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Madhya Pradesh High Court · body

2008 DIGILAW 1049 (MP)

SHASHI PANDEY v. B. K. CHOUBEY

2008-08-21

R.K.GUPTA

body2008
Judgment R.K. GUPTA, J. ( 1. ) This is a petition filed by the petitioner invoking the writ jurisdiction of this Court under Article 227 of the Constitution of India by which the petitioner has challenged the order dated 24.10.2007 whereby the court below has rejected the application filed on behalf of the petitioner under Section 10 of the Civil Procedure Code, 1908 (hereinafter referred to in short as "the CPC") for stay of the subsequent suits. ( 2. ) The facts leading to the present petition are that petitioner is a tenant. The respondent earlier filed a suit for eviction and also for arrears of rent. In the said suit the present petitioner was the defendant, who being a tenant also filed a counter-claim. Subsequently, the aforesaid suit was withdrawn and only counter- claim remained. ( 3. ) The second suit filed by the landlord was for seeking a decree for eviction and also for the arrears of rent w.e.f. 1.11.2006. In the second suit an objection has been raised on behalf of the petitioner/tenant that this civil suit is liable to be stayed in view of Section 10 of the CPC. The court below has rejected the application filed by the petitioner for stay of the suit. ( 4. ) On behalf of the respondents it is stated that counterclaim which was filed on behalf of the petitioner has been returned to the petitioner for filing it in an appropriate court and thereafter the said counterclaim has not been filed in any appropriate court. Under the circumstances, it is prayed for that the present petition is liable to be dismissed. The order passed by the court below for return of the plaint to file it in an appropriate court has been challenged by the present petitioner in Civil Revision No. 341/2007. Therefore, the question whether the court below has rightly passed the order for return of the plaint or not? is not decided in the present case. ( 5. The order passed by the court below for return of the plaint to file it in an appropriate court has been challenged by the present petitioner in Civil Revision No. 341/2007. Therefore, the question whether the court below has rightly passed the order for return of the plaint or not? is not decided in the present case. ( 5. ) Learned counsel for the petitioner submitted that earlier in the counterclaim a prayer has been made for the refund of the security amount of Rs.50,000/- which was deposited by the petitioner being the tenant and on this basis it is submitted by him that the aforesaid amount of Rs.50,000/- is either liable to be refunded or is liable to be adjusted towards the total rent due to be paid. ( 6. ) In this reference, it is to be seen that the earlier suit was for eviction and also for arrears of rent and in that suit a counterclaim was filed on the ground that under the garb of security amount from the tenant the landlord has taken a sum of Rs.50,000/- fraudulently. It is also stated that the aforesaid amount has been fraudulently taken by the landlord, therefore, under Section 6 of the M.P. Accommodation Control Act the plaintiff is not entitled to receive any amount of security and accordingly deposit of Rs.50,000/- as security amount is illegal and, therefore, interest is to be paid on this amount to the tenant. Accordingly, the present petitioner only claimed interest @ 9% per annum to the tune of Rs. 57,750/-. ( 7. ) It is also seen in the present case that if the earlier counterclaim which was filed by the petitioner is treated to be a counterclaim for refund of the aforesaid amount of Rs.50,000/- which was deposited as security amount and interest calculated and according to the petitioner, it comes to Rs.57,750/-and total recoverable amount comes to Rs.1,07,750/- as on the date of counterclaim. Paragraph 3 at page 9 of the counterclaim filed by the present petitioner which is Annexure P-2 to the writ petition, shows that a sum of Rs.6,760/- alone has been paid as court fee as against the interest claimed on the amount of Rs.50,000/-. Paragraph 3 at page 9 of the counterclaim filed by the present petitioner which is Annexure P-2 to the writ petition, shows that a sum of Rs.6,760/- alone has been paid as court fee as against the interest claimed on the amount of Rs.50,000/-. Thus, no court fee has been paid by the present petitioner for refund of the amount of Rs.50,000/- and the court fee has been paid on Rs.57,750/- which is interest according to the petitioner from 16.11.1991 till the filing of the counterclaim. ( 8. ) In view of the aforesaid facts, for the purposes of applying Section 10 of the Civil Procedure Code what has to be appreciated is whether the matter in both the suits and particularly in a subsequent suit is "substantially in issue" so that the subsequently filed suit has to be stayed., ( 9. ) On basis of the facts as stated hereinabove, since the petitioner has only claimed interest of Rs.57,750/- on the amount of Rs.50,000/-, which was deposited by him being a tenant as security then the earlier suit only remains for the interest and not for the adjustment or refund of the amount of Rs.50,000/- of security amount (adjustment towards rent). Since the subsequently filed suit is for the arrears of rent from 1.11.2006 and also for eviction, therefore, it cannot be said that second suit which has been filed is a suit where substantially the matter in issue is the same which is in the earlier suit. In the suit the arrears of rent have been claimed from 1.11.2006 and the earlier suit is only