Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 346 (HP)

Mansa Ram v. Rajinder Kumar

2014-04-04

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. 1. The Respondent/defendant despite service is not present, hence, proceeded against exparte. 2. The appellant is the plaintiff who filed a suit for damages on the allegations that he since 26.8.1993 was in possession as tenant of building known as Rawat Dhabha consisting hotel at Shalaghat, Pargana Rohanj, Tehsil Arki, District Solan under an agreement written and executed by the defendant/respondent. On 6.1.1994 the defendant/ respondent interfered with the possession of the plaintiff with the motive to dispossess the plaintiff/appellant from the aforesaid premises which resulted in filing the suit for permanent prohibitory injunction. During the pendency of the suit, the defendant/ respondent dispossessed the plaintiff/appellant and on the direction of the Court the possession was redelivered to the plaintiff/appellant on 2.4.1994 through the Local Commissioner appointed by the Court. 3. It was alleged that even on the direction of the Court, the defendant/respondent did not hand over the possession of the entire premises and due to the illegal acts of the defendant/respondent the hotel business of the plaintiff/appellant remained closed from 6.1.1994 to 2.4.1994. It was pleaded that after meeting the expenses of running the hotel and payment to the workers and the rent, the plaintiff/appellant was earning more than Rs.3,000-/ per month as profit from the said hotel. The plaintiff was paying Rs.2,000-/ as rent to the defendant/respondent. As a result of the forcible dispossession by the defendant/respondent and keeping him out of possession for the aforesaid period, he had incurred loss of more than Rs.9,000-/. Besides this loss, the defendant/respondent had forcibly taken the utensils and other belongings of the hotel in his possession as per list annexed with the plaint valuing more than Rs.8683/-for which the defendant/respondent orally agreed to adjust in the future rent which had been fixed under the new agreement. The defendant/respondent had delivered the possession only of the part and not the whole property. Therefore, the suit for recovery. 4. The defendant/respondent contested the suit by raising preliminary objections that the suit was barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure, cause of action, valuation, estoppel etc. The defendant/respondent had delivered the possession only of the part and not the whole property. Therefore, the suit for recovery. 4. The defendant/respondent contested the suit by raising preliminary objections that the suit was barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure, cause of action, valuation, estoppel etc. On merits, it was averred that the plaintiff/appellant was tenant of the defendant/respondent under an agreement but it was submitted that the defendant/respondent made statement in the Court to return back the possession to the plaintiff/appellant of his own and also requested the Court to appoint Local Commissioner at the time of delivering the possession because the plaintiff/appellant was not trustworthy person and could have come with new false story against the defendant/respondent. According to him, the plaintiff/appellant was never dispossessed from the Dhaba but in fact vacated the same of his own as this Dhaba was running in loss. The plaintiff/appellant had taken back entire rented out premises and now alleging that entire premises was not delivered to him at the time re-induction whereas an agreement to this effect was prepared on the spot. In fact the plaintiff/appellant had not paid the rent for the past four months and therefore, with the intention of not paying arrears of rent pertaining to the winter session, he had filed a false suit. Lastly, it was denied that the defendant/respondent had taken any item belonging to hotel as mentioned in the plaint and therefore, prayed for dismissal of the suit. 5. The plaintiff/appellant filed replication to the written statement wherein the allegations of the plaint were reasserted and reaffirmed. 6. The learned trial Court on 6.9.1994 had framed the following issues:- (1) Whether the plaintiff is entitled to the damages claimed alongwith interest and costs, as alleged? OPP (2) Whether the suit is barred u/o 2 rule 2 CPC, as alleged? OPD (3) Whether the suit is not maintainable in its present form? OPD (4) Whether the plaintiff has a cause of action? OPP (5) Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD (6) Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD (7) Relief. After recoding the evidence, the learned trial Court decreed the suit of the plaintiffs/ appellant. Upon appeal having been preferred, the learned Addl. OPD (6) Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD (7) Relief. After recoding the evidence, the learned trial Court decreed the suit of the plaintiffs/ appellant. Upon appeal having been preferred, the learned Addl. District Judge, Solan reversed the findings as recorded by the learned trial Court and resultantly, dismissed the suit filed by the plaintiff/appellant by holding that the suit was barred by under the provisions of Order 2 Rule 2 and under Section 11 Explanation IV CPC. It is this judgment which is under challenge before this Court. 