Delhi District Court
Sir Sobha Singh & Sons Pvt. Ltd vs Anisa Singh on 5 July, 2022
IN THE COURT OF NEHA GUPTA SINGH:
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER
NEW DELHI DISTRICT, PATIALA HOUSE COURTS
NEW DELHI
CS SCJ 826/19
In the matter of:
Sir Sobha Singh & Sons Pvt. Ltd.
A Company Registered and Incorporated under
The Indian Company Act
Having registered Office at
1-A, Janpath, New Delhi-110011.
Through Director / Authorized Representative
Sh. Preminder Singh. .......... Petitioner
VERSUS
1. Anisa Singh,
D/o Sh. Shivinder Singh,
Villa-55, Mulungushi Village Complex,
Kalundu, Lusaka, Zambia,
E-mail ID: [email protected].,
[email protected]
2. Devyani,
R/o D-39, Sujan Singh Park,
New Delhi-110003 .......Defendants
ORDER
1. Vide this order I shall decide the application dated 19.09.2019 under Order 7 Rule 11 made by the defendant by invoking Order II rule 2 and also Order XXIIII Rule 1 CPC by referring to the suit for mandatory and permanent Injunction previously filed by the plaintiff against the defendant in respect to the same property, which is subject matter of the present suit.
Defendant's version.
2. It is contended by the defendant that present suit is liable to be rejected as plaintiff has already instituted CS. 73/2018 titled as Sir Shobha Singh & Sons Pvt Ltd v. Anisa Singh & Anr. for mandatory and permanent injunction with damages qua the property, D 39 Ground floor, Sujan Singh Park, New Delhi 110003 (subject matter of present suit). Summons were issued to the defendant in that case vide order dated 15.01.2018 and same is pending in this court only. Plaintiff has also filed an application under Order II Rule 2 seeking liberty to file appropriate suit in respect of relief of possession or to amend the same suit for such relief.
3. Plaintiff in both suit is claiming relief based on same bundle of facts. Plaintiff has failed to obtain relief on its application under Order II Rule 2 and present suit will be barred as plaintiff failed to obtain leave of first court in respect of reliefs it has omitted in earlier suit. Plaintiff has not sought leave of first court to withdraw earlier suit under Order XXIII Rule (1)(3) CPC, hence present suit is barred under Order XXIII Rule 1(4) CPC.
4. Plaintiff deliberately dragged its feet in the earlier suit and delayed the proceedings therein. On 9.07.2019, an application under Order 23 Rule 1 CPC for withdrawal of said suit was moved by the plaintiff. At the time of filing of present application, that application of withdrawal in other suit is pending.
Plaintiff's version
5. Per contra it is stated in reply to application by the plaintiff that application under Order VII Rule 11CPC is filed in gross abuse of process of law and same is filed as dilatory tactic. There is no identity in the cause of action for filing the present suit vis a vis the previously instituted suit, bearing no. CS 73/2018. Status of defendant no. 1 in respect to the suit property was that of a tenant under the plaintiff, whose tenancy has been terminated and since the defendant is in illegal possession of the suit property, the right of the plaintiff to seek possession of the suit property from the defendants is a continuous cause of action, accruing on day to day basis till the time the defendant vacate the suit property, and for that reason also, present suit cannot be said to be hit by Order II Rule 2 or Order XXIII Rule 1 CPC, as sought to be alleged.
6. It is further stated that earlier suit for for permanent and mandatory injunction was filed by the plaintiff on the basis of illegal constructions, so raised by the defendants, in the suit property, and in the present suit, there is separate and distinct cause of action, when the defendant no. 1 in her written statement to the plaint of suit bearing no. 73/2018 denied the tenant and landlord relationship between the plaintiff and defendant no. 1, which otherwise was never in dispute before filing the suit no. 73/18. Even the properties being subject matter of the previous suit and the present suit are not same, where in the previous suit the property involved was only flat no. D-39 in which their exist illegal constructions, where in the present suit the entire premises, being let out to the defendant no. 1 including servant quarter is also subject matter.
