Madhya Pradesh High Court
Saqib Khan vs Ravindra Suri on 5 November, 2014
Equivalent citations: AIR 2017 (NOC) 322 (M.P.)
Author: Alok Aradhe
Bench: Alok Aradhe
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
Writ Petition No.14628/2014
Saqib Khan ------------------Petitioner
-V/s-
Ravindra Suri -------------------Respondent
For the petitioner: Mr. Siddharth Gupta, Advocate
For the respondent: Mr. Ashish Shroti, Advocate
Present:
Hon'ble Mr. Justice Alok Aradhe
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ORDER
(05.11.2014) This petition under Article 227 of the Constitution of India arises from the orders dated 8.8.2014, 30.9.2014 and 16.7.2014 passed in Civil Suit No.419-A/ 2014.
2. The facts, giving rise to filing of the petition, briefly stated, are that one Ranjit Shah filed a civil suit, namely, C.S. No.483-A/2011 against the petitioner and the respondent seeking the reliefs of possession and damages on the basis of title on the ground that the petitioner and the respondent are encroachers. Thereafter, the present respondent along with his brother filed Civil Suit No.822-A/2012 on 27.7.2012 against the aforesaid Ranjit Shah seeking the relief of specific performance of contract. Thereafter, aforesaid Ranjit Shah filed civil suit, namely, C.S. No.443-A/2014 against the petitioner as well as respondent and other persons for eviction on the grounds enumerated under Section 12 (1) (a), (b), (c), (e) and (f) of the Act. It is noteworthy that in the aforesaid civil suit, in paragraph 5 of the plaint, the respondent has been described as tenant whereas the petitioner has been shown to be a 2 subtenant. Thereafter the respondent filed the suit, namely, 419-A/2014 against the petitioner for eviction on the ground enumerated under Section 12 (1) (a) of the Act.
3. The respondent filed an application under Section 13 (6) of the Act on the ground that the defendant has failed to tender the arrears of rent from March, 2013 to March, 2014. The aforesaid application was allowed by the trial Court vide order dated 8.8.2014 and the petitioner was directed to deposit the rent, failing which his defence to the eviction proceeding would be struck out. However, the petitioner did not deposit the rent and, therefore, vide order dated 29.9.2014, the defence of the petitioner to the proceeding for eviction was struck out. The petitioner also filed an application under Section 10 of the Code of Civil Procedure which was rejected by the trial Court by order dated 16.7.2014 on the ground that the application is pre- mature as the petitioner has not filed the written statement. In the aforesaid factual backdrop, the petitioner has approached this Court.
4. Learned counsel for the petitioner submitted that the application under Section 10 of the Code of Civil Procedure preferred by the petitioner has been rejected by the trial Court in a mechanical manner without application of mind. It is further submitted that filing of the written statement is not sine qua non for deciding the application under Section 10 of the Code of Civil Procedure. It is also submitted that order dated 8.8.2014 is contrary to the provision of Section 13 (3) of the Act inasmuch as the trial Court ought to have appreciated that there is dispute with regard to entitlement to receive the rent between respondent and Ranjit Shah. In support of the aforesaid submissions, learned counsel for the petitioner has placed reliance 3 on the decisions in Sankatha Devi v. Jagdish Singh , (1999) 1 MPLJ 497, Sabiha Masood v. Tahabbur Ali Khan , (1998) 2 MPLJ 610, Mohanlal v. Bhartiya Red Cross Society and Manaram v. Omprakash & Others , (1999) JLJ 197, Sheela v. Firm Prahlad Rai and Others , (2002) 3 SCC 375 and Punam Chand v. Moorti Madan Mohan Ji and Others , (2007) 3 MPLJ
340.
