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Delhi High CourtIndian Cases

In Re: Ms. Neera Raina Bhagat vs Unknown on 31 May 2004

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Delhi High Court
In Re: Ms. Neera Raina Bhagat vs Unknown on 31 May, 2004
Equivalent citations: 113(2004)DLT57, 2004(75)DRJ257
Author: Vikramajit Sen
Bench: Vikramajit Sen

Vikramajit Sen, J.

1. This Revision assails the Order dated 3.5.2003 passed by the Learned Additional District Judge, Delhi holding that the Court is sufficiently and duly possessed of jurisdiction to entertain the suit; and that the suit was not barred under Order XXIII Rule 1 (4) of the Civil Procedure Code; and that the notice to quit was not invalid. The Learned ADJ had listed the case for recording of evidence on the remaining issues, other than Issues Nos. 1, 2 and 3 which had been disposed of by that Order the interim orders passed in these proceedings interdicts the final adjudication of the suit by the Trial Court.

2. The Trial Court had framed eight Issues out of which the following three Issues were treated as prelimiary Issues and decided by the impugned Order.

(i) Is the suit barred by Section 50 of the Delhi Rent Control Act?
(ii) Is the suit barred by Order 23 Rule 1(4) CPC?
(iii) Is the notice dated 6.1.99 invalid? If so, to what effect?
In respect of the first Issue it has been contended by the Revisionist/Defendant/Tenant that the rate of rent is Rs. 1000/, as per the alleged admission of the Plaintiff in the Reply to the previous Revision filed by the Defendant, only the Rent Control (sic)ement in the Tenant’s Revision reads – “that the contents of para 1 of the petition are admitted”. However, the explanation or response of the Respondent/Plaintiff/Landlord is that Advocate in the High Court was different to the one conducting the case in the Trial Court and this admission was made inadvertently without meaning to admit the rent. The Trial Court has taken note of the fact that the so-called admission contained in the previous Revision was in proceedings which questioned the legal propriety of the decision of another ADJ permitting the withdrawal of the previous suit, with liberty to file a fresh suit as and when the fresh cause of action arises. The Learned ADJ has correctly observed in the impugned Order that the of rent was not the subject matter of the previous Revision petition. After distinguishing the cases cited on behalf of Tenant the Learned ADJ concluded that as the alleged admissions were contained in the Reply to the previous Revision petition they cannot be viewed as conclusive proof. The learned ADJ has relied on the decision of the Hon’ble Supreme Court in Ramkhilawandhar and others v. Gajodharprasad (dead) by L.Rs. and others, AIR 85 SC 579 and Dhruv Green Field Ltd. Versus Hukam Singh Ors., 2002 VI AD (SC) 438 which lay down that the averments and the relief claimed in the plaint determine the jurisdiction of the Court. The Trial Court has, therefore, for the purpose of deciding the Preliminary Issue looked only at the asseveration in the plaint to the effect that the rent was settled at Rs. 4000/- per month, which stance has been reiterated in the Replication The Learned ADJ has mentioned that the correct position of law is that an admission in order to be competent to have value and effect of substantive piece of evidence should be clear, certain and definite and not ambiguous, vague or confused. He has also referred to a series of judgments including Kidar Nath and others v. Ram Chand (dead) and others, AIR and others, which is to the effect that an admission though not conclusive carries significance until it is successfully withdrawn or proved to be erroneous or explained away. He has also relied on the observation of the Hon’ble Supreme Court in Akshya Vs. Anjanappa, III (96) CLT 187 (SC) which enunciates that admission can always be explained. The conclusion that the jurisdiction of the Civil Court is not barred is predicated on this understanding of the law which does not disclose any error in the exercise of jurisdiction. In cases such as these where so-called admission has been made in previous proceedings the party against whom it is sought to be employed would have to discharge the burden of proving that the admission is not conclusive. A final conclusion on questions and controversies of this genre cannot be made at the preliminary stage. It would require an appreciation of the evidence that has been brought on record.