for claiming the interest on the deposit of Rs.50,000/-. ( 10. ) In view of the aforesaid, the subject matter of both the suits i.e. in counterclaim filed by the petitioner and also suit for eviction and also for arrears of rent w.e.f. 1.11.2006 is entirely different. In this reference, the issues which have been framed by the court below are filed as Annexure P-7 to the writ petition wherein three issues have been framed. The issues are also entirely different in the subsequently filed suit by the defendant than the earlier suit. The court below has also arrived at a conclusion that subject matter of both the suits is entirely different and on that basis came to the conclusion that Section 10 of the CPC has no application in the present case. The issues are also entirely different in the subsequently filed suit by the defendant than the earlier suit. The court below has also arrived at a conclusion that subject matter of both the suits is entirely different and on that basis came to the conclusion that Section 10 of the CPC has no application in the present case. ( 11. ) In support of his contentions learned counsel for the petitioner relied upon the judgment passed by the Apex Court in P.V. Shetty v. B.S. Giridhar, AIR 1982 SC 83 and referred to paragraph-2 of the same, which is reproduced herein below: "The very narration of facts in this case would show what should be the correct approach in this matter. If the stay of further proceedings in the suit, as prayed for by the appellant, is not granted and the suit proceeds and results in eviction, the application for fixation of fair rent becomes infructuous. On the other hand, if the application for fixation of fair rent is allowed holding that the appellant is a tenant as understood under the Rent Act, and the fair rent is Rs. 500/- or less per month he would be entitled to the protection of the Rent Act which determination will have impact on the suit, subject, of course, to other contentions that may be raised in the suit. Now it is an admitted position that the application for fixation of fair rent preceded the filing of this suit. Obviously, therefore, the just and fair approach, balancing the equities would be to stay further hearing of the suit till the application for fixation of fair rent is decided. But as Mr. Datar, learned counsel for the respondent, voices a serious apprehension that in that event the suit may not be decided for years. That is a recurring phenomenon in our courts and we must guard against it." ( 12. ) On careful reading of the judgment relied upon by the learned counsel for the petitioner it is seen that the said judgment has no application in the present case. In the facts of the said case, tenant filed a case under the Rent Control Act, 1961 before the competent authority for fixation of the fair rent. The said authority by an interim order fixed the fair rent @ Rs.500/- per month. In the facts of the said case, tenant filed a case under the Rent Control Act, 1961 before the competent authority for fixation of the fair rent. The said authority by an interim order fixed the fair rent @ Rs.500/- per month. During the proceedings of the aforesaid case landlord filed a suit for eviction. The landlord also filed an application for fixation of fair rent and for interim stay. Under these circumstances, the Apex Court held that when application for fixation of fair rent has already been moved by the tenant before the competent authority under the provisions of the Rent Control Act, 1961 and when the landlord has filed a second suit for fixation of the fair rent then the application which has been submitted by the tenant before the competent Court under the Rent Control Act, 1961 shall render infructuous. In the present case, the landlord has not filed the case for arrears of rent for the period prior to 1.11.2006 and present petitioner being a tenant has also not filed counterclaim for adjustment or recovery of the amount of Rs.50,000/-deposited by the tenant as a security amount. Under the circumstances, the aforesaid judgment relied upon by the counsel for the petitioner has no application in the present case. ( 13. ) Yet another judgment on which reliance is placed by learned counsel for the petitioner is reported in AIR 1987 SC 2302 , M/s. Sarwan Kumar Onkar Nath v. Shri Subhas Kumar Agarwalla. A careful reading of the judgment as such shows that this judgment also has no application in the present case. The reason being that it was a ease where a tenant paid the rent in advance and the landlord was seeking the decree for eviction on the ground of arrears of rent of two months. It was an understanding between the parties that advance rent could be adjusted against the rent whenever necessary or required and under the circumstances the Apex Court held that tenant was not a defaulter and no decree of eviction on the ground of arrears of rent could have been passed. The facts of the present case are different. In the present case, the amount of Rs.50,000/- in the counterclaim has not been prayed for its adjustment and no court fee for its adjustment or refund is paid. The facts of the present case are different. In the present case, the amount of Rs.50,000/- in the counterclaim has not been prayed for its adjustment and no court fee for its adjustment or refund is paid. The arrears of rent which are claimed by the plaintiff- landlord are for the period from 1.11.2006. It is not the case that Rs.50,000/- is the amount which is liable to be adjusted towards arrears of rent from 1.11.2006. Even assuming but not accepting the submission so made by learned