M/s Jain Palace through Rakesh Jain vs Sandeep Singh

Sanjeev Kumar, J

The present Revision Petition arises out of a suit filed by the respondent for eviction of the petitioner from the demised premises comprised of a

shop situated at Residency Road, Jammu. The premises are in possession of the petitioner as tenant thereof. The respondent in his suit has sought

eviction of the petitioner primarily on two grounds; one that with the valid termination of the tenancy of the petitioner, he has no right to continue in

possession and, therefore, deserves to be directed to deliver the possession of the premises to the respondent; and second that the suit shop is required

by the respondent for his personal use and occupation.

The respondent has also prayed for compensation for unauthorized use and occupation of the suit premises by the petitioner even after the

termination of his tenancy. The petitioner is contesting the suit and has filed his written statement. The trial Court has even framed the issues and

directed the respondent-plaintiff to lead his evidence. On 15.04.2019, when the case came up for the evidence of the respondent-plaintiff, the

petitioner filed an application for rejection of the plaint on the ground that the averments made in the plaint clearly demonstrate that the respondent has

failed to validly determine the tenancy and, therefore, no cause of action can be said to have accrued to the respondent to file the suit. It is further

submitted that the suit filed by the respondent is hit by the principle of res-judicata as his earlier suit filed on the same cause of action was dismissed

by the competent Court of jurisdiction. The application presented by the petitioner under the provisions of Order 7 Rule 11 of the Code of Civil

Procedure (for short, “the CPCâ€) was contested by the respondent. The trial Court after hearing learned counsel for the parties and analyzing the

legal and factual aspect of the case, rejected the application vide its order dated 08.06.2019, which is impugned in this Revision Petition.

Learned counsel for the petitioner, who had moved the application for rejection of the plaint, in support of the grounds of challenge taken in this

Revision Petition submits that for maintaining a suit for eviction under the Jammu and Kashmir Transfer of Property Act (hereinafter referred to as

“the State Actâ€), valid termination of tenancy in terms of Section 106 of the State Act is sine qua non. Elaborating his arguments, learned counsel

for the petitioner submits that on perusal of the pleadings in the plaint and looking to the averments made in the Notice, in the light of terms and

conditions of the Rent Deed attached with the plaint, it is evident that the Notice dated 27.11.2018 served by the respondent on the petitioner, cannot

be said to have terminated the tenancy of the petitioner validly. He urges that Notice of 15 days, which is required for termination of month to month

tenancy, must expire with the end of the month of tenancy, which apparently has not happened in the instant case. He raises another argument with

regard to the suit of the respondent being barred by the principle of res-judicata. It is stated that the respondent had earlier filed a suit of eviction about

40 years back on the ground of personal necessity, which was later on settled. The respondent was permitted to continue in the possession and the

plea of the respondent that he required the suit shop for personal occupation was consequently abandoned without permission of the Court to re-

agitate the same. He, therefore, submits that the instant suit, which is also primarily based on personal use and occupation, is barred by the principle of

res-judicata. He relies upon the judgment of this Court rendered in the case of F2 Fun and Fitness Pvt. Ltd. Vs. Golden Globe Fitness Pvt. Ltd

reported in 2018(6) JKLT 234 and T. Arivandandam Vs. T.V.Satyapal reported in 1977 (4) SCC 467 to bolster his submissions.

Per contra, learned counsel for the respondent submits that for deciding an application under Order 7 Rule 11 of the CPC, the Court is supposed to

look to the averments in the plaint and not the defense that is or may be taken by the defendant in the written statement. He, therefore, submits that if

on plain reading of the averments made in the plaint, it is found that the suit does not disclose a cause of action or that from the statement made in the

plaint, it appears to be barred by any law, the Court may reject the plaint. Elaborating his arguments, learned counsel for the petitioner submits that

validity or otherwise of the notice of termination of tenancy and the plea of res-judicata are mixed questions of fact and law and, therefore, cannot be

made the basis for rejection of the plaint under Order 7 Rule 11 of the CPC. He takes this Court to the plaint and submits that nowhere from the

statement made in the plaint, it could be gathered that the suit is barred by any law. The cause of action to file the instant suit is based not only the

termination of the tenancy, but, is also based upon the requirement of the respondent for his personal use and occupation. The personal necessity that

was existing on the date of filing of the earlier petition, i.e., four decades back may not remain the same and would change with the passage of time.

