Babu Bhai Kasyap vs Legal Representatives

Pratap Krishna Lohra, J.—Petitioner-defendant has filed this revision petition under Section 115 CPC for assailing the impugned order dated 12th September, 2013 passed by the learned Civil Judge (Senior Division), Abu Road, District Sirohi, whereby his application under Order 7 Rule 11 CPC is dismissed.

The facts, in brief, are that a suit for eviction of the premises is filed by Late Prafulchand D. Contractor against the petitioner before the learned trial Court after serving a notice under Section 106 of the Transfer of Property Act, 1882 (for short, ''T.P. Act''). During the pendency of the suit, original plaintiff, Prafulchand D. Contractor expired, and therefore, his legal representatives were brought on record and as such they have been arrayed as respondents in the present revision petition. The petitioner-defendant, in his application under Order 7 Rule 11 CPC has laid before learned Court below, inter alia, averred that the premises known as Lake View Bungalow, House No. 344, Nakki Lake Road is let out to him comprising of five rooms, kitchen, storeroom, latrine, bath and baramda. It is also averred that as per the version of respondent-landlord, servant room quarter was not part of the tenancy and on that quarter petitioner has made illegal encroachment. Therefore, relying on this assertion of respondent-plaintiff, the petitioner has pleaded in the application that as servant room quarter was not part of tenancy, mere serving of notice under Section 106 of the T.P. Act has not accrued any causes of action to the respondent-plaintiff for laying suit for eviction, and the suit as such is barred by law. Petitioner has also stated in the application that vis-�-vis servant room quarter, suit for eviction is not tenable and respondent-landlord is required to file a suit for possession, and therefore, the suit of plaintiff suffers from vice of mis-joinder of causes of action within the four corners of Order 2 Rule 4 CPC. The application is contested by the respondent-landlord and reply to the same is submitted denying all the allegations. In the return, it is, inter alia, pleaded by the respondent-plaintiff that if the averments contained in the plaint are examined then it would ipso facto reveal that the respondent-plaintiff has prayed for eviction from the rented premises, which also includes servant room quarter. That apart, the respondent-plaintiff has also placed reliance on the notice under Section 106 of the T.P. Act, which was served for termination of the tenancy.

Learned Court below after hearing the arguments of the rival parties, by the order impugned, dismissed the application of the petitioner-defendant under Order 7 Rule 11 read with Order 2 Rule 4 CPC.

Mr. Mehta, learned counsel for the petitioner submits that, on the face of it, the suit is barred by law as Section 106 is attracted only when there is a relationship of landlord and tenant between the rival parties for the premises in question. Mr. Mehta would contend that when the respondent-plaintiff has pleaded that the petitioner has encroached over the servant room quarter, the said portion of the premises cannot form part of the tenancy and as such mere serving of notice under Section 106 cannot furnish any cause of action to the respondent-plaintiff for maintaining suit for eviction. Substantiating his argument, Mr. Mehta has urged that for servant room quarter, the remedy available to the respondent-plaintiff is suit for possession and suit for eviction as such is not maintainable. Mr. Mehta has also urged that the suit filed by the respondent-plaintiff suffers from the vice of mis-joinder of causes of action within the four corners of Order 2 Rules 3 and 4 CPC. While attacking the impugned order, Mr. Mehta has vehemently submitted that, on the face of it, impugned order is bad in law inasmuch as the learned trial Court, while considering application under Order 7 Rule 11 CPC, has also examined the written statements and subsequent pleadings, which cannot be made as a basis for rejection of application under Order 7 Rule 11 CPC. In support of his contentions, learned counsel has placed reliance on the following legal precedents:-

(i) Saleem Bhai and Others Vs. State of Maharashtra and Others, .

(ii) The Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, .

(iii) Bhau Ram Vs. Janak Singh and Others, .

Per contra, Mr. Maloo, learned counsel for the respondent, submits that for ascertaining accrual of cause of action, entire plaint is to be read as a whole and the averments are to be considered meaningfully for finding out disclosure of cause of action. Elaborating his submission, Mr. Maloo would contend that simple one paragraph cannot be made as a basis to non-suit the plaintiff for nondisclosure of cause of action. Mr. Maloo further submits that for ascertaining disclosure of cause of action, the averments contained in the plaint and the supporting documents can also be relied upon and in the instant case the notice under Section 106 of T.P. Act is crystal clear, wherein servant room quarter is shown as part of tenancy and tenancy of the entire rented premises has been validly terminated. Mr. Maloo has also urged that misjoinder of causes of action cannot be construed as a ground for rejection of plaint within the four corners of Order 7 Rule 11 CPC. In support of his contentions, learned counsel for the respondent has placed reliance on the following legal precedents:-

(i) Ram Prakash Gupta Vs. Rajiv Kumar Gupta and Others,

(ii) Babu Bhai Kashyap Vs. Praful Chand Contractor and Another,

(iii) Prem Lala Nahata and Another Vs. Chandi Prasad Sikaria, .

