Nand Kumar And Brothers v. Ram Prasad Rajak — 1996 DIGILAW 339 (PAT)

Judgment P.K.Deb, J. 1. This Revision petition has been preferred by the abovenamed petitioners, who happened to be the defendant-tenant in Eviction Suit No. 35 of 1989 before the 3rd Addl. Munsif, Giridih. 5of 1990 2. The suit for eviction was instituted on 17.11.1989 by the Opposite Party as plaintiff under Sec. 14 of the B.B.C. Act claiming the relief of eviction of the defendants-petitioners from the building premises consisting of two pucca rooms being a portion of holding No. 447/A, 447/A-1 and 447/B of ward No. 2 (old) corresponding to Ward No. 5 (new) of Giridih Municipality situated at Makatpur within the Giridih township. On the ground floor of the building, there are three parts. The plaintiff-Opposite party runs a Laundry in the name and style of Azad Hind Loundry and the other two portions were occupied by the petitioners-defendants on the extreme other portion and in between the plaintiff and defendants, another tenant Harish Chandra Bagga, who runs the business of cloth in the name and style of Jolly Textiles. Admittedly, the petitioner was inducted as a tenant on monthly rental and the suit has been filed under Section 11 (1)(c) of the B.B.C. Act on the ground of personal requirement/necessary. Such necessity was elaborately stated in the plaint in paragraphs-3 to 6. Shortly speaking the necessity were there fold, namely, expansion of the Counter of the laundry belonging to the plaintiff as the business transactions have been increased vigorously and expansion was considered a must but the premises the plaintiff was occupying was quite insufficient, inconvenient and unfit to accommodate and facilitate the customers. Second ground was to use and modern techniques for dry cleaning and washing cloths to run its business smoothly and facilities the demands of customers and as such a drying tumbler is necessary to be installed and due to frequent power failure, a Generator set is to be installed. The third ground is for a passage about 4 width for ingress and outgress of a Super Bazaz Scooter which the plaintiff has booked in the year 1986 itself but the delivery could not be taken due to lack of passage for taking it inside. The plaintiff is having his residential accommodation on the first floor of the building. 3. The third ground is for a passage about 4 width for ingress and outgress of a Super Bazaz Scooter which the plaintiff has booked in the year 1986 itself but the delivery could not be taken due to lack of passage for taking it inside. The plaintiff is having his residential accommodation on the first floor of the building. 3. It has already been mentioned that in, between the shop establishment of the plaintiff and the defendant, there is another tenant Harish Chandra Bagga who is also occupying two rooms of the same size of that of the defendant-petitioner. It is the case of the plaintiff that by an agreement, Harish Chandra Bagga has made an undertaking to vacate his shop premises as and when necessary and demand make by the plaintiff-Opposite party. 4. The defendants contested the suit by filling written statement stating, inter alia, that the suit is not maintainable and that the present suit is barred by limitation and also under Sec. 10 of the CPC as admittedly the plaintiff filed previously an Ejectment suit against the defendant for the same suit premises being Eviction suit No. 19 of 1985 on the ground of default and also of personal necessity. Earlier suit was filed after giving notice. For bonafide necessity it was alleged that the suit premises were necessary for the purpose of constructing a stair case inside the premises for coming up stairs for utilising the first floor and for installation of his dry cleaning machines and steam pressing machine for running of his own business. That suit was dismissed and on appeal being filled by the plaintiff-Opposite party, being title Appeal No. 50 of 1987 was also dismissed. Then a Second Appeal was preferred being Second Appeal No. 76 of 1989 (R) which was admitted vide order dated 12.7.1989 and was pending for hearing. It was further contended by the defendant-petitioner that the suit is his by principles of res judicata and Order II Rule 2 CPC and also under Section 4 of the B.B.C. Act. Then a Second Appeal was preferred being Second Appeal No. 76 of 1989 (R) which was admitted vide order dated 12.7.1989 and was pending for hearing. It was further contended by the defendant-petitioner that the suit is his by principles of res judicata and Order II Rule 2 CPC and also under Section 4 of the B.B.C. Act. The relationship of landlord and tenant was also denied and that the bonafide necessity as plead in the present suit cannot be maintainable in view of the prior dismissal of the suit and its pendency before the High Court in Second Appeal and that some new grounds have been manufactured for the purpose of feeding fat