7. I have heard the Ld. counsel for applicant/defendant and respondent/plaintiff and have perused the record carefully.
8. During the pendency of present application CS. 73/18 was withdrawn by the plaintiff vide order dated 3.03.2022. It is admitted that no liberty to file fresh suit is sought or granted. Arguments
9. Ld. counsel for defendant/ applicant has argued that present suit is liable to be rejected under Order VII Rule 11 as plaintiff in both suits is claiming relief based on same facts. Plaintiff has failed to obtain relief on its application under Order II Rule 2 and present suit will be barred as plaintiff failed to obtain leave of first court in respect of reliefs it has omitted in earlier suit. Plaintiff has not sought leave of first court to withdraw earlier suit under Order XXIII Rule (1)(3) CPC with liberty to file afresh, hence present suit is barred under Order XXIII Rule 1(4) CPC. Reliance is placed on Ranbir Singh v. Dalbir Singh1, Deepa Dua v. Tejinder Kumar Muteneja2, Pramod Kumar v. Zalak Singh3, Vurimi Pullarao v. Vemari Vyankata Radharani4, Madan Lal Arora v. Shiv Kumar5. It is further argued that eviction is sought on basis of notice dated 28.06.2018, which was the basis of earlier suit.
10. Per contra it is argued by the Ld. counsel for the plaintiff/respondent that in present case tenancy between plaintiff and respondent is 1 MANU/DE/2516/2008 2 2013 (137) DRJ 653 3 (2019)6 SCC621 4 (2020) 14 SCC 110 5 2007(95) DRJ 395.
month to month basis tenancy, as there is no registered lease. Every month it gives plaintiff a fresh cause of action to institute a suit upon service of fresh notice of termination. Reliance is placed on MEC India Pvt Ltd v. Lt. Col. Inder Maira & ors.6 Earlier suit was filed by the plaintiff on the basis of illegal constructions, so raised by the defendants, in the suit property, and in the present suit, there is separate and distinct cause of action, where eviction is sought on basis of termination of month to month tenancy. Properties being subject matter of the previous suit and the present suit are not same, where in the previous suit the property involved was only flat no. D-39 in which there exist illegal constructions, in the present suit the entire premises, being let out to the defendant no. 1 including servant quarter is also subject matter. it is argued that if bar will be stated to have been operational, defendant will become tenant in perpetuity.
Discussion
11. At the outset it is wise to discuss the legal principles involved in present matter at hand:
Order 7 Rule 11 of the CPC reads as follows:
"11. Rejection of plaint.-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the 6 (1999) 80 DLT 679 valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." (emphasis supplied)
12. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision7.
7 Dahiben v. Arvindbhai Kalyanji Bhanusali 2020 SCCOnline SC 562.
13. In Azhar Hussain v. Rajiv Gandhi8 it was held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court.
14. In recent judgment of Dahiben v. Arvindbhai Kalyanji Bhanusali9 court placing reliance on Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I & Anr.10, Hardesh Ores (P.) Ltd. v. Hede & Co11, Sopan Sukhdeo Sable v. Assistant Charity Commissioner12, D. Ramachandran v. R.V. Janakiraman,13 Vijay Pratap Singh v. Dukh Haran Nath Singh,14 Saleem Bhai v. State of Maharashtra 15 on Order VII Rule 11 to lay down that:
The conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.
At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the 8 1986 Supp. SCC 315 9 supra.
10 (2004) 9 SCC 512., 11 (2007) 5 SCC 614., 12 (2004) 3 SCC 137 13 (1999) 3 SCC 267;
14 AIR 1962 SC 941 15 (2003) 1 SCC 557., merits, would be irrelevant, and cannot be adverted to, or taken into consideration.
The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed.
The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial.
The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
15. Defendant/ Applicant has sought rejection of plaint, on the basis that present suit is barred under Order II Rule 2 and Order XXIII Rule 1(4) CPC. It is trite to consider the legal position as to Order II Rule 2 and Order XXIII Rule 1(4) at this stage.
