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2009 DIGILAW 659 (KAR)

ASHOK KUMAR CHOWAN v. A. G. ANWAR ALI

2009-08-21

V.JAGANNATHAN

body2009
JUDGMENT ( 1 ) THIS Civil Revision Petition is by defendants-2 and 3 before the trial Court in the suit filed by R-1 plaintiff. The petitioners are aggrieved by the application filed by them under Order 7, Rule 11 of the C. P. C. seeking rejection of the plaint being dismissed by the trial Court. ( 2 ) THE facts briefly stated are that R-1 plaintiff filed the suit in question by contending that he was a tenant under the first defendant in respect of the shop premises bearing old No. 44 and new No. 267, Old Tharagupete, Bangalore, on a monthly rent of Rs. 1,200/- and advance of Rs. 2,10,000/-and was carrying on business in agricultural produce market commodities. When the plaintiff sought repairs to be effected to the shop premises, the first defendant owner refused and this led the plaintiff to file H. R. C. Petition before the Small Cause Court in h. R. C. No. 10255/1990 and following the passing of the New Rent Act of 1999, the matter stood transferred to the Rent Controller for adjudication and later on, the said petition was dismissed for non-prosecution. However, as the shop premises was in a bad condition, the plaintiff had to keep it under lock and key. Taking advantage of the said position, the first defendant sold the shop premises along with other shop premises to defendants-2 and 3 (who are the petitioners herein) under a registered sale deed dated 28-12-2005. It is the plaint allegation that the said defendants-2 and 3 demolished the shop building during the second week of February 2006 and even the police did not take any action against the said defendants and even the first defendant refused to do the repair work. Citing all these reasons, the plaintiff sought the following reliefs as could be seen from the prayer column of the plaint: "wherefore, this Hon'ble Court may be pleased to declare that demolition of the suit schedule property by the defendants during the 2nd week of February 2006 is illegal and unauthorized; and (ii) further direct the defendants to restore possession of the suit schedule property to the plaintiff after reconstruction the same; and (iii) grant any other relief or reliefs as this Hon'ble Court deems fit to grant to the plaintiff in the interest of justice. " ( 3 ) THE first defendant filed his written statement by contending that the plaintiff vacated the premises in question in the year 1999 but, kept it under lock and key and in november 2005, the plaintiff approached the first defendant for compensation by way of cash and the first defendant paid the same to the plaintiff in a sum of Rs. 50,000/- and thereafter, the first defendant sold the shop premises to defendants-2 and 3 and, subsequent to the said event, the said defendants-2 and 3 demolished the old structure for putting up a shop premises of their own. The petitioners herein, on their part, filed an application under Order 7 Rule 11 of the C. P. C. seeking rejection of the plaintiff on the ground that the suit itself was not maintainable and the prayer sought by the plaintiff cannot be fulfilled. Furthermore, the plaintiff had no subsisting right to remain in possession of the premises in question as the tenancy had come to an end. The further prayer for directing the defendants to restore possession of the suit property to the plaintiff after reconstructing the same also cannot be granted. ( 4 ) THE learned trial Judge, after hearing the parties on the application filed by the petitioners herein rejected the said application filed by the petitioners by holding that if the plaintiff is not entitled to the suit relief, the Court can mould the relief and, therefore, the plaint cannot be rejected unless it is shown that there is any specific bar under law for entertaining the suit itself. In arriving at this conclusion, the learned Judge of the trial Court also placed reliance on several decisions cited before him. ( 5 ) I have heard the learned counsel for the parties and perused the material placed. In arriving at this conclusion, the learned Judge of the trial Court also placed reliance on several decisions cited before him. ( 5 ) I have heard the learned counsel for the parties and perused the material placed. ( 6 ) THE submission of the learned counsel for the petitioners is that, the trial Court was in error in rejecting the application filed by the petitioners under Order 7, Rule 11 of the c. P. C. and referring to the facts admitted by both sides and the nature of the plaint averments itself, it is contended that the plaintiff has no legal right to seek the declaration relief against the defendants and the plaintiff was a tenant under the first defendant and following the petitioners having purchased the