5. On the other hand, Mr. Ashish Shroti, learned counsel for the respondent with his usual fairness submitted that the application under Section 10 of the Code of Civil Procedure ought to have been dealt with by the trial Court on merits however, while defending the order dated 8.8.2014, learned counsel for the respondent invited the attention of this Court to paragraph 5 of the plaint in Civil Suit No.443-A/2014 and has pointed out that in the aforesaid civil suit the respondent has been described as tenant whereas the petitioner has been mentioned as subtenant. While placing reliance on the decisions in Daryanumal v. Sohanlal , 1961 MPLJ 1447, Kanhaiyalal v. Ganeshbai , 1963 MPLJ SN 228 and Vitthaldas v. Kalabai and another , 1978 (1) MPWN Note - 17, learned counsel for the respondent submitted that a subtenant is not required to comply with the provision of Section 13 of the Act. The petitioner has entered into an agreement of tenancy with the respondent on 1.4.2011 but had paid the rent up to March, 2013 only. Therefore, the trial Court was justified in directing the petitioner to comply with the provisions of Section 13 (1) of the Act.
6. I have considered the respective submissions made by learned counsel for the parties. The provisions of Section 10 of the Code of Civil Procedure are clear, definite and mandatory. The court in which subsequent 4 suit is filed is prohibited from proceeding with the trial in certain specified circumstances. [See: Manoharlal v. Seth Hiralal , AIR 1962 SC 27] The essential ingredients to be fulfilled for application of Section 10 of the Code of Civil Procedure, are namely, (i) the matter in issue in second suit is directly and substantially in issue in first suit; (ii) the parties in both the suits are common; (iii) the court in which the first suit is instituted is competent to grant the relief in subsequent suit; and (iv) whether the judgment in previous suit would operate as res judicata. The scope and ambit of Section 10 of the Code of Civil Procedure has been considered by the Supreme Court in the cases of Gupte Cardiac Care Centre and Hospital v. Olympic Pharma Care (P) Ltd. , (2004) 6 SCC 756, National Institute of Mental Health and Neuro Sciences v. C. Parameshwara , (2005) 2 SCC 256 and Aspi Jal v. Khushroo Rustom and Dadyburjor , (2013) 4 SCC 333. In the instant case, the trial Court while deciding the application under Section 10 of the Code of Civil Procedure has not dealt with the application on merits but has rejected the same simply on the ground that the petitioner has not filed the written statement. The filing of the written statement is not sine qua non for deciding the application under Section 10 of the Code of Civil Procedure. For the aforementioned reasons, the impugned order dated 16.7.2014 cannot be sustained in the eye of law.
7. Admittedly, in paragraph 5 of the plaint filed in C.S.No.443-A/2014, the respondent has been described as tenant whereas the petitioner is shown to be a subtenant. Section 13 (1) of the Act casts a duty on the tenant to tender rent in the manner prescribed therein. Thus, Section 13 (1) of the Act envisages privity of contract between the parties to the suit. There is no privity of contract between the landlord 5 and the subtenant. therefore, there is no liability on subtenant to deposit the rent. For the purposes of Section 13 (1) of the Act, tenant does not include subtenant. [See: Daryanumal (supra), Kanhaiyalal (supra) and Vitthaldas (supra) ] The petitioner, therefore, is not required to deposit rent in C.S. No.443-A/2014. The petitioner has entered into an agreement of tenancy with the respondent and has paid rent to the respondent till March, 2014. Therefore, in the facts of the case, there is no dispute with regard to entitlement to receive the rent. Consequently, Section 13 (3) of the Act has no application to the fact situation of the case. However, vide order dated 8.8.2014, the defence of the petitioner to the proceeding for eviction has been struck out therefore, I deem it appropriate to grant opportunity to the petitioner to deposit the arrears of rent.
8. In view of the preceding analysis, the impugned orders dated 16.7.2014 and 29.9.2014 are hereby quashed. However, the petitioner is granted two months' time to deposit the entire amount of rent, failing which the defence of the petitioner to the eviction proceeding would be struck out by the trial Court. The trial Court is directed to decide the application filed by the petitioner under Section 10 of the Code of Civil Procedure afresh on merits.
9. Accordingly, the writ petition is disposed of.
(Alok Aradhe) Judge ks