7. This Court on 12.10.2001 admitted the appeal on the following substantial questions of law:- 1. Whether the learned appellate Court below has mis-applied and misconstrued the provisions of Order 2 Rule 2 of the Code of Civil Procedure in the facts and circumstances of the present case, particularly, when the claim and relief claimed in the present suit was neither available nor could be claimed in the previous suit? 2. Whether on proper construction of the pleadings and the evidence oral as also documentary, the provisions of Section 11 of the Code of Civil Procedure have wrongly been applied by the learned appellate court below, thus, vitiated the findings? Before proceeding with the merit of the case, this Court has doubt regarding the maintainability of the appeal in view of the provisions of Section 102 of Code of Civil Procedure which has been substituted by C.P.C. Amended Act No.22 of 2002 enforced with effect from 1.7.2002 to provide that no second appeal shall lie from any decree, when the subject-matter of the original suit is for recovery of money not exceeding twenty five thousand rupees. In the present case admittedly the amount sought to be recovered was Rs.9,000/-only. The suit was filed on 25.4.1994 and the appeal before this Court was preferred on 3.10.2001 and came to be admitted on 12.10.2001 i.e. prior to the coming into force of the C.P.C. Amendment Act No.22 of 2002. A similar question came up for consideration in Jagdish Chandra v. Arvind Singh and another AIR 2003 Allahabad 119, wherein it has been held:- “2 This second appeal was filed by the defendant against the appellate decree dated 6.5.2002. It is admitted position that on the date the first appeal was decided, the second appeal against the decree was maintainable under S.100. It is admitted position that on the date the first appeal was decided, the second appeal against the decree was maintainable under S.100. C.P.C. However, S.102, C.P.C. has been substituted by C.P.C. Amendment Act No.22 of 2002 enforced w.e.f. 1-.7.2002 to provide that no second appeal shall lie from any decree, when the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees. 3. It is not disputed that this second appeal is covered by this section and a preliminary objection has been raised by Shri Tirloki Nath that this second appeal is not maintainable. As against this it has been argued by Shri K.K. Arora, learned counsel for the appellant that the right of appeal accrued to him on the date of the judgment of the first appellate Court, which was delivered prior to 1-7-2002. That therefore, this right can be exercised now and S.102 C.P.C. does not bar this second appeal. 11. After considering the arguments of the learned counsel I am of the view that S. 6 of the General Clauses Act as referred to above also does not help the appellant. The first reason being that it is not a case of repeal on the other hand S.102, C.P.C. has been substituted by the Amending Act and I am afraid that S.6 above may not be applicable to the same. Apart from this. Cl. (c ) protect any right , privilege, obligation or liability. It cannot be interpreted to include the right to file repeal or revision. Clause (e) also does not protect the right of institution of a proceeding under repealed Act. 12. It is established principle that procedural law can be amended with retrospective effect and will also apply to pending cases. Therefore, the right of second appeal could be taken away with retrospective effect in pending cases also. 13. The point that survives is whether the right of appeal can be availed in cases where it accrued before the enforcement of S.102 C.P.C. No doubt there is no express provision on this point and the Court can lay down law on this point considering aim of the amendment. In purposive interpretation, Justice Frankfurter observed:- “Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. In purposive interpretation, Justice Frankfurter observed:- “Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose. (47 Columbia LR 527 at 538 (1947).” 14. Justice Cardozo observed that though the powers of interpretation of the Courts are narrow, yet they can fill up gaps. He said: “No doubt, the limits for the judge are narrower. He legislates only between gaps, he fill the open spaces in the law.” 15. Therefore, to consider the question the above principles shall be borne in the mind. The aim of the law is clear to curtail litigation, which has assumed high proportions, and the peoples are litigating over trifle matters to the highest Court leaving no time with the Courts to devote to important issues. With this aim insight by 1976 amendment, the second appeals were limited on the point of “substantial question of law” only. Again by S.102, C.P.C. by present amendment right of second appeals have been taken away in certain class of cases. Therefore, policy of law is to minimize the second appeals and the second appeal cannot be accepted for the reason that the right accrued prior to the amendment was enforced. Even if the right accrued, the Court will take the view in accordance with the policy of law that the right of appeals should be curtailed. 