Patna High Court
Kaloot Sao And Anr. vs Mostt. (Name Not Known) W/O. Munni Sao ... on 25 August, 1976
Equivalent citations: AIR1977PAT90, AIR 1977 PATNA 90
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Lalit Mohan Sharma, J.
1. This second appeal by the defendants is directed against the decree of their eviction from certain premises in the town of Patna, fully described in the plaint. They are tenants under the plaintiff-respondent, who is the owner of the property. The plaintiff earlier filed T. S. 87 of 1958 for eviction of the defendants on the grounds permissible under the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as 'the Act'), A decree was passed in favour of the plaintiff by the first appellate court and the defendants filed S.A. 518 of 1960 in the High Court. No notice under Section 106 of the Transfer of Property Act had been served by the plaintiff before filing the suit and a point was taken by the defendants on the basis of the Full Bench decision in Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401) (FB) that the suit was not maintainable. The second appeal was taken up for hearing on 3-2-1966. When the point was taken, a prayer on behalf of the plaintiff was made for permission to withdraw the suit. The defendants did not raise any objection to the prayer which was allowed and the suit was permitted to be withdrawn. The plaintiff, thereafter, served a notice under Section 106 of the T. P. Act on the defendants, and after the period mentioned in the notice was over, the present suit was filed.
2. The defendants filed similar written statements raising several pleas, out of which, I may at this stage, in view of the limited argument of Mr. R. S. Chatterjee on their behalf, mention only one, namely, that the suit is not main-
tainable. All the issues in the suit were decided by the trial court against the defendants and in favour of the plaintiff excepting the issue of maintainability of the suit. The court held that although the suit was not barred by res judicata, but it was not maintainable in view of the provisions of Order XXIII Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'the Code).' The plaintiff, thereafter, appealed. The lower appellate court decided all the issues against the defendants including the issue of maintainability of the suit and passed a decree for their eviction.
3. Mr. R. S. Chatterjee, appearing for the appellants, contended that as the earlier suit had been withdrawn without liberty to institute a fresh suit, the present suit must be held to be barred under Sub-rule (3) of Order XXIII Rule 1 of the Code, which reads as follows;
(3) -- "Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
He said that the term 'subject-matter' in Order XXIII Rule 1 (3) of the Code must be interpreted to mean the disputed property or, in any event, the decree asked for, in the plaint; and they in the two suits are identical. The argument is that there is no reason to interpret the term 'subject-matter' as including the cause of action for the suit Mr. Chatterjee compared the language of Order XXIII Rule 1 (3) of the Code with that of Order IX Rule 9 wherein it is stated that if a suit is dismissed under Order IX Rule 8, "the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action". As the legislature has, in its wisdom, refrained from using the words 'the same cause of action' in Order XXIII Rule 1 (3) of the Code, Sub-rule (3) should not be interpreted as referring to the cause of action.
4. In Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Patna 401) (FB), it was held that the lease must be determined by the landlord by service of notice under Section 106 of the T. P. Act before he can maintain an action for the tenant's eviction under Section 11 of the Act and as the plaintiff in that case had not served such a notice, the suit was premature. The Full Bench decision applied squarely to the T. S. 87 of 1958 which had come to the High Court in S.A. 518 of 1960. There it had been found that the defendants were defaulters in payment of rent and a decree for eviction had been passed by the court below. The difficulty in the way of the plaintiff arose the in High Court after the Full Bench decided that a notice terminating the lease was essential and in absence thereof, no cause of action arose in favour of the plaintiff. If the term 'subject-matter' in Order XXIII Rule 1 (3) of the Code does not include the cause of action and referred merely to the relief in the plaint, as is submitted by Mr. Chatterjee, the present suit must be held to be not maintainable. But, on the other hand, if the 'subject-matter' is interpreted otherwise, the point taken on behalf of the appellant must fail.