grudge of the plaintiff for evicting the tenant from the suit premises by hook or crook. It was contended by the defendant that the agreement entered into between the plaintiff and his another tenant, Harish Chandra Bagga was a manufactured an fabricated one and the same is hit by Sec. 4 of the B.B.C. Act as there was enhancement of rent by agreement and that undertaking of vacating the premises by Harish Chandra Bagga was only a myth in collusion with the plaintiff for the purpose of getting eviction of the defendant. According to the defendant, if that plea of vacating of the premises by Harish Chandra Bagga is correct then the plaintiff could have got his needs satisfied on getting possession of the same and question of requirement of the defendant premises may not remain there. 5. By submitting all these, the defendants contended that there is no bonafide necessity on the part of the plaintiff for eviction of the defendants. 6. After taking evidence of both the sides, the learned Munsif dismissed the Eviction suit holding that there was no bonafide necessity of the plaintiff. Against the said judgment, the plaintiff preferred Eviction Appeal No. 6 1990 which was heard by 2nd Additional District Judge, Giridih, who reversed the judgment and findings of the Munsif and decreed the suit. Hence, this Revision petition under Sec. 14(8) of the B.B.C. Act. 7. Against the said judgment, the plaintiff preferred Eviction Appeal No. 6 1990 which was heard by 2nd Additional District Judge, Giridih, who reversed the judgment and findings of the Munsif and decreed the suit. Hence, this Revision petition under Sec. 14(8) of the B.B.C. Act. 7. On factual aspect, it should be mentioned that before the learned Munsif, a prayer was made by the defendant-petitioner under Sec. 10 of the CPC for stay of the suit but the same was rejected by the learned Munsif and then revision was preferred but the same was also not entertained by this Court as barred by Limitation as against the order of Munsif. On appeal was preferred before the learned Additional District Judge. 8. It appear tat before the learned Additional District Judge i.e. the first appellate court, it was vehemently argued that although the prayer under Section 10 CPC was not entertained by the Munsif, the same can be agitated in the appeal also as the previous suit is still pending in Second Appeal before the High Court. It may be mentioned here that after calling for the records of S.A. No. 76 of 1989 (R), it could be found that after getting a decree of ejectment from the appellate court on 11.9.1995, the plaintiff-Opposite party surreptitiously made a prayer for withdrawal of the appeal before this Court and Hon ble Mr. Justice S.K. Chattopadhyaya by order dated 29.9.1995 allowed the prayer and appeal was dismissed as withdrawn. It must be mentioned here that in the petition for withdrawal, the prayer was made only for withdrawal of the appeal and the order was also passed accordingly. The effect of withdrawal of the second appeal resulted in maintaining of the dismissal of the plaintiffs earlier eviction suit both in the original court and in the 1st appellate court. 9. In the light of such factual position, it is required to be decided the maintainability point regarding the subsequent ejectment suit as raised from the side of the defendant-petitioner both in the original court and in the first appellate court, although, it must mentioned ht re that none of the learned Counsel appearing for and on behalf of the parties to this Revision petition have argued on this point. I find that the decision on this maintainability point is of paramount importance which can decide the fate of the ejectment suit. 10. I find that the decision on this maintainability point is of paramount importance which can decide the fate of the ejectment suit. 10. In the above factual position as mentioned above, the position remained that when an Eviction suit on the ground of defaulter and bonafide necessity was pending between the same parties in respect of the same suit premises, a second eviction suit was filed on the ground of bonafide necessity again although there is some slight difference regarding the grounds of bonafide necessity between the two suits. In the first suit, the bonafide necessity was on the ground of wanting of space for constructing stair case and also for installing dry cleaning machine and steam pressing machine. In the present suit also setting up of dry cleaning machine. In the present suit also setting up of dry cleaning machine i.e. tumbler is there but the other ground of construction of stair case was given up and it came evidence that the same necessity did not exist presently as stair case could be constructed on the back side. Now remains the necessity of sending up of Generator set and that of expansion of the Counter and also a passage for ingress and outgress of a scooter. Whether two eviction suits between the same parties for the same suit premises can run simultaneously or whether the second suit is barred under Order II Rule 2 CPC or on the ground of constructive res judicate as contemplated under Section II of the CPC is the question to be decided which vitaly affect the initiation of the subsequent suit. Order II Rule 2 CPC runs as follows: 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) 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. (2) 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) 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. 