suit premises from the first defendant under a registered sale deed, no legal right, therefore, can be said to be in existence as far as the plaintiff is concerned. Since the demolition of the structure is admitted by both parties and as there is no premises in existence, the question of putting the plaintiff back in possession does not arise. ( 7 ) AFTER the expiry of the lease, the plaintiff no longer remained a tenant under the first defendant and, therefore, the trial Court was in error in not accepting the application filed by the petitioners particularly when the relief sought could not have been granted as the suit itself will not be maintainable with such prayers being sought by the plaintiff. In this connection, the learned counsel for the petitioners placed reliance on the decisions, reported in AIR 2004 SC 1801 , AIR 2001 SC 2569 , AIR 2006 Calcutta 209, AIR 2007 Karnataka 91 : (2007 (1) AIR Kar R 516), AIR 1955 M. B. 111, AIR 1965 calcutta 371, AIR 1971 M. P. 65, AIR 1984 kerala 181 and 1993 Supp. (3) SCC 129 : ( AIR 1993 SC 957 ), to contend that the suit in the present form itself is not maintainable because, as on the date of the suit, when the plaintiff was not in possession of the shop premises in question, the suit for declaration and permanent injunction is liable to be dismissed as not maintainable because, no decree for permanent injunction can be granted if the plaintiff is not in possession as on the date of the suit. ( 8 ) THE submission that is made by relying on the decision in the case of The State of Madhya Pradesh v. Khan Bahadur, reported in AIR 1971 MP 65 , is that where the plaintiff sought a declaration in a suit filed after his ceasing to be a tenant, that he was entitled not to pay anything more than a particular sum by way of rent for his past occupation of the building, the declaration claimed could not be said to be a declaration as to any "legal character" or "any right to any property" and consequently, the suit for such declaration was not maintainable. ( 9 ) THE decision in the case of Kewal chand Mimani v. S. K. Sen, reported in AIR 2001 SC 2569 , was pressed into service to submit that once the possessory right is transferred or shifted from the lessee and the lease deed is terminated during this temporary interregnum when the lessee was deprived of its possession, the question of putting back the lessee on to the possession, after the expiry of the lease in accordance with the provisions of law, dose not and cannot arise and in ny event , right to be restored with status quo ante will be contrary to the basic principles of As such, in the light of the aforesaid decisions, the trail Court ought to have rejectee the plaint. ( 10 ) ON the other hand, the learned counsel for R-1 plaintiff argued that even if the relief sought in the prayer column cannot be granted b\ the trial Court, yet, the plaintiff can always mould, the relief and seek additional relief and it is for the Court to decide as to which of the reliefs sought, the suit of the plaintiff can be decreed. Moreover, it is contended that the plaintiff had taken a firm stand in his plaint that he was never out of possession but, on the other hand, the premises was forcibly demolished by the defendants subsequent to the purchase of the same by defendants-2 and 3. As such, the plaintiff is entitled to seek delivery of possession by virtue of Section 6 of the Specific Relief Act. As such, the plaintiff is entitled to seek delivery of possession by virtue of Section 6 of the Specific Relief Act. ( 11 ) THE further submission made is that, under the Indian law, possession of a tenant, who is ceased to be a tenant, is protected by law and although a tenant may not have the right to continue in possession as per the termination of the tenancy, his possession is juridical and that possession is protected by a statute and, therefore, a tenant, who is ceased to be a tenant may sue for possession against his landlord if the landlord deprives the tenant of his possession otherwise than in due course of law. ( 12 ) THE further submission made is that what could be relevant for invoking clause (d) of Order 7, Rule 11 of the CPC is the averment in the plaint and for that purpose, there cannot be any addition or subtraction and for the purpose of invoking Order 7, Rule 11 (d) of the Code, no amount of evidence can be looked into and further, the issues on merit of the matter which may arise between the parties would not be within the realm of the Court at this stage and all issues shall not be the subject of an order under the said provision. It is also stressed that the Court, at the stage of considering the application under Order 7, Rule 11 (d) would not consider any evidence or enter into disputed questions of fact of law and in the event the jurisdiction of the Court is found