Delhi District Court
Karkardooma Courts vs Sh. Mohinder Singh on 28 April, 2008
IN THE COURT OF SH. M. P. SINGH, CIVIL JUDGE,
KARKARDOOMA COURTS, DELHI
SUITS No. 782/06 and 774/06
Sh. Vijay Kumar
s/o Sh. Ram Gopal
r/o 4, Shanker Nagar,
Delhi-110051 ........PLAINTIFF
Versus
Sh. Mohinder Singh
s/o Sh. Ujagar Singh
r/o 122/30, Shanker Nagar,
Delhi-110051 .......DEFENDANT
SUIT FOR POSSESSION AND RECOVERY OF DAMAGES
DATE OF INSTITUTION OF SUIT No. 782/06: 01/08/1978
DATE OF INSTITUTION OF SUIT No. 774/06: 21/12/1982
DATE WHEN JUDGMENT WAS RESERVED: 25/02/2008
DATE OF DECISION: 28/04/2008
JUDGMENT
1. These two files that are the oldest files pending in the docket of this Court are classical examples of proverbial "backlog and delay in litigation". It is after a time span of nearly three decades that these suits are finally seeing the light of the day.
2. This common judgment shall dispose off the two connected suits that were originally filed by the predecessor-in-interest of the present plaintiff against the defendant. The defendant was inducted as a tenant by Sh. Dharam Pal Sehgal (the original plaintiff; since deceased) in respect of one room and one kitchen in house No 122/30, (new no.
135) Shanker Nagar, Delhi at monthly rent of Rs. 45/- per month since 01.12.1972. However during the continuance of his tenancy he unlawfully occupied one room and a kitchen on the ground floor of the suit property as shown red in the site plan. {House No 122/30, (new no. 135) Shanker Nagar, Delhi is hereinafter referred to as 'the suit property'}
3. In order to appreciate the controversy at hand, it would be apposite to take a brief note of the previous litigations between the parties. The plaintiff had earlier filed a suit against the defendant as regards the wrongful use and occupation of the said room and kitchen. That suit was decreed by the Court of Sh. Shiv Charan Kain, Ld. Sub Judge, 1st Class, Delhi on 29/04/1978. Vide the decree dated 29/04/1978 he was awarded damages against the defendant for wrongful use and occupation of the same from 01.12.1972 to 31.10.1974 at the rate of Rs. 40/- per month amounting Rs. 920/-. The defendant was also declared to be the unlawful occupant in respect of the room and the kitchen. In the suit no. 782/06 the plaintiff claims damages for the subsequent period i.e. from 01.08.1975 till the date of filing of the suit i.e. 31.07.1978 at the rate of Rs. 40/- per month amounting Rs. 1,440/- coupled with the relief of possession of the room and the kitchen at the ground floor of the suit property under the illegal possession of the defendant. It is stated that despite several requests and reminders the defendant has not delivered the vacant possession of the said room and the kitchen which he is illegally occupying. Hence this suit for recovery of Rs. 1,440 as damages and for possession of the room and the kitchen being illegally occupied by the defendant.
4. In the second suit (suit no. 774/06) the plaintiff has prayed for damages for wrongful use and occupation regarding the same property with effect from 01.01.1980 to 31.12.1982 @ Rs 40/- per month amounting to Rs 1,440/-.
5. It is pertinent to mention here that Sh. Vijay Kumar was substituted as the plaintiff in the place of Sh. Dharam Pal Sehgal (the original plaintiff) vide order dated 24.08.1993 on the ground that he had purchased the suit property from Sh. Dharam Pal Sehgal.
6. The defendant contested the suit by filing his common amended written statement to both the suits dated 11/11/1993. The defendant has raised preliminary objections to the effect that the second suit of the plaintiff is liable to be stayed under Section 10 of CPC; that the plaintiff has not properly valued his suit for the purposes of court fees and jurisdiction; that inasmuch as there is a relationship of landlord and tenant between the parties this court has no jurisdiction. It is stated that the present suit is barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure because the plaintiff had earlier filed an eviction petition number E-123 of 1973 in the Court of Sh. R. Dayal, Ld. Additional Rent Controller, Delhi for eviction on the ground on non-payment of rent in respect of one room, kitchen, common verandah, latrine and bathroom. It is stated that this petition was decided by Sh R. Dayal, Additional Rent Controller, Delhi on 19.09.1973 wherein he held that the defendant to be a tenant in respect of one room, one kitchen, common veranda, latrine and bathroom of the suit property.