11. It has been found by both the courts that the cause of action in the suits were different and as such the subsequent suit cannot be barred under Order II Rule 2 CPC. I do not find so. The cause of action of both the suits are eviction of the tenant on the ground of necessity. Whether particulars of ingredients of necessity are different in the suits or not, do not matter much as the landlord was definitely in a position to include the present ground of bonafide necessity in the earlier pending suit also by way of amendment under Order V Rule 17 of the CPC but that has not been done. It is true that ejectment suits cannot be barred under the principles of res judicata or constructive res judicata. Ejectment suits can be filed again ever after the dismissal of earlier suit fresh cause of action arises and definitely two ejectment suits between the same parties for the same suit premises similar grounds cannot run simultaneously. The principles of Order II, Rule 2 CPC have got intermingled interpretation with that of constructive res judicata inasmuch much as if once a relief or cause of action have been given up then whether such relief or cause of action can be taken in a separate suit or the same can be introduced in the same suit by way of amendment? 12. The whole purpose of various provisions in the Code of Civil Procedure is to curtail the multiplicity of suits or "harassment of the parties for which Order II Rule 2 C.P.C enumerates that whole of the claim should be included in the same suit. 12. The whole purpose of various provisions in the Code of Civil Procedure is to curtail the multiplicity of suits or "harassment of the parties for which Order II Rule 2 C.P.C enumerates that whole of the claim should be included in the same suit. Order VI of the CPC deals with the pleadings of the parties and therein scope has been given for amendment of the pleading when new facts or new cause of action arises during the pendency of the suit to be included within the suit. The interpretation of Order VI Rule 17 CPC has been extended in such a mariner that even new facts can be included at the stage of second appeal. In the present context of the suit, now where there is any pleading from the side of the plaintiff that necessity arose on 17.11.1989 for filling the present suit, could not be included in the earlier suit when the same was pending admittedly. 13. There is definitely no bar in inclusion of such ground of bonafide necessity in the earlier suit. There cannot be harassment or burdening of the courts by multiplicity of suits on the same or similar grounds again and again. This has been depreciated always by the Highest Court of law. The principles of Order II Rule 2 CPC has been interpreted by the Privy Council as reported in A.I.R. 1949 PC page-78 Mohamad Khalil Khan and Ors. V/s. Mahbub AH Mian and Ors. wherein it was held that when there is same cause of action and evidence supports two claims to be same and similar nature then it should he held that the cause of action two suits are same then new suit should be barred. The test have been enumerated in the following manner : The correct test in cases falling under Order II Rule 2 is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. If the evidence to support the two claims is different then the cause of action are also different. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. If the evidence to support the two claims is different then the cause of action are also different. The cause of action in two suits may be considered to be the same if in substance they are identical. The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. There the facts which would entitle the plaintiff, in their new suit to recover property Y, to establish their title are substantially the same as those alleged in their former suit to recover property X, the cause of action in the two suits are identical and the plaintiffs are barred by reason of Order II Rule 2 from maintaining the new suit. Where the same cause of action application the recovery of properties X and Y but the plaintiff only sued for property X in the former suit, it cannot be said that he did not omit to sue for property Y in such suit, merely because he attempted to include such property in that suit by means of amendment of the plaint but has not allowed to do so. 14. On the principles enunciated by the Privy Council, the Apex Court in A.I.R. Kewal Singh V/s. Lajwanti -- has observed it the following manner: A perusal of Order II Rule 2 would clearly reveal that this provision appeals to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always often is the plaintiff to fill a fresh suit on the basis of a distinct cause of action which he may have so relinquished. 