counsel for the petitioner that said amount was liable to be adjusted then the aforesaid adjustment was permissible by way of counterclaim towards earlier suit which was filed in the year 1991, as admitted according to the parties and not with reference to the subsequent suit. Thus, on this basis the facts of the present case are entirely different than the case of M/s Sarwan Kumar (supra), on which reliance is placed by the counsel for the petitioner. ( 14. ) Learned counsel for the petitioner further placed reliance upon the judgment rendered by the Apex Court in G. Reghunathan V. K. V. Varghese, 2005 (7) SCC 317 and referred to paragraph 15 of the same, which is reproduced as under:- Now, the claim under Section 11 (2)of the Act. There cannot be any dispute that the tenant had not paid the rent from 5-10-1988 onwards as claimed by the landlord. He had deposited the rent in the proceedings. If he has done so, it is relevant only for considering the question whether he is entitled to relief in terms of Section 1 l(2)(c) of the Act. The only question is whether the fact that he had paid a sum of Rs. 85,000 as security, which the landlord was liable to refund to him at the time of his vacating the room, could be taken note of as an amount available with the landlord for being adjusted against the rent due. Under Section 8(1) of the Act, the landlord is not entitled to take any premium or other like sum. Under Section 8(2), he could receive or stipulate for payment only, an amount not exceeding one months rent by way of advance. In both cases, if he has received it, it becomes refundable at once. Hence, it would be an amount available with him. Under Section 8(2), he could receive or stipulate for payment only, an amount not exceeding one months rent by way of advance. In both cases, if he has received it, it becomes refundable at once. Hence, it would be an amount available with him. In Issac Ninan v. State of Kerala the High Court has declared that provisions relating to fair rent, that is, Sections 5, 6 and 8 of the Act, put together, are ultra vires the Constitution and are void. The questions may have, therefore, to be considered without reference to Section 8 of the Act. In a case where a substantial amount had been received as advance at the time of letting, which was liable to be refunded without interest on the expiry of the lease, this Court held in Modern Hotel v. K. Radhakrishnaiah that when the amount of arrears of rent was smaller than the advance amount held by the landlord on account of the tenant, there was no default in payment of rent and the grant of eviction on the ground of arrears of rent was not justified. This was reiterated in K. Narasimha Rao v. T.M. Nasimuddin Ahmed. For the purpose of this case, especially when the tenant had pleaded that he had deposited the rent even while filing his objection in the Rent Control Court, we do not think that it is necessary to pronounce finally on this question. We feel that it is only necessary to clarify that the tenant will have two months from today to deposit the rent in arrears till date and the other sums in terms of Section 1l(2)(c) of the Act so as to avert the execution of the order for eviction on the ground of arrears of rent granted under Section 11 (2) of the Act." ( 15. ) A reading of paragraph-15 of the aforesaid judgment itself indicates that the Supreme Court was considering an eventuality that if the arrears of rent are smaller than the advance amount then the landlord is entitled to adjust the amount and it cannot be said that there had been a default in payment of rent by the tenant so that a decree of eviction could be granted. The facts of the present case, as enumerated above, are entirely different. The facts of the present case, as enumerated above, are entirely different. The earlier suit filed by the landlord in the year 2004 was for eviction as well as for arrears of rent for the period prior to the filing of the suit. As held earlier no adjustment of rent from security deposit was prayed but only interest is claimed. ( 16. ) In the earlier suit, copy of which is filed as Annexure P-1, the suit for eviction was also sought on the ground of arrears of rent because according to the plaint allegations the tenant was in arrears of rent from 1.1.2004 to 29.2.2004 at the rate of Rs.1210/- per month. The aforesaid civil suit was withdrawn. While filing the counterclaim the petitioner did not set up any defence that the amount deposited by him of Rs.50,000/- be adjusted by the landlord towards the rent or arrears of rent from the aforesaid amount. That apart, no issues were framed in the counterclaim by the court below with regard to the adjustment of the amount of Rs.50,000/- deposited by the petitioner-tenant. The issues have been filed on record with reference to earlier suit including the counterclaim, which are Annexure P-4. ( 17. ) Under the circumstances and also on the basis of the aforesaid facts, I am of the view that the order passed by the learned court below on 24.10.2007 is not contrary to the law. The Court below has given the reasons for rejecting the application filed by the petitioner for stay of the proceedings in the subsequent suits. The two suits are on different footings and in the earlier suit the matter in relation to the subsequent suit is not the matter substantially in issue, therefore, the court below has rightly rejected the application filed by the present petitioner. ( 18. ) For the reasons stated hereinabove, the present petition is misconceived and it is dismissed accordingly with a cost of Rs.1000/-. Petition dismissed.