16. Apart from this, S. 16 of the Amending Act 22 of 2002 provides for repeal and savings. Clause (2) (a) is material, which is as follows: “16(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of S.6 of the General Clauses Act, 1897 (10 of 1897):- (a) The provisions of S.102 of the principal Act as substituted by S.5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of S.5: and every such appeal shall be disposed of as if S.5 had not come into force. 17. 17. From the perusal of this provision it is clear that the pending appeals and the appeals which have been admitted before the commencement of S.102 only have been saved from the mischief of S.102. Therefore, the legislature intent is clear that the right to appeal accrued prior to the enforcement has not been saved.” In view of the aforesaid decision since the Appeal is admitted before the Amending Act 22 of 2002 came into force the Appeal is held to be maintainable. 8. I have heard Mr. Naresh Kumar Sood, learned Senior Advocate assisted by Mr. Aman Sood, Advocate for the appellant and have gone through the records of the case. 9. The learned trial Court had framed issue No.2 as follows:- Whether the suit is barred u/o 2 rule 2 CPC, as alleged? OPD The learned trial Court in its finding qua issue No.2 has decided the same in the following manner:- “The plaintiff has taken objection that the suit is barred under order 2 rule 2 CPC but there is absolutely no evidence on the record to prove that how the suit is barred under said provision. Accordingly, the issue is decided against the defendant.” I am afraid that this was not the manner in which the learned trial Court could have decided this issue. The learned trial Court should have discussed this issue on the basis of evidence available on record, because sufficient evidence regarding the previous litigation interse the parties was available though the moot question was whether the said evidence would make applicable the provisions of order 2 rule 2 CPC. 10. When the matter was carried in appeal, though specific issue was framed only qua the applicability of under order 2 rule 2 CPC yet the learned lower appellate Court has gone step ahead whereby not only he has invoked the provisions of order 2 rule 2 CPC but even invoked the provisions of Section 11 of the CPC to hold the suit to be not maintainable. 11. “A plea of bar under Order 2 Rule 2 is a highly-technical plea. It tends to defeat justice and deprives the party to a legitimate right. Care, therefore, should be taken to ensure that complete identity of cause of action is established.” Order 2 Rule 2 CPC, reads thus:- “O 2 R.2. 11. “A plea of bar under Order 2 Rule 2 is a highly-technical plea. It tends to defeat justice and deprives the party to a legitimate right. Care, therefore, should be taken to ensure that complete identity of cause of action is established.” Order 2 Rule 2 CPC, reads thus:- “O 2 R.2. Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.” The following principles would govern bar to a subsequent suit under this rule:- (1) The correct test in cases falling under Order 2 rule 2, is “whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit.” (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court.” 12 The learned lower appellate Court has given the following reasoning to conclude that the suit was barred under the provisions of order 2 rule 2 CPC but even Section 11 Explanation IV of the CPC:- “19. The contention of Ld. It refers to the media upon which the plaintiff asks the Court.” 12 The learned lower appellate Court has given the following reasoning to conclude that the suit was barred under the provisions of order 2 rule 2 CPC but even Section 11 Explanation IV of the CPC:- “19. The contention of Ld. Counsel for the appellant that the present suit was barred under the provisions of order 2 rule 2 CPC is up-hold because in the present case civil Suit No.6/1 of 1994 was instituted on dated 7.1.1994 and was decided on 28.3.1994 by the Ld Sub Judge Ist Class, Arki titled as Mansa Ram vs. Rajinder Kumar and case was compromised interse the parties and as per compromise defendant-landlord was directed to hand over the possession of the rented premises to plaintiff-tenant within a period of seven days and defendant-landlord was also restrained by a decree of permanent injunction from dispossessing the plaintiff-tenant from the rented premises except in due Course of law. It was also ordered by the Ld. Sub Judge Ist Class, Arki in Civil Suit No.6/1 of 1994 Ex.PW-1/A and Ex.PW-1/B placed on record that possession was to be delivered by the defendant-landlord to the plaintiff-tenant on the spot in the presence of Shri D.K. Sharma, Adv. Who was appointed as Local Commissioner by the Court. Civil Suit No.6/1 of 1994 was instituted on 7.1.1994 and as per allegations in the earlier suit No.6/1 of 1994 the plaintiff Mansa Ram was dispossessed on 6.1.1994 and his articles were damaged on 6.1.94 and even PW-1 Shri Mansa Ram when appeared in the witness-box in the present case has specifically stated that his articles were damaged by the defendants on 6.1.1994. PW-2 Shri Nikka Ram