehend how A who had no right to bring a suit or rather who was RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 143 of 147 144 debarred from bringing a suit for the recovery of property could effect a transfer of his right to that property and confer on the transferee a right which he was precluded by law from asserting. There are, no doubt, situations where a person could confer more rights on a transferee than what he possessed but those are clearly defined exceptions which would not include the case now on hand. This argument was addressed to the High Court and the learned Judges characterised it as startling, a view which we share. The rule would obviously have no value and the bar imposed by it would be rendered meaningless if the plaintiff whose suit was dismissed for default had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward. Again to say that an heir of the plaintiff is in a better position than himself and that the bar lapses on a plaintiffs death, does not appeal to us as capable of being justified by any principle or line of reasoning. In our opinion, the word 'plaintiff' in the rule should obviously, in order that the bar may be effective, include his assigns and legal representatives.
...........
30. We consider that the test adopted by the Judicial Committee for determining the identity of the causes of action in two suits in Mohammed Khalil Khan v. Mahbub Ali Mian, 75 Ind App 121 : (AIR 1949 PC 78) is sound and expresses RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 144 of 147 145 correctly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression "same cause of action" which occurs in a similar context in para (1) of O. II, R. 2 of the Civil Procedure Code observed :
"In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is are the causes of action in the two suits in substance not technically identical?"
135. The respondent has also cited the case of Parasram Harnand Rao, M/s. v. M/s. Shanti Parsad Narinder Kumar Jain AIR 1980 SC 1655 in which it has been held as under: "5. In the first place it was argued that so far as point No.1 is concerned, the High Court was wrong in holding that the application of Respondent No.1 was not barred by the reason of the dismissal of the appellant's suit for setting aside the ex parte decree by the principle of res judicata or Order IX, Rule 9 C.P.C. It was contended that even if the previous suit filed by respondent No.1 for declaration of his status as a tenant was dismissed for default but as the application for setting aside the decree also failed, there was an adjudication against the then plaintiff respondent No.1 and therefore the present suit was RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 145 of 147 146 clearly barred by the principles of res judicata or Order IX Rule 9. At any rate there can be no escape from the position that the application of respondent No.1 would be clearly barred by the principle contained in Order IX, Rule 9, C. P. C. In case of Suraj Ratan Thirani v. Azamabad Tea Co. (1964) 6 SCR 192: (AIR 1965 SC 295) this Court held thus:
"We are not however impressed by the argument that the ban imposed by O. IX, R.9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him. Beyond the absence in O.IX, R.9 of the words referring "to those claiming under the plaintiff"
there is nothing to warrant this argument. It has neither principle, nor logic to commend it.....The rule would obviously have no value and the bar imposed by it would be rendered meaningless if the plaintiff whose suit was dismissed for default had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward."
136. The respondent has also relied upon Mohd. Hussain vs. Mohd. Mian 86 (2000) DLT 602 to argue that there is bar against fresh suit in respect of the same cause of action in previous suits.
The submissions on this aspect as made by the respondent are correct RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 146 of 147 147 as per the records. However no issue as to Order II Rule 2 CPC had been framed during the trial. Therefore, I am not dwelling into the same.
137. In view of the above discussion, I am in agreement with the findings of the ld. Trial Court on the above issues except the reliance placed by the it on the aspect of resjudicata as I have set aside the findings of the ld. Trial Court on the issue of resjudicata.
138. Thus in the final analysis except the reversal of findings on the issue of resjudicata the findings of the Ld. Trial Court on all the other issues are sustained. However, there is no change in the relief as per the judgment and decree of the ld. Trial Court. Therefore the appeal and crossobjections are therefore disposed of/dismissed in above terms.
139. Decree sheet be drawn accordingly.
140. TCR be sent back with a copy of this judgment.
141. Appeal file be consigned to Record Room.
Announced in the Open Court On this 20th day of March 2012 (MAN MOHAN SHARMA) ADJ (Central)12, Delhi RCA No. 15/06 M/S Cepco Industries Pvt. Ltd. vs. Smt. Ram Piari Chawla & Anr. Page 147 of 147