Research › Search › Judgment

Allahabad High Court · body

2006 DIGILAW 2233 (ALL)

SURESH CHANDRA SACHDEVA v. NIRMALA GUPTA

2006-09-05

PRAKASH KRISHNA

body2006
PRAKASH KRISHNA, J. This is defendants revision under Section 25 of Provincial Small Causes Court Act, against the order dated 27-2-2006 passed by the Court below rejecting Application No. 32-C filed by him under Section 10 of the Code of Civil Procedure to stay further proceedings of SCC Suit No. 42 of 2004 till the disposal of Original Suit No. 789 of 2004. 2. It is not in dispute that Smt. Nirmala Gupta is landlady and the present applicant Suresh Chandra Sachdeva is the tenant of Smt. Nirmala Gupta. SCC Suit No. 42 of 2004 was filed for recovery of arrears of rent and ejectment of the present applicant on the pleas inter alia that the defendant is tenant of the disputed shop in pursuance of the registered agreement dated 10-7-2002 @ 3000 per month has defaulted in payment of rent in spite of notice of demand and termination of tenancy. It was further stated that earlier one Pushpa Tyagi and Dinesh Tyagi were tenants of two shops described as shops No. 1 and 2 out of four shops of the landlady. On vacation of the shops by Pushpa Tyagi and Dinesh Tyagi the aforesaid two shops were converted into one shop by raising a big one shop as they were in dilapidated condition and the defendant had expressed his willingness to take one big shop. The intervening wall of the two shops was removed and for the sake of convenience two shutters were fixed. The newly constructed shop was let out on a monthly rent of Rs. 3000 with effect from 10-7-2002. It was agreed under the aforesaid rent agreement that there would be enhancement of 10% in the rent after each succeeding two years. The defendant has sub-letted the shop from time to time to Dr. S. K. Srivastava, Dr. S. S. Mughlanji and Dr. R. P. Singh and thus violated the terms of the written agreement. It was further pleaded that the provision of U. P. Act No. 13 of 1972 are not applicable as the monthly rent is more than Rs. 2000. 3. The suit is being contested on the pleas inter alia that provision of U. P. Act No. 13 of 1972 are applicable as constructions are old one and that two shops on monthly rent of Rs. 1500 for each shop was taken in pursuance of the rent note, aforesaid. 2000. 3. The suit is being contested on the pleas inter alia that provision of U. P. Act No. 13 of 1972 are applicable as constructions are old one and that two shops on monthly rent of Rs. 1500 for each shop was taken in pursuance of the rent note, aforesaid. The further plea is that the landlady got different terms and conditions other than one which were agreed upon incorporated in the aforesaid registered rent note and that he has already filed Suit No. 789 of 2004 for declaration declaring that rent note dated 10-7-2002 executed between the parties with regard to tenanted shop and which was registered at the Sub- registrar office is null and void. 4. An application purported to be under Section 10 of the Code of Civil Procedure was filed in SCC Suit No. 42 of 2004 for staying proceeding of the suit till final disposal of Suit No. 789 of 2004 on the ground that the controversy involved in both suits is identical and the Suit No. 789 of 2004 was instituted earlier. Therefore, proceeding of the subsequent suit be stayed. The Court below by order under revision has rejected the said application. 5. Heard Sri Manish Goel, learned Counsel for the applicant and Sri P. K. Srivastava learned Counsel appearing on behalf of respondent. 6. Sri Manish Goel learned Counsel for the applicant submitted that the matter in issue in both the suits is the same and since the suit filed by the present applicant is previously instituted suit, proceeding of the subsequent suit be stayed. In contra, learned Counsel for the opposite party submitted that the issue involved in both suits are different and there being no jurisdictional error in the order of the Court below this Court should not exercise its discretion in favour of the applicant while exercising its power under Section 25 of Provincial Small Causes Court Act. 7. I have given careful consideration to the respective submission of the learned Counsel for the parties. 8. Learned Counsel for the applicant has placed reliance upon the following decisions in support of his contention: (1) P. V. Shetty v. B. S. Giridhar, AIR 1982 SC 83 . In this case Supreme Court stayed further proceeding in the eviction suit inasmuch as there was serious dispute between the parties about the rate of monthly rent. 8. Learned Counsel for the applicant has placed reliance upon the following decisions in support of his contention: (1) P. V. Shetty v. B. S. Giridhar, AIR 1982 SC 83 . In this case Supreme Court stayed further proceeding in the eviction suit inasmuch as there was serious dispute between the parties about the rate of monthly rent. The application for fixation of fair rent filed by the tenant was pending. If the fair rate is fixed on an amount of Rs. 500 per month, such tenant was not entitled to claim protection of rent Act. On that basis the Apex Court was of the view that applicability and non-applicability of the Rent Act was dependent upon the fixation of fair rent. It stayed further proceeding of subsequent eviction suit. This case has hardly any application to the facts of the present case. The fact of the case in hand are distinguishable. (2) The next case relied upon is M/s. Raunaq International Limited v. Ota Kandla Pvt. Ltd. Kandla & Anr. , AIR 1987 (Gujrat) 213, wherein it