7. It is stated that after the decision of the aforesaid petition, the plaintiff filed a suit for damages. It is not denied that this suit for damages was decreed vide judgment dated 29.04.1978 by the Court of Sh. Shiv Charan, Ld. Sub Judge, 1st Class, Delhi. In that suit, it was declared that the defendant is an unauthorised occupant since December 1972 in respect of one room and kitchen and damages in the sum of Rs. 920/- was awarded against him for the period from 01/12/1972 to 31.10.1974. It is stated that the decision of this suit operates as bar under Order 2 Rule 2 of Code of Civil Procedure to the relief of possession inasmuch as he could have very well prayed for the relief of possession in the previous suit already decreed by the Court of Sh. Shiv Charan Kain, Ld. Sub Judge, 1st Class, Delhi.
8. The defendant has also challenged the ownership of Sh. Vijay Kumar. It is stated that the ownership documents dated 01.10.1986 in favour of Sh. Vijay Kumar do not relate to the suit property. It is his averment that the boundaries as mentioned in the sale deed do not tally with the boundaries of the suit property and that the property numbers are also different. It is his submission that the sale deed is void being uncertain and as such no rights whatsoever can be said to have devolved upon Sh. Vijay Kumar, the present plaintiff.
9. In the reply on merits, it has been stated that the defendant is tenant in respect of two rooms, kitchen, one store, verandah, courtyard, bathroom, latrine and roof. It has been denied that the defendant is a tenant in respect of only one room and kitchen. It is also denied that the defendant is in wrongful occupation of one room and kitchen in the house since 01/12/1972 as alleged.
10.The defendant has not denied that the decree was passed against him by Sh. Shiv Charan Kain, Ld. Sub Judge, 1st Class, Delhi holding that the defendant is in wrongful possession of the said room and kitchen since 01/12/1972. It is also admitted that the plaintiff was awarded damages @ Rs 40/- per month amounting to Rs 920/- for the period between 01/12/1972 to 31/10/1974. Denying the rest of the averments of the plaint, the defendant has prayed for dismissal of this suit.
11.The plaintiff has filed his replication dated 11/11/1973 to the amended written statement wherein he has reaffirmed and reiterated the allegations as levelled by him in the plaint.
12.Common issues were framed in both the suits. On the basis of the pleadings of the parties following issues were framed by the Court on 25.08.1981. On 18/02/1994 two more additional issues were framed. These issues are as follows:
(1) Whether the suit is bad for non-joinder of necessary parties? (OPD) (2) Whether this Court has jurisdiction to try this suit? (OPD) (3) Whether the plaintiff is entitled for the possession of the disputed premises? (OPP) (4) Whether the plaintiff is entitled to recovery of damages? If yes, at what rate? (OPP) (5) Additional Issue - Whether the plaintiff has become owner of the suit property be virtue of the sale deed dated 01.10.1986? (OPP) (6) Additional Issue - Whether the Suit No 456/85 (New Suit No 782/06) is barred under Order 2 Rule 2 of CPC? (OPD) (7) Relief
13.Six witnesses were examined in all. On behalf of the plaintiff, five witnesses were examined. Sh. Dharam Pal Sehgal deposed as PW1, Sh. Vijay Kumar deposed as PW2, Sh. Rajdev deposed as PW3, Sh.
Suresh Kumar deposed as PW4 and Smt. Kavita Rani w/o Vijay Kumar deposed as PW5. On behalf of the defendant only one witness was examined, that is the defendant himself.
14.I have heard the Ld. Counsels for the parties and perused the records of the case.
15.My findings on the aforesaid issues are as under:
16.Issue No 1 The onus to prove this issue was upon the defendant. From the record of the case, it appears that the defendant in his written statement dated 09.09.1980 had taken the objection that the suit is bad for non-joinder of necessary party inasmuch as the plaintiff has not joined Smt. Jaswant Kaur, (another tenant in the same premises) as co-defendant. However, surprisingly enough the plaintiff in his final amended written statement filed on 11/10/1993 has nowhere taken this objection. In spite of this discrepancy, I would proceed to consider this issue on its merits.
