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2017 DIGILAW 64 (MEG)

Shankar Lal Prajapat v. Anjalee Dutta Choudhury

2017-09-20

DINESH MAHESHWARI

body2017
JUDGMENT : 1. Heard the learned counsel for the parties and perused the material placed on record. 2. Put in brief, the relevant background aspects of the matter are that the petitioner herein is carrying on business as a tenant in the suit premises belonging to the respondent. The petitioner filed a Title Suit bearing No. 62(T) of 2014 while stating the apprehension that the respondent-landlord was attempting to deny his right as a tenant and was threatening to dispossess him without following due process of law. In the said suit, the petitioner prayed for the relief’s in the following manner: “1. For a declaration that the Plaintiff is the bona-fide tenant of the Defendants and has been regularly paying the monthly rentals in respect of the shop premise without default. 2. For permanent injunction restraining the Defendants, her authorised attorney, agents, servants or anybody working for and on her behalf and at her instance from entering the shop premises of the plaintiff and interfering in any manner whatsoever with the peaceful possession and occupation of the plaintiff and or from doing anything whatsoever that may adversely affect the plaintiff from conducting the business from the said premises. 3. For permanent injunction restraining the Defendant, her authorised attorney agents, servants or anybody working for and on her behalf and at her instance from illegally evicting/dispossessing the Plaintiff from the suit premises without following due procedure of law. 4. For costs of the suit 5. For any other relief or relief’s which the Plaintiff in law and equity is entitled to.” 3. The aforesaid suit for declaration and injunction was filed by the present petitioner on 01.12.2014. Thereafter, the present respondent filed a regular suit for eviction on 11.02.2015, being Title Suit No.1(T) of 2015, that remains pending in the other Court of Assistant to Deputy Commissioner, Shillong. 4. In the said suit for declaration and injunction, the petitioner also filed Misc. Case No.159(T) of 2014, wherein the learned Trial Court, by its order dated 18.05.2016, issued temporary injunction to the effect that status quo shall be maintained by both the parties until disposal of the eviction suit pending in the other Court. 5. 4. In the said suit for declaration and injunction, the petitioner also filed Misc. Case No.159(T) of 2014, wherein the learned Trial Court, by its order dated 18.05.2016, issued temporary injunction to the effect that status quo shall be maintained by both the parties until disposal of the eviction suit pending in the other Court. 5. In the later suit for eviction as filed by the respondent, the petitioner-tenant filed an application under Section 10 of the Code of Civil Procedure seeking stay of the proceedings of the suit with reference to the fact that as regards the tenancy in question, the suit previously filed by him was pending in the competent court. The learned Assistant to Deputy Commissioner, Shillong examined the record and the provisions of Section 10 of the Code of Civil Procedure and then, held that the suit as filed by the landlord was for eviction and it cannot be said that the principal issue in the subsequent suit was directly and substantially in issue in the former suit filed by the petitioner. The learned Assistant to Deputy Commissioner, therefore, rejected the application by the order dated 29.05.2017 while observing, inter alia, as under: “This Court on perusal found that the petitioner/defendant has not adduce any material for this Court to determine if the principal issue in the subsequent suit was directly and substantially in issue in the former suit. Further, this Court is also of the view that the petitioner has failed to put forth before this Court if the principal issues involved in both the cases are identical. On perusal of the material in record, this Court found that from the application filed by the petitioner/defendant it reflects that the former suit is for declaration of right, title, interest and permanent injunction filed by the petitioner/defendant against the opposite party/plaintiff, the subsequent suit is for eviction of the defendant/petitioner and for delivery of possession of the suit premises to the plaintiff/opposite party. In light of the above discussion, the instant application is rejected and stands disposed off. Fix 29-5-17 for written statement.” 6. In light of the above discussion, the instant application is rejected and stands disposed off. Fix 29-5-17 for written statement.” 6. Seeking to challenge the order aforesaid, it is contended in this revision petition that the respondent had the option of filing a counter claim in the suit instituted by the petitioner and the respondent having failed to do so, cannot be permitted to proceed with his prayer for eviction by way of a separate suit. The submissions remain totally bereft of substance. 7. Even if it be assumed that the petitioner had any reason to entertain any apprehension of being dispossessed without due process of law and hence filed the said suit for declaration and injunction, the cause of action therein was confined to such apprehension alone; and such an apprehension cannot be said to be leading to any such issue which is directly and substantially involved in the suit for eviction by the landlord. Thus, the propositions adopted by the learned Trial Court appear to be in accord with law and call for no interference. Therefore, this revision petition is required to be dismissed. 8. Though, ordinarily, this matter could have been closed with what has been observed and held hereinabove, however, on the facts and in the circumstances of this case, it appears appropriate to pass further orders so as to ensure proper progress of the suit for eviction filed by the respondent, being Title Suit No.1(T) of 2015. As noticed, the suit filed by the petitioner had essentially been for restraining the respondent-landlord from interfering with his business and dispossessing him without due process of law. Once the suit for eviction has been filed, it is but clear that the landlord has indeed taken recourse to the due process of law and has invoked the jurisdiction of the competent Court to pass a decree for eviction in his favour. 9. That being the position, it follows that neither the apprehension as suggested in the suit filed by the petitioner survives nor the petitioner could now allege that his status as tenant is being denied or that he is sought to be dispossessed without due process of law. As a necessary corollary, the suit for declaration and injunction filed by the petitioner could only be treated as infructuous and the parties cannot be said to be at issue on any material proposition of fact or law. As a necessary corollary, the suit for declaration and injunction filed by the petitioner could only be treated as infructuous and the parties cannot be said to be at issue on any material proposition of fact or law. Hence, it appears just and proper that the proceedings in such an infructuous suit be terminated and the suit be disposed of. Of course, in case of any other requirement of seeking any interim relief, it shall be open for the petitioner to make the requisite prayer in accordance with law before the learned Trial Court dealing with the eviction suit; and if any such prayer is made, the same may be examined on its own merits. However, for the purpose of such a prayer for interim relief or for any other reason, the trial of the eviction suit cannot be protracted the eviction suit is required to be proceeded expeditiously. 10. It has been informed that in the eviction suit, the petitioner has not filed the written statement as yet; the matter was lastly fixed by the Trial Court on 30.06.2017 and thereafter, the record was sent to this Court in view of the order passed by the co-ordinate Bench on 15.06.2017. 11. Having regard to the circumstances, the petitioner ought to file the written statement, if so chosen, on or before the next date for appearance of the parties in the Trial Court. 12. Accordingly, and in view of the above, this Revision Petition stands dismissed but it is further ordered that : (a) Title Suit No. 62(T) of 2014 in the Court of Assistant to Deputy Commissioner, Shillong shall stand disposed of and shall be consigned to record by the Trial Court as such. All the Misc. Cases alongwith that suit shall also stand disposed of. (b) The record of Title Suit No. 1(T) of 2015 shall be returned to the Court of Assistant to Deputy Commissioner, Shillong immediately and the parties through their respective counsel present in this Court, shall stand at notice to appear before the Trial Court on 24.10.2017. (c) It shall be required of the petitioner to file his written statement, if so chosen, in Title Suit No.1(T) of 2015 on or before the date of appearance i.e. 24.10.2017. (c) It shall be required of the petitioner to file his written statement, if so chosen, in Title Suit No.1(T) of 2015 on or before the date of appearance i.e. 24.10.2017. It shall be required of the learned Trial Court to proceed with the trial of the eviction suit expeditiously and in accordance with law, while curbing against unnecessary delay. 13. Having regard to the circumstances, the parties are left to bear their own costs in relation to this Revision Petition.