has been held that where it is not possible for the Court to come to the conclusion that where the matter in issue in both the suits directly and substantially the same or not till written statement, the application for stay may be considered after framing of the issues (3) M/s. Mehta Gandhi and Associates v. Shree Pipes Limited AIR 1990 Delhi 139, it has been held that the matter in issue in both the suits should be identical. (4) The last case is Shri Ram Tiwary & Anr. v. Bholi Devi & Anr. AIR 1994 Patna 76, is the authority for proposition that subject matter in both suits need not entirely be the same. For granting stay under Section 10 C. P. C. the Court should come to the conclusion that the decision in former suit will operate as res-judicata in the subsequent suit. Reverting the fact of the present case, the subject matters of both suits are different. One is for ejectment and the other suit is for declaration to declare the registered rent agreement as null and void. The applicant has not sought any relief in Suit No. 789 of 2004 for cancellation of registered rent note dated 10-7-2002. He has sought only decree for declaration to declare written agreement in question as null and void. One is for ejectment and the other suit is for declaration to declare the registered rent agreement as null and void. The applicant has not sought any relief in Suit No. 789 of 2004 for cancellation of registered rent note dated 10-7-2002. He has sought only decree for declaration to declare written agreement in question as null and void. The relationship of landlord and tenant between the parties is not in dispute. The applicability of U. P. Act No. 13 of 1972 is involved in Suit No. 42 of 2004 and is not in issue in Original suit No. 789 of 2004. The matter directly and substantially in issue in Original suit No. 789 of 2004, is whether fraud as alleged by the plaintiff (applicant) was played upon him by the landlady. The plea of fraud is not in issue in SCC Suit No. 42 of 2004. The controversy involved in the present case is squarely covered by the judgment of this Court in the case of Mahaveer Prasad Jain v. Basant Lal Jain, 1983 (23) ARC 183, wherein it has been held that in such circumstances proceeding of subsequent eviction suit is not liable to be stayed under Section 10 C. P. C. 9. In view of the authoritative pronouncement of this Court which is binding on me, it is difficult to accept the contention of learned Counsel for the applicant. 10. At the out set it may be stated here that a query was put to the learned Counsel for the applicant as to whether the applicant is prepared to handover possession of the disputed shop to the landlady inasmuch as registered rent agreement according to him was obtained by fraud and the same is null and void. It is not in dispute between the parties that the tenant Suresh Chandra Sachdeva came into possession of the disputed shop only in pursuance of the rent agreement dated 10-7-2002 which, according to him is void. Surprisingly enough the learned Counsel for the applicant could not give any reply to the aforesaid query. This Court is of the view that the person who is challenging legality and validity of the agreement on the ground that the same was obtained by fraud and, is therefore null and void, cannot be permitted to take advantage of the said agreement for his benefit. This Court is of the view that the person who is challenging legality and validity of the agreement on the ground that the same was obtained by fraud and, is therefore null and void, cannot be permitted to take advantage of the said agreement for his benefit. The applicant having come into possession of the disputed shop as tenant he should have first show his willingness to re- deliver the possession to the landlady. The applicant is selling medicine from the disputed shop. He is not illiterate or uneducated person. He has enjoyed the benefit of the aforesaid registered written agreement for a period of two years. 11. It appears that dispute has arisen after expiry of initial term of two years when landlady claimed that she should get rent with 10% enhancement to which the tenant apparently did not agree. 12. The defendant applicant woke up after two years and came out with the case that he came to know that different terms and conditions have been got incorporated in the registered written note when it was brought to his notice by the son of landlady, what a lame excuse is. I have perused copy of the plaint of Suit No. 789 of 2004. In para 16 of the plaint the present applicant has given the ground for declaring rent agreement as null and void. The said paragraph is reproduced below: "16 (i) That in the rent agreement it has been wrongly written that one shop having private numbers 1 and 2, part of building No. 64, Shivpuri, near Evas Cinema, Meerut City, has been let out to the plaintiff. Correct facts are that there are two separate shops having two separate private numbers 12 and 2. (ii) That in the said rent agreement it has been wrongly mentioned that the consolidated rent of the said shops will be Rs. 3000 per month, correct facts are that it was agreed between the parties that the rent will be Rs. 1500 per month for each shop. (ii) That in the said rent agreement it has been wrongly mentioned that the consolidated rent of the said shops will be Rs. 3000 per month, correct facts are that it was agreed between the parties that the rent will be Rs. 1500 per month for each shop. (iii) That it was agreed the parties that initially the said rent agreement will be for a period of