Radha Raman Pandey vs Jagat Mohan

Krishna Murari, J.—Heard Sri Vishnu Gupta, learned counsel for the petitioner.

The facts giving rise to the present dispute are as under:

Respondentlandlord filed S.C.C. Suit No. 18 of 1996 seeking eviction of the petitioner/tenant. The suit was filed mainly on two grounds; arrears of rent and material alteration done by the petitionertenant which disfigured the building. During the pendency of the proceedings, the petitionertenant moved an application claiming benefit of Section 20(4) of U.P. Act. No. 13 of 1972 (for short the ''Act'') on the ground that he has already deposited the entire amount of rent etc. as claimed before the first date of hearing of the suit and as such he be relieved of the decree of eviction. The Judge, Small Causes Court vide order dated 20102004 held that since the eviction has also been sought on the ground of material alteration in the building resulting in its disfigurement and as such the tenant cannot be relieved from the decree of eviction. The other objection raised by the tenantpetitioner that respondentlandlord has failed to give details and particulars of the alleged illegal construction in paragraph 7 of the plaint as such the plaint was liable to be rejected, was also not accepted by the Judge Small Causes Court and it was held that issue shall be decided after evidence. Aggrieved, the petitionertenant preferred revision No. 965 of 2004 which was dismissed vide order dated 3132005. From a perusal of the judgment of the revisional Court filed as Annexure 7 to the writ petition, it becomes clear that case set up by tenantpetitioner was since the entire arrears of rent has already been deposited and the material facts and particulars with regard to illegal construction resulting in its disfigurement were missing from the plaint as such the Court below ought to have rejected the plaint exercising power conferred by Order VII Rule 11 C.P.C. and it was wrongly held that the question shall be decided after evidence. The revisional Court held that question whether any illegal construction has been made which has disfigured the building can only be decided after the evidence is led by the parties. In so far as the question of benefit of Section 20(4) of Act is concerned, the revisional Court found that it has already been held in the earlier judgment dated 2411998 passed by the revisional Court that in case the tenantpetitioner is able to establish by evidence that he has deposited the entire rent he shall be relieved from the decree of eviction on that ground and the same operates as res judicata between the parties.

Thereafter, tenantpetitioner filed another application dated 1432005 under Order VI Rule 16 read with Section 151 C.P.C. to reject/struck off the pleadings of paragraph 7 of the plaint on the ground that details and particulars of the alleged illegal construction which had disfigured the building were missing. The said application was registered as application No. 225 (Ga). Another application dated 1842005 under Order VII Rule 11 C.P.C. was also moved for rejecting the plaint as no cause of action has been disclosed. This application was registered as application No. 249 (Ga). Judge Small Causes Court vide order dated 5122005 rejected both the applications.

Application No. 225(Ga) under Order VI Rule 16 C.P.C. was rejected on the ground that landlordrespondent was not required to give particulars of alleged illegal construction in the plaint and the same was matter of evidence. The other application No. 249 (Ga) under Order VII Rule 11 C.P.C. was dismissed on the ground that in the earlier decision dated 3132005 rendered in revision No. 965 of 2004 filed by tenantpetitioner it has already been held that this issue shall be considered at the time of hearing after the evidence of the parties. Revision filed by the tenantpetitioner challenging the aforesaid order was also dismissed by the revisional Court vide order dated 65 2006. Aggrieved, tenantpetitioner has approached this Court.

It has been urged by the learned counsel for the petitioner that Revision No. 965 of 2005 was directed against the order dated 20102004 which only related to the deposit of arrears of rent and the revisional Court travelled beyond the scope of revision and recorded findings on the issue of material alteration in the building. The findings being without jurisdiction cannot operate as res judicata. Reliance in support of the contention has been placed upon the judgment of Hon''ble Apex Court in the case of Shakuntla Devi and Kamla & Ors., 2005(2) JCLR 780 (SC) : 2005(59) ALR 599.

It has further been urged that the application filed under Order VI Order 16 read with Section 151 C.P.C. to struck off pleadings of paragraph 7 of the plaint, has wrongly been rejected inasmuch as the plaintiff failed to disclose the details of illegal construction which resulted in disfiguring the building.

I have considered the argument advanced by the learned counsel for the petitioner and perused the record.

In the case law of Shakuntla Devi (supra), the Hon''ble Apex Court has held that earlier judgment which is sought to be made a basis of pleading res judicata if delivered by a Court without jurisdiction or is contrary to existing law at the time the issue comes up for reconsideration such earlier judgment cannot be held to be res judicata in the subsequent case unless the same is protected by any enactment.

