Document Fragment View

Matching Fragments

(7) In the light of the contentions of the learned Counsel for the revision petitioner, first point in issue required to be considered is whether the suit is barred under Order 23 Rule I, Sub-rule (4) CPC. The said rule reads as under : "Where the plaintiff- (a) abandons any suit or part of claim under Sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), 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." 7.1.2. So far as withdrawal of the first Petition No. 696/70 is concerned, the following order was passed vide Ex. RW2/6 : "...I permit the petitioner to withdraw the petition with permission to file a fresh petition on the same cause of action and subject-matter subject to payment of Rs. 50.00 as costs. Payment of cost shall be pre-condition before filing the fresh petition. The file be consigned. sd/- (R.P. Gupta) Announced. Add. Rent Controller, Dated 27.8.73. Delhi. It is established that the cost had already been deposited vide challan Ex. A.8 dated 23rd July, 1974. 7.1.3. The contention of Mr. M.L. Lonial that the costs were to be paid to the defendant and was not to be deposited, appears to be totally devoid of any force. It maybe mentioned that in Bhagat Ram v. Dwarka Pershad, 1972 Rcr 128, our own High Court observed thus : "7. With regard to the second contention, I have quoted the order of Mr. Chowdhary, Additional Controller by which he had granted permission to withdraw the petition subject to payment of costs. On a construction of the order, it appears that the payment of costs was a condition for the institution of fresh proceedings. What is the effect of non-payment of costs on the institution of fresh proceedings has been the subject-matter of wide divergence of views amongst the various High Courts in this country and the same has been noticed to length in Mulla's Code of Civil Procedure Note 4 under Rule I of Order 23 On a construction of the statutory provisions and the various authorities, my conclusion is as follows : 1. The order of the Controller imposing terms upon withdrawal of the petition with liberty to file another is to be strictly complied with and the ordered cost must be paid at the time of the filing of the second petition, even where no time has been fixed for its payment. 2. The first petition which has withdrawn cannot revive upon failure to carry out the terms of such order and the same stands disposed of finally. 3. Failure to punctually pay the costs does not effect the inherent jurisdiction and competence of the Controller to entertain the fresh petition and the same merely amounts to an irregularity in the initial procedure which can be conduced." 7.1.4. There does not appear anything which should make me to take a different view from what has been taken by the learned Rent Controller for it could not be disputed that the costs had been deposited. Consequently, I do not find any substance in this submission of Mr. M.L. Lonial in this regard, and reject the same. 7.2.1. As regards the fact that the Petition No. 754/74 was dismissed as withdrawn vide Ex. RW2/7, the relevant portion of Ex. RW2/7 reads as under : "Application for eviction of tenant. Under Section 14 of Delhi Rent Control Act. Application presented on the 2.12.74. Order As per the Statement, the petition is dismissed as withdrawn. sd/- (V.S. Aggarwal) Addl. Rent Controller: Delhi. Announced in Court." 7.2.2. The petitioner/tenant specifically pleaded in para 2 of his preliminary objections in his written statement as under : "...On 21st February, 1974, the petitioner filed another eviction application No. 754/74 against the respondent on the ground of bona fide need for occupation as the residence for himself and members of his family. On 14th March, 1975, the petitioner withdrew the said eviction application without obtaining the permission of the Court for liberty to file a fresh eviction case in respect of the subject-matte" of the said Eviction Case No. 754/74...". 7.2.3. In replication, its reply reads as under : "para 2 of the preliminary objections is wrong and denied. The remaining part of this para is a matter of record. However, it is submitted that the petitioner could not file the process fee because in January, 1974 two samples of Haldi and honey were lifted by Mcd and father and brother of the applicants were involved in the false cases and the petition being a near relation was mentally concerned with those cases and had been persuing the same and therefore could not pay proper attention to that case, the petitioner being placed in diversity and unfortunate circumstances. The petition is not barred under Order 23 Rule I, CPC." 7.2.4. Mr. M.L. Lonial, on the basis of the above pleadings has submitted that in absence of the specific denial, it should be deemed to be admitted that the petition No. 754/74 was filed on the ground of bona fide requirement despite the fact that the order Ex. RW2/7 did not specifically indicate that the petition related to Section 14(l)(e). He has further contended that even the landlord had not taken the stand which had come in the erroneous finding of the learned Rent Controller that the Petition No. 754/74 might not be under Section 14(l)(e). In this regard, the learned Counsel has drawn my attention to the statement of the landlord. Chaman Lal AW. I in cross-examination has certainly stated that : "...I must have filed 3 or 4 suits against the respondent prior to this suit. It is correct that in all those suits I have given my address as resident of 4497, Regharpura, Karol Bagh, Delhi...". 