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Jai Kishan Balkishan and anr. Vs. M.B. Kagal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 56 of 1970
Judge
Reported in8(1972)DLT422
ActsDelhi Rent Control Act, 1958 - Sections 14; Code of Civil Procedure (CPC), 1908 - Order 2, Rule 2
AppellantJai Kishan Balkishan and anr.
RespondentM.B. Kagal and anr.
Advocates: R.M. Lal,; Kailash Narain and; R.K. Makhija, Advs
Excerpt:
tenancy - eviction - order 2 rule 2 of code of civil procedure, 1908 - second petition by landlady for eviction on ground of subletting - already first petition filed on bona fide requirement - whether landlady entitled to bring two ejectment petitions against tenant - landlady knew existence of ground of subletting on date of filing first petition - landlady deliberately or negligently omitted to include this cause of action in first ejectment petition - not precluded from bringing second petition by operation of order 2 rule 2. - .....filing of the petition for eviction. but explanationn iv to section 11 is stricter than order 2, rule 2(i)civil procedure code. according to explanationn iv to section 11 'any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. the principles underlying the provisions of the civil proceedings under the act in view of rule 23 of the rules made there under and section 37(2) thereof 'thus, it clear that section 11 is quite different from order 2, rule 2 of the code. as i have said if the first of these two petitions had come to and end, then the second petition would have been barred by constructive res-judicata. as it happens the second petition has been.....
Judgment:
ORDER

2, Rule 2(1) Civil Procedure Code only requires that the plaintiff shall include the whole of the claim which be is entitled to make in respect of the cause of action in every suit. It does not, thereforee, seem to require that the landlord must plead in the same eviction petition all the grounds available to him under the various provisions to section 14(1) on the date of the filing of the petition for eviction. But Explanationn Iv to section 11 is stricter than Order 2, rule 2(i)Civil Procedure Code. According to Explanationn Iv to section 11 'any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The principles underlying the provisions of the Civil Proceedings under the Act in view of rule 23 of the Rules made there under and section 37(2) thereof '

Thus, it clear that section 11 is quite different from Order 2, Rule 2 of the Code. As I have said if the first of these two petitions had come to and end, then the second petition would have been barred by constructive res-judicata. As it happens the second petition has been moved only a few days after the first petition and thereforee, section 11 of the Code does not apply. The second petition is also not barred by Order 2, Rule 2 of the Code. Under the circumstances, I hold that even if the landlady knew of the existence of the ground of sub-letting on 17th February, 1968, and deliberately or negligently omitted to include this cause of action in the first ejectment petition, she is not precluded from bringing a second petition by operation of Order 2. Rule 2 of the Code.

(10) I thus confirm the decision of the Rent Control Tribunal and hold that the second petition is not barred and can be proceeded with this appeal is, thereforee, dismissed. I however, leave the parties to bear their own costs.


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