16. Order II Rule 2 provides, "Suit to include the whole claim.
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. "
17. The object behind enactment of Order II Rule 2 (2) and (3) of the CPC is to discourage and prohibits vexing of the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason.
18. Order II Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order II Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order II Rule 2 of CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order II Rule 2 (2) does not contemplate omission or relinquishment of any portion of the plaintiff's claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the Court is contemplated by Order II Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the Court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order II Rule 2 (2) and (3) of the CPC that the aforesaid two sub-rules of Order II Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit provided that at the time of omission to claim the particular relief he had obtained leave of the Court in the first suit. Reference be had to M/S Virgo Industries (Eng) P.Ltd vs M/S Venturetech Solutions P.Ltd 16.
19. Hon'ble Supreme Court held in Gurbux Singh v. Bhooralal 17 that, in order that a plea of a bar under O. II Rule 2(3), Civil Procedure 16 2013 1 SCC 625 17 AIR 1964 SC 1810 Code should succeed the defendant who raises the plea must make out (1) that 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 cause 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 scope for the application of the bar.
20. The cardinal requirement for application of the provisions contained in Order II Rule 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. Halsbury's Law of England, (4th Edition) defines cause of action as follows:
"Cause of Action" has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular action the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action."
21. In the present case leave to sue for the possession at a later stage was claimed by the plaintiff in C.S. Nos. 73/2018, however, admittedly, no such leave was granted by the Court. The question, need to be address, in the present case, is whether the cause of action in the first and second suit is same.
22. A reading of the plaints filed in C.S. Nos. 73/18 show clear averments to the effect that plaintiff sent notice by email dated 28.06.2016 to the defendant to remodify all changes not in conformity with the Architects report and restore the flat to its original condition., not to construct any porta cabin, demolish the additionally constructed room, that her tenancy would be deemed to be terminated at the end of one month, damages @ Rs. 5 lac per month would be claimed by the party.
23. Plaint in present suit CS 826/19 aver in para no. 11 and 12 that plaintiff sent notice by email dated 28.06.2016 to defendant to to remodify all changes not in conformity with the Architects report and restore the flat to its original condition., not to construct any porta cabin, demolish the additionally constructed room, that her tenancy would be deemed to be terminated at the end of one month, damages @ Rs. 5 lac per month would be claimed by the party.
24. The averments made by the plaintiff in C.S. Nos 73/18 and 826/19 particularly the pleadings extracted above, leave no room for doubt that the basis for the relief claimed in the two suits is same cause of action ie. notice dated 28.06.2016 . Plaintiff could have sought the relief in CS 173/18, however, the said relief was omitted and no leave in this regard was obtained or granted by the Court.
25. Argument of plaintiff that such bar will make tenancy of defendant in perpetuity is without any basis. Reliance placed on MEC India 18 Pvt Ltd v. Lt. Col. Inder Maira (Supra) is of no use to plaintiff as in that case fresh notice of termination was given by the landlord to the tenant when suit on basis of earlier notice for termination was dismissed in default. There is no bar on plaintiff to issue fresh termination notice on defendant in month to month tenancy and to create fresh cause of action.
26. Order XXIII Rule 1(4) provides that when plaintiff withdraws from a suit or part of claim without liberty to institute a fresh suit for the subject matter of a suit or part of claim, he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of claim.
18 1999 SCC Online Del 422
27. In present case subsequent suit is filed during the pendency of earlier suit and earlier suit was withdrawn at later stage, therefore bar under Order XXIII Rule 1(4) CPC is not applicable. ORDER
28. In light of above discussion suit of plaintiff is rejected under Order VII Rule 11 being barred by Order II Rule 2. All pending applications are disposed off not being pressed.
Digitally
29. File be consigned to record room.
signed by NEHA Announced in the open court NEHA [NEHA GUPTA SINGH] SCJ-CUM-RC GUPTA on 05th July, 2021 GUPTA New SINGH Delhi Distt, PHC, Delhi SINGH Date: 2022.07.05 16:59:49 +0530