(iv) Bhagwan Das Vs. Goswami Brijesh Kumarji and Others, .

I have heard learned counsel for the parties, perused the impugned order, copy of the plaint and other documents placed on record by the respondent.

Before I proceed to examine the impugned order, it is imperative for me to take note of checkered history of the case. At the threshold, the suit for eviction was filed by the respondent-plaintiff after serving a notice under Section 106 of T.P. Act before the learned Additional District Judge, Abu Road, which was returned to the plaintiff on an objection by the petitioner that there is a lack of territorial jurisdiction of the Court. Thereafter, the plaint was presented before the learned Court below on 24.09.2010 and the application under Order 7 Rule 11 CPC has been filed by the petitioner after filing the written statement. Precisely, the ground set out in the application hovers around clauses (a) and (d) of Order 7 Rule 11 CPC.

That apart, the petitioner has also raised a plea about mis-joinder of causes of action under Order 2 Rules 3 and 4 CPC. The legal precedents, on which the learned counsel for the petitioner has placed reliance, are essentially prescribing guidelines for rejection of plaint in the event of non-disclosure of causes of action. There remains no quarrel that for ascertaining accrual of cause of action to the plaintiff averments contained in the plaint are to be examined. With a view to examine cause of action, it is necessary to first ascertain its meaning. A cause of action means bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Therefore, it is imperative for the Court to examine the entire plaint and give meaningful consideration to all the averments contained in the plaint. That apart, the Court can also lay its hand on the documents, which are filed by the plaintiff on which he is placing reliance.

With the assistance of the learned counsel for the respondent, I have examined the entire plaint and the notice under Section 106 of T.P. Act for termination of tenancy. On meaningful consideration of the averments contained in the plaint and the notice, in my opinion, respondent-plaintiff has shown servant room quarter as part of the premises, which was let out to the petitioner. In such a situation it is not possible to infer that the edifice of the suit i.e. notice is dehors Section 106 of T.P. Act. Consequently, plea of the petitioner in this behalf within the four corners of clauses (a) and (d) of Order 7 Rule 11 is not tenable.

Hon''ble Apex Court in case of Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, , while examining the scope of Order 7 Rule 11 CPC, has held as under:-

There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

Therefore, viewed from any angle, I am not persuaded to hold that suit as such is barred by law or it is a case of non-disclosure of cause of action.

The other objection of the petitioner about mis-joinder of causes of action, suffice it to observe that defect of mis-joinder of parties and causes of action cannot be set out a ground for rejection of plaint under Order 7 Rule 11. Reliance in this behalf can profitably be made to a verdict of Hon''ble Apex Court in case of Prem Lala Nahata (supra), wherein the Court held as under:-

"Thus, in a case where a plaint suffers from the defect of misjoinder of parties or misjoinder of causes of action either in terms of Order I, Rule 1 and Order I, Rule 3 on the other hand, or Order II, Rule 3 on the other, the Code itself indicates that the perceived defect does not make the suit one barred by law or liable to rejection..."

While examining the scheme of Order 1 and Order 2 CPC, the Court held as under:-

"It is well understood that procedure is the handmaid of justice and not its mistress. The Scheme of Order I and Order II clearly shows that the prescriptions therein are in the realm of procedure and not in the realm of substantive law or rights...."

Moreover, by virtue of Order 2 Rule 7, a party raising objection about mis-joinder of causes of action is under an obligation to raise such a plea at the earliest possible preferably before settlement of issues. As such, the objection is not tenable within the four corners of Order 7 Rule 11 CPC and it also merits rejection for being raised belatedly.

Last submission of the learned counsel that in the impugned order, while rejecting application under Order 7 Rule 11 CPC, the learned Court below has also taken into account written statement as well as subsequent pleadings, on the face of it, appear to be quite attractive, however, the argument deserves appreciation in the backdrop of facts of the instant case. As observed hereinabove, it is trite that while considering application under Order 7 Rule 11 CPC, the averments of the plaints are to be considered or the documents on which plaint is based are to be examined. Apparently, the learned Court below, while passing the impugned order, has mis-construed the provisions under Order 7 Rule 11 CPC, however, this itself has not vitiated the order warranting interference in exercise of revisional jurisdiction by this Court. This Court has delve deep into the material, which is placed on record including the plaint and copy of notice, on which plaint is based, and feel satisfied that petitioner has not been able to make out a case within the four corners of relevant clauses (a) and (d) of Order 7 Rule 11 CPC for rejection of plaint.

Thus, in totality, no material irregularity or illegality in exercise of its jurisdiction by the learned Court below is noticeable, which is condition precedent for exercising revisional jurisdiction.

Resultantly, the revision petition fails and same is, accordingly, dismissed.