17.The present dispute is only between the plaintiff and the defendant and the relief prayed for by the plaintiff is for damages and possession against the defendant only. The plaintiff has nowhere sought for any relief against Smt. Jaswant Kaur. Smt. Jaswant Kaur may or may not be a tenant in the tenanted premises, but her presence in the present suit is not at all required inasmuch as no relief whatsoever has been prayed against Smt. Jaswant Kaur. It is an admitted fact that in the previous suit decided by the Court of Sh. Shiv Charan Kain, Ld. Sub Judge 1st Class, it was the defendant who was declared to be the unlawful occupant in respect of the room and the kitchen, and not any third person. The defendant in his pleadings admits that he was declared to be the unlawful occupant in respect of one room and the kitchen in question.
18.It is well settled law that a necessary party is one without whose presence the relief sought for by the plaintiff cannot be granted. In the present matter the relief of damages and possession can certainly be granted against the defendant and for the adjudication of these reliefs the presence of Smt. Jaswant Kaur is not at all required. Hence I decide this issue against the defendant and in favour of the plaintiff.
19.Issue No. 2 The onus to prove this issue was upon the defendant. The defendant had taken the stand that since there is relationship of landlord and tenant between the parties, this Court has no jurisdiction to try this suit. The present two suits at hand are suits for damages and possession against the defendant on the averment that the defendant is an unauthorised occupant in respect of one room and one kitchen in the house No 122/30, (new no. 135) Shanker Nagar, Delhi. Suit for recovery of possession against an unauthorised occupant can only be instituted, entertained and tried before Civil Court. The Court of Rent Controller, of course, does not have jurisdiction in such matters. Again suit for damages against an unauthorised occupant on account of wrongful occupation of any premises can only be instituted before Civil Court and not before the Court of Rent Controller. I therefore decide this issue in favour of the plaintiff and against the defendant.
20.Issue No. 5 (Additional Issue) The onus to prove this issue was conferred upon the plaintiff. This suit was originally filed by Sh. Dharam Pal Sehgal; however, during the course of the trial, Sh. Vijay Kumar was substituted as the plaintiff under Order XXII Rule 10 of Code of Civil Procedure on the strength and on the basis of the sale deed dated 01.10.1986 in his favour. The sale deed has been exhibited as Ex PW-2/1(Original Seen and Returned). The sale deed has been executed on 01.10.1986. It is a duly registered one. This sale deed has been executed by Sh. Dharam Pal Sehgal in favour of Sh. Vijay Kumar. In connection with the sale deed a Rectification Deed (duly registered) was also executed between Sh. Dharam Pal Sehgal and Sh. Vijay Kumar. This Rectification Deed has been exhibited as Ex PW2/2 (original seen and returned).
21.So long as Sh. Dharam Pal Sehgal was his landlord, the defendant did not dispute his title. In fact the defendant admitted Sh. Dharam Pal Sehgal as his landlord and himself to be the tenant under the landlordship of Sh. Dharam Pal Sehgal. He also admits in his evidence that the rent receipts were issued to him by Sh. Dharam Pal Sehgal. His main objection is limited to the ownership of Sh. Vijay Kumar over the suit property. The plaintiff has brought on record the sale deed for inspection of the Court and has placed on record copy of the same which is exhibited as Ex PW-2/1 (original seen and returned). He has also placed on record copy of the rectification deed exhibited as Ex. PW2/2 (original seen and returned). Thus the plaintiff by producing the original sale deed dated 01.10.1986 in his favour for inspection of the Court has complied with the requirement of Section 61 read with Sections 62 and 64 of the Indian Evidence Act which pertains to proof of documents by primary evidence.