15. In such cases, it is always often is the plaintiff to fill a fresh suit on the basis of a distinct cause of action which he may have so relinquished. 15. Thus, it is clear that although the cause of action may be shown to be distinct technically but if remains to be same and similar in nature on factual position and as such on mere perusal of the provisions of Order II Rule 2 of the CPC in technical way it may not took to be of same cause of action but the inner meaning may make the cause of action similar to debar a subsequent suit and its maintainable. In the present circumstances of the case, the plaintiff has the same cause of action of personal necessity in both the suits. The grounds of personal necessity might be slightly different in the subsequent suit but cause of action regarding the personal necessity remains the same in both the suits. It is true that in an Ejectment suit, it is dismissed at some point of time for lack of bonafide necessity, the same may be agitated in a subsequent if personal necessity comes in completely different nature and circumstances but presently it appears that for proper running of the Laundry belonging to the plaintiff, he wanted spine addition and modification for which he had the necessity of eviction of the premises of the defendants both in the earlier suit and in the present suit and on the same ground both the suits ran parallel. It cannot be imagined of a situation that a Landlord files three or four eviction suits against the same tenant on different grounds of personal necessity and he would choose either of the suit when there is decree in his favour. In that circumstances , definitely anomaly would arise when there would be dismissal of one or two suits and decree in one or two suits. The question would arise whether decree would prevail upon dismissal or not. For avoiding such anomalous position, Legislature had provided curtailment of the multiplicity of the suits by different provisions enumerated in the Civil Procedure Code. 16. Interpretation of those provisions are to be considered harmoniously in the circumstances of each particular case. Recently, the Supreme Court observed in -- State of Maharashtra and Anr. V/s. National Construction Co. Bombay and Anr. For avoiding such anomalous position, Legislature had provided curtailment of the multiplicity of the suits by different provisions enumerated in the Civil Procedure Code. 16. Interpretation of those provisions are to be considered harmoniously in the circumstances of each particular case. Recently, the Supreme Court observed in -- State of Maharashtra and Anr. V/s. National Construction Co. Bombay and Anr. that both the principle of res judicata and Rule 2 of Order II are based on the rule of law that a reason shall not be twice vexed for one and the same cause. In the case of Mohd Khalil Khan V/s. Mahbub Alia Mian (supra), the Privy Council laid down the tests for determining whether Order II Rule 2 of the Code would apply in a particular situation. The first of these is, "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the formar suit". If the answer in the affirmative, the rule will not apply. 17. Thus applying the rest as enumerated by the Privy Council and reiterated by the Hon ble Supreme Court, I find that the present case falls within the purview of the test and the causes of action in two suits are in the same nature and substance and they are identical and hence the substance suit is barred. The learned court below had committed error of law in interpreting provisions of Order II Rule 2 CPC and the constructive res judicate in the present case. When the previous suit pending then the subsequent suit ought to have been stopped either under Sec. 10 CPC or may be held to be barred under Order II Rule 2 CPC If the suit could have been stopped by application of Sec. 10 CPC then perhaps this anomalous position would not have arisen as now there is dismissal of earlier suit on ground of personal necessity and during the pendency of the same the present suit has been decreed for bonafide necessity in legal sense. 