5. In Vallabh Das v. Madanlal (AIR 1970 SC 987), the Supreme Court had to consider the meaning of the term 'same subject-matter'. Although the facts of that case are not similar, but the law declared by the Supreme Court to the following effect must be deemed to be settler on the question:
"In other words "subject-matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis C. J. in Singa Reddi v. Subba Reddi, ILR 39 Mad 987 = (AIR 1917 Mad 512) (FB) that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit."
In Pandillapalli Singha Reddi v. Yeddula Subba Reddi (ILR 39 Mad 987 = (AIR 1917 Mad 512) (FB), the plaintiffs first brought a suit in 1911 during the lifetime of a female holder of the estate in question challenging certain alienations by the lady in favour of the defendant. During the pendency of the suit, the limited owner died and the interest of the plaintiffs, which was merely spes successions became a vested right to the property. The plaintiffs withdrew that suit without permission to bring a fresh suit and subsequently filed another. A question arose as to whether the second suit was barred under Order XXIII Rule 1 (3) of the Code. The opinion of the Full Bench was in the negative which opinion has been held by the Supreme Court as correct. The subject-matter of a suit cannot be equated with the property in respect of which the parties quarrel. As pointed out by the aforementioned decision, it includes the cause of action also. It, therefore, follows that unless the cause of action for the two suits is the same, the bar of Order XXIII Rule 1 (3) of the Code cannot be applied. In the present suit, the cause of action is the service of notice under Section 106 of the Transfer of Property Act and as the notice had been served before the filing of T. S. 87 of 1958, it cannot be said that the cause of action of the two suits is common. I, therefore, hold that the suit is not barred.
6. Mr. R. S. Chatterjee next contended that the Full Bench decision in Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401) was wrongly decided, and that the termination of tenancy by service of notice under Section 106, T. P. Act, is not essential for the success of a suit for eviction governed by the Bihar Control Act. If this argument prevails, it will follow that the service of notice after the withdrawal of the earlier suit and before the filing of the present suit was an unnecessary step taken by the original sole plaintiff and the cause of action in both the suits would be the non-payment of rent by the defendants within the meaning of Section 11 of the Act. In that situation, the present suit can be held to be barred by the provisions of Order XXIII Rule 1 (3) of the Code. The main question, however, is whether the Full Bench decision in Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401) can be said to be erroneous.
7. In reply, Mr. J. C. Sinha, appearing for the respondents contended that in view of the conduct of the defendants in successfully arguing in S. A. 518 of 1960 that T. S. 87 of 1958 was not maintainable, in absence of service of notice under Section 106, T. P. Act, they should not be permitted now to urge that it was maintainable without such a notice. Mr. Sinha also argued that the case Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401) (FB) was correctly decided.
8. Mr. Chatterjee said that in view of the subsequent decisions of the Supreme Court in Raval & Co. v. K. G. Ramachandram, (AIR 1974 SC 818), Isha Valimohammed v. Haji Gulam Mohammad and Haji Dada Trust, (AIR 1974 SC 2061), P. J. Gupta v. K. Venkatesan, (AIR 1974 SC 2331) and Puwada Venkateswara Rao v. Chidamana Venkata Ramana (AIR 1976 SC 869) it must now be held that the case Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401) (FB) was incorrectly decided.