Based on the aforesaid law laid down by the Hon''ble Apex Court, the learned counsel for the petitioner has tried to assail the finding recorded by Courts below that earlier revisional judgment dated 3132005 would not operate as res judicata inasmuch as the scope of revision was only confined to adjudication on the application filed by the tenantpetitioner claiming benefit of Section 20(4) of the Act and had no relation to the plea of Order VII, Rule 11 C.P.C.

Though entire record such as ground of revision has not been brought on record of the writ petition but from a perusal of the impugned judgment dated 20102004 as well as judgment dated 31 32005, it becomes clear that rejection of the plaint under Order VII Rule 11 C.P.C. for nondisclosure of cause of action was raised and vehemently pressed by the petitioner before the Judge, Small Causes Court as well as Revisional Court in revision No. 965 of 2004. Reference in this connection may be made to the argument of tenantpetitioner noted in the judgment that respondentlandlord has failed to disclose the details of illegal construction in paragraph 7 of the plaint and the power to reject the plaint conferred under Order VII, Rule 11 C.P.C. can be exercised at any stage and there was no necessity to take any evidence. From the aforesaid facts, it is clear that tenant petitioner himself raised the plea of Order VII, Rule 11 C.P.C. before the Judge Small Causes Court as well as revisional Court and invited a decision on the said issue. Once having raised the issue which led the Court to adjudicate the same it does not lie in the mouth of the petitioner to say that the issue was not involved and any finding recorded thereon by the Court below is without jurisdiction and will not operate as res judicata.

The principles of res judicata applies between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party it cannot be allowed to be reagitated by him at a subsequent stage in the same suit or proceeding as held by the Hon''ble Apex Court in the case of Hope Plantations Ltd. v. Taluk Land Board, Peermade, 1999 (5) SCC 590. The same view was again taken by the Hon''ble Apex Court in the case of C. V. Rajendran & Anr. v. N.M. Muhammed Kunhi, AIR 2003 SC 649.

I view of the aforesaid law laid down by the Hon''ble Apex Court, the tenantpetitioner who invited findings on the issue himself, cannot be allowed to agitate that said findings being without jurisdiction will not operate as res judicata. Since, the earlier judgment delivered inter se between the parties in the proceedings cannot be said to be without jurisdiction or contrary to the existing law at the time when the same issue has come up for reconsideration, it will operate as res judicata between the parties and the case law of Shakuntla Devi (supra) is of no help to him.

In view of the above, the application No. 249(Ga) filed under Order VII, Rule 11 C.P.C. has rightly been dismissed as barred by principles of res judicata.

Now coming to the question whether pleadings contained in paragraph 7 of the plaint were liable to be struck of under Order VI, Rule 16 C.P.C. since they were vague and lacked details of the alleged illegal construction which resulted in disfigurement of the building. Order VI, Rule 16 C.P.C. reads as under;

Striking out pleadings. The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading.

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise and abuse of the process of the Court.

This rule empowers the Court, either suo motto or on an application of a party, to strike out or compel the amendment of the whole or any part of the pleading in case the same falls within the parameters laid down by subrule (a) (b) and (c). Para 7 of the plaint, which was sought to be struck out by the tenant petitioner, reads as under;

�that the defendant without the knowledge, permission or consent of the plaintifflandlord carried out illegal constructions which has disfigured the house. The defendant thus has made himself liable for ejectment on that ground also.�

Under Section 20(2) of the U.P. Act No. XIII of 1972, one of the grounds for ejectment of a tenant is construction or structural alteration in the building by the tenant without permission in writing by the landlord, which is likely to diminish its value or utility or to disfigure it. The plaintiff landlord based his claim seeking ejectment of the tenant on the aforesaid ground as well.

By no stretch of imagination the averments made in paragraph 7 of the plaint can be said to fall within the ambit of any of the three subrules of Rule 16 inasmuch as they can neither be termed as unnecessary, scandalous, frivolous or vexatious nor can they be said to prejudice, embarrass or delay the fair trial. These averments also cannot be said to be an abuse of the process of the Court.

Mere vagueness in the statements or absence of statements of material facts in the pleadings cannot justify striking out the pleadings under this Rule, as held by this Court in the case of Amrish v. Mahabir Singh Rana & Ors., 1987 ALJ 1137.

In view of the above, para 7 of the plaint was not liable to be struck out and the application filed by the petitioner under Order VI, Rule 16 C.P.C. has rightly been rejected.

From the foregoing discussions, it becomes clear that writ petition Is devoid of merits and is hereby dismissed in limine.