ECH EMM Photo Colours Pvt. Ltd. and Another vs Wazir Abhey Singh

J.P. Singh, J.—Wazir Abhey Singh had filed a suit seeking petitioner's eviction from a shop situated at Below Gumat, Jammu inter alia,on the

grounds that the petitioner had committed three defaults of two months each in the payment of rent within a period of 18 months rendering him

liable to eviction u/s 11(i) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 and the respondent-plaintiff reasonably required

the shop for his use and occupation to start the business of Dry Fruit therein. The petitioner had questioned the maintainability of the suit, urging

that the respondent had filed a suit at an earlier occasion also which was later dismissed by Learned Ist Additional District Judge, Jammu refusing

permission to the respondent to file a fresh suit.

The trial Court while adjudicating issue Nos. 8 and 9, rejected petitioner's objection and held the subsequent suit maintainable holding that the

cause of action in the subsequent suit was recurring and distinct from the one on which the earlier suit had been filed.

It is this order dated 2.03.2007 of the learned trial Court which has been questioned by the petitioner-tenant in this revision petition.

Learned Counsel appearing for the petitioner submits that the grounds on which a suit for ejectment may be founded by a landlord against a

tenant in terms of Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 were available to the respondent-landlord at

the time he had filed his earlier suit. His omission to plead these grounds in the earlier suit would thus debar him from maintaining a fresh suit on

those grounds particularly when permission sought by the respondent to file a fresh suit had been declined by the trial court. Supporting his

submission, learned Counsel refers to Mehtab Singh Vs. Tilak Raj Arora and Another, , Ranen Roy v. Prakash Mitra (1998) 9 SCC 689 and

Janakirama Iyer v. Nilakanta Iyer AIR 1962 SC 684.

Ms. Tabasum Mughal, learned Counsel for the respondent, on the other hand, submits that the subsequent suit of the respondent-plaintiff was

based on a different cause of action than the one on which the earlier suit had been filed. She says that the grounds of personal necessity and

tenant's committing defaults in the payment of rent furnishes recurring cause of action to a landlord. According to the learned Counsel, the

expression ""subject matter"" appearing in Order 23 Rule 1(3)(b) of the CPC needs to be construed as the ""cause of action"" and not the subject

matter itself as suggested by learned Counsel for the petitioner. Learned Counsel submits that regardless of the simplicitor withdrawal of the earlier

suit, the subsequent suit on recurring cause of action was maintainable and the provisions of Order 2 Rule 2 and Order 23 of the CPC were not

attracted to the facts of the present case.

I have considered the submissions of learned Counsel for the parties and gone through the judgments referred by them.

The expression ""subject matter"" appearing in Order 23 Rule 1(3)(b) of the CPC needs to be viewed in the background of the ""cause of action

and not the ""subject matter"" itself. This question is no longer res integra. It had fallen for consideration before this Court too on an earlier occasion

in Smt. Raj Bhatia v. Smt. Chander Kanta reported as 1995 SLJ 103. Relying upon judgments of the High Court and Hon'ble Supreme Court of

India, this Court had taken the view that the term ""subject matter"" would mean plaintiff's cause of action, And regardless of the suit property being

same, the subsequent suit would not be barred if the cause of action was not the same as that of the earlier suit. It would be advantageous to refer

to what was said by Hon'ble Supreme Court of India in this context in Vallabh Das Vs. Madan Lal and Others, .

…Rule 1, Order 23, CPC entitled courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect

of the subject matter of that suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh

suit on the same cause of action, he must pay the costs of the defendants. Therefore, we have to see whether that condition governs the institution

of the present suit. For deciding that question we have to seek whether the suit from which this appeal arises is in respect of the same subject

matter that was in litigation in the previous suit. The expression"" subject-matter"" is not defined in Civil Procedure Code. It does not mean property.

That expression has a reference to a right in the property which the plaintiff seeks to (SIC) enforce. That expression includes the cause of action

and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the

subject matter of the second suit is the same as that in the previous suit…. Mere identity of some of the issues in the two suits do not bring about

an identity of the subject-matter in the two suits. As observed in Rakma Bai v. Mahadeo Narayan ILR 422 Bom 155 : AIR 1917 Bom 10 the

expression ""subject matter"" in Order 23, Rule 21 CPC means the series of acts or transactions alleged to exit giving rise to the relief claimed. In

other words ""subject matter"" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We

accept as correct the observations of Wallia, C.J., in Singa Reddi v. Subba Reddi ILR 39 Mad 987 : AIR 1917 Mad 512 (2) (FB) that where the

cause of action and the relief claimed in the second suit are not the same as the cause of the action and the relief claimed in the first suit, the second

suit cannot be considered to have been brought in respect of the same subject-matter as the first suit.

Mehtab Singh's case cited by Mr. Johal, learned Counsel for the petitioner, is not applicable to the facts of the present case because the plaintiff

in that case had been repeating only one ground of ejectment. The petitioner cannot therefore derive any benefit from this judgment to support his

submission.

Other judgments cited by the learned Counsel for the petitioner too are not applicable to the facts of the present case, for these judgments do not

lay-down any law as such that subsequent suit on the grounds of reasonable requirement for use and occupation of the shop and tenant's defaults in

payment of rent would not be maintainable.

Judgment cited by Ms. Mughal reported as N.R. Narayan Swamy Vs. B. Francis Jagan, , is a direct judgment on the point which holds that the

plea of bona fide requirement and non-payment of rent is based on a recurring cause and the land-lord would not be precluded from instituting

fresh proceedings. According to this judgment, even if a suit for eviction on the ground of bona fide requirement was filed and dismissed, it could

not be held that once a question of necessity was decided against the land-lord, he will not have any bona fide need and genuine necessity ever in

future. It was held in this judgment that in a suit for eviction of a tenant under the Rent Control Act on the ground of bona fide requirement even

though the premises remain the same, the subject matter, which is the cause of action, may be different. The ground of eviction in the subsequent

proceedings is based upon the requirement on the date of such suit even though it relates to the same property. Order 23 Rule 1 would thus have

no application to the proceedings initiated for recovery of suit premises on the ground of bona fide requirement which was a recurring cause.

Coming to the facts of the present case, one would find that the earlier suit of the respondent-plaintiff was based solely on the termination of

tenancy by efflux of time. Perusal of the subsequent plaint shows that the ground of petitioner's having committed defaults in payment of rent had

accrued to the respondent much after the filing of the earlier suit and that too when he had served a notice on the petitioner-tenant to pay arrears of

rent within the statutory period of 30 days prescribed under the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 and the petitioner

had failed to pay the arrears of rent despite receipt of notice. The question of existence of this ground of petitioner's having committed defaults in

the payment of rent at the time of filing of earlier suit would not thus arise. Similar is the case in respect of the second ground which the respondent

had taken in the subsequent suit that he reasonably required the premises in dispute for running business.

Both the grounds were not available to the respondent at the time of filing of the earlier suit.

The grounds being based on recurring cause of action would not thus, debar the respondent from maintaining the subsequent suit regardless of

his having been refused permission to file a fresh suit, at the time of withdrawal of the earlier suit.

Learned trial Court has decided both the issues, in accordance with law. I do not find any error of law or jurisdiction in the order of the trial

court.

Upholding the order passed by learned trial court, I would accordingly dissmiss this revision petition with costs assessed at Rs. 1000/-.