9. The case of Ravel & Co. v. K. G. Ramachandram (AIR 1974 SC 818) was governed by Tamil Nadu Buildings (Lease and Rent) Control Act which included certain provisions for fixation of fair rent. The landlords applied for fixing fair rent and the tenants moved the Madras High Court by a writ application for restraining the landlords from proceeding with their application on the ground that the provision regarding the fixation of fair rent was for the advantage of the tenants only and the landlords could not maintain such an application, A Full Bench of the Madras High Court decided the point in favour of the landlords and the view was upheld by the Supreme Court. It was held that Tamil Nadu Buildings Control Act has a scheme of its own and it is intended to provide a complete Code in respect of both contractual tenancies as well as statutory tenancies and that the provision for fixation of fair rent would be meaningless if fixation of fair rent can only be downwards from the contract rent and contract rent could not be increased. On the question, whether the Act was a complete Code by itself or not, the appellants before the Supreme Court relied upon the decisions in Bhaiya Punjalal Bhagwand-din v. Dave Bhagwat Prasad, (AIR 1963 SC 120) and Manujendra v. Purendu Prosad (AIR 1967 SC 1419). In these two cases, it had been held that the relevant Control Act did not provide the landlord with additional rights and it was, therefore, not open to the landlord to take the advantage of the provisions of the Act to apply for fixation of fair rent at a figure higher than the contract rent. Mr. Chatterjee argued that the Supreme Court did not follow these two cases and relied upon Brij Raj Krishna v. S. K. Shaw & Bros. (AIR 1951 SC 115) dealing with the Bihar Buildings Control Act. A portion of the judgment in Brij Raj Krishna's case was quoted saying that Section 11 of the Bihar Control Act was a self contained section and it was wholly unnecessary to go outside the Act for determining as to whether the tenant was liable to be evicted or not and under what conditions he could be evicted. The judgment in Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401 (FB) ) strongly relied upon the decision in Bhaiya Punjalal Bhagwanddin v. Dave Bhagwat Prasad (AIR 1963 SC 120) and distinguished the casg of Brij Raj Krishna. Mr. Chatterjee strenuously contended that in view of the observations of the Supreme Court in Ravel & Co, v. K. G. Ramachandram (AIR 1974 SC 818), specially in paragraph 15 of the judgment, it should be held that the case of Brij Raj Krishna must be followed in preference to the case of Bhaiya Punjalal Bhagwanddin v. Dave Bhagwat Prasad; and as in Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401) (FB) the Full Bench preferred the judgment in Bhaiya Punjalal Bhagwanddin's case and refused to follow Brij Raj Krishna's case, the decision must be held to be erroneous. After considering the relevant decisions, I am not in a position to accept the argument. Nobody has ever suggested either now or before the Full Bench that Brij Raj Krishna's case was not correctly decided nor did the Full Bench make such a suggestion. That decision was considered by the Full Bench at a considerable length in paragraphs 21 to 24 of the judgment and it was, inter alia, pointed out that the Bihar Control Act underwent a drastic change by an amendment in 1955. Several other important features present in the case of Brij Raj Krishna were also discussed by the Full Bench, which distinguished Niranjan Pal's case. It cannot, therefore, be legitimately suggested that the Full Bench decision should be held to be illegal on the ground that it refused to follow the Supreme Court decision in Brij Raj Krishna's case. The case of Bhaiya Punjalal Bhagwanddin was gov-verned by the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 and the Supreme Court in Ravel & Co. v. K. G. Ramachandram (AIR 1974 SC 818) expressly stated that it was not called upon to consider whether Bhaiya Punjalal Bhagwanddin's case was correctly decided. It was further observed that any general observation by the Supreme Court in a decision cannot apply in interpreting the provisions of an Act unless the Supreme Court has applied its mind to and analysed the provisions of that particular Act. It is, therefore, not possible to assume that the decision in Bhaiya Punjalal Bhagwanddin's case has now been held by the Supreme Court to be incorrect. The Full Bench decision of the Patna High Court accordingly cannot be challenged on the ground that it was based on the overruled decision of the Supreme Court in Bhaiya Punjalal Bhagwanddin's case. The scheme of Tamil Nadu Act was analysed and it was found that the Act provided a complete Code in itself. That is no reason for holding that the Bihar Buildings Control Act also should be interpreted as providing a complete and exhaustive Code.