has also specifically stated that the articles of the plaintiff-tenant was damaged by the respondent-defendant on 6.1.1994. PW-3 Shri Mansa Ram has specifically stated when he appeared in the witness-box that the articles of the plaintiff-tenant was damaged by the defendant /landlord on 6.1.1994. PW-2 Shri Nikka Ram has also specifically stated that the articles of the plaintiff-tenant was damaged by the respondent-defendant on 6.1.1994. PW-3 Shri Mansa Ram has specifically stated when he appeared in the witness-box that the articles of the plaintiff-tenant was damaged by the defendant /landlord on 6.1.1994. The plaintiff-landlord has filed the former suit No.6/1 of 1994 on 7.1.1994, I am of the view that when the farmer suit No.6/1 of 1994 was filed cause of action to claim damage had accrued to the plaintiff-tenant prior to filing civil suit No.6/1 of 1994, I am of the view that plaintiff tenant was under legal obligation to claim damage in the former suit titled as Mansa Ram vs. Rajinder No.6/1 of 94 because civil suit No.6/1 of 1994 was instituted on 7.1.1994 and cause of action to claim damage had accrued to the plaintiff-tenant on 6.1.1994 prior to filing of the former suit No.6/1 of 1994 but plaintiff-tenant omitted to claim damage in the former civil suit No.6/1 of 1994. I am of the view that under order 2 rule 2 C.P.C. the sub-clause 2 the plaintiff-tenant omits to sue in respect of damage to property and intentionally relinquished the claim of damage in the former suit and now the plaintiff-tenant is barred to sue in respect of claim omitted or relinquished by the plaintiff-tenant in the former civil suit No.6/1 of 1994 because cause of action had accrued to the plaintiff-tenant to file the suit of damage when he filed the former suit 6/1 of 1994. Even the present suit of the plaintiff-landlord was barred under the principle of constructive res-judicata as mentioned in Section 11 Explanation iv. Section 11 Explanation iv clearly states that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. I am of the view that present suit of the plaintiff was barred on the principle of constructive res-judicata. Section 11 Explanation iv of C.P.C. is quoted in to as under :- 11. I am of the view that present suit of the plaintiff was barred on the principle of constructive res-judicata. Section 11 Explanation iv of C.P.C. is quoted in to as under :- 11. Res-judicata: No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties, under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” Explanation iv:-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” The word shall has been used in Section 11 explanation IV. The word shall has a binding effect upon the parties and mandatory in nature 20. The contention of Ld. Counsel for the appellant that Ld. Trial court did not frame proper issues as per pleadings of the parties is rejected being devoid of any force because issues were framed on dated 6.9.1994 in the presence of parties and Ld. Counsel for the appellant did not file any application for framing the additional issues before the Ld. Trial court and I am of the view that Ld. Trial Court framed the issues as per pleadings of the parties. 21. In view of provision of order 2 Rule 2 C.P.C. and Section 11 Explanation iv of C.P.C. I hold that the findings of the Ld. Trial court on issue No.1 are not sustainable in the eyes of law and same are set aside. 22. Trial Court framed the issues as per pleadings of the parties. 21. In view of provision of order 2 Rule 2 C.P.C. and Section 11 Explanation iv of C.P.C. I hold that the findings of the Ld. Trial court on issue No.1 are not sustainable in the eyes of law and same are set aside. 22. In view of provisions of order 2 rule 2 C.P.C. and Section 11 Explanation IV of the C.P.C. I hold that the present suit of the plaintiff was barred and I hold that provisions of order 2 rule 2 C.P.C. and section 11 Explanation iv are mandatory in nature because the word shall has been mentioned under order 2 rule 2 C.P.C. and Section 11 explanation iv of the C.P.C. under order 2 rule 2 C.P.C. it has been specifically mentioned that where a plaintiff omits to sue in respect of or intentionally relinquished in portion of his claim he shall not after word sue in respect of the portion so omits or relinquished. Hence the findings of the Ld. Trial court on issue No.2 are set aside. Provisions of O 2 Rule 2 C.P.C. are mandatory in nature. 23. In view of the provisions of order 2 rule 2 C.P.C. and section 11 Explanation iv of the C.P.C., I hold that the present suit filed by the plaintiff was not maintainable. The findings of the Ld. Trial court on issue No.3 are also set aside.” 13. Now in this back ground it is necessary to refer to plaint in the previous suit Ex,.PW-1/C which reads thus:- “1. That the plaintiff has been in possession as tenant of the building known as Rawat Dhaba consisting hotel, at Shalaghat, Par. Rohanj, Teh. Arki, Distt Solan, H.P. under an agreement written and executed by the defendant, since 26.5.1993. The copy of the agreement is annexed. The plaintiff has been running a business of Hotel (Dhabha) in the said building and has been paying rent regularly against the proper receipts. The receipts have been written and executed by the defendant. 