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2012 DIGILAW 208 (ALL)

Rajesh Srivastava v. Y. P. Khare @ Y. N. Khare

2012-01-23

SATYENDRA SINGH CHAUHAN

body2012
Satyendra Singh Chauhan, J.;- Counter affidavit filed today is taken on record. Heard learned counsel for the revisionist and learned counsel for the respondent. This revision has been filed against the order dated 23.12.2011. The sole question involved in this revision is as to whether suit for eviction on the ground of arrears of rent and unauthorized occupation would be maintainable before the Judge, Small Causes Court or a regular suit has to be filed in respect of the unauthorized occupation of the revisionist as averred in the plaint by the respondent. Learned counsel for the revisionist has argued that two suits are to be filed; one in respect of eviction from unauthorized occupation as alleged in the plaint and the other in respect of the arrears of rent before the Judge, Small Causes Court. The composite suit before the Judge, Small Causes Court will not be maintainable. It is apparent from the own showing of the respondent before the trial court in the plaint that the revisionist has occupied a particular portion of the house unauthorizedly apart from the premises in tenancy of the revisionist. Learned counsel has also submitted that no relief in regard to the eviction on the ground of arrears of rent has been prayed for and only relief in regard to the mandatory injunction for eviction from the premises in question has been prayed for. Learned counsel for the respondent, on the other hand, has submitted that composite cause of action has to be undertaken by the respondent in view of the Order II Rule 2 C.P.C. and multifariousness of proceedings has to be avoided and that is the purpose and object lying defined in the Code of Civil Procedure. The suit which has been filed has been filed primarily on the ground of default of rent and in respect of a particular portion of the house; if the revisionist has occupied it unauthorizedly, then separate suit in respect of unauthorized occupation is not to be filed but in fact a composite prayer has been made in respect of eviction and default of rent. Regular court cannot grant any relief in respect of default of rent and eviction based thereon. The regular court can only entertain suit in respect of eviction on the ground of unauthorized occupation. Regular court cannot grant any relief in respect of default of rent and eviction based thereon. The regular court can only entertain suit in respect of eviction on the ground of unauthorized occupation. It is submitted that when composite cause of action is there and the primary relief is to be granted by the Small Causes Court, ancillary relief can also be granted by the same court and filing of two suits as contended by the learned counsel for the revisionist cannot be accepted. I have heard learned counsel for the parties and perused the record as well as the impugned order. The trial court while considering the application moved under Order VII Rule 11 came to the conclusion that in view of the law propounded by the Apex Court, suit has to be tried by the Judge, Small Causes Court as the primary relief has been sought in respect of eviction on the ground of default of rent and not in respect of unauthorized occupation. The relief in respect of unauthorized occupation is an ancillary relief which can be granted where composite cause of action arises. The Provincial Small Cause Courts Act does not contemplate filing of two different suits and the entire cause of action has to be clubbed together in order to avoid multiplicity of proceedings. Attention has been drawn by the learned counsel for the revisionist towards paragraph 22 of the judgment rendered in the case of Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, (2004) 3 SCC 137 but there the proceedings arose under the Indian Trusts Act whereas in the present case the proceedings have arisen under the Provincial Small Cause Courts Act and if any part of cause of action has arisen in respect of unauthorized occupation, then the Judge, Small Causes Court has got every jurisdiction to try the aforesaid composite cause of action instead of relegating the respondent to file another suit for eviction. Bar of Section 15 of the Provincial Small Cause Courts Act as argued by the learned counsel for the revisionist is not attracted in the facts and circumstances of the present case as the area of operation which has been indicated in the second schedule is in respect of different contingencies and not in respect of present contingency where the suit has primarily been filed for eviction and rent. Reliance placed by the trial court upon the case of Sopan Sukhdeo Sable (supra) is in accordance with law and I do not find any error in the same. Relevant portion of paragraph 16 of the aforesaid judgment is reproduced hereunder:- "..................What is required in law is not the piecemeal reading of the plaint but in its entirety. Whether the reliefs would be granted on the pleaded facts and the evidence adduced is totally different from the relief claimed. All the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced. Whether part of the relief cannot be granted by the civil court is a different matter from saying that because of a combined claim of reliefs, the jurisdiction is ousted or no cause of action is disclosed. Considering the reliefs claimed vis-a-vis the pleadings would not mean compartmentalisation or segregation, in that sense." The revision is devoid of merit. It is accordingly dismissed. The case involves no substantial question of law of general importance, as such, leave to appeal to Supreme Court is rejected.