to be barred by any law meaning thereby the subject-matter thereof, only then, the application for rejection of the plaint should be entertained. Therefore, it is contended that even if the plaintiff is not entitled for some of the reliefs sought in the prayer column, that is not a ground to reject the plaint and the plaintiff can always seek additional relief or alternative relief as he thinks fit in the circumstances of the case. As such, the trial Court was justified in rejecting the application filed by the petitioners. As such, the trial Court was justified in rejecting the application filed by the petitioners. ( 13 ) THE learned counsel, in support of the above submissions, placed reliance on the decisions, reported in AIR 1968 SC 620 , AIR 1999 SC 1128 , AIR 2008 SC 3174 : 2008 (6) AIR Kar R 51, AIR 1997 Calcutta 202, air 1993 Patna 1, AIR 1975 SC 1810 , AIR 1991 Karnataka 51, AIR 2002 SC 1152 , AIR 1991 Karnataka 51, AIR 1926 Madras 20, air 1959 Mysore 127, ILR 2008 Karnataka 4987 : (2008 (6) AIR Kar R 182) and AIR 1974 SC 104 . ( 14 ) IN the light of the above arguments advanced and the decisions cited by the learned counsel for the parties, the only point for consideration is whether the trial Court was justified in rejecting the application filed by the petitioners under Order 7, Rule 11 of the CPC. ( 15 ) CERTAIN facts, which are not in dispute, have to be mentioned at the outset so as to narrow down the discussion and to focus only on the area of controversy. The premises in respect of which the suit is filed by the plaintiff stood demolished long back. In other words, the premises which was in the occupation of the plaintiff as a tenant is no longer in existence. Therefore, the question of putting back the plaintiff in possession of the premises, which was in his occupation, does not arise. It is also not in controversy between the parties that the plaintiff was a tenant under the first defendant and not a tenant under defendants-2 and 3. ( 16 ) THE third fact in regard to which there is no disagreement between the parties is that the first defendant had sold the premises in question along with other shops to defendants-2 and 3 under a registered sale deed dated 28-12-2005. Therefore, the petitioners herein, as on the date of the suit, had become the absolute owners of the suit premises. ( 17 ) WITH the above admitted facts, could the relief sought for by the plaintiff viz. Therefore, the petitioners herein, as on the date of the suit, had become the absolute owners of the suit premises. ( 17 ) WITH the above admitted facts, could the relief sought for by the plaintiff viz. to put him back to possession of the premises by directing the defendants to first reconstruct the premises and then to put the plaintiff in possession, arise at all, since the plaintiff does not have any subsisting legal right or legal character to seek such a relief from the petitioners herein. As far as this question is concerned, it is pertinent to refer to the law laid down by the Apex Court and this court. ( 18 ) IN the case of Kewal Chand Mimani v. S. K. Sen. reported in AIR 2001 SC 2569 , the Apex Court has held that once the possessory right is transferred or shifted from the lessee and the lease deed stands terminated during this temporary interregnum when lessee was deprived of its possession, question of putting back, the lessee on to the possession, after the expiry of the lease in accordance with the provisions of law, does not and cannot arise. The Apex Court, in the said case, at paragraph 36. has considered the subtle difference between a tenant holding over and a tenant at sufferance and observed that there existed a differentiation between the lessee of a determined lease in possession and a lessee dispossessed, and finding that the Mimanis admittedly had been dispossessed from the lease premises, the apex Court held that no right can be said to accrue in favour of Mimanis. ( 19 ) IN the case of The State of Madhya pradesh v. Khan Bahadur, reported in AIR 1971 MP 65 , dealing with the question which involved maintainability of a declaratory suit for non-compliance of Section 42 of the Specific Relief Act (old Act), it was held that in order to obtain the relief of declaration, the plaintiff must establish that the plaintiff is, at the time of the suit, entitled to any legal character or any right to any property and the defendant has denied or is interested in denying the character or the title of the plaintiff and thirdly, the declaration asked for is a declaration that the plaintiff is entitled to a legal character or a right to property, and that the plaintiff is not in a position to claim a further relief than a bare declaration of his title and even if these conditions are fulfilled, the Court still has a discretion to grant or not go grant a declaratory