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Shakir HussaIn Vs. Siraj Beg - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 91 of 1972
Judge
Reported inAIR1974All193
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(1)
AppellantShakir Hussain
RespondentSiraj Beg
Appellant AdvocateS. Rahman, Adv.
Respondent AdvocateK.L. Gurnani, Adv.
DispositionAppeal allowed
Excerpt:
property - second suit for ejectment - section 3 (1) (a) of u.p.(temporary) control of rent and eviction act, 1947 - previous suit for ejectment filed by land lord - dismissed in second appeal - second suit for ejectment - on the same cause of action - not maintainable. - - it is contended that after the previous suit was dismissed the defendant was restored to his previous position as a tenant and the attempt of the plaintiff to terminate that relationship by means of a notice dated 24-8-1964 under section 106 of the transfer of property act remained unsuccessful. after that the plaintiff should have given a fresh notice to terminate that tenancy and thereby give a fresh cause of action to the plaintiff to file his second suit in my opinion this contention of the learned counsel is..........would not and could not give him a fresh cause of action for the second suit after the previous suit filed on the basis of that notice had been dismissed. it is not possible to accept the contention of the learned counsel for the plaintiff-respondent that since the relationship of landlord and tenant had been put an end to by means of a notice, dated 24-8-1964, the same cannot be restored even after the previous suit was dismissed by this court on 6-3-1970. after the dismissal of that suit the defendant was very much a tenant of this house in spite of the unsuccessful attempt made by the plaintiff to put an end to this relationship of landlord and tenant by means of his notice dated 24-8-1964. a fresh notice under section 106 of the transfer of property act was clearly required before.....
Judgment:
ORDER

Jagmohan Lal, J.

1. This second appeal has been filed by a tenant against whom a decree for ejectment has been passed by the lower appellate Court though the same was refused by the trial Court. The brief facts of the case so far as relevant for the decision of this second appeal were that the appellant was occupying a house as tenant of the plaintiff-respondent at a rent of Rs. 18/- per month. The house was governed by the provisions of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (to be hereinafter called as the Act). The plaintiff gave a notice dated 24-8-1964 to the defendant which was served on him on 9-9-1964. It was a composite notice under Section 3 (1) (a) of the Act making a demand for arrears of rent and under Section 106 of the Transfer of Property Act terminating his tenancy on the expiry of the requisite period. The defendant-appellant did not comply with that notice. The plaintiff therefore filed a suit for ejectment and recovery of arrears of rent asainst him in the year 1965. That suit was decreed by the trial Court on 13-8-1965. An appeal filed against that decree by the defendant was dismissed on 8-12-1965. Thereafter the defendant filed a second appeal in this Court. The main ground taken by the defendant in that appeal was that more than three months' rent was not due by him when the notice dated 24-8-1964 was served on him and so he did not commit a default within the meaning of Section 3 (1) (a) of the Act. As such he was not liable to ejectment so long as that Act continued in force. This plea of the defendant was accepted by this Court and his appeal was allowed on 6-3-1970. The plaintiff's suit was dismissed in so far as it related to ejectment. In the meantime, the plaintiff was successful in obtaining possession over the premises in execution of the decree on 15-12-1965. After his appeal was allowed the defendant applied for restoration of possession to him under Section 144 of the Code of Civil Procedure. While his application was pending the plaintiff filed a fresh suit against the defendant on 1-5-1970, seeking ejectment of the defendant and also praying for an injunction restraining the defendant from getting restitution of the possession which the plaintiff thought the defendant would get under Section 144 of the Code of Civil Procedure as a result of the decision of this Court in second appeal. In this suit the bar of the Act was sought to be got over on the ground that the State Government in a revision filed under Section 7-F of the Act had granted permission to the landlord under its order dated 16-8-1965 to file a suit for ejectment against the tenant. But no fresh notice under Section 106 of the Transfer of Property Act was given to the defendant terminating his tenancy which was sought to have been terminated under the previous notice dated 24-8-1964. This suit was contested by the defendant on the ground that he was not liable to ejectment and that he was legally entitled to restitution of his possession under. Section 144 of the Code of Civil Procedure after his second appeal had been allowed by this Court on 6-3-1970, and that the plaintiff could not restrain him from seeking his legal remedy by praying for an injunction in that suit.