22.The defendant had taken the objection in his amended written statement that the sale deed is void on account of the fact that its terms are uncertain. It was his averment that the terms of the said sale deed are void as such the same is of no consequence whatsoever. I have perused the sale deed. On perusal of the sale deed, I am unable to find anything therein which could bring about any uncertainty to the sale deed. As such the objection that the sale deed is void on account on uncertainty is not tenable and this objection having no legs to stand upon is brushed aside. In the written statement, it was also the stand of the defendant that the sale deed does not pertain to the property in question. However, a perusal of the sale deed in question would reveal that this assertion of the defendant is not correct at all. I have perused the same and on perusal of the same I find that it does pertain to the property in question.
23.Lastly the sale deed was executed by Sh. Dharam Pal Sehgal in favour of Sh. Vijay Kumar. That is, the contract of sale was between Sh. Dharam Pal Sehgal and Sh. Vijay Kumar. The status of the defendant is merely that of a tenant and nothing more so far as this contract of sale deed is concerned. In short, his status is that of a stranger in respect of the present sale deed. And being a tenant he has no locus standi whatsoever to challenge the sale deed. The law of the privity of contract also bars the defendant from taking such a plea. This principle of privity of contract stands affirmed by the Supreme Court of India in the case of M. C. Chako Vs. State Bank of Travancore, AIR 1970 SC 504.
24.Further in the case of Mahendra Raghunathdas Gupta vs. Vishwanath Bhikaji Mogul and Ors. AIR 1997 SC 2437 it has been held by the Supreme Court that transferee of the landlord's rights steps into shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of subsisting tenancy. It was observed that the provisions pertaining to lease in the Transfer of Property Act do not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. (emphasis supplied)
25.I have already observed hereinabove that the defendant has no locus standi whatsoever to challenge the ownership of Sh Vijay Kumar which stood vested in him from his predecessor in interest. If at all any person had an interest in challenging the ownership of Sh Vijay Kumar over the suit property it would of course be the natural heirs of Late Sh. Dharampal Sehgal. The heirs of Late Sh. Dharampal Sehgal are not putting any challenge to the ownership of Sh. Vijay Kumar over the suit property. One of the sons of Sh. Dharampal Sehgal, namely, Sh. Roshan Lal Sehgal had instituted suit challenging the ownership of Sh. Vijay Kumar; however that suit ended in a compromise on 24.07.2006. As per the compromise Sh. Roshan Lal Sehgal has inter alia, admitted the ownership of Sh. Vijay Kumar over the suit property in question. Sh. Roshan Lal Sehgal has also surrendered his right to claim rent from the tenants in the suit property in favour of Sh Vijay Kumar. This compromise between Sh. Roshan Lal Sehgal and Sh Vijay Kumar was arrived at in the suit bearing No. 776/06 titled as "Roshan Lal Sehgal Vs Vijay Kumar & Ors." This suit was disposed of by my Ld. Predecessor as compromised and a compromise decree was passed thereon.
26.Thus it is crystal clear that a tenant being a mere tenant cannot lay any challenge to any transfer of title by his landlord to a subsequent person. There is nothing in law that permits the tenant to prevent the rightful owner to transfer the title lawfully in favour of another. And certainly enough, the law cannot put any such restrictions on his right to transfer merely because the tenant is in occupation of the suit property. He has no locus standi to do so. The law as enunciated by the Apex Court in the case of Mahendra Raghunathdas's case (supra) also lays down that attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Therefore, in the light of the aforesaid discussion, I decide this issue in favour of the plaintiff and against the defendant.
27.Issue No. 4: The onus to prove this issue was upon the plaintiff. It is the averment of the plaintiff that the defendant is an unauthorised occupant in respect of one room and kitchen in the suit property. It is not in dispute that in the earlier suit decided by Sh. Shiv Charan Kain Ld. Sub Judge 1st Class it has been held vide judgement and decree dated 29.04.1978 that the defendant is an unauthorised occupant in respect of one room in the suit property. The decree regarding unauthorised occupation has attained finality. A certified copy of the judgment of Sh Shiv Charan Ld. Sub-Judge 1st Class has been placed on record. This fact is also not disputed by the defendant that he had been held as an unauthorised occupant in respect of one room and kitchen and he was ordered to pay damages amounting to Rs. 920/- from 01.12.1972 to 31.10.1974. In short, the defendant was held to be an unauthorised occupant in respect of one room and kitchen.