3. The next Issue is whether the suit is barred under Order XXIII Rule 1(4) of the CPC. The contention is that the existing suit is based on the same subject matter as the previous one since both of them pertain to the relief of possession and recovery of rent/damages and are between the same parties. In my opinion it is beyond debate that a suit for possession and mesne profits is most often predicated on the issuance of a notice to quit under Section 106 of the Transfer of Property Act. The only exception is where a suit is filed immediately on the expiration of the lease by efflux of time and before the Defendant can claim to have become a tenant by sufferance or by holding over. The Learned ADJ has distinguished the decision of this Court in Suit No. 1220/85 titled Jyoti Prasad v. Nathu Ram decided by this Court on 16.9.1985, relied upon by the Defendant. He has also taken note of the decision in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others, , Registrar, Manonmaniam Sundaranar University v. Suhura Beevi Educational Trust and others, , Laxmidas Ramji v. Smt. Lohana Bai Savita Tulsidas and others, .

4. Presuming for the present that the rent is Rs.4000 per month, a month to month tenancy exists in this lis, which must be put to an end by issuance of a notice under Section 106 of the Transfer of Property Act. The previous suit was based on a `notice to quit’ dated 16.4.1993 which was allegedly defective whereas the present suit is based on a notice dated 6.1.1999. The Learned ADJ has also noted that the earlier suit pertained to the recovery of damages for the period 1.4.1991 to 31.3.1993 where is the present suit claims arrears of rent from 1.3.1996 to 31.1.1999. The matter has been argued threadbare and I entirely and unequivocally endorse the findings of the Learned ADJ that the cause of action of the present suit is distinct form that is the earlier one. The Learned ADJ has correctly repulsed the argument that simply because the property and the parties are the same the subject matter must also be seen as the same. Learned counsel for the Tenant conveniently ignores the judgment cited by him where a learned Single Judge of this Court has clarified that the cause of action constitutes the bundle of facts pleaded in the plaint. The causes of action in the two suits are distinct of each other, and it does not require any more than a cursory perusal in order to conclude so. Tenants are prone to raise and thereafter argue in inordinate detail such obvious points, solely with a view to delay the final disposal of the legal action. The reliance on Alla Naur Sheikh Mohd. Ismail v. Mohant case are on all fours with that in P. Ratnam Yesgwantraj Mudliyar v. Vimalchandra Shiv Datta Grover and others, and N.R. Narayan Swamy v. V.B. Francis Jagan, , Mathew Elechiamma and others v. Markose Korulla and others, . The contention of learned counsel for the Revisionist/Tenant is devoid of all merits and substance. The Trial Court has also correctly observed that the second suit had not been initiated during the pendency of the previou suit. The Revisionist/Tenants objections that the suit was barred under Order XXIII is consequently rejected.

5. In some measure the third Issue overlaps the second Issue which has been decided in favor of the Plaintiff/Landlord. If a Landlord choses to issue a notice to quit during the pendency of any proceedings the logical consequence that would follow would be that all previous litigation on the same cause of action would be rendered ineffective and infructuous. The acceptance of rent from a tenant, whether a statutory tenant or a tenant `holding over` would be the creation of a fresh tenanc the issuance of a second notice to quit has the effect of nullifying the previous notice to quit. In the present case the Tenant could have legitimately argued before the Court hearing the first suit that since a second notice to quit had been issued the first proceedings had been rendered infructuous. This situation did not occur for the reason that the prior suit had been disposed of by that time. The findings of the Learned ADJ are entirely correct.

6. A perusal of the detailed yet perspicuous impugned Order dated 3.5.2003, running into 21 pages and meticulously discussing each and every precedent cited at the Bar discloses that several hours must have been spent in hearing arguments and delivering judgment. Even in these proceedings over two hours of public time, which is extremely scarce due to shortage in the number of Judges, has been exhausted. After hearing the counsel for the Petitioner for a time sufficient to arrive at the conclusion I had expressed my opinion that the Revision lacks merit. Learned counsel for the Tenant, however, insisted on and reading a number of authorities and precedents. The interest of the Tenant is always to delay proceedings. Since none of the arguments that have been raised on behalf of the Tenant have any merit or substance this petition is dismissed with exemplary costs of Rs. 30,000/- to be paid within thirty days from today.