2. That suit was dismissed by the trial Court on 28-1-1971 mainly on the ground that the plaintiff himself was in possession upto that time and so the relief for ejectment was redundant and could not be allowed. The plaintiff filed an appeal against that decision on 19-7-1971. While the appeal was pending the defendant was successful in getting back the possession over the house on 23-7-1971 in proceedings under Section 144 of the Code of Civil procedure. After that the plaintiff with the permission of the Court amended his plaint so as to claim simply relief of ejectment on the ground that the tenancy had been terminated under Section 106 of the Transfer of Property Act by means of the notice dated 24-8-1964 and the bar of the Act had been removed by the permission granted by the State Government under Section 7-F on 16-8-1965. The lower appellate Court allowed the appeal and decreed the plaintiff's suit for possession after the ejectment of the defendant. Feeling aggrieved by that decree the defendant filed this second appeal.

3. I heard the learned counsel for the parties. The only point that was pressed by the learned counsel for the appellant was that the notice dated 24-8-1964 under Section 106 of the Transfer of Property Act had exhausted itself when the plaintiff filed his previous suit on its basis which was ultimately dismissed on 6-3-1970 by this Court. After that the second suit for ejectment, which was the ultimate relief claimed by the plaintiff after repeatedly amending his plaint, could not be filed on the basis of the same notice. It is contended that after the previous suit was dismissed the defendant was restored to his previous position as a tenant and the attempt of the plaintiff to terminate that relationship by means of a notice dated 24-8-1964 under Section 106 of the Transfer of Property Act remained unsuccessful. After that the plaintiff should have given a fresh notice to terminate that tenancy and thereby give a fresh cause of action to the plaintiff to file his second suit In my opinion this contention of the learned counsel is well founded. When the plaintiff's previous suit for ejectment was ultimately dismissed by this Court in second appeal on 6-3-1970 he could not file another suit on the same cause of action. 'Cause of action' consists of a bundle of facts which are essential to be established to maintain a suit in a Court In a suit of the present nature these facts are mainly that the bar imposed by Section 3 of the Act for filing a suit for ejectment by a landlord has been removed either by stating one or more of the grounds mentioned in various clauses of Sub-section (1) of Section 3 or a permission has been obtained to file the suit from the District Magistrate for from a higher authority in revision). The other material fact constituting a cause of action is that the tenancy has been terminated by a notice served under Section 106 of the Transfer of Property Act,

4. The previous suit for ejectment was filed by the plaintiff on the ground that the defendant was in arrears of rent for more than three months which he failed to pay in spite of notice served on him under Section 3 (1) (a) of the Act and that his tenancy had been terminated by a valid notice sent to him under Section 106 of the Transfer of Property Act on 24-8-1964. That suit being ultimately dismissed by this Court. no fresh suit could be filed on the basis of the same cause of action. Of course, a fresh suit could be filed for ejectment on a fresh cause of action. In this case, for removing the bar created by Section 3 of the Act the landlord was no doubt armed with the permission of the State Government granted under Section 7-F in connection with a revision filed, by him against the order of the District Magistrate refusing that permission. But the tenancy was not freshly terminated under Section 106 of the Transfer of Property Act so as to give him a new cause of action to file the second suit. Obviously the previous notice would not and could not give him a fresh cause of action for the second suit after the previous suit filed on the basis of that notice had been dismissed. It is not possible to accept the contention of the learned counsel for the plaintiff-respondent that since the relationship of landlord and tenant had been put an end to by means of a notice, dated 24-8-1964, the same cannot be restored even after the previous suit was dismissed by this Court on 6-3-1970. After the dismissal of that suit the defendant was very much a tenant of this house in spite of the unsuccessful attempt made by the plaintiff to put an end to this relationship of landlord and tenant by means of his notice dated 24-8-1964. A fresh notice under Section 106 of the Transfer of Property Act was clearly required before the second suit for ejectment could succeed. That was not admittedly served on the defendant. Hence the present suit was also liable to fail.

5. The mere fact that the plaintiff himself was in possession of the premises when he filed the suit is wholly irrelevant for the decision of this controversy. The plaintiff had entered in possession under a defeasible title when he sot delivery of possession in execution of his decree on 15-12-1965 while the second appeal of the defendant was pending in this Court. After that appeal had been allowed the defendant was entitled to restitution of possession under Section 144 of the Code of Civil Procedure and that possession was actually restored to him On 23-7-1971. After that the suit of the plaintiff as it stood sought only a decree for ejectment against him and he was not entitled to that decree without giving a fresh notice under Section 106 of the Transfer of Property Act.

6. The appeal Is allowed with costs to the defendant-appellant throughout The stay order dated 24-2-1972 is discharged.


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