28. It is the averment of the defendant that he was the tenant and continues to be the tenant in respect of two rooms, one kitchen, one store, courtyard, verandah, latrine, bathroom and the roof. However, the defendant in his written statement has stated that he was declared to be tenant in respect of only one room, one kitchen, common verandah, and latrine and bathroom by the Court of Sh. R. Dayal Addl. Rent Controller, Delhi vide Order dated 19.09.1973. That is, he was declared by the Court to be a tenant in respect of only one room, one kitchen, verandah, latrine and bathroom. However he asserts that he is a tenant in respect of two rooms, one kitchen, one store, courtyard, verandah, latrine, bathroom and the roof. This assertion of the defendant is demolished by his own case that he has been declared to be a tenant by the court in respect of only one room, one kitchen, common verandah, and latrine and bathroom. It is not at all explained as to how he came into the tenancy of the additional structures in the suit property. In his entire evidence the defendant has not shown as to how he came to take the additional structures under his tenancy when as per his own averment he was declared to be the tenant in respect of only one room, one kitchen, common verandah, and latrine and bathroom. It is not the case of the plaintiff that the defendant was subsequently given additional structures under tenancy. Even otherwise, the Court of Sh. Shiv Charan Kain Ld. Sub Judge 1st Class, Delhi has vide judgment and decree dated 29.04.1978 already declared the defendant to be a trespasser in respect of one room which was vacated by the previous tenant Sh. A. K. Arora and had also held that the defendant is a tenant in respect of only one room and kitchen on the ground floor at a monthly rent of Rs 45/-. From para 6 of the judgment dated 29.04.1978 passed by Sh. Shiv Charan Kain Ld. Sub Judge 1st Class, Delhi it appears that the Court of Sh. R. Dayal, Ld. ARC, Delhi had held the defendant to be a tenant only in respect of one room and a kitchen on the ground floor of the suit property. It also appears from the judgment that this declaration by the Court of Sh. R. Dayal, Ld. ARC, Delhi has withstood its challenge before the Ld. Appellate Court which affirmed the finding of the Court of Sh. R. Dayal, Ld. ARC, Delhi that the defendant was the tenant only in respect of one room and kitchen on the ground floor of the suit property. As such it is not in doubt that the defendant continues to be a trespasser in respect of the structures of which he was declared to be the trespasser by the Court of Sh. Shiv Charan Kain, Ld. Sub Judge, 1st Class, Delhi.
29.In the plaint the plaintiff has prayed for damages from 01/08/1975 to 31/07/1978 amounting to Rs. 1,440/-. The damages awarded to the plaintiff by the Court Sh. Shiv Charan Kain Ld. Sub Judge, 1st Class, Delhi vide order dated 29.04.1978 was Rs. 40/- per month. Calculating the damages at the rate of Rs. 40/- per month from 01.08.1975 to 31.07.1978 the damages amount to Rs 1440/-. Therefore in the suit No. 782/06, I hold that the plaintiff is entitled to damages for the period 01.08.1975 to 31.07.1978 amounting to Rs. 1440/-.
30.In the suit No. 774/06 the plaintiff has prayed for damages from 01.01.1980 to 31.12.1982. The plaintiff has claimed damages in this suit at the rate of Rs. 40/- per month. Damages at the rate of Rs. 40/- per month from 01.01.1980 to 31.12.1982 comes out to Rs. 1,440/-. Therefore in the suit No 774/06 , I hold that the plaintiff is entitled to damages for the period from 01.01.1980 to 31.12.1982 amounting to Rs. 1,440/-.
31.Accordingly, I therefore, answer this issue in favour of the plaintiff and against the defendant.
32.Issue No. 6 The onus to prove this issue as to whether the suit No. 456/85 (New Suit No 782/06) is barred under the provision of Order 2 Rule 2 of Code of Civil Procedure was upon the defendant. It is averment of the defendant that the previous suit which was between the same parties and which has been decided by Sh. Shiv Charan Kain Ld. Sub Judge 1st Class acts as a bar to the present suit no. 456/85 (new suit no. 782/06) under the provisions of Order 2 Rule 2 of Code of Civil Procedure. It is his submission that the present suit is based on the same cause of action and therefore the plaintiff could have very well claimed the relief of possession in the earlier suit filed against him. It is therefore prayed that the relief of possession prayed for by the plaintiff in this suit 456/85 (New Suit No 782/06) be denied on the ground of bar of Order 2 Rule 2 of the Code. On the other hand it was the stand of the plaintiff that the previous suit which has been decided by Sh. Shiv Charan Kain Ld. Sub Judge, 1st Class, Delhi does not operate as a bar under Order 2 Rule 2 of Code to the relief of possession prayed for by him. It is stated that this provision cannot come into play inasmuch as the cause of action for both the suits are different.