relief. ( 20 ) THIS Court, in the case of Aralappa v. Jogannath, reported in AIR 2007 Karnataka 91 : 2007 (1) AIR Kar R 516, has also held that in a suit for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit and when the plaintiff is not in possession of the property on the date of the suit, the relief of permanent injunction is not an appropriate consequential relief and further, if the plaintiff is not in possession on the date of the suit, even then, the suit for declaration and permanent injunction is liable to be dismissed as not maintainable. ( 21 ) AS far as the rulings referred to by the learned counsel for the respondent-plaintiff are concerned, the decisions which are referred to in connection with Section 6 of the specific Relief Act (Section 42 of the old act), have no application to the instant case because, a careful reading of Section 6 of the specific Relief Act. 1963 makes it clear that it is only where a person is dispossessed without his consent of immovable property otherwise than in due course of law, that by suit he can recover the possession thereof. 1963 makes it clear that it is only where a person is dispossessed without his consent of immovable property otherwise than in due course of law, that by suit he can recover the possession thereof. Therefore, the Section implies that in order to succeed under Section 6 of the Specific Relief act, the immovable property in question must be in existence and it is only in such an event that the person dispossessed can seek recovery of possession. whereas the case on hand is not the one where the premises in which the plaintiff was a tenant still existed as on the date of the suit but. by the very admission made by the plaintiff in the suit itself, the premises no longer existed as it had been demolished by the defendants and further, the petitioners herein purchased the property from the first defendant under a registered sale deed. Under such circumstances, the question of invoking the provisions of section 6 of the Specific Relief Act does not and cannot arise. As such, all the decisions referred to in this regard are inapplicable. ( 22 ) AS far as the ruling in the case of kamala v. K. T. Eshwara Sa, reported in AIR 2008 SC 3174 : 2008 (6) AIR Kar R 51, is concerned, what is relevant while considering the application for rejection of a plaint is the averment made in the plaint without there being any addition or subtraction and the court would not consider any evidence or enter into a disputed question of fact or law. In the case on hand, even as per the plaint averments itself, the plaintiff has conceded that the premises in question no longer existed and it has since been demolished and later the petitioners have purchased the property from the first defendant. Therefore, accepting the plaint averments as it stand, even then, the relief of declaration or delivery of possession after directing the defendants to reconstruct the premises, therefore, cannot be conceived of in face of admitted facts. ( 23 ) AS far as the other decisions referred to by the learned counsel for the respondent-plaintiff are concerned, the facts and circumstances, involved therein are not the one, which can be said to be identical to the facts of the present case. ( 23 ) AS far as the other decisions referred to by the learned counsel for the respondent-plaintiff are concerned, the facts and circumstances, involved therein are not the one, which can be said to be identical to the facts of the present case. ( 24 ) IN the fight of the foregoing reasons, i am of the view that since the plaintiff's main grievance is that the premises which was under lock and key and under his control had been demolished, at the most, the only relief which the plaintiff will be entitled to seek will be to claim for damages and the other reliefs claimed in the prayer column, therefore, are not maintainable in law. The plaint, as such, with the existing reliefs in the prayer column, cannot be held to be maintainable in view of the aforesaid law laid down by the Apex Court and this Court referred to earlier and, as such, the only remedy available to the plaintiff is to present a plaint seeking only the relief of damages if at all he is entitled thereto and, if such a request is made by presenting a fresh suit, it is for the Court to consider the said prayer in accordance with law. ( 25 ) FOR the above reasons, this revision petition is allowed and the impugned order of the trial Court is set aside. It is also made clear that the above observations shall not come in the way of any other remedies that the plaintiff chooses to seek and in that event, the observations made herein shall not affect his case on merits. Consequently, the plaint in O. S. No. 15907/2006 on the file of the trial Court stands rejected. Petition allowed. --- *** --- .