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Showing contexts for: two parallel proceedings in Mrs. R.E. Fanibunda vs Nicholas Of India Ltd. And Ors. on 9 July, 2002Matching Fragments
9. The next objection taken on behalf of the Respondent is that the petitioner cannot pursue two parallel proceedings for the same relief. It was submitted that since the present Writ Petition has been saved, the Petitioner will have to pursue this remedy and cannot take recourse to another proceedings by way of Suit as filed in the year 2001. Reliance was placed on the decision of the Apex Court in Ambalal Saabhai Enterprises Ltd. v. Amritlal and Co. , in particular, paragraph 39 thereof, where the Apex Court observed that since the Rent Controller has the jurisdiction over the subject matter, it will not be right for the landlord to continue with two parallel proceedings - one under the general law and the other before the Rent Controller. The landlord in that case was given opportunity to withdraw one of the two proceedings within six weeks. Reliance was also placed on another decision of the Apex Court in Kumud Kumar v. Central Bank of India. Where, the Court observed that to permit a party to prosecute two proceedings for the same relief, would amount to abuse of process of Court and cannot be countenanced. Relying on the aforesaid decision, it is contended that the Petitioner can either pursue the present writ Petition or the fresh suit instituted in 2001 for the same relief of possession. To counter this contention, it is contended on behalf of the Petitioner that the argument of the Respondents clearly overlooks that both, the proceedings are independent proceedings arising from separate cause of action. It is contended that the question of doctrine of election would apply only where two parallel remedies are pursued by the litigant in respect of the same cause of action. I find force in the this submission advanced on behalf of the Petitioner. In the present case, the Writ Petition arises from Suit instituted by the Petitioner under the provisions of the Bombay Rent Act of 1947. That Act has been repealed and has been replaced by Maharashtra Rend Control Act of 1999. By virtue of the provisions of the Maharashtra Rent Control Act of 1999, the 2nd Respondent is not covered and therefore, not amenable to the provisions of that Act. It is on that premise that notice was issued by the Petitioner on 19th July, 2001, terminating the tenancy of the Respondents in respect of the suit premises and claiming possession thereof. In the Suit as filed, no doubt, relief of possession as claimed is the same, but the fresh suit is also for the relief of mesne profits, which relief could not have been claimed against the Respondents if they were to be governed by the provisions of the Rent Act. In other words, the cause of action for filing the suit in 2001 is independent. No doubt, in the case of Ambalal Sarabhai Enterprises Ltd. (Supra), the Apex Court has observed that litigant cannot be permitted to take recourse to two parallel proceedings, however, as rightly contended on behalf of the Respondents, that principle will have to be understood in the context of the fact situation of that case, where both the proceedings were pending before the first Court i.e. the Trial Court. However, in the present case, two proceedings are pending before different forums inasmuch as the Suit is pending before the first Court: whereas, the second proceeding in the form of writ Petition is pending in this Court. Even in the case of Kumud Kumar (Supra), the fact situation was entirely different. In that case, the landlady had filed suit for possession and damages, which Suit was decreed, but eventually, in the Appeal, the High Court found that the landlady had not terminated the tenancy by giving notice under Section 106 of the Transfer of Property Act. After that decision, the landlady proceeded to terminate the tenancy under Section 106 of the Transfer of Property Act and thereafter, filed a fresh suit for possession and mesne profit: whereas, later on, the landlady challenged the order passed in the first appeal on the ground that it was not necessary to give notice under Section 106 of the Transfer of Property Act. In that context, the Apex Court observed that the litigant cannot be allowed to prosecute two remedies simultaneously, having acquiesced of the order passed by the High Court regarding giving notice under Section 106 of the Act. I find force in the argument of the Petitioner that it is only when two parallel remedies are resorted to, arising from the same cause of action, that the question of election of remedy would arise. However, in the present case, both the Suits are on different and distinct cause of actions and the nature of reliefs claimed is not identical. Inasmuch as in the Suit from which the present. Writ Petition arise, the relief is only of possession: whereas, in the fresh suit filed under the general Law, relief is not only of possession, but also of mesne profit. Besides, the fresh Suit has been filed in view of the express statutory provision of the Act of 1999, which excludes application to the Companies such as Respondent No. 2. It is well settled that the landlord can file successive suits for the same relief, but on different grounds. To put it differently, the landlord may file suit for recovery of possession against the tenant on the ground of bonafide and reasonable requirement: And later on, during the pendency of the said Suit, if new cause of action for seeking possession has arisen- for example, because of the default committed by the tenant, the landlord is competent to institute another suit for the same relief of possession against the tenant on that count. Applying that principle the institution of suit cannot be questioned. I would adopt the view taken by the Full Bench of the Andhra Pradesh High Court in in the case of Siddiah v. Kamath that notwithstanding the pendency of an application for eviction filed by a landlord against his tenant under the provisions of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, the landlord is entitled to file a second application for eviction either during the pendency of the first application or its disposal, relying upon a ground of eviction which has accrued to him during the pendency of the earlier application for eviction. Similar view has been taken by the full Bench of Madras High Court in in the case of K. Perumal Shettiar v. Muthuswamy. To my mind, therefore, the question of election of remedy will have no application to the fact situation of the present case as both the remedies are founded on separate and distinct cause of actions. In the circumstances, I find no force in this objection taken on behalf of the Respondents.