33.The law in this regard is well settled since the times of the unanimous verdict of the 5 Judge Constitution Bench of Apex Court in the landmark case of Gurbax Singh vs. Bhooralal AIR 1964 SC 1810; wherein the law was stated thus:
In order that a plea of bar of Order 2 Rule 2 (3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) the the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the causes of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no application of the bar. No doubt, a relief which is sought in the plaint could ordinarily be traceable to a particular cause of action but that might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It is for this reason that a plea of a bar under Order 2 Rule 2 Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. The cause of action in the previous suit would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that the reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words 'mesne profits' in the previous suit one need not necessarily infer that the possession of the defendants was alleged to be wrongful. It is also possible that the expression has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that a plea based on the existence of former pleadings cannot be entertained when the pleadings which it rests has not been produced. (emphasis supplied)
34. This principle of law as enunciated in the Gurbax Singh's case (supra) found its resonance and was followed in another case before the Apex Court reported as M/s Bengal Waterproof Limited vs. Bombay Waterproof Manufacturing Company and Others AIR 1997 SC 1398. It was observed by the Apex Court: "so far as this plea (Order 2 Rule 2 of CPC) of the defendants is concerned, there is a threshold bar against them for their failure to bring on record the pleadings of the earlier suit which unfortunately has not been properly appreciated by the Courts below." In this regard it would be apposite to take a note also of the latest judgment of the Apex Court reported as S. Nazeer Ahmed vs. State Bank of Mysore AIR 2007 SC 989 wherein it has been held by the Apex Court that in order to successfully raise the plea of the bar of Order 2 Rule 2 of the Code, the burden of which is squarely upon the defendant, the production of the pleadings of the earlier suit is mandatory. At para 9 of the judgment, it ha been observed by the Apex Court:
Now, we come to the merit of the contention of the appellant that the present suit is hit by Order 2 Rule 2 of the Code in view the fact that the plaintiff omitted to claim relief based on the mortgage, in the earlier suit O.S. No. 131 of 1984. Obviously the burden to establish this plea was on the appellant. The appellant has not even cared to produce the plaint in the earlier suit to show what exactly was the cause of action put in the suit by the Bank in that suit. That the production of pleadings is a must is clear from the decision of this Court in Gurbax Singh vs. Bhooralal (1964)7 SCR 831 and M/s Bengal Waterproof Limited vs. Bombay Waterproof Manufacturing Company and Others (1996) Supp 8 SCR 695 (emphasis supplied)
35.In the case at hand, the defendant has not placed on record the pleadings of the previous suit which he says bars the relief of possession. Accordingly, in accordance with the ratio decidendi of aforesaid judgments of the Apex Court, in my view there operates a threshold bar against the defendant from raising this plea. The defendant having not placed any pleadings and particularly the plaint of the previous suit is precluded from raising this plea.
36. In order to bring about a completeness to this judgment, I have thought it fit to examine this contention of the defendant even on merits. In this regard it would be beneficial to take a note of the decision in the case of K. Palaniappa Gounder vs. Valliammal AIR 1988 Mad. 156. This was a case where the plaintiff had filed a suit for possession of the suit property coupled with recovery of mesne profits and costs. In a previous litigation between the same parties, the plaintiff had prayed for declaration of her ownership and for permanent injunction restraining the defendant from interfering with her peaceful possession. The Court decreed the previous suit as regards the the relief of declaration of ownership but the relief of injunction was not granted as the plaintiff was not found to be in possession of the suit property. The defence taken by the defendant in the second suit was to the effect that the relief of possession was barred by the provision of Order 2 Rule 2 of the Code. It was contended that in the previous suit the plaintiff could have very well payed for the relief of possession. This contention of the defendant was repelled and it was held that the two reliefs are distinct and not based upon same cause of action. It was observed that the cause of action of the two suits were not the same and further that the plaintiff could not have asked for the relief of possession on the basis of allegations made in the plaint. The present case falls exactly within the sweep of the law as laid down in the K. Palaniappa Gounder's case (supra).