18. In their respect, the Hon ble Supreme Court has also consibVered the position of law as reported in 1948 (1) All Englands Law Reports, page-227 Wright V/s. Bennett and Anr.. 18. In their respect, the Hon ble Supreme Court has also consibVered the position of law as reported in 1948 (1) All Englands Law Reports, page-227 Wright V/s. Bennett and Anr.. In the same suit, when the plaintiff came up against two defendant for damages for fraudulent misrepresentation and for negligence then subsequently amendment applied for inclusion of allegation of fraudulent conspiracy was ordered to be struck down as the same cannot be included at a later stage. The same principle could be applied for consideration of the principle of constructive resjudicate intermingled with Order II Rule 2 CPC for the purpose of maintainability of the subsequent suit. 19. Thus, on principle, I come to the finding that the present suit filed by the plaintiff for eviction of the defendant almost on the same ground of bonafide necessity as done in the earlier suit, cannot be maintainable in continuance of the earlier suit. In that way the decree passed by the appellate court is bad in the eye of law. Although, I maintained that ejectment suit can be brought even immediately after dismissal of the earlier suit on the ground of personal necessity too, if fresh grounds of bonafide necessity have accused at a subsequent stage. 20. Regarding the factual position, I find that the learned appellate court has completely misconstrued the facts of the case and unnecessarily criticised the findings of the original court dismissing the suit holding that the necessity as pleaded by the plaintiff was not a bonafide one. Plaintiff wanted to extend his counter and modernise his business of Laundry by some fixtures of electrical equipment, a generator set and a small passage for ingress and outgress of a Scooter. This space for ingress and outgress of the Scooter could not be proved as is found from the evidence. Regarding his expansion of Counter and fixtures of electrical equipment can be well done if the shop room of the other tenant Harish Chandra Bagga could be taken by the plaintiff, when that tenant was agreeable by undertaking to vacate. If a person is really in urgent need, then he would definitely try too accommodate with the space whatever is available to him and then to go for more space. If a person is really in urgent need, then he would definitely try too accommodate with the space whatever is available to him and then to go for more space. The principle that plaintiff knows best as to which shop room will be best suited for his purpose is not applicable in the present case, because from his evidence at paras-71 and 72, it is clear that his need could be well satisfied if the shop room of Harish Chandra Bagga is taken in possession by him. The said evidence should be read with the map prepared by the plaintiff submitted in the case as Ext. 1/A-A. The contention of the defendant seems to be very plausible when it is stated that this undertaking by agreement from the tenant, Harish Chandra Bagga was created only for the purpose to obviate the defence of the defendant. It is against the principle of equity that landlord will fall upon another tenant for ejectment when he can get all accommodation in the contiguous shop room available. 21. Mr. P.K. Sinha, counsel appearing for the Opposite Party cited various ruling both reported and unreported in support of his contention that the necessity as pleaded by the plaintiff and proved by the evidence is sufficient enough to hold that the same was a bonafide one. 1993 (1) PLJR 87 and 1995 (1) PLJR (SC) page, 107 and two unreported judgments in Civil Revision Nos. 444 of 1992 (R) and Civil Revision No. 500 of 1992 (C) have no application in the present context of the suit as discussed above. Even if those principles are applied in the present case, the same cannot have any bearing in coming to the decision that the necessity as pleaded by plaintiff was not bonafide rather a tainted one with malafide intention. 22. In this view of the matter, I find and hold that the plaintiff miserably failed on factual aspect also to prove his bonafide necessity. His necessity is not at all bonafide. It appears that he wanted to evict the defendant-petitioner by any hook or crook by creating different grounds of necessity at different times. When the necessity could have been, if not fully, partly be satisfied by his own evidence by taking possession of the tenanted shop rooms of Harish Chandra Bagga, then the eviction of the defendant can have no justification. When the necessity could have been, if not fully, partly be satisfied by his own evidence by taking possession of the tenanted shop rooms of Harish Chandra Bagga, then the eviction of the defendant can have no justification. His eviction could be justified only when it could be shown that after taking possession of the tenanted premises of Harish Chandra Bagga also, his necessity still remained wanting. I find much force in this Civil Revision petition both legally and on factual aspects and I find that the learned lowerappellate court committed error of law in deciding the eviction suit in favour of the plaintiff-Opposite party. 23. The Revision petition is allowed with costs. The ejectment decree passed by the lower appellate court is set aside with costs.