10. In Isha Valimohammad v. Haji Gulam Mohammad and Haji Dada Trust (AIR 1974 SC 2061), it was held that there was no question of the landlord terminating the tenancy under the Transfer of Property Act on the ground that the tenant had sublet the premises and that the landlord was entitled to a decree for eviction without a notice under the Transfer of Property Act. To the area where the premises in question were situate, the Saurashtra Rent Control Act, 1951 applied. It was repealed on 31st December, 1963, and the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 was made applicable on 1-1-1964. Section 15 of the Saurashtra Act prohibited subletting notwithstanding anything contained in any law. The Section 13 (1) (e) of the Saurashtra Act said that notwithstanding anything contained in that Act, a landlord would be entitled to recover possession of any premises, if the Court was satisfied that the tenant had, since coming into operation of the Act, sublet the premises. The tenant in the reported case had sublet the premises in question before 1-1-1964 and neither a notice terminating the tenancy was given nor the suit was filed before 1-1-1964. The notice was served on 12-2 1964, that is, after repeal of the Saurashtra Act, and the suit was filed thereafter. While dealing with the question of notice, it was held that there was no necessity of terminating the tenancy under the T. P. Act. The reason as given in paragraph 17 of the judgment was that the landlord can terminate the tenancy on the ground that the tenant had sublet the premises unless the contract of tenancy prohibits him from doing so. Section 13 of the Saurashtra Act was quoted and it was pointed out that the landlord was entitled to recovery of possession under the provisions of the Saurashtra Act and not under the Transfer of Property Act. This decision cannot apply to the present case, which is governed by the Bihar Control Act. Section 11 of the Bihar Control Act does not clothe the landlord with any additional right, it merely provides with additional protection to the tenant. The foundation of the right of the landlord is the termination of the tenancy under the provisions of the T. P. Act. By Section 11 of the Bihar Control Act, the landlord has been placed under an additional duty of establishing one of the conditions mentioned therein before a decree for eviction could be granted in his favour. The decision in the case Isha Valimohammad v. Haji Gulam Mohammad and Haji Dada Trust, therefore, is of no help in the present case.
11. In P. G. Gupta v. K. Venka-tesan (AIR 1974 SC 2331), the Supreme Court following the decision in Ravel & Co. V. K. G. Ramachandram, (AIR 1974 SC 818) held that the Act "has a scheme of its own and is intended to provide a complete Code". Proceeding further, it was said that special procedure provided by the Act displaced requirements and procedure for eviction under the T. P. Act and it was, therefore, not necessary to consider the provisions of the T. P. Act. In Puwada Venkateswara Rao v. Chidamna Venkata Ramana, (AIR 1976 SC 869), the Andhra Pradesh Buildings (Lease and Eviction) Control Act was also similarly interpreted as a complete Code. These decisions were based on the interprtation of the Madras and Andhra Pradesh Acts and cannot be applied to the Bihar Act, which is quite different. It will be observed that under the Andhra Pradesh Act, the landlord's remedy for eviction was before the Controller. In paragraph 6 of the judgment, the decision in Mangilal v. Sugan Chand Rathi, (AIR 1965 SC 101) was considered and it was pointed out that in the context of the remedy of ejectment by ordinary civil suit, the notice of termination of tenancy under the T. P. Act was necessary as a condition precedent, After 1955 amendment in the Bihar Act, the remedy of the landlord to go before the House Controller under the provisions of the Control Act does not exist and he has to file an ordinary civil suit for that purpose. Section 11 of the Control Act merely puts an impediment in the way of recovery of possession. The Bihar Act does not provide a complete and exhaustive Code and, therefore, does not render the provisions of the T. P. Act inapplicable. It is similar to the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 considered in Bhaiya Punjalal Bhagwanddin v. Dave Bhagwat Prasad, (AIR 1963 SC 120) and Vora Ab-basbhai Alimahomed v. Haji Gulamnabi Haji Safibhai, (AIR 1964 SC 1341) the Madras Accommodation Control Act, 1955 considered in Mangilal v. Sugan Chand Eathi (AIR 1965 SC 101), the Mysore Rent Control Act, 1961 considered in Dattopant Gopalrao Devakate v. Vithalrao Marutirao (AIR 1975 SC 1111) and the Delhi Rent Control Act, 1958, considered in Ratan Lal v. Vardesh Chandar (AIR 1976 SC 588). In all these oases, the Supreme Court held that the termination of tenancy by service of notice under the T. P. Act was essential. In Ratan