7.2.5. He also referred to the statement of RW. 2, Girdhari Lal Puri. He stated that the petitioner had filed two eviction cases on the ground of bona fide need. The two cases were 696 of 1070 in the Court of Shri R.P. Gupta and Suit No. 454/74 in the Court of Shri V.S. Aggarwal, Additional Rent Controller, Delhi. The first suit No. i.e. 696/70 remained pending for three years and the petitioner withdrew the same and the copy of the order is Ex. Public Witness PW2/6. The certified copy of the order passed by Shri V.S. Aggarwal is Ex. RW2/7. The tenor of his statement is that Eviction Suit No. 454/74 was also filed on the ground of bonafide need. In these circumstances, to say that earlier petition might not have been filed under Section 14(l)(e) was not born out from the record. 7.2.6. Now one may appreciate the impact of withdrawal of Suit No. 454/74, without permission to file afresh. According to Mr. M.L. Lonial, the subsequent suit being barred by the provisions of Sub-rule (4) of Rule I of Order 23 could not be filed. He placed reliance on Prahlad Dass v. Bhagirath Lal, to support his contention that provisions of Order 23 Rule I are applicable to the proceedings before the Rent Controller. In that case, it was held that this provision undoubtedly applies to the proceedings before the Controller under the Act. If there were any doubts relating to it, reference may be made to a judgment in Roshan Lal v. Madan Lal, . In that case, eviction suit was dismissed after the tenant deposited the rent under Section 15(6) of the Act and consequently, the tenant had become entitled to the benefit under Section 14(2). The learned Counsel further relied upon Beli Ram v. Gurbachan Singh, 1978 (2) Rent Law Reporter 377. In that case, permission to withdraw the application was sought but was not given for bringing any application on the same cause of action in the absence of any provision in East Punjab Urban Rent Restriction Act, 1948 and the petition was ultimately dismissed. This is of no assistance as that situation does not arise in this case. He also relied upon Mehtab Singh v. Tilak Raj Arora & Anr., . In that case, on the basis of authority in Sangram Singh v. Election Tribunal, Kotah, , the Court observed as under : "5.. ..the laws of procedure are grounded on principles of natural justice. The procedure embodied in these rules is designed to facilitate justice and further its ends and enacted with a view that endeavour should be made to avoid swamp decisions and to afford litigants a real opportunity' in fighting out their cases fairly and squarely. One of the maxims which governs all judicial or quasi-judicial proceedings whether in a Court, Tribunal or before persona designata, is nemo debet bi svexari pro una et eadem causa, i.e. no man should be vexed twice over the same cause of action. The provisions contained in Section 11,Order2,Rule2,Order9,Rule9,andOrder23,Rulel(4)of theCPCare,inter alia, the various manifestations of the same maxim. Even though, the provisions of Section 11 of the Civil Procedure Code would not apply in terms to the proceedings before any Tribunal or a persona designata, which is not a Court, still the trial of any matter or any issue which has been previously settled between the parties, would be barred by the general doctrine of res judicata which is of universal application and governs all judicial and quasi-judicial proceedings...". 7.2.7. In this regard, one may also refer to Lal Chand (dead) by LRs v. Radha Kishan, and may note the following observations of the Supreme Court in para 19 in regard to Section 11 : "19.The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue...". 7.2.8. The Punjab High Court ultimately took the view that in case the principle of Order 23 Rule 1(4), Civil Procedure Code is held to be not applicable, to the proceedings before the Rent Controller. The landlord after a full trial at the stage of arguments feeling that the petition is likely to fail would get it dismissed as withdrawn and institute a fresh one again on the same cause of action and he would be able to repeat the same process time and again. 