Four decades back, claims the learned counsel for the respondent, the respondent was not even a practicing lawyer whereas the instant suit has been

filed on the ground that the respondent has now established himself into a good and busy lawyer, therefore, in need of additional accommodation for

housing his office. He relies upon the judgment of this Court in the case of ECHEMM Photo Colours Pvt. Ltd. and another Vs. Wazir Abhey Singh

reported in 2007(3) JKJ 445.

Having heard learned counsel for the parties and perused the record, it would be necessary to first set out the provisions of Order 7 Rule 11 of the

Code of Civil Procedure, which reads as under:-

“..11. Rejection of plaint. - The plaint shall be rejected in the following cases.

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the

Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the

Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

[(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9:]

[Provided that time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the

Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or

supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave

injustice to the plaintiff.]â€​

From reading of Order 7 Rule 11 of the CPC and also in view of the well settled legal position, the rejection of the suit can be sought at any stage

of the suit and for considering such request, no material except the plaint averments and supporting documents are to be gone into. The Order 7 Rule

11 of the CPC provides an exceptional remedy to the defendant in a suit to get the proceedings terminated at the threshold without the necessity of

going into trial. Ordinarily, when a suit is filed, the issues are to be framed on the basis of the pleadings and the Court is called upon to determine the

same after conducting the trial and in this way the suit would be terminated with a decree on merits. The facility created under Order 7 Rule 11 of the

CPC is that if the grounds mentioned therein are attracted in a given case, the plaint can be rejected at the threshold and thereby obviating the

necessity of undertaking the trial.

It is in the light of this admitted legal position, we need to examine the arguments of learned counsel for the petitioner. The plea of the petitioner that

in absence of a valid termination of tenancy under Section 106 of the State Act, no cause of action can be said to have accrued to the respondent to

file the suit may be based on correct proposition of law, but, the pertinent question in this context would be as to whether the tenancy has been validly

terminated or not. From reading the averments in the plaint, it is not possible to come to such conclusion. The stand of the petitioner in the written

statement to the effect that the Notice of termination of tenancy given by the respondent did not expire with the month of tenancy may not be looked

into for the purpose of deciding an application under Order 7 Rule 11 of the CPC. Otherwise also, from reading of plaint in its entirety, it clearly

transpires that the claim for eviction of the petitioner has been based on two grounds, which on the face of it, are in the alternative and not mutually

destructive. He seeks eviction on the ground that despite the valid termination of the tenancy, the petitioner has failed to vacate the premises and has,

therefore, become liable to be evicted. This ground is obviously available to the respondent under the provisions of the State Act. He also prays for

eviction of the respondent on the ground that the suit shop is required by him for personal use and occupation, which is a ground available to a landlord

under the J&K Houses and Shops Rent Control Act (hereinafter referred to as „the Rent Control Act‟). For instituting a suit for eviction under the

Rent Control Act, there is no necessity to terminate the tenancy by following the provisions of Section 106 of the State Act. In other words, the valid

termination of the tenancy is not a condition precedent for filing a suit for eviction if the grounds envisage under Section 11 of the State Act exists. In

these circumstances, even if the suit of the respondent is held to be based on no cause of action on the ground that there is no valid termination of the

tenancy under Section 106 of the State Act, yet, the suit would proceed on the ground of personal use and occupation if it falls under the provisions of

State Act. The provisions of Order 7 Rule 11 of the CPC cannot be resorted to partially reject the plaint. That apart, from the perusal of plaint, it is not

discernible on the face of it that the respondent has not validly terminated the tenancy of the petitioner.

