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2005 DIGILAW 103 (MAD)

Palani Municipal Council v. C. Balasubramaniam

2005-01-24

PRABHA SRIDEVAN

body2005
Judgment : 1. The plaintiff is the appellant. The respondent bid for grant of lease for the shop No. 25 in Palani Bus Stand belonging to the appellant, for the period from December 1983 to March, 1986. The respondent’s bid was the highest and the lease was confirmed in his favour. The lease period expired on 31.3.1986. Even thereafter, the respondent continued in possession. The appellant filed O.S.No.14 of 1989 for recovery of arrears of rent till March, 1986. The respondent vacated the said shop on August, 1986. T he appellant filed O.S.No.372 of 1989, for the amounts due from April, 1986 to August, 1986. 2. The respondent resisted the said suit on the ground that the appellant should have included the claim for the amounts due from April, 1986 to August, 1986 in the earlier suit itself (i.e. ) O.S.No.14 of 1989 and the subsequent suit is barred by Order 2, Rule 2, C.P.C. 3. The trial Court, decreed the suit on the ground that after 31.3.1986, the respondent was like a tenant holding over and the cause of action for the suits were not the same and that the bar under Order 2, Rule 2 of C.P.C does not operate against the appellant. The suit was, therefore, decreed as prayed for. 4. Against this, the respondent filed A.S.No.10 of 1991. The appellate Court came to the conclusion that the cause of action for both suits were the same and therefore, the bar under Order 2, Rule 2 will operate and hence, dismissed the suit by allowing the appeal. The appellate Court found that the respondent was liable to pay the arrears of rent as claimed by the appellant. The only ground on which the appeal was allowed was the bar under Order 2, Rule 2(2) C.P.C. 5. Against this order, the present Second Appeal is filed. The following substantial questions of law were framed: 1. Whether the Courts below erred in law misdirected themselves in dismissing the suit as not maintainable under Order 2, Rule 2 of C.P.C.? 2 . Whether the defendant is liable to pay the suit claim ? 6. Learned counsel for the appellant would submit that cause of action for the two suits are different. Whether the Courts below erred in law misdirected themselves in dismissing the suit as not maintainable under Order 2, Rule 2 of C.P.C.? 2 . Whether the defendant is liable to pay the suit claim ? 6. Learned counsel for the appellant would submit that cause of action for the two suits are different. In O.S.No.14/1989, the appellant had sued for recovery of arrears of rent whereas in the present suit, namely, in O.S.372 of 1989, what is sought to be recovered is the damages for the respondent’s continued occupation of the suit shop after the expiry of the lease period. Learned counsel for the appellant mainly relied on the judgment made in S.A.Nos.1574 and 1575 of 1991 dated 20.2.2003, which were fi led by the same appellant against lessees similarly placed as the respondent herein. In the said judgment, D. Murugesan, J. came to the conclusion that Order 2, Rule 2(2) of C.P.C. is not applicable to the present case and that the respondents were not entitled to the protection of Section 116 of the Transfer of property Act. 7. Learned counsel for the respondent, on the other hand, would submit that though the decision relied on by the counsel for the petitioner is between the appellant-Municipality and tenants like the respondent, it will not apply to the present case. In those cases, the question whether the respondents are entitled to protection of Section 116 of Transfer of Property Act, was put in issue. That is not so in this case. The only ground on which the lower appellate Court allowed the appeal was because Order 2, Rule 2(2) would be a bar for maintaining the suit. According to the learned counsel, the appellant cannot claim that the cause of action is different in this suit and the earlier suit ( i.e. ) O.S.No. 14/1989. Even in the plaint, the appellant used the word ‘rent’ and not ‘damages’. Therefore, the recent suit is also for arrears of rent and the illustration in the Civil Procedure Code itself would clearly show that the present suit is barred and therefore, the Second Appeal must be dismissed. The illustration in the Civil Procedure Code is as follows: “A lets a house to B at an yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. The illustration in the Civil Procedure Code is as follows: “A lets a house to B at an yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.” 