2. That on 6.1.1994, at 7.30 A.M. when the complainant and his servants were running the business of Dhabha (hotel), the defendant trespassed into the said hotel and with the motive to dispossess forcibly, intimidated, assaulted and put into fear of death the plaintiff and his servants. The receipts have been written and executed by the defendant. 2. That on 6.1.1994, at 7.30 A.M. when the complainant and his servants were running the business of Dhabha (hotel), the defendant trespassed into the said hotel and with the motive to dispossess forcibly, intimidated, assaulted and put into fear of death the plaintiff and his servants. He forcibly stopped the running of the business and is still giving threatening to dispossess the plaintiff forcibly from the said hotel without any right, hence this suit. The dispossession would cause irreparable injury. 3. That the cause of action for this suit arose on 6.1.1994 when the defendant tried to dispossess the plaintiff from the said building. The suit building situates at Shalaghat, Par. Rohanj, Teh. Arki, within the jurisdiction of this Hon’ble Court 4. That the relief for the purpose of jurisdiction is valued at Rs.200/- and for the purpose of court fee the fixed court fee is affixed. Therefore, the plaintiff prays this Hon’ble Court for the decree of permanent prohibitory injunction restraining the defendant from interfering with the possession of the plaintiff in the hotel/building, situated at 4 storey of the building known as RAWAT DHABHA, at Shalaghat, Par. Rohanj, Teh. Arki, Distt Solan, H.P. by himself or through his agents, servants, relatives or assignes.” 14. A perusal of paragraphs-2 and 3 of the plaint would clearly show that the allegations made in the earlier plaint was that on 6.1.1994 at 7.30 A.M. the defendant tried to dispossess the plaintiff/appellant and in case he would succeed, the same would cause him irreparable injury. The relief claimed there was that the defendant/respondent be restrained by a decree of permanent prohibitory injunction from interfering in his possession. 15. In teeth of such pleadings, it is not understood as to how the learned lower appellate Court came to the conclusion that the relief claimed in the present suit was available to the plaintiff/appellant at the time of filing of the previous suit or that cause of action in both the suit was same. It is further not understood that how the learned lower appellate Court concluded that the cause of action to claim the damage had accrued to the plaintiff in the prior suit when admittedly he had claimed himself to be still in possession of the property and had not yet been dispossessed. It is further not understood that how the learned lower appellate Court concluded that the cause of action to claim the damage had accrued to the plaintiff in the prior suit when admittedly he had claimed himself to be still in possession of the property and had not yet been dispossessed. The claim of damages would only arise once the plaintiff had been dispossessed and not otherwise. 16. Insofar, invoking of section 11 is concerned; no such claim had either been set out by the defendant in the written statement, nor was there any issue framed qua the same and yet the learned lower appellate Court has adjudicated the same. The learned lower appellate Court in its findings recorded in para-20 has though rejected the plea of respondent regarding the issues have not been properly framed and yet has chosen to give its findings qua Section 11 Explanation IV CPC, the applicability whereof admittedly was never in question. Even otherwise, I fail to understand as to how the provisions of Section 11 particularly Explanation IV is attracted to the present case. Section 11 Explanation IV reads as Section 11:- “Explanation IV:- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 17. Admittedly, as per Ex.PW-1/C, the plaintiff had claimed himself to be still in possession and had sought protection of the Court from his dispossession. Therefore, it is not understood how the claim of damages which had not been caused at that time could be available to him and he ‘might’ or ‘ought’ to have claimed such a relief. The plaintiff at that time did not have cause of action to claim such a relief. 18. Thus, it can be safely concluded that the learned lower appellate Court has wrongly applied the provisions of Order 2 Rule 2 CPC as also Section 11 Explanation of the Code of Civil Procedure to set aside the judgment of the learned trial Court. 19. The substantial questions of law are accordingly answered in favour of the appellant. 18. Thus, it can be safely concluded that the learned lower appellate Court has wrongly applied the provisions of Order 2 Rule 2 CPC as also Section 11 Explanation of the Code of Civil Procedure to set aside the judgment of the learned trial Court. 19. The substantial questions of law are accordingly answered in favour of the appellant. Resultantly, the appeal is allowed and the judgment and decree passed by the learned lower appellate Court is set aside while the judgment and decree passed by the learned trial Court is affirmed, leaving the parties to bear their own costs.