Urmila Singh and Others vs Reba Mitra

V.N. Sinha, J.—Heard Sri Shashi Shekhar Dwivedi in support of the revision application and Sri Naresh Prasad on behalf of the opposite party. This civil revision application is directed against the order dated 16.4.01 passed by the Subordinate Judge XII, Patna in Title suit no. 4/68 (A.K. Mitra and another vs P.D. Sinha and others) whereby the court below has rejected the petition of the defendants filed under Order XIV rule 2 read with section 151 CPC. in the said petition, defendant no.1 prayed that subsequent Title suit no. 19/68 is barred under Order 2 rule 2 CPC as the subject matter of the two suits is constituted of the same facts. Defendants in order to establish the said plea relied on the averments made in the plaint of the two suits which is contained in annexures 1 and 2 of this civil revision application. Perusal of the plaint of the Title suit no. 4/ 68 indicates that the same has been filed alleging the suit premises was let out to the defendant no.1. There was arrears of rent for which letters were being exchanged between the parties. In one of the letter tenant refuted the title of the landlord to the property and proclaimed himself the owner. This led plaintiffs to request the Patna Electric Supply Company to disconnect electric connection in the premises and on 28.12.67 connection was snapped. The defendant no.1 thereafter independently took steps for restoration of the connection with the Patna Electric Supply Company defendant no. 2 and before electric supply could be restored. Plaintiffs filed Title suit no. 4/68 on 12.1.68 to injunct Electric Supply Company from providing connection to the landlord. The other suit i.e. Title suit no. 19/68 against defendants was filed on 2.2.68 on similar facts with different relief of eviction and recovery of rent.

The court below as stated above under the impugned order has rejected the petition to unsuit the plaintiffs from prosecuting subsequent suit i.e. T.S. 19/68 on the ground that two suits are based on different cause of action and second suit is not barred under the provision of Order 2 rule 2 CPC which provides for seeking complete relief.

During the course of argument, learned counsel for the petitioners has taken me to the various paragraphs of both the plaints as contained in Annexures 1 and 2. Perusal of plaint of Title suit no. 4/68 (annexure 1) indicates that there was arrears of rent for the period February, 1967 to December, 1967 amounting to Rs. 2750/- for which requests were being made for payment including request in writing and when the petitioner-tenants challenged the authority of the landlord, his electric connection was snapped at the request of the landlord by the Patna Electric Supply Company. Earlier Title suit no. 4/68 was filed only to restrain the Patna Electric Supply Company from providing electric connection to the tenants. Counsel for the petitioners, however, submitted that earlier suit no. 4/68 was filed on the same bundle of facts which constituted the basis of subsequent title suit no. 19/68 filed for eviction of the tenant. According to him in the earlier suit itself, prayer for eviction was required to be made. The plaintiff-landlord having failed to have prayed for eviction in the earlier suit, the second suit T.S. no. 19/68 praying inter alia for eviction is barred under order 2 rule 2 CPC. In this connection learned counsel has relied on AIR 1949 Privy Council 78 para 61 (Mohammad Khalil Khan and others vs. Mahbub Ali Mian and others), 1951 Patna 190 (Jai Narain vs Syed Ali Muttaza) and State of Maharashtra and another Vs. M/s. National Construction Company, Bombay and another, . I have perused the aforesaid three case law. To me it appears that the courts have consistently held that second suit between the same parties on same facts for different relief should not be allowed to proceed. In the instant case, however, the case relied on by the counsel for the petitioners has no application, as the two suits are based on somewhat different facts and seek completely different relief. The first suit when filed the cause of action for eviction of the defendants had not matured as on the date of the filing of the first suit i.e. 12.1.68, 30 days, notice required under 106 of the T.P. Act served on the tenant on 24.12.67 and another notice dated 11.11.68 was pending the cause of action for filing the suit for eviction of the tenant on the eve of the filing of the first suit having not been available the landlord could not have included the relief for eviction in the first suit which was filed to restrain the defendant no. 2 from providing electric connection to defendant no. 1. In this connection, learned counsel for the opposite party landlord has invited my attention to the averments made in para 5 of the plaint of T.S. no. 4/68 which clearly states that the cause of action for eviction shall be available on 31.1.68. Learned counsel further invited my attention to the judgment of the Hon''ble Supreme Court reported in Deva Ram and Another Vs. Ishwar Chand and Another, as also to State of Maharashtra and another Vs. M/s. National Construction Company, Bombay and another, . He has further distinguished the case of Jai Narayan (supra) inasmuch as he pointed out that in the case of Jai Narayan (supra) cause of action of both the suits were available on the date of filing of the first suit itself and as such in that case, it was rightly held by the Hon''ble Court that second suit is barred by the provision of Order 2 rule 2 CPC. In view of the discussion above, there is no merit in the Civil Revision application which is dismissed. The court below is directed to dispose of the pending suits as early as possible. No cost.