8. The question is whether Order 2, Rule 2 applies to the present case. In the S.As.1574 and 1575 of 1991 mentioned above, the tenants were the lessees and the public auction held on 19.12.1983. In those cases also, the lease agreements entitled the respondents to be lessees till 31.3.1986. The appellant herein had filed two suits for recovery of rental arrears and they were decreed. Subsequent to that, the appellant filed the suits for the period from 1.4.86 to 31.8.1986. In one of the suits, the lower Court held that Order 2, Rule 2(2) bar would operate and it was confirmed by the appellate Court. But in the other suit, the trial Court held that the suit was maintainable as the cause of action was different but the appellate Court reversed it. So the appellant filed two appeals. The crucial paragraph in the said judgment is this: “When once it is admitted that the respondents/tenants continued to be in possession even after the expiry of lease period on 31.3.1986 and in the absence of other two conditions being complied, they should be considered as persons occupying the shops without any lease agreement and consequently, their possession shall be deemed to be un authorised. In such event, cause of action for claiming the amount from 1.4.1986 shall be only by way of damages and not by way of arrears of rent. Hence, the suits filed by the appellant on an earlier occasion, which were decreed for recovery of arrears of rent are entirely on different cause of action. In such circumstances, Order 2, Rule 2(2) of C.P.C. Is not applicable as Order 2, Rule 2(2) of C.P.C. is applicable only where the plaintiff omits to sue in respect or, intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Useful reference could be also made to the judgment of the Apex Court in Sidramappa v. Rajashetty, A.I.R. 1970 SC 1059. Useful reference could be also made to the judgment of the Apex Court in Sidramappa v. Rajashetty, A.I.R. 1970 SC 1059. The said judgment has been followed by a Division Bench of this Court in the judgment in C.Ramakrishnan and others v. Corporation of Madras, AIR 1976 Mad. 128 , wherein the Division Bench while considering the scope of Order 2, Rule 2 has held that “the subsequent suit based on a different cause of action is totally independent from the cause of action on which the first suit was laid and in such circumstances, Order 2, Rule 2 will not be a bar for institution of the subsequent suit.” 9. In the present suit, the appellant had stated in the plaint that the lease came to an end on 31.3.1986. In the written statement, the respondent has not stated that after 31.3.1986, the appellant had permitted him to continue in possession. In fact, in paragraph 3 of the written statement, it is admitted that the auction was for a period of one year from 1.4.1985 to 31.3.1986. Therefore, the mere fact that the plaint mentions the word ‘rent’ cannot be relied on by the respondent to show that he was in lawful possession. In fact, that is why, in the judgment in Second Appeal Nos.1574 and 1575 of 1992 referred to above, the learned Judge found that after the expiry of the lease, the possession of the lessee is un-authorised and therefore, the cause of action for claiming the amount from 1.4.1986 will be on account of the respondent continuing in possession even after the expiry of the lease period, which is a different cause of action. The cause of action for recovery of the amount due in the present suit is on the basis of the respondents continuing in un-authorised possession of the suit shop even after 31.3.1986 whereas the cause of auction for the earlier suit was for recovery of rent for the period the respondent was in lawful possession as tenant. Therefore, it cannot be said that the judgment referred to above, will not apply to the present case. In fact, the only question that was considered by the lower appellate Court is the bar under Order 2, Rule 2(2). The decision in the above said second appeals squarely applies to the present case. Therefore, it cannot be said that the judgment referred to above, will not apply to the present case. In fact, the only question that was considered by the lower appellate Court is the bar under Order 2, Rule 2(2). The decision in the above said second appeals squarely applies to the present case. There is nothing to distinguish this case from S.A.Nos.1574 & 1575/91 either on facts or on law. 10. For all these reasons, the Second Appeal is allowed and the substantial questions of law are answered in favour of the appellant. The judgment and decree of the lower appellate Court in A.S.No. 10 of 1991 is set aside and the trial Court’s decree is confirmed.