five years, it will be extended on the option of the plaintiff and if the plaintiff will be interested to continue his tenancy even after five years then his tenancy will continue for further period of 15 years on the same rate of rent i. e. Rs. 1,500 per month of each of the shop and in case the Plaintiff will not be interested to continue his tenancy then he will give 30 days notice to the defendant but if the plaintiff even after the period of five years will desire to continue his tenancy then the defendant shall be bound to continue the tenancy of the plaintiff for a period of 15 years (iv) That it was agreed between the parties that as the shops are old constructions and the provisions of U. P. Act No. XIII of 1972 shall be applicable on the said shops but the said fact has not been mentioned in the said rent agreement deliberately. (v) That in clause 6 of the said agreement it has wrongly been mentioned that the tenancy of the Plaintiff shall continue even after a period of 5 years with the consent of both the parties. Correct facts are that it is to be continued on the option of the plaintiff and No. l with the consent of the parties. (vi) That on page 6 of the said agreement under the Heading note it has been wrongly mentioned that after every two years the rent of the shops shall be enhanced 10%. There was no such agreement between the parties rather it was agreed between the parties that the rent will not be enhanced. (vii) That it was agreed between the parties that the tenancy of the plaintiff shall be of the two shops private number 1 and 2 separately and the tenancy will not be joint one. (17) That the said rent agreement is null and void and is based on fraud for the reasons mentioned above. (vii) That it was agreed between the parties that the tenancy of the plaintiff shall be of the two shops private number 1 and 2 separately and the tenancy will not be joint one. (17) That the said rent agreement is null and void and is based on fraud for the reasons mentioned above. " A bare perusal of the aforesaid para would show that something different was written in the registered rent note than one agreed upon the parties, according to the applicant. The remedy of the applicant is to seek relief for cancellation of the said rent note. However, it is not necessary for this Court to express any final opinion about the maintainability of the aforesaid suit as the matter is pending consideration before the trial Court. Great emphasis was laid by the learned Counsel for the applicant that proceeding of the present suit be stayed under Code of Civil Procedure. It may be noted that in para 18 of the plaint the present applicant has stated that he has been receiving single rent receipt of Rs. 3000 per month towards rent paid by him. 13. The rent agreement which is a registered document has been challenged after two years on the ground that it was obtained by fraud. The Apex Court in Sri Kishan v. Kurukshetra University, AIR 1976 SC 376 , has held that fraud perpetrated upon a person who could discover the truth with due diligence, fraud is not proved, should be kept in the mind when examining the plaint of suit No. 789 of 2004. "the Courts of law are meant for imparting justice between the parties one who comes to the Court must come with clean hands. We are constrained to say that more than often than not, process of the Court is being abused. Property-grabbes, tanendous bank loan-lodgers and other unscrupulous persons from all ward of life find the Court process a convenient lever to retain illegal gains indefinitely. We have no hesitation to say that a person whose case is bound on falsehood, has no right to approach the Court. He can be summarily thrown at any stage of the litigation" vide S. P. Chengalvaiya Naidu v. Jagannath, AIR 1994 SC 853 . 14. We have no hesitation to say that a person whose case is bound on falsehood, has no right to approach the Court. He can be summarily thrown at any stage of the litigation" vide S. P. Chengalvaiya Naidu v. Jagannath, AIR 1994 SC 853 . 14. The attention of the trial Court hearing Suit No. 789 of 2004 in addition to the above, is invited to useful observations of the Apex Court, in T. Arivandandan v. T. U. Satyapal, AIR 1977 SC 2421 , to the effect if on a meaningful not formal reading of the plaint, it is manifestly vexatious and merit less, in the sense of not disclosing a clear right to sue the trial Court should exercise its power under Order VII, Rule 11 C. P. C. It should insist imperatively on examining the parity at the first hearing so that bogus litigation can be shot down at the earlier stage. I have entered into the above discussion, not to express any opinion but to answer the main plank of the argument advanced on behalf of the tenant that eviction suit should be stayed. As noted above, the tenant who is not prepared to part with the tenanted premises yet he is challenging the rent agreement which according to him is null and void you cannot have both eat your cake and have the cake. The only fault of the landlady who is a widow is that she let out the disputed shop that too under a registered rent agreement to make her both ends meet. The tenant as businessman selling medicines could foresee the filing of eviction suit, very smartly filed suit No. 789 of 2004 which cuts the roots of tree on which he is sitting. 15. In view of the above I find no merit in the revision. The revision is hereby dismissed. The Judge Small Cause Court shall make an endeavour to decide the eviction suit preferably by December, 2006 Revision dismissed. .