Lal v, Vardesh Chandar, however, it was held that a written notice of termination of tenancy was not essential because the T. P. Act was not extended to Delhi area where the premises were situate on the relevant date. In paragraph 7 of the judgment, it was held that if a Rent Control legislation provided grounds for eviction in supersession and not in supplementation of what is contained in the T. P, Act, then no termination of tenancy by service of notice under Section 106, T.P, Act, may be essential, but in the other cases, the requirement continues. If I may say so with great respect, the same principle has been enunciated in the other decisions of the Supreme Court wherein it has been said that the test for finding out whether a notice of termination of tenancy is essential or not is to analyse the Buildings Control Act for finding out whether it provides a complete and exhaustive Code or not. I have gone through the entire Bihar Act and I am of the view that on the terms of the ratio decided in Ratan Lal v. Vardesh Chandar, (AIR 1976 SC 588), it does not supplant but supplements the Transfer of Property Act and does not eliminate the statutory requirements of the determination of tenancy, but superimposes a ban on eviction, which otherwise may be available in conformity with the T. P. Act, without fulfilment of additional grounds, The argument of the defendants that the Full Bench decision of this Court was wrongly decided must, therefore, be rejected. I, accordingly, hold that the cause of action for the eviction of the defendants did not arise when T. S. 87 of 1958 was filed and was withdrawn; and, consequently, the present suit cannot be held to be barred under Order XXIII Rule 1 (3) of the Code.
12. On the question of estoppel, Mr. J. C. Sinha relying upon the decisions in Nagubai Ammal v. B. Shama Rao (AIR 1956 SC 593), Amritlal N. Shah v. Alia Annapurnamma (AIR 1959 Andh Pra 9) and Venigella Parendhamayya v. Sri Somasekharaswamy Temple Kotipalli (AIR 1970 Andh Pra 394) contended that in S.A. 518 of 1958, the defendants argued before the High Court that the suit was not maintainable in absence of a service of notice of termination of tenancy and, confronted with the Full Bench decision in Niranjan Pal v. Chaitanyalal Ghosh (AIR 1964 Pat 401), the plaintiff had no alternative but to concede that the point was correct. He accordingly withdrew the suit. The defendants, now, cannot be allowed to take an inconsistent stand.
13. Mr. Chatterjee, in reply argued that what the defendants are now trying to do is merely to argue a pure question of law and that they cannot be estopped from so doing.
14. As is clear from the order of the High Court permitting withdrawal of T. S. 87 of 1958 (Ext. D), the defendants took up a stand that T. S. 87 of 1958 was not maintainable, as no cause of action had arisen for the suit in absence of a notice, and because of this stand, the plaintiff had to withdraw the suit. The rule of estoppel is based on equity and good conscience and it would be most unequitable to a person that if another person who by a representation has induced him to act as he would not have otherwise done, should be allowed to repudiate his earlier representation to the loss of the person who acted on it The principle that a litigant should not be permitted to approbate and reprobate covers the case and I hold that the plea of estoppel would operate against the defendants-respondents.
15. Lastly, it was also suggested on behalf of the appellants that the defendants are not defaulters in payment of rent within the meaning of Section 11 of the Bihar Control Act. They had paid, from time to time, several items of money and had also to spend some money over restoring some of the amenities of the house cut off by the plaintiff, and further that they had made payments in M.S. 387 of 1958 filed for realisation of the arrears. The details of the accounts have been considered at considerable length by both the courts below and they have concurrently found that the defendants defaulted in payment of the rent. The finding being a finding of fact is binding on this Court and no legal ground has been shown for interfering with the same. Besides, both the courts below have also found that the condition of the building has materially deteriorated owing to the acts and omissions of the defendants. This finding indicates that apart from default in payment of rent, another condition mentioned in Section 11 of the Bihar Control Act is also satisfied.
16. For the reasons stated above, I hold that there is no merit in this appeal, which is accordingly dismissed. Having regard to the fact that the appeal had to be heard for three days, in view of the arguments addressed on behalf of the appellants, and having regard to the other facts and circumstances of the case, I assess the hearing fee for this Court at Rs. 200/-
Birendra Prasad Sinha, J.
17. I agree.