7.2.9. In Shri Bhagat Ram v. Dwarka Pershad & Ors., 1972 Rcr 128, following observations of this Court are also notable : "5. ...Mere withdrawal of a suit does not operate as res judicata Sub-rule (2) cannot aid unless the Court exercises its powers under Sub-rule (2) or the petitioner withdraws his claim under Sub-rule (1) and all the three sub-rules are an integrated whole dealing with the same subject. It is obvious that if the Court has no power to allow a petition to be withdrawn with or without liberty, as provided by Sub-rule (2), the prohibition contained in Sub-rule (3) cannot conceivably apply. I am, therefore, of the view that Order 23, Rule (1) including all the three sub-rules, applies to proceedings before the Controller. The provisions contained in this rule are of general application and are so fundamentally inherent in the exercise of jurisdiction of any Court or Tribunal to permit a suit before it to withdraw the proceedings with or without liberty to file another, subject to the law of limitation and other statutory provisions, that it is impossible not to concede to the Controller the powers mentioned in Order 23, Rule I of the Code." "6. ...In the present case, we are concerned with the application of Rule 1 of Order 23 for withdrawal of the petition for eviction with liberty to file another. It is obvious that the party has a legal right to withdraw the petition filed by it and if Sub-rules 2 and 3 should not apply there would be no end to filing of successive petitions since a withdrawn petition cannot be said to have been heard and finally decided and neither any rule of res judicata nor any other provision or principle of law would bar its entertainment. Consequently, I have no hesitation in repelling the first contention of the appellant- tenant and I hold that Order 23 Rule 1, Sub-rules 0(l)(2) and (3) apply to the proceedings before the Controller." On this basis, the learned Counsel for the appellant justly argued that this situation should not be allowed to happen. 7.2.10. In Krishan Kumar v. Vimla Saigal, 1976 Rlr (SN) 43, the eviction petition filed in 1961 was dismissed by the Rent Control Tribunal and the High Court. In 1964 after the return of his son who was still dependent, the owner filed a new suit for eviction for his tenant. The first eviction petition on the ground of bona fide requirement was filed in the year 1961 when the elder son of the petitioner was abroad and his younger son and daughter were at school. That eviction petition was dismissed. He fared no better before the Rent Control Tribunal and in the High Court. In 1964, after the return of his elder son who was still his dependent, the owner applied anew for eviction of his tenant. He again failed both before the Rent Controller and the Rent Control Tribunal but his second appeal to the High Court was allowed and the case was remanded to the Rent Controller for taking further evidence. The matter was rejected again by the Rent Controller as well as by the Rent Control Tribunal. The appellant then filed Fao in High Court. It was held that the younger daughter of the landlord was living with him and the Tribunal committed an error by mistaking her for the elder daughter who was living in England. As the finding of fact was wrong it could be agitated in second appeal. Rent Controller's decision and that of Tribunal were unrealistic and based on supposition and were wrong. Law does not expect a landlord to sacrifice his comforts and live a crowded life in his own house when he can have better comfort. His present need of additional accommodation was genuine and claim was honest and he should not have been denied relief. That due to charge in circumstance the decision in first petition does not operate as res judicata and second petition was maintainable. 7.2.Similarly, in S.K. Chatterjee v. Subrata Biswas, , again the view taken above was re-affirmed and this Court observed as under : "5. ...A landlord who fails earlier on the ground of personal requirement, can file another petition on the same ground on change of circumstances. If the landlord's claim is genuine, he cannot be denied relief...". 7.2.12.In view of the consistent view taken by this Court in the aforesaid two decisions, I do not see any reason to deviate. Bona fide need appears like ever changing quick sand for it increases with births, marriages of sons, growing ages of young family members, migrations and transfers of sons, etc. to the city and decreases with deaths, marriages of daughters, migrations and transfers and migrations of sons outside, or acquisitions of property and consequential separations and partitions in the family of the landlord. While it is true that ratio of Sailgram Singh (supra) as explained in Mehtab Singh (supra) and Bhagat Ram (supra) are applicable to proceedings before Rent Controller under the Act, yet it appears in view of Krishna Kumar (supra) and S.K. Chatterjee (supra) that this rule cannot be accepted as an absolute rule. Accordingly, I hold that the present petition could not be dismissed solely on the ground that the earlier petition was got dismissed, provided it is established that the change in circumstances are evident on the face of the material on record and facts making out cause of action in subsequent suit are different from that of earlier suit. Three things are notable here in this case. It is evident that size of the family of the petitioner has ben increasing year after year seeing the ages of the sons and grandchildren. Notice to quit which formed the basis of cause of action in such matters was given on 18th April, 1977. Moreover, if the petitioner/tenant wished to take it to a reasonable conclusion, he should have at least filed a copy of the petition to show that need had not increased and remained static. Consequently, I do not find any substance in the submission of Mr. Lonial in this regard."