The notice terminating the tenancy, which is appended with the plaint clearly reveals even after the expiry of tenancy in the year 2013 as per the Rent

Agreement, the petitioner, on payment of rent, continued in possession of the suit and, therefore, became tenant holding over and his tenancy month to

month. This tenancy was terminable by 15 days‟ notice. The notice was issued by the respondent through his counsel on 27.11.2018 and tenancy was

terminated with effect from midnight intervening 31.12.2018 and 01.01.2019. He got more than 15 days notice. Since the Rent Deed, as is evident

from the notice, was executed on 31.12.2002, therefore, it was a tenancy terminable by the end of the month. That being so, it would be difficult to

accept the plea of the petitioner that the notice dated 27.11.2018 cannot be said to have terminated the tenancy of the petitioner validly. That apart,

valid termination of the tenancy is not the requirement of law to institute the suit for eviction under the Rent Control Act. At this stage, it would be

pertinent to take note of the observations made by this Court in the case of Hans Raj v. Chaman Lal, reported in 1980 KLJ 122. Para No.7 of the

judgment is relevant in the context and, is therefore, reproduced here under:-

“7. What their Lordships, therefore, held was that where notice for ejectment under Section 106 could have the effect of terminating a tenancy

under the Transfer of Property Act, no such notice would be required to be served upon a tenant where the tenancy was governed by a Rent Act and

nor could such a notice be said to afford additional protection to the tenant against his eviction. Take for instance the case of a month to month

tenancy to which the provisions of the State Act apply. No notice under section 106 will be required to be served upon the tenant before bringing a suit

for his ejectment. Such a notice in their Lordship‟s words would be “unnecessary and a mere surplus age because the landlord cannot get eviction

of the tenant after such determination†whether a suit for ejectment is governed by the State Act would depend not on one for more than one of the

grounds mentioned in section 11 or 12 of the Act taken for ejectment of the tenant, but upon the act whether the provisions of the Act have been

made applicable to the area where the property is situate and also whether exemption for exemptions contained in Sub-section (3) of section 1 apply to

it. Once it is made applicable to the area where the property is situate, the case would be presumed to be governed by its provisions unless the party

excluding its application shows that any one for more of the exemptions contained in Sub-section (3) apply to it. Furthermore application of the State

Act would not be kept in abeyance during the subsistence of a contractual tenancy once the conditions laid down in Section 1 of the Act for its

applicability are fulfilled. No notice according to their Lordships would be therefore, necessary in a case governed by the State Act or where the

tenancy is either from a month to month or year to year or is only a tenancy at will, the last mentioned even otherwise requiring no notice to be served

upon the tenant. Similarly no notice under section 106 would be necessary where the tenancy has come to an end under Clauses (a), (b), (c)(f) and (g)

of Section 11 of the Transfer of Property Act. The only case which may present some difficulty in applying the law laid down by their Lordships in V.

Dhanapal Chetter‟s cased (supra) is a case where lease has been granted for a fixed term with a covenant to terminate it even earlier by serving a

notice on the tenant or in any other manner but it has not been so terminated during that period, and the tenant on expiry of the lease period has been

holding over. In such a case could it be said that the covenant providing for termination of tenancy has to be adhered to as it provides additional

protection to the tenant against his eviction?

I am also not impressed by the argument of learned counsel for the petitioner that the respondent cannot set up alternative grounds for eviction; one

available to the petitioner under the State Act and other under the provisions of the Rent Control Act. As has been held by this Court in the case of

Hans Raj (supra), the question as to whether a suit for ejectment is governed by the State Act would depend not on one or more than one of the

grounds mentioned in Section 11 or 12 of the Act taken for ejectment of the tenant, but, upon the act whether the provisions of the Act have been

made applicable to the area where property is situate and also whether the exemptions contained in Sub-section 3 of the Section 1 of the Rent Control

Act apply to it. Once it is found that the Rent Control Act is applicable to the area where the property is situate, the case would be presumed to be

governed by its provisions unless the party seeking its exclusion demonstrates that one or more of the exemptions contained in Section 1(3) apply to it.

The termination of tenancy by serving a notice on the tenant under Section 106 is not necessary for eviction of a tenant where the tenancy is governed

by the Rent Control Act. We need to view the averments in the plaint in the context of the aforesaid legal position.

So far as the plea of the petitioner that the suit is barred by res-judicata and, therefore, the trial Court ought to have rejected the plaint, also cannot

be accepted. From a perusal of Order 7 Rule 11 of the CPC, it is evident that res-judicata is not specifically mentioned as a ground for rejection of the

plaint. Section 11 of the CPC defines res-judicata. The opening sentence of Section 11 of the CPC, which begins with “no Court shall try any suit

or issueâ€, makes it clear that the provision deals with determination of the issues in a suit and not the result thereof. But Section 11 of the CPC

prohibits raising of issue in subsequent suit, in case they have been conclusively decided between the same parties by a Court of competent jurisdiction

in an earlier suit. The principle of res-judicata as it is by its nature cannot be pressed into service for rejection of the plaint. The reasons are far to

seek. The question as to whether the issue that is framed in a subsequent suit, is the same or substantially similar to the one that fell for consideration

in the earlier suit and whether the parties are one and the same are all questions of fact which can only be determined on evidence, and the principle

of law would be attracted depending upon the answer on facts. The res-judicata being a mixed question of fact and law would require evidence for

determination and, therefore, cannot be pressed into service for seeking rejection of the plaint.

The plea of the petitioner based on provisions of Order 23 Rule 1 CPC is also without any substance and, therefore, cannot be accepted. The

respondent would be precluded from instituting a fresh suit in respect of subject matter or such part of the plaint as has been abandoned by him in the

earlier suit without seeking liberty to institute fresh in respect of such subject matter of the suit or such part of the plaint. The question as to what relief

was claimed in the earlier suit and whether it is the same relief, which was abandoned in the earlier suit, that has been claimed in the subsequent suit

are all questions of fact, which cannot be determined at the threshold while deciding application under Order 7 Rule 11 of the CPC. As already noted,

the suit based on the ground of personal necessity projected in the earlier suit forty years back may be different from the one projected in the

subsequent suit. The simply because the suit for eviction on the ground of personal necessity was rejected or abandoned forty years back would not

mean that the plaintiff cannot bring another suit on the ground of personal necessity even if his need has grown over the period of time or has changed

with the passage of time. Forty years back, the respondent perhaps was not even in the legal profession and even if he was must have been in the

beginning of his career, but, after 40 years, he may have established his profession and therefore, necessity to have additional accommodation for his

office. All these facts are required to be established by the respondent before he seeks a decree for eviction on the ground of personal necessity. In

the trial, the petitioner would also be at liberty to show that the things, which were existing forty years back have not changed and the subject matter

or the claim or part of it remains substantially the same and, therefore, the subsequent suit may not be maintainable. Without commenting on the merit

of the case set up by the petitioner in the written statement, it would suffice to say that the grounds urged by the petitioner seeking rejection of the

plaint in terms of Order 7 Rule 11 of the CPC are not available to the petitioner at this stage being mixed questions of fact and law. It is not a case

where from the averments made in the plaint one can conclude that the plaint does not disclose any cause of action. There is a distinction between

having a cause of action and disclosing a cause of action. I am not been able to find out from the entire reading of the plaint that the suit of the plaintiff

in view of any statement made in the plaint is barred by any law.

The recent judgment of the Supreme Court in the case of Soumitra Kumar Sen v. Shyamal Kumar Sen and others reported in 2018 (5) SCC 644

lends support to the view I have taken in this revision petition. The judgments relied upon by the learned counsel for the petitioner, 1989 AIR (Punjab)

12; AIR 2007 (J&K) 72 have been decided on its own facts and do not apply to the case of the petitioner.

For the foregoing reasons, I find no merit in this Revision Petition and the same is, accordingly, dismissed along with connected CM(s), if any.