Murlidhar Khunteta vs Bhooramal

M.L. Jain, J.—This revision petition has arisen in the following circumstances: The respondent-plaintiff is the landlord and the revision petitioner is the defendant-tenant. The plaintiff let out his Nohra situate in the town of Chomu on 25th June, 1945, on rent of Rs. 18/- per year to the defendant. The landlord terminated his tenancy by a notice dated 18th October, 1962. The plaintiff filed a suit for eviction and arrears of rent on 9th July, 1965, on the grounds of default, personal requirement and repairs. It was eventually withdrawn on 23rd December, 1970 (sic), without leave to file a fresh one. The plaintiff then filed another suit on 7th November, 1969 (sic), on the grounds of default, personal requirement and subletting. This suit was dismissed for default. The plaintiff then filed this third suit on 6th November, 1971, on grounds of (1) default. (2) personal requirement, (3) subletting and (4) repairs as the premises had become unsafe for the neighbours.

The Issue No. 10-B was framed in the court below as follows : "Whether the previous suit having been withdrawn without leave to file a fresh suit, the present suit is not maintainable." It was urged before the lower court that the present suit was filed on the grounds of which three are new, namely, subletting, nuisance and fresh default. Personal necessity was the only common ground. The learned Munsif agreed with his contention and held that the suit was maintainable. Hence this revision.

The learned counsel for the petitioner submitted that as far as default is concerned, the matter has come to rest because the petitioner applied u/s 13-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, on 28th October, 1975, and appears to have made the requisite payment. The grounds of personal requirement and repairs cannot be agitated again because these were the grounds of eviction taken in the first suit. Sub-letting was added in the second suit. As regards nuisance, it was pointed out that in para. 15 of the plaint, the respondent stated that the Nohra is falling and is likely to cause loss of life and property in the neighbourhood and was in need of repairs. It is said that it was a new ground. The learned counsel for the petitioner, however, pointed out that in the first suit, in paragraph 5 of the plaint, the plaintiff had stated that the Nohra needed repairs. This also cannot form a new ground. It was urged that whether the grounds of eviction are held to be causes of action or whether the termination of tenancy is taken to be a cause of action either way, third suit is barred under Order 23, Rule 1 or under Order 9, Rule 9, C. P. C. and the learned Munsif has no jurisdiction to proceed with the suit and it should be directed to be dismissed.

I have considered over this objection. There is identity of grounds in the three suits. The ground of default after payment u/s 13-A is no more available. The ground of nuisance is a mistaken one. The ground covered u/s 13 (1) (d) is that "the tenant has created a nuisance". Now, if the premises are falling, then that is not a nuisance created by the tenant. As regards repairs that was a ground taken in the earlier suit as well, being covered by "building work" within Section 13 (1) (k). But identity of grounds is not identity of subject-matter or cause of action. According to Order 23, Rule 1 (2), if a suit is brought without leave to institute a fresh suit, the plaintiff shall be precluded from instituting any fresh suit in respect of the subject-matter of such suit. In Vallabh Das Vs. Madan Lal and Others, the Supreme Court observed that 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 in the previous suit. It has been laid down by this Court in Prem Lal v. Jadav Chand 1977 RLW 265 that in a suit for eviction, the grounds for eviction stated in Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, do not form the cause of action. It is the termination of tenancy that is what constitutes a cause of action. Therefore, in the previous suit as well as in the ore-sent one, the cause of action is the termination of the tenancy on 25th Nov., 1962, and relief claimed is eviction in all the three suits. Their being identity of cause of action and relief, the present suit is barred because of Order 23, Rule 1 (2) in respect of the fresh suit and because of Order 9, Rule 9 in respect of the second suit. It is obvious, therefore, that the Munsif has no jurisdiction to proceed with the suit.

Consequently, I accept this revision petition, set aside the impugned order of the learned Munsif, decide Issue No. 10-B against the respondent-plaintiff and dismiss the suit. The parties shall, however, bear their own costs throughout.