37.In the case at hand, the relief of possession prayed for by the plaintiff is based on a subsequent and distinct cause of action. Relief of possession could only have been asked only if and if the defendant was a trespasser in respect of the room and kitchen of the suit property in question. Until and unless there was a declaration to this effect cause of action could not be said to have been arisen in favour of the plaintiff. It is well settled that the bar of Order 2 Rule 2 of CPC is to be looked into from the point of view of the plaintiff's claim and not from the point of view of the defence (Kali Setty Subbarayadu V. Balaramayya, AIR 1955 Andhra 194). What has to be looked into is the plaint and the facts relied upon to constitute the cause of action. The present cause of action is based on the Court having declared the defendant as the trespasser.
38.Thus, in the light of the aforesaid discussion I hold that the relief of possession as prayed for by the plaintiff in the Suit No 456/85 (New Suit No 782/06) is not barred by the provision of Order 2 Rule 2 of Code of Civil Procedure.
39.Issue No 3 The onus to prove this issue was upon the plaintiff. It was for the plaintiff to prove that he is entitled to the relief of possession of the disputed premises. Under the discussion on issue no. 6 hereinbefore I have already held that the relief of possession prayed for by the plaintiff is not barred by the provision of Order 2 Rule 2 of the Code. Further under the discussion on issue no. 4 I have already given my finding that the defendant continues to be unauthorised occupant in respect of the room and kitchen at the ground floor as shown red in the site plan of the house No 122/30, (new no. 135) Shanker Nagar, Delhi. Therefore inasmuch as the defendant is the unauthorised occupant/illegal occupant in respect of room and kitchen at the ground floor as shown red in the site plan of the suit property; he is liable to handover the possession of the same to the plaintiff. The defendant being a mere unauthorised occupant/illegal occupant has no right whatsoever to continue in the possession of the room and kitchen at the ground floor of the suit property. Therefore I decide this issue in favour of the plaintiff and against the defendant.
40.Relief - In view of the discussion as aforesaid, both the suits of the plaintiff are hereby decreed. The plaintiff is hereby granted the following reliefs:
(1) Suit No. 774/06 - This suit of the plaintiff stands decreed with costs. The defendant is directed to pay damages to the plaintiff at the rate of Rs. 40/- per month for wrongful use and occupation of the room and kitchen at the ground floor of the suit property as shown red in the site plan with effect from 01/01/1980 to 31/12/1982 amounting to Rs. 1,440/-. Cost of the suit is also awarded in favour of the plaintiff and against the plaintiff.
(2) Suit No. 782/06 - This suit of the plaintiff also stands decreed with costs. The defendant is directed to pay damages to the plaintiff at the rate of Rs. 40/- per month for wrongful use and occupation of the room and the kitchen at the ground floor of the suit property as shown red in the site plan with effect from 01.08.1975 to 31.07.1978 amounting Rs 1,440/-. The defendant is also directed to hand over the vacant possession of room and the kitchen as shown red in the site plan of the house no.
122/30, (new no. 135) Shanker Nagar, Delhi. Cost of the suit is also awarded in favour of the plaintiff and against the defendant.
41.Decree sheet in both the suits be prepared accordingly. These two files be consigned to the record room after due compliance.
42.I would like to end this judgment with a famous passage out of the novel "Bleak House" written by Charles Dickens which sarcastically describes the delays in litigation in the Civil Courts in the following words: "
Jarndyce and Jarndyce drones on. The scarecrows of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children are born into the cause; innumerable young people have been married into it; innumerable old people have died out it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without knowing how or why.......Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out.....but Jarndyce and Jarndyce still drags it dreary length before the Court, perenially hopeless. "
ANNOUNCED IN THE OPEN COURT M.P. SINGH ON 28th APRIL